204
I•CON
13 (2015), 200–218
only prior to the promulgation of laws by the president, in a French-style
ex ante
fashion.
12
To a student of comparative judicial review, as well as to those with a basic knowl-
edge of the US-centered constitutional theory,
Table 1
should confirm the fact of judi-
ciaries’ political empowerment. Besides the function of abstract judicial review, which
is the key feature of constitutional
courts of continental type, post-Soviet courts pos-
sess functions that are not only “marginal” in light of the main designation of such
courts, but that are fundamentally political in many respects.
13
For example, constitu-
tional courts in Azerbaijan, Georgia, Russia, and Tajikistan can review jurisdictional
disputes between the branches of the government, thus involving courts in politi-
cal conflicts. Impeachments are part of the responsibilities of constitutional courts
in Armenia, Azerbaijan, Georgia, Kazakhstan,
Kyrgyzstan, Moldova, Russia, and
Ukraine. Constitutional courts in Armenia, Georgia, and Moldova can decide on con-
stitutionality of political parties. Electoral disputes and disputes on the results of refer-
enda are part of the responsibilities of constitutional courts in Armenia (presidential
and parliamentary elections and referenda), Azerbaijan (presidential and parliamen-
tary elections), Georgia (elections and referenda), Kazakhstan (presidential and par-
liamentary elections and referenda), Kyrgyzstan (presidential elections), and Moldova
(presidential and parliamentary elections and referenda); in all other countries of the
region, major electoral disputes are adjudicated by general high courts.
If formal empowerment is taken as an indicator of judicialization, to some, these
functions would make the respective jurisdictions home to judicialization by default.
14
Moreover, some of the typical functions of post-Soviet courts
would probably qualify
in the US as political by definition, according to the existing judge-made doctrine.
15
Finally, judicialization of politics can be said to be institutionally prescribed in these
jurisdictions simply due to the fact that these constitutional systems lack any reason-
able notion of judicial restraint, not to mention a US-style political questions doctrine.
By way of example, the Russian Constitutional Court could not, under any condi-
tion, excuse itself from reviewing the constitutionality of the military operation in
Chechnya, given that a valid request had been filed. Similarly,
the Constitutional Court
of Ukraine had no valid ground to abstain from making a decision on the dissolution
of the Parliament by the President in 2006, and therefore its conscious abstention
from making a decision in that critical political moment plainly constituted a breach
of its legal obligation and seriously damaged its reputation.
16
12
Table 1
presents the institutional settings of the Kyrgyz Constitutional Court as until 2010. In 2010 the
Court was abolished by the interim government. Although the function of constitutional review was
reintroduced in a separate chamber of the Supreme Court, the new institutional design of judicial review
is by now under construction.
13
w
oJcIech
S
aduRSkI
, R
IGhtS
b
efoRe
c
ouRtS
: a S
tudy
of
c
onStItutIonal
c
ouRtS
In
P
oStcoMMunISt
S
tateS
of
c
entRal
and
e
aSteRn
e
uRoPe
13 (2005).
14
J
eSSe
h. c
hoPeR
, J
udIcIal
R
evIew
and
the
n
atIonal
P
olItIcal
P
RoceSS
: a f
unctIonal
R
econSIdeRatIon
of
the
R
ole
of
the
S
uPReMe
c
ouRt
(1980); Hirschl,
supra
note 1.
15
Nixon v. United States 506 U.S. 224 (1993) and Baker v. Carr 369 U.S. 186 (1962).
16
See
Armen Mazmanyan,
Should Constitutional Courts Adjudicate Political Disputes? The Perspectives of
Democratization in Soviet Successor States
, 34(1)
R
ev
. c
entRal
& e. e
uR
. l.
71 (2009).
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