essay questions

Consequential Courts

JUDICIAL ROLES IN GLOBAL PERSPECTIVE

Edited by

DIANA KAPISZEWSKI University of California, Irvine

GORDON SILVERSTEIN Yale Law School

ROBERT A. KAGAN

University of California, Berkeley

CAMBRIDGE UNIVERSITY PRESS

The Politics of Courts in Democratization

Four Junctures in Asia

Tom Ginsburg*

Scenario One: In a country with only a decade-old democracy, the country's newly

elected president is the ultimate political outsider - an activist lawyer, relatively

;, whose party does not hold a majority in the parliament. His opponents

launch fierce political attacks, and then impeach him for seemingly trivial offenses.

The country's widely respected Constitutional Court is called on to decide whether

to uphold the impeachment and decides that, although the president violated the

law, he can retain office.

Scenario Two: In a hotly contested presidential campaign he looks certain to lose,

the incumbent (another former activist lawyer) is shot the day before the election. He

wins by a razor-thin margin, and the election is contested. Meanwhile, the executive

and legislative branches set up competing investigative committees to determine the

source of the shooting. The election case is sent to the courts to resolve, along with

constihitional disputes about the investigative committees. The court holds that the

election is valid, the investigation constitutional, and the leader takes power.

Scenario Three: In a country with a long history of political instability, a new consti-

tution is adopted, considered the most democratic in the country's history and feahir-

ing several new independent instihitions to regulate the political process. Soon there-

after, a billionaire who earned a fortune in the telecommunications sector enters

politics, creates a party, and develops a populist political program. His party wins a

majority of parliamentary seats outright, the Ersttime that has occurred in the coun-

try's history. However, he is accused of campaign finance violations and the country's

new Constitutional Court is called on to decide whether he should be allowed to

take office. The Court holds that he can. Five years later, the leader is deposed by

a military coup d'etat and a new constitution drafted; after new elections, the courts

again find themselves in the midst of repeated challenges to civilian politicians.

Leo Spitz Professor of International Law, University of Chicago Law School; Research Professor,

American Bar Foundation. Many thanks to T. J. Cheng, Javier Couso, Michael Dowdle, and Diana

Kapiszewski for comments.

46 Tom Ginsburg

Scenario Four: A country's long-serving military ruler decides to extend his tenure

by running for president. The country's Supreme Court, which has been engaged

in a struggle with him over various issues, decides that he can run, but then agrees

to hear a political challenge to his reelection. The Court announces that it will issue

a decision clarifying whether the election is valid after it is held. A few days before

the decision is due, the ruler declares a state of emergency, arrests several of the

judges, and decries judicial activism as a threat to the nation. Riots ensue; a crack-

down follows and opposition politicians are arrested. Within a few months, the ruler

is forced from power and elections are held, returning civilians back to power.

These four scenarios took place in recent years in various countries in Asia: Korea,

Taiwan, Thailand, and Pakistan, respectively. In all four cases, courts were called on

to decide whether or not an elected political leader could take or continue to hold

office. In all four cases, the threat of constitutional crisis lurked in the background,

for the military has had an active role in all four polities and democracy was perceived

to be fragile. Deciding such cases is difficult enough for an established court with a

deep cache of institutional capital, as the U.S. Supreme Court learned in Bush v.

Gore.1 It is all the more challenging for a court that is itself relatively new.

These types of decisions are critical junctures for the political and constitutional

system; they are moments of choice when everything may be at stake, including

whether the country will remain a democracy. Examining how these courts handled

these opportunities and challenges has the potential to inform theories of the causes

and consequences of judicial empowerment, as well as our understanding of the roles

of courts in democratization. It is also important to try to understand these critical

decisions simply because they seem to be arising with greater frequency, a result

of increased judicial power in general, and, more specifically, of the assignment of

ancillary powers beyond judicial review to constitutional courts (Ginsburg 2004).

Being forced to pick a leader, either to take or retain power, presents the courts with

an enormous institutional challenge. Recall Shapiro's (1981: i) classic framework

suggesting that much of judicial legitimacy comes from the (false) image of an

independent judge applying preexisting rules after adversary proceedings to reach a

dichotomous solution. One way in which courts deal with the disjuncture between

this imagery and the need to secure compliance is by providing mediate solutions.

