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Failing constitutionalism: From political legalism to defective empowerment

Published online by Cambridge University Press:  06 June 2012

ARMEN MAZMANYAN
ARMEN MAZMANYAN*
Affiliation:
American University of Armenia, Baghramian Ave., Yerevan, 0017, Armenia
*
*Email: armen.mazmanyan@aua.am
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Abstract

The recent wave of popular uprisings in the Middle East and Northern Africa has sparked a renewed attention to democratization across the world. One of many intriguing questions in this context is whether this trend will be spread globally and will flash another wave of democratization among some regions and countries where democratic euphoria has faded away. Another intriguing question is whether this new wave, in the Middle East or elsewhere, will take a constitutional path or will evolve through undemocratic and unconstitutional channels. In this light, it looks perfectly timely to discuss the lessons from and the modern prospects of building constitutional democracies in post-Soviet countries.

This article offers perspectives on challenges facing post-Soviet higher courts in the effort to promote constitutional democracy in their countries. While it argues that there are many such challenges and that their roots are mostly deep in the political culture, selected and discussed are some specific instances which starkly expose the patterns of constitutional perversion and the most relevant limitations facing post-Soviet courts in our days. The solutions to these are seen in the incremental process of institutional learning hence the article suggests some designer strategies which may help moving along this process.

The first section outlines what appears to be a peculiar vision of constitutionalism as embedded in respective societies and assesses this entrenched concept against accepted accounts of Western constitutionalism. The second section discusses some specific challenges to development of constitutionalism in post-Soviet countries, concentrating on inherited mindset and legal culture, as well as corrupt political technologies and flaws in the design of constitutional courts. The third section discusses two illustrative cases before higher tribunals to demonstrate what courts face in the courtroom when confronting the described challenges.

Keywords

constitutionalismdemocratizationconstitutional courtspost-Soviet countriesconstitutional design
Type
Research Article
Information
Global Constitutionalism , Volume 1 , Issue 2 , July 2012 , pp. 313 - 333
Copyright
Copyright © Cambridge University Press 2012

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References

1 For the purposes of this paper, the ‘post-Soviet area’ includes all former republics of the Soviet Union except Estonia, Latvia and Lithuania.

2 Walker, Neil, ‘European Constitutionalism and European Integration’ (1996) 40 Public Law, 266–90Google Scholar; Preuss, Ulrich K., ‘The Political Meaning of Constitutionalism’ in Bellamy, Richard (ed), Constitutionalism, Democracy and Sovereignty: American and European Perspectives (Avebury, Aldershot, 1996) 11–12Google Scholar; Raz, Joseph, Between Authority and Interpretation (Oxford University Press, Oxford, 2009) 323–414.CrossRefGoogle Scholar

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5 Sartori (see n 4).

6 Rosenfeld (see n 4).

7 Sakwa, Richard, ‘Constitutionalism and Accountability in Contemporary Russia: The Problem of Displaced Sovereignty’, in Smith, Gordon and Sharlet, Robert (eds) Russia and its Constitution: Promise and Political Reality (Martinus Nijhoff, Leiden, 2007) ch. 1.Google Scholar

8 Russia’s ‘First Court’, effective in 1991–1993, was famously known as such. As one judge on this court remarked, the First Russian Court was assigned all possible responsibilities from every existing model in a way that ‘the law overbuilt the institution’ and that the court ‘could not bear the weight of its own construction’, quoted in Schwartz, Herman, The Struggle for Constitutional Justice in Post-Communist Europe (University of Chicago Press, Chicago, 2000) 116.Google Scholar

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10 Schwartz (see n 8) 226.

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13 Richard Sakwa (see n 7) 7.

14 Giovanni Sartori (see n 4) 866.

15 See (n 4) 860.

16 See (n 4) 855.

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18 Id.

19 This particular paradigm is well illustrated by the case of Mikhail Kasyanov, to be discussed later in this paper.

20 A v B is a hypothetical case which largely relies on patterns of political manipulations observed during the campaign of 2007 parliamentary and 2008 presidential elections in Armenia. However, these patterns are common to other post-Soviet countries and have been observed, in similar, often identical forms in such countries as Azerbaijan, Kazakhstan, and Russia.

21 See (n 4) 861.

22 Id.

23 With the exception of the most autocratic regimes (in Turkmenistan, Uzbekistan and partly in Azerbaijan but also in other countries at different times) where the political trials are still common and there are regular reports about political prisoners by international human rights organizations. The statement above, however, needs to be taken with reasonable reservations: to say that most of the governments avoid political repression and trials does not mean to say that in respective countries no political trials have taken place. For example, the statement is generally true about Russia where not even the leaders of the 1993 Coup were subject to political oppression in the present meaning, but yet one can find cases of what we could call a ‘political trial’ (the case of Mikhail Khodorkovsky is a typical example).

24 Shklar, Judith, Legalism: Law, Morals, and Political Trials (Harvard University Press, Cambridge, MA, 1964) 149.Google Scholar

25 See Wilson, Andrew, Virtual Politics: Faking Democracy in the Post-Soviet World (Yale University Press, New Haven, CT, 2005) chaps 8–9.Google Scholar

26 This happens regularly in every country in the post-Soviet area. For one, the opposition in Armenia was refused to hold any public gatherings for as long as 45 days in the aftermath of the presidential elections in 2008.

