Department of Law FINDING OPTIMAL DESIGN FOR CONSTITUTIONAL COURTS THE PERSPECTIVE OF DEMOCRATIZATION IN POST-SOVIET COUNTRIES Armen Mazmanyan Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Florence, February 2009 EUROPEAN UNIVERSITY INSTITUTE Department of Law FINDING OPTIMAL DESIGN FOR CONSTITUTIONAL COURTS THE PERSPECTIVE OF DEMOCRATIZATION IN POST-SOVIET COUNTRIES Armen Mazmanyan Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Examining Board: Prof Wojciech Sadurski, (EUI/Supervisor) Prof Rubio Marin, (EUI) Prof András Sajó, ECHR and Central European University Prof Marek Safjan, Warsaw University © 2009, Armen Mazmanyan No part of this thesis may be copied, reproduced or transmitted without prior permission of the author FINDING OPTIMAL DESIGN FOR CONSTITUTIONAL COURTS THE PERSPECTIVE OF DEMOCRATIZATION IN POST-SOVIET COUNTRIES TABLE OF CONTENTS INTRODUCTION _________________________________________________________ 4 CHAPTER 1: DEFINING “OPTIMAL INSTITUTIONAL DESIGN” ______________ 13 A. “Optimal institutional design”: insights from new institutionalism _________ 13 B. The determinants of democratization: lessons for institutional design _______ 20 C. Defining the concept of optimal institutional design for a post-Soviet country__ 29 Conclusion ________________________________________________________ 42 CHAPTER 2: DEMOCRATIC DEVELOPMENT, CONSTITUTIONALISM AND CONSTITUTIONALCOURTS IN POST-SOVIET COUNTRIES: TWO DECADES OF FAILURES OR ACHIEVEMENTS? ________________________________________________________________________ 44 A. Democratization ________________________________________________ 44 B. Constitutionalism and constitutional courts ____________________________ 55 C. Constitutional courts: institutional design ______________________________ 65 Conclusion _________________________________________________________ 70 CHAPTER 3: IN DEFENSE OF POLITICAL EMPOWERMENT: APPRAISING COURTS IN POLITICS OF DEMOCRATIZATION ____________________________ 72 A. Defining political empowerment ____________________________________ 72 B. Appraising courts in post-Soviet politics (of democratization) _____________ 81 C. Should there be political empowerment? ______________________________ 112 Conclusion ________________________________________________________ 118 2 CHAPTER 4: PROJECTING AN OPTIMAL DESIGN OF POLITICAL EMPOWERMENT ________________________________________________________________________ 119 A. Targeting the constitutionalization of politics __________________________ 119 B. Designing constitution of principles _________________________________ 132 C. Coping with the paradox of political empowerment _____________________ 149 Conclusion: Ending up where? The American model revisited? ______________ 155 CHAPTER 5: THE PITFALLS OF THE KELSENIAN MODEL REVISITED _________ 157 A. Why a special tribunal? ____________________________________________ 157 B. Courts: the Achilles Heel of post-Soviet democracies ____________________ 159 C. The Kelsenian model and the consolidation of judiciary ___________________ 167 D. In search of an optimal design of judicial integrity _______________________ 176 Conclusion: Are there still valid justifications for the Kelsenian transplant? _____ 185 CONCLUSIONS _______________________________________________________ 189 Bibliography ________________________________________________________ 196 3 INTRODUCTION The new Millennium closing its first decade, the talk of democratization in what formerly was Soviet Union is still highly relevant. The discourse of the Cold War now luckily outdated, that of democratic development in the majority of the Soviet-successor countries stays in the center of attention: politicians and other policy makers, journalists, consultants, human rights organizations and activists around the world devote plenty of their time and effort discussing, analyzing, advising and criticizing the democratic processes in post-Soviet countries, and academics do not give up on producing hundreds of volumes by doing the same. In its contemporary expression, this rich debate rarely involves constitutional courts that were once paid a somewhat special attention in the context of post-communist transitions. The general approval of the constitutional courts’ role in democratic transition- definitely based on merit- has largely overshadowed the discussion on the ways in which this function could be improved, made even more effective. The discussion on the institutional design of the post-Soviet constitutional courts, in this context, has largely fallen victim of the praise paid to the institution of constitutional review in general, while the political virtues of the larger function of constitutional review have been, by inertia, attributed to the accepted, almost standard institutional form that it took in the post-communist world. In other words, voicing our endorsement of constitutional courts as “flagships” of constitutionalism and the rule of law,1 we have intuitively taken for granted the goodness of their institutional construction which, needless to mention, has seen “remarkably little experimentation in constitutional design”2 all over the post-communist world and has basically submitted to a common model in all its incarnations. This unfortunate fallacy has probably distracted us from subjecting the courts to review on the subject of their inner structure and mechanism that enable them to efficiently perform their important tasks in regime transition. Rethinking the mentioned stereotype and having observed considerable potential for improving the capacity of constitutional courts, this work suggests opening a discussion on the redesign of these tribunals in post-Soviet countries. The existing institutional settings of post-Soviet constitutional courts are subject to scrutiny from the point of view of these courts’ democratic contributions. Against the variety of settings of institutional architecture of constitutional review tribunals discussed throughout the text, the work primarily concentrates on two fundamental questions of their design: 1. “political empowerment” or whether or not constitutional tribunals should have responsibilities of conflict resolving nature which de-facto involve them in partisan-type politics (such as the review of elections, jurisdictional conflicts between the separated branches of the government, impeachment cases, etc.); 1 Patricia Wald (formerly the Chief Judge at the US Court of Appeals for the District of Columbia), Foreword: Herman Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe, University of Chicago Press (2000). 2 Sadurski, Wojciech, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Springer, 2005), p. 1 of the Preface. 4 2. the question of a separate tribunal or the problem whether or not the Kelsenian design of constitutional courts is optimal given the specific local challenges facing democracy and the rule of law. These two subjects are of particular interest from the considerations of democracy-building, and this is the major reason why this work pays a special attention to them. Still, it is also worth mentioning that the proposed items have been traditionally overlooked by the academic community, while the issues with the other institutional settings, especially access, tenure, appointment, and the mode of review, have been previously paid somewhat more attention. The study and its focus are area and time specific. The research is done strictly on the formerly Soviet states and the proposals for the institutions’ redesign are projected exclusively on these countries’ needs and for their use. For the purposes of this research, the term “post-Soviet region” or equivalent terms (“post-Soviet countries”, etc.) include all former republics of the Soviet Union except Lithuania, Latvia, and Estonia. These are Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan. Interchangeably, then, the term “CIS”, standing for the Commonwealth of Independent States, will be sometimes used.3 Hardly any bias or prejudice can be suspected in this choice as the spatial focus in the study is not formal but rather considers the “geography” of democratic development in the post-communist world. As the title of the study perfectly indicates, this research’s inquiries into the design of constitutional institutions are solely aimed at and guided by the rationale of promoting constitutional democracies in the countries of the region. In this light, the study targets those former constituencies of the Soviet Union which still have a lot to accomplish on their way towards building constitutional democracies. This approach justifies the exclusion from the scope of the review of three formerly Soviet countries in the Baltics which by the time of the inception of this study had shown considerable achievements in democratization and were considered as consolidated democracies.4 All this said, both the Baltic republics and the other Central and Eastern European post-communist countries and especially their experiences with democratic development and constitutional justice serve as a tremendous resource and often as inspiration for this work. The comparative method embraced by this study engages the Central and East European (including Baltic) paradigms and experiences