Constrained, pragmatic pro-democratic appraising constitutional review courts in post-Soviet politics Armen Mazmanyan a, b a American University of Armenia, Armenia b University of Antwerp, Belgium article info Article history: Available online 30 October 2010 Keywords: Democratization Post-Soviet countries Constitutionalism Constitutional courts Politics of courts Judicialization of politics abstract This paper conceptualizes the behavior of higher courts in the politics of former Soviet republics and attempts to set up a framework for the study of democratic contributions by post-Soviet constitutional courts. Although political expediency is noted to be the central driving force behind the judges’ decisions in politically sensitive cases, as courts are subject to different constraints from quasi-autocratic executives, it is argued that constitutional review tribunals are generally pro-democratic in their political orientation and that they can become the allies of pro-democratic parties in transitional periods of elite change. To support this proposition, this paper proceeds from a series of theoretical arguments to empirical observation of judicial behavior in times of political uncertainty, the latter being a perfect test for probing the political orientation of the courts. Ó 2010 Published by Elsevier Ltd on behalf of The Regents of the University of California. Introduction The recent study of post-Soviet 1 democratization has paid little attention to constitutional courts and their role in democratization. In general, post-Soviet constitutional courts, unlike their Central European colleagues, have rarely appeared under scrutiny by English-language scholarship. 2 The research on democratization in the former Soviet Union, most of which is of political science origin, has generally ignored these courts as agents of political change. Meanwhile, growing attention has been paid to global expansion of political judicial review or, to put it popularly, judi- cialization of politics worldwide (Tate and Vallinder, 1995; Guarnieri and Pederzoli, 2002; Hirschl, 2004, to name only a few). To summarize some of the insights from the study of this universal trend, widespread judicialization is associated with the triumph of constitutionalism, supremacy of higher law, and democratization across the globe (Ginsburg, 2003). Recently we could witness a new generation of democratic inspiration in the world. Ukraine, Burma, Pakistan, Kyrgyzstan, Armenia, a group of countries as far from each other geographically as they are culturally have experiences some form of democratic development. In many cases, courts have played an important role in political processes. In Ukraine, the Constitutional Court was requested to decide whether or not President Yushchenko’s decree to dissolve the Parliament (2007) was legitimate. In Kyrgyzstan, the Constitutional Court was central in deciding on the status of the constitutional amend- ments in 2007 and played an increasingly independent role in the political sphere after the demolition of Akayev’s rule. In Pakistan, the highest court acquired a key political role when deciding on presidential elections and the constitutionality of 1 For the purposes of this paper, the term “post-Soviet region” shall refer to all republics of the former Soviet Union except Estonia, Latvia and Lithuania. 2 The Russian Constitutional Court is the only one among its post-Soviet “colleagues” that has been relatively well studied by Western students (Sharlet, 1993; Ahdieh, 1997; Schwartz, 2000; Epstein et al., 2001). However, the scholarship on the Russian Court was in the most part attracted by the activism of its first sitting bench in 1991–1993 while this enthusiasm considerably declined in the last period when the Court no longer produced political sensations. Studies on the other post-Soviet constitutional courts on the European continent have been rather random, and comprehensive English-language studies of those in Central Asia are practically non-existent. Contents lists available at ScienceDirect Communist and Post-Communist Studies journal homepage: www.elsevier.com/locate/postcomstud 0967-067X/$ – see front matter Ó 2010 Published by Elsevier Ltd on behalf of The Regents of the University of California. doi:10.1016/j.postcomstud.2010.10.003 Communist and Post-Communist Studies 43 (2010) 409–423