The problem for courts in cases where they must pick leaders is obvious: there is no

way to split the proverbial baby, so one or the other of the two parties is going to be

very upset.

One can imagine several possible responses to this state of affairs. Perhaps courts

will fall back on other devices from the legitimating imagery, emphasizing preex-

isting rules or the procedural integrity of the process, so as to convince the loser to

comply. These solutions may work up to a point. Ultimately, however, a decision

must be rendered, and if courts are to retain authority, it must be complied with.

Because judicial power to force compliance is minimal, courts rely on other agents to

The Politics of Courts in Democratization 47

ensure that decisions are effectuated. Why do these other agents enforce compliance?

Ultimately, in a democracy, the issue comes down to whether or not citizens are

willing to enforce t^e terms of a constitutional bargain, or to demand that their

agents do so (Hardin 1989; see also Vanberg 2004). This suggests that, when faced

with the binary question of whether a prospective leader can hold office, the courts

ought to ask: which decision is likely to command the support of the citizenry?

Taking a majoritarian approach may make sense, particularly in a democracy, for it

ensures the greatest likelihood of compliance.

This simple framework is somewhat complicated by introducing dynamic consid-

erations. In a new democracy, the issues are likely to implicate not just which group

of elites runs the country, but whether democratization proceeds at all. Consider

the "Przeworski moment," when the incumbent party has lost an election for the

first time but retains power until the legal transfer of power occurs (Przeworski 1991).

Such moments are crucial junctures at which many new democracies fail, when

incumbents refuse to transfer power. Courts called on to pick winners at such junc-

hires are caught between a proverbial rock and hard place in seeking compliance.

The logic of dictatorship says to bless the incumbents; the logic of democracy says

to side with the new majority. Choosing one side or the other will determine the

character of the political regime for years to come (see also Trochev, Chapter 2 in

this volume).

Even after an initial transfer of power has occurred, courts may find themselves

to be arenas in which those out of power challenge the rulers' authority, either in

new elections or in attempts to recall the leaders. They are thus in the position of

distributing political goods to one or the other contentious party. How courts handle

such situations is worthy of further investigation. Should they side with one side

consistently? Should they seek solutions that deliver gains for both sides? These are

issues of judicial role and strategy that may be illuminated in studying decisions that

require courts to choose a national political leader.

THE POLITICS OF COURTS IN DEMOCRATIZATION

To understand the role of courts in democratization, let us begin by distinguishing

three alternative scenarios: courts as upstream triggers for democratization; courts as

downstream guarantors of authoritarian position; and courts as downstream demo-

cratic consolidators, in which courts follow the initial decision to democratize and

facilitate the process. A fourth possibility is judicial irrelevance, in which courts play

no discernible role as guarantors, triggers, or consolidators.

Upstream Triggers of Democracy

In very rare instances, courts play a central role triggering democratization when

the autocrat is not seeking to withdraw, and opposition arises. In these situations,

48 Tom Ginsburg

for mobilization (Weingast 1997; Schelling 1960). These are situations of conflict

and contingency, in which democratization has not yet been embarked on. The

basic idea is that an authoritarian regime can only be restrained if the public can

coordinate to overturn its action. Coordination is very difficult to achieve. The

difficulty is that citizens may not agree on what exactly constitutes a violation of

the rules, and may not know whether other citizens will join in an effort to take

power. Any subset of citizens thinking of rising up to challenge the regime can

only succeed if others join them. Otherwise, the opponent ends up in jail or worse,

and the regime maintains power. Being uncertain as to what other citizens will do,

the prospective mobilizers will likely stay quiescent and authoritarianism will be

sustained. Only when there is agreement on what constitutes a violation and mutual

expectations that citizens will in fact enforce the rules will democracy emerge and

be sustained. My argument is that, in some limited conditions, court decisions

can serve as focal points in helping citizens coordinate, and force the autocracy to

liberalize.

Why might citizens focus on a court decision? First, a court decision can provide

clarity as to what constitutes a violation of the rules by the government. Lacking an

authoritative pronouncement, regime opponents might disagree about whether a

violation occurred and may thus fail to coordinate to enforce the rules. However, a

court decision can frame the issue and crystallize it in the public imagination, as well

as provide persuasive evidence for agreement among citizens. By creating common

knowledge that a violation of the rules has in fact occurred, a court decision can

help citizens overcome the collective-action problem.