27 Independent media was muted in Russia by means of persecuting the owners of the TV stations with biggest national audience after Vladimir Putin became President (see, Michael McFaul, ‘Sovereign Democracy and Shrinking Political Space’ (April–June 2006) 14 Russia Business Watch 2; A1+TV barred before the presidential elections in Armenia in 2003 and Gala TV closed before the presidential elections of 2008; Imedi TV temporarily barred in Georgia right before the presidential elections of 2007.

28 See Kasyanov v CEC discussed 13ff. See also Skuratov v Russia, 21396/04, ECHR (2007).

29 The owners and managers of the Oil Company Yukos were subject to responsibility for ‘tax evasion’ and other criminal charges, and it is believed that these criminal proceedings were initiated for the reasons of the Company’s opposition to the incumbent political elite in Russia; ‘Sil Group’, one of the biggest corporations in Armenia, acquired tax problems immediately after backing the oppositional presidential candidate during the elections in 2008. See also Gusinskiy v Russia, 70276/01, ECHR (2004) where the European Court of Human Rights acknowledged that the prosecution of Vladimir Gusinskiy, one of Russia’s richest men who controlled the most influential media group, was used to intimidate him rather than to bring him before the court for committing a crime.

30 O’Donnell, Guillermo, ‘Delegative Democracy’ (January 1994) 5 Journal of Democracy 1, 55–69.CrossRefGoogle Scholar

31 Levitsky, Steven and Way, Lucan A., ‘The Rise of Competitive Authoritarianism’ (2002) 13 Journal of Democracy.CrossRefGoogle Scholar

32 The authors mentioned Uzbekistan as a country falling under this category (see id. 54) but most likely the other Central Asian countries except Kyrgyzstan, as well as Azerbaijan fall under the same category.

33 Levitsky and Way (see n 31) 161.

34 See Mazmanyan, Armen, ‘Constrained, Pragmatic Pro-democratic: Appraising Constitutional Courts in Post-Soviet Politics’ (2010) 43 Communist and Post-Communist Studies 4, 409–23.CrossRefGoogle Scholar

35 Sadurski, Wojciech, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Springer, Dordrecht, 2005) 13.Google Scholar

36 I will use the term ‘Kelsenian model’ interchangeably with ‘continental model’ to refer to the design of constitutional review which designates a separate constitutional tribunal – a model which was first proposed by Hans Kelsen and which is now applied in the vast majority of European countries and in virtually all post-Communist ones (Estonia being the only exception).

37 The ‘complex of jurisdictions’ can be largely blamed on the so-called ‘wars of courts’ which arose between post-Communist constitutional and general courts as soon as the constitutional courts were created. The conflict reportedly keeps spoiling the relationship between constitutional and general courts in virtually all post-Communist countries. For more on this, see Sadurski (n 35) 21; Herman Schwartz, (n 8) 24; and Di Gregorio, Angela, ‘The Evolution of Constitutional Justice in Russia: Normative Imprecision and the Conflicting Positions of Legal Doctrine and Case-Law in Light of the Constitutional Court Decision of 16 June 1998’ (1998) 24 Review of Central and East European Law 5/6, 388.Google Scholar

38 See the decisions of the Supreme Court of the Russian Federation of 15 February 2008.

39 The infamous Russian word for various requirements to take a written form, such as confirmations, validations, approvals by and for completing administrative procedures, widely associated with the highly bureaucratic system of administration.

40 From an interview published in Novaya Gazeta on February 2, 2008.

41 Such formalism may be said to be in best traditions of the Russian Supreme Court. On 4 December 2003, for example, the Court upheld the decisions of an electoral commission and a lower court rejecting registration as candidate to the State Duma (Parliament) of Yuriy Skuratov, the former Prosecutor General of the country, on the grounds of submission of ‘inaccurate personal information.’ In particular, the Court accepted the reasoning of the electoral commission that the candidate had failed to provide proper information about his employment by not mentioning the fact that he had a second job of a professor at a university in Moscow. See Skuratov v Russia, 21396/04, ECHR (2007).

42 See the decision of the Constitutional Court of the Republic of Armenia dated 11 February 2008.

43 Art. 20/3 of the Electoral Code of the Republic of Armenia.

44 See (n 17) 59.

45 Dworkin’s ideal of the constitution as a theoretical framework embodying moral rights against the state can serve as an excellent conceptual base for this proposition; see Dworkin, Ronald, Taking Rights Seriously (Duckworth, London, 1977), 147.Google Scholar

46 I admit that this critique can be valid only if provided with an outline of a reasonable alternative. While I commit to shortly submit a comprehensive outline of my vision of the reform in a succeeding effort, opening of the discussion on the need to reconstruct post-Soviet constitutional courts shall be this article’s concluding message on the courts’ design. Only one caveat is to be stressed in this regard. My criticism of the Kelsenian model of constitutional adjudication is not aimed at suggesting elimination of constitutional courts in the countries of the region. Rather on the contrary: the idea is in enhancing these courts by placing them on the top of an integrated rather than separated judiciary, and the optimal design for achieving this is likely to be a hybrid between the two classical models of constitutional review.

47 András Sajó (n 4) Introduction.