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Constitutional Review in Transition: Central Asian Constitutional Courts in Comparative Perspective

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Constitutional Review in Transition: Central Asian Constitutional Courts in Comparative Perspective Constitutional Review in Transition: Central Asian Constitutional Courts in Comparative Perspective By: Saniia Toktogazieva Supervisor: Professor Renata Uitz Submitted to Central European University Department of Legal Studies In partial fulfilment of the requirements for the degree of Doctor of Juridical Science CEU eTD Collection Budapest, 2019 The dissertation contains no materials accepted by any other institution for any other degree and no materials previously written and/or published by another person unless otherwise acknowledged. s/Saniia Toktogazieva CEU eTD Collection 2 Table of Contents: ACKNOWLEDGEMENTS .............................................................................................. 6 ABSTRACT ....................................................................................................................... 7 INTRODUCTION ............................................................................................................. 8 CHAPTER 1: THE ORIGIN AND INSTITUTIONAL DESIGN OF CONSTITUTIONAL REVIEW MECHANISMS IN CENTRAL ASIA. .................. 17 1. THE EMERGENCE OF CONSTITUTIONAL COURTS IN THE CONTEXT OF FORMER SOVIET UNION ................................................................................................................ 17 2. REVISITING EXISTING THEORIES ON THE ORIGINS OF CONSTITUTIONAL COURTS .. 26 2.1. The Insurance Theory Revisited ....................................................................... 27 2.2. Insurance Theory in the Context of the Global Discourse on Judicial Review 33 3. POLITICO-HISTORICAL CONTEXT AS THE SHAPING FACTOR OF THE SUBSEQUENT POLITICO-LEGAL LANDSCAPE OF POST-SOVIET CENTRAL ASIA ................................... 35 3.1. Historical Context ............................................................................................. 35 3.2. Transitional Context ......................................................................................... 37 4. TOWARDS SUPER-PRESIDENTIALISM: THE INITIAL PHASE OF THE WAVE OF PARLIAMENTARY FORCED-DISSOLUTIONS. .................................................................... 40 5. THE WAVE OF FORCED DISSOLUTION OF PARLIAMENTS AS A ROOT CAUSE OF TAMED CENTRAL ASIAN CONSTITUTIONAL COURTS ..................................................... 43 5.1. Forced Parliamentary Dissolution in Kazakhstan ........................................... 47 5.2. Forced Parliamentary Dissolution in Kyrgyzstan ............................................ 52 5.3. Uzbekistan and Tajikistan: Reasons Behind the Avoidance of the Wave of Forced Parliamentary Dissolutions ........................................................................... 55 6. POLITICAL ECONOMY AND FOREIGN POLICY AS THE DEFINING FACTOR OF THE EMERGENCE OF CENTRAL ASIAN CONSTITUTIONAL COURTS ........................................ 56 6.1. Foreign Policy at the Early Transitional Period ............................................. 56 6.2. Current Foreing Policy/ Geopolitics ................................................................ 58 6.3. Political economy ............................................................................................. 64 7. INSTITUTIONAL DESIGN OF CENTRAL ASIAN CONSTITUTIONAL REVIEW MECHANISMS .................................................................................................................. 70 8. CONCLUSION ............................................................................................................ 77 CHAPTER 2 DYNAMICS OF CONSTITUTIONAL REVIEW OF MEGA POLITICS AND POLITICALLY SENSITIVE ISSUES: COMPARATIVE PARALLEL OF CENTRAL ASIA AND EAST ASIA. ............................................... 79 1. PART I MEGA POLITICS PROPERLY: GENUINE CONSTITUTIONAL CONFLICTS ......... 80 CEU eTD Collection 1.1. Regime Legitimacy: Kyrgyz Constitutional Chamber and Decrees of the Interim Government .................................................................................................... 80 1.2. Regime Continuity and the Judicial Yuan of Taiwan ....................................... 88 1.3. Cases involving the Criminal Responsibility of Former Presidents: South Korean Constitutional Court .................................................................................... 100 3 1.4. Cases Involving the immunity of Former Presidents: Kyrgyz Constitutional Chamber .................................................................................................................... 114 2. PART II PSEUDO MEGA POLITICS: FAÇADE CONSTITUTIONAL LITIGATION AS WINDOW DRESSING ...................................................................................................... 