Should Constitutional Courts Adjudicate Political Disputes? The Perspectives of Democratization in Soviet Successor States

in Review of Central and East European Law
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Abstract

This article explores the consequences and the opportunities of political involvement of constitutional courts in post-Soviet countries. The answers to this inquiry allow a discussion on institutional design alternatives that would help constitutional courts to better support democracy. The author identifies particular practical difficulties with the present institutional settings (referring to them as to a 'paradox of political empowerment') and investigates the options for addressing the limitations created by the described model. In particular, the article reconsiders the widely accepted opinion that constitutional designers should have abandoned the 'political' responsibilities of constitutional courts (such as review of electoral disputes, inter-branch conflicts of jurisdictions, etc.) in these countries for the sake of preserving their institutional survival and legitimacy. The author argues that these 'political' responsibilities are essential for enabling democratic contributions by constitutional courts, and two conceptual justifications are forwarded to support this proposition. In contrast to the suggestions to abandon the 'political' responsibilities, the article proposes to address the problem of constitutional courts' political involvement and the hazard of damaging their legitimacy by enhancing the discretion of constitutional courts through introduction of a sound 'political question doctrine'.

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