Courts as Losers: The Impact of Constitutional Crises on Judicial Power in Russia and Ukraine

35 Pages Posted: 13 Aug 2009 Last revised: 22 Sep 2009

See all articles by Alexei Trochev

Alexei Trochev

School of Humanities and Social Sciences, Nazarbayev University

Date Written: 2009

Abstract

Many scholars of judicial empowerment argue that the presence of strong opposition and the existence of legislative-executive rivalries help courts build actual judicial power by resolving high-level political disputes. These scholars focus on successful cases where politicians choose to delegate more power to courts (giving them more policy space in which to maneuver) in order to protect themselves in the future. Other scholars disagree. They argue that highly competitive politics may weaken judicial power because in contexts of more intense electoral competition, rival political forces face stronger incentives either to pressure the courts or to make judges “apolitical” and non-threatening to their power-maximization goals. By comparing the context and timing of constitutional crises in Yeltsin’s Russia (1993-1994) and post-Orange Ukraine (2007-2008), this paper bolsters the second argument and expands it to the area of constitutional adjudication. It claims that severe political contestation may force rival political groups to secure their victories at all costs and to use courts to achieve their short-term power-maximization goals. Contexts marked by high-stakes power struggles offer few incentives to incumbents to delegate power to judges, and many incentives to get judges on their side and to punish the recalcitrant ones. Indeed, during constitutional crises in both Russia and Ukraine, constitutional courts lost their actual authority and public trust and were paralyzed until presidents “packed” them – all as a result of judicial attempts to review the constitutionality of the dissolution of national legislatures by presidents who grew tired of the legislative opposition to their policies.

Keywords: constitutional courts, judicial empowerment, Russia, Ukraine

Suggested Citation

Trochev, Alexei, Courts as Losers: The Impact of Constitutional Crises on Judicial Power in Russia and Ukraine (2009). APSA 2009 Toronto Meeting Paper, Available at SSRN: https://ssrn.com/abstract=1450836

Alexei Trochev (Contact Author)

School of Humanities and Social Sciences, Nazarbayev University ( email )

53 Kabanbay Batyra Avenue
Astana, 010000
Kazakhstan

HOME PAGE: http://www.nu.edu.kz

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