131 2.1. Constitutional Council of Kazakhstan: Instrumentalization by President to Prepare the Transition of Power .............................................................................. 131 2.2. Façade Constitutional Court of Tajikistan ..................................................... 151 2.3. Façade Constitutional Court of Uzbekistan ................................................... 161 3. ANALYSIS OF APPROACHES ................................................................................... 165 CHAPTER 3 POWERS AND CONFRONTATIONS: CENTRAL ASIAN AND EAST ASIAN CONSTITUTIONAL COURTS’ APPROACHES IN CASES INVOLVING INSTITUTIONAL CONFLICTS/ORDINARY POLITICS ............. 168 1. AGGRESSIVE APPROACH: MONGOLIAN CONSTITUTIONAL COURT ........................ 169 1.1. The Constitutional Court Ruling on the State Great Hural Members Serving in the Cabinet ................................................................................................................ 171 1.2. The Ruling on Amended Law on Legal Status of the Parliament ................... 177 1.3. The Case Involving the Bill on Constitutional Amendments .......................... 179 2. FACILITATIVE APPROACH: SOUTH KOREAN CONSTITUTIONAL COURT ................. 181 2.1. The Case about the Impeachment of President Roh Moo-hyun (2004) ......... 181 2.2. The Case about the Impeachment of President Park (2017) .......................... 189 3. FACILITATIVE APPROACH: CONSTITUTIONAL COURT OF TAIWAN ........................ 194 3.1. Presidential Immunity case in Taiwan ........................................................... 194 4. TAMED APPROACH: CONSTITUTIONAL COURTS OF CENTRAL ASIA UNDER THE STRONG PRESIDENTIALISM............................................................................................ 198 5. THE TAMED CONSTITUTIONAL COURT OF KAZAKHSTAN ..................................... 199 5.1. 1995 Decision of the Kazakh Constitutional Court ........................................ 199 6. TAMED CONSTITUTIONAL COURT OF KYRGYZSTAN ............................................. 205 6.1. Kyrgyz Constitutional Court under the President Akayev ............................. 206 6.2. Kyrgyz Constitutional Court under President Bakiev .................................... 218 6.2.1. 2007 Decision on Annulling the Existing Constitution ............................... 223 6.2.2. 2010 Constitutional Amendments Case ...................................................... 227 7. COMING OUT FROM THE SHADOW OF TAMED APPROACH? THE CONSTITUTIONAL CHAMBER OF KYRGYZSTAN POST 2010 TULIP REVOLUTION ....................................... 231 7.1. The Initial Phase of the work of the Chamber ................................................ 231 7.2. December 2016 Constitutional Amendments Case ........................................ 235 8. CONCLUSION .......................................................................................................... 239 CEU eTD Collection CHAPTER 4 PREMISES THROUGH CONSTITUTIONAL RIGHTS ADJUDICATION: COMPARATIVE PARALLEL BETWEEN CENTRAL ASIAN AND EAST ASIAN CONSTITUTIONAL COURTS ................................................ 241 1. CONSTITUTIONAL RIGHTS ADJUDICATION OF POLITICALLY SENSTIVE CASES INVOLVING THE INTERACTION WITH POLITICAL BRANCHES ........................................ 243 1.1. Shifting Approach of South Korean Constitutional Court ............................. 243 4 1.2. Same Sex Marriage Case and the Constitutional Court of Taiwan ............... 254 1.3. Kyrgyz Constitutional Chamber and the Biometric Registration Case ......... 265 2. RIGHTS ADJUDICATION IN CENTRAL ASIA IN THE CONTEXT OF EXTERNAL POWER DYNAMICS: THE SHIFTING TREND FROM MONISM TO DUALISM ................................. 276 2.1. The Experience of the Kyrgyz Constitutional Chamber ................................. 278 2.2. 2016 Constitutional Amendment Case: Lowering the Status of International Human Rights Treaties ............................................................................................. 283 2.3. The Experience of Kazakhstan: 2017 Constitutional Amendment Case ........ 288 2.4. The Experience of Tajikistan: 2016 Constitutional Amendment Case ........... 292 3. CONCLUSION .......................................................................................................... 293 CHAPTER 5 PATTERNS OF LEARNING: LESSONS FROM CONSTITUTIONAL COURTS OF CENTRAL ASIA WITH COMPARATIVE ELEMENTS FROM TAIWAN AND SOUTH KOREA AS AN ADDED VALUE TO EXISTING GLOBAL DISCOURSE ON JUDICIAL REVIEW .............................. 295 1. THE ROLE AND SUCCESS OF CONSTITUTIONAL COURTS AS AGENTS OF CONSTITUTIONAL TRANSFORMATION IN CENTRAL ASIA ............................................. 295 1.1. Patterns in Cases on Mega Politics ................................................................ 296 1.2. Patterns in Cases on Institutional Conflicts
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