Finding optimal design for constitutional courts : the perspective of democratization in post-Soviet countries

Abstract

The thesis undertakes an assessment of the institutional design of constitutional courts in postsoviet countries from the perspective of these courts' democratic contributions. After identifying the defects of the existing models frustrating a better democratic performance by these courts, the thesis proposes a perspective on their redesign. Although a variety of settings of institutional architecture of constitutional review courts is discussed throughout the text, the thesis primarily concentrates on two fundamental questions of the design of constitutional courts: 1. "political empowerment" of these courts 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.), and 2. designation of a separate tribunal or the question whether or not the Kelsenian design of constitutional courts is optimal given the specific local challenges facing democracy and rule of law. As a point of departure, the thesis develops a concept of "optimal institutional design" based on its review of the latest feedbacks from the studies of constitutional design, new institutionalism and transitology. Providing facts and analyses about the post-soviet countries of this research (for this research, these are all former republics of the Soviet Union except Estonia, Latvia and Lithuania) on their way to building constitutional democracies, their path towards democracy and their democratic credentials, the constitutional courts and their performance, the history of these courts' emergence, organization, institutional settings, etc., the work proceeds further by defending the political empowerment of the constitutional courts by running into an empirical analysis of higher courts' involvement into politics and by praising the courts' political role in democratic development. This background allows reflecting on the weaknesses and the dangers of the current institutional settings and proposing a conceptual framework for constitutional construction in post-communist transitions, as well as, more specifically, proposing an "optimal" design for the political empowerment of constitutional courts. Eventually, a criticism of the Kelsenian model of constitutional review is drawn where it is argued that while the designation of a special (Kelsenian) tribunal has undermined the consolidation of the judiciary and hence contributed to the fragmentation and eventual weakening of the judiciary in the post-Soviet region, there are institutional design alternatives which would better support the emergence of a consolidated, self-sufficient judiciary as the foremost guarantor of the rule of law.