Second, a court decision against the government transmits information. It com-

municates the view that the government apparatus is not completely unified on

policy. It also indicates, at a minimum, that judges do not believe their personal

safety is in jeopardy from challenging regime rules, and so may allow opponents to

update their own assessments of the risks of challenge.

Third, a court decision raises the cost of repression, and is a resource that can be

used by activists to rally supporters to their cause (Silverstein 2009). A regime that

arrests citizens after an unfavorable court decision will suffer greater reputational

loss than it would have done had the court said nothing. This is not to say that the

court decision guarantees implementation - only that it can facilitate mobilization

and raise costs for noncompliance.

The incentives for courts to produce "trigger" decisions are not obvious ex ante.

Courts have an institutional incentive in ensuring that their decisions are imple-

merited rather than ignored, which requires predicting that citizens will actually

respond to calls for change. Attempting to provide a focal point for regime opposi-

tion carries grave institutional risks in the event that the citizenry does not enforce

the decision. The regime can respond in myriad ways to punish the courts. We

should expect, then, that courts will engage in providing focal points only when they

have strong institutional and political links to outside institutions that can defend

The Politics of Courts in Democratization 49

them from punishment, or are sufficiently confident for other reasons that their

decisions will be implemented. These conditions are not always present.

A dramatic juncture in which courts appeared to play a triggering role occurred

during Ukraine's Orange Revolution (2004-2005), as Trochev discusses in Chapter

2. president Kuchma had sought to use his position to promote the candidacy of his

chosen successor, Viktor Yanukovych. The opposition mobilized to protest a rigged

election in November 2004, holding widespread demonstrations and initiating a

court case to annul the results. Dramatically, on December 3, 2004, the Supreme

Court resolved the immediate political deadlock when it ordered a revote for the

isidential election later that month. Held under intense international scrutiny,

the opposition candidate, Victor Yushchenko, won the second election handily and

the court dismissed Yanukovych's various legal challenges. The court was thus at the

center of forcing a change in power, providing the capstone to a broad movement

and turning back continued dictatorship.

The decision served as a trigger because of its temporal proximity to broader

efforts at social mobilization. The Ukrainian decision emboldened the opposition

and buried the regime. The court did not pick the leader direcdy, but was involved in

structuring political competition to ensure that the choice was made in a transparent

manner, providing an opportunity for the opposition forces to exploit. This illustrates,

again, one of the themes of how courts can assist with democratization: holding the

regime to its nominal promises and providing fora for political forces to pursue their

agendas. It also reminds us that courts do not act in a vacuum but are embedded in

broader political environments.

In very rare cases, then, courts may make crucial decisions that become focal points

around which broader oppositional coalitions mobilize. That is, court decisions can

represent the critical juncture at which regime change coalesces. However, court

decisions are neither necessary nor sufficient for democratic transition to occur, and

a historical review suggests that courts are rarely the crucial actors in such transitions.

Downstream Guarantors

A more common scenario occurs when the authoritarian regime seeks to withdraw

from active involvement in politics rather than maintain power indefinitely. This may

be typical of some coup-makers, or a regime that relied on a short-term emergency

to justify repressive policies. It may also be a rational decision once a regime realises

it cannot survive. In such cases, the autocrat faces the problem of guaranteeing that

his or her core policies will not be overturned after a transition back to majoritarian

rule. The autocrat may also be concerned with the property and liberty of his or her

supporters, who are likely threatened by a change in-power.

In this type of situation,. the autocrat may seek to empower courts to act as

downstream guarantors of the bargain for exit, providing policy security after the

dictator goes. Hirschl (2004), writing in the context of industrial democracies, calls

5° Tom Ginsburg

this function "hegemonic preservation," in which a declining powerful group uses

courts to secure its policies and limit downstream actors. My version of this argument

(Ginsburg 2003) focuses on minorities in general (which can include but is not

limited to departing autocrats) and suggests that courts provide political insurance to

prevent policy reversal and minimize the risks of the future. This should not, strictly

speaking, be seen as an antidemocratic function - sometimes it can be necessary to

induce the autocrat to give up power in the first place. However, the court plays a

basically conservative role of preserving a bargain against future disruption.

