This paper will explore an under-researched theme in comparative constitutional law: The design of judicial review. Looking at this question in the Eurasian context, it will describe the dangers of the Kelsenian model of judicial review. In so doing, the paper will address broader questions of the relationship between judicial design and context.
In Europe, Latin America, and Asia, constitutions have emerged as powerful instruments for breaking with centralized, authoritarian governance and constructing democratic, checks and balances government. Yet, this form of transformative constitutionalism remains unrealised in many of the former Soviet republics. With the exception of the Baltic states, most have rejected transformative constitutionalism and instead have built centralized super-presidential systems. Underpinning this authoritarian resilience is a deeply-rooted discourse that views centralism as the best strategy for a strong state. To be successful, constitutionalism must show that it offers a better path to building a strong state.
Constitutionalism is real only when its core commitments are respected and fully protected. During a period of constitutional reforms, the problem of protecting the constitution becomes more relevant. Precisely because the constitutional principles regulate political relations, establishing the rules of the political process, in some cases they become the object of pressure from some political forces.
There are different mechanisms that constitutional systems worldwide have devised in order to defend the most fundamental constitutional commitments of democratic states. This paper will analyze the experience of several “fragile” democracies (including Russia, but not only Russia) and understand if the existing legal mechanisms are effective when there is a strong will and political resources to undermine the foundations of constitutionalism.
The Russian Constitutional Court has always positioned itself as an institution established to defend core constitutional values, principles and commitments. In reality, except for the very first years of its existence, the RCC has taken a modest (and often insincere) approach of adapting constitutional values to almost any political initiative. In times when fundamental principles of democratic order, such as political pluralism, local self-government and others, were most vulnerable, the RCC has chosen to trust the legislator and interfere only with minor technical corrections. In this paper, I will provide two explanations of the failure of the RCC to protect the core commitments of constitutionalism in Russia: 1) lack of powers to review constitutional amendments, and 2) lack of institutional independence of the RCC.
This paper takes a comparative constitutional approach to several Central Asian jurisdictions, namely Kazakhstan, Kyrgyzstan, and Uzbekistan. A common denominator about these states includes either the experience of (post)-authoritarian regimes and (post)-socialism, which influences the whole process of constitution-making in these states. This research will first address the questions related to the evolution and distinctiveness of Central Asian constitutionalism. It will next refer to the complexity and nuances of Central Asian constitutional systems by focusing on human rights and judicial review systems, which have emerged in the (post)-socialist transition. Eventually, it will focus on global constitutional challenges, which include, inter alia, climate change and demographics including urbanization as a specific Central Asian demographic challenge and discuss their reflection in (post)-socialist Constitutions.