This scenario is only likely for certain kinds of transitions, typically gradual ones

in which the autocrat is able to write the rules of the game and negotiate the terms

of exit. Perhaps the paradigmatic example is modern-day South Africa, in which

the National Party negotiated an extensive set of judicially enforceable rights as a

condition of turning over power to majoritarian institutions (Hirschl 2004). This

allowed the white minority to protect their economic interests. To be sure, the

judges themselves must not be so tied to the old regime as to provoke the ire of the

majority. In some circumstances, however, the judges may have enough autonomy

to credibly uphold the rights of former dictators, and this serves democratization

because such institutional guarantees can induce resignation without revolution.

Downstream Democratic Consolidators

In other times and places, courts may serve as instruments of the newly democratic

regime, becoming central to the process after the crucial transition takes place.

In these scenarios, the change from autocracy to democracy involves a removal of

constraints on the legal system, or in some cases affirmative empowerment of legal

actors. In these instances, the courts can become important sites of contestation

behveen elements of the old regime and new, devices for facilitating b-ansitional

justice, allies of the new order, or systematic dismantlers of the legal infrastructure

of the old regime. In such cases, the court's role is essentially one of building up

its own power through cleaning up the legacies of authoritarian rule. However, the

timing is one of follower rather than leader in democratization.

To state the matter this way is not to assert that judges and law are unimportant to

transition. On the contrary, courts play an essential role in structuring an environ-

mentofopen political competition, free exchange of ideas, and limited government.

It is only to point out that in most instances, legal actors are not at the very center

of the transition decision, but rather are involved in the consolidation phase. Often,

this scenario results from a reinvention of the judicial role post democratization.

Formerly quiescent institutions can become more powerful and capable should

they choose to do so, and skillful judges can adjust to the new era. Furthermore, as

judicial personnel change, they are likely to become more daring and serve as the

expression of a new era.2

2 It is not surprising that the South African negotiations called for the creation of a new constitutional

The Politics of Courts in Democratization 51

One area in which one sees particularly intense judicial involvement is criminal

ocedure, which constitutes the legal apparatus of social control. Democracies and

dictatorships differ in their use of legal tools in this regard. Typically, judges have a

much greater role in democracies than they do in dictatorships, in which prosecutors

and police operate with less judicial scrutiny. Judges asserting the need for greater

iudicial oversight of criminal procedure are at once advancing their institutional self-

interest and ensuring conformity of the new regime with international standards.

Another zone of frequent judicial activity in new democracies involves admin-

istrative law. In many authoritarian regimes, administrative law is relatively under-

developed as a discipline on bureaucratic discretion. Because dictators have lots of

other tools for controlling bureaucrats, they do not always need to rely on courts

to do so. A typical configuration involves loosely drafted statutes, within which

bureaucrats exercise a good deal of discretion, subject to political rather than legal

oversight. When new democratic governments take over, they are frequently stuck

with the bureaucrats appointed by the authoritarian regime, and may lack sufficient

personnel with technical expertise capable of running the government. In such

circumstances, it is imperative to find ways to control bureaucrats, and courts can

play a useful role in this regard. We often see an increase in the use of delega-

tion doctrines, requiring a tight linkage between legislative command and bureau-

cratic action, in the early years of new democracy (see Ginsburg 2003, chapters 5

and 7).

Another consolidation function quite particular to new democracies involves

dealing with the legacy of the past. Where the old forces are not totally defeated

but retain a powerful position in politics, demands for transitional justice are likely

to be suppressed (and appropriately so, given that pushing too hard can undo the

democratic turn.) On the other hand, if the old forces are defeated, there will be

significant demands for coming to terms with the past, and this frequently - albeit

not always - involves the legal system.

There is a vast literature on lustration, judicial rehabilitation, truth commissions,

and retroactive justice. When courts and the legal process are involved, complex

technical issues arise involving, inter alia, proscriptions on ex post facto laws, statutes

of limitations, and command responsibility. Frequently the rule of law, as classically

defined, suffers when courts ignore legal formalities to hold elements from the past

regime accountable for their actions. Nevertheless, from a political rather than for-

malist perspective, such a role can be helpful in furthering democratic consolidation

and legitimation of the new regime in the eyes of the victims of the former regime.

It also can provide a kind of mediating political function, in which the past forces

are held responsible but not completely devastated. Law can mediate vengeance

somewhat.

the breadth and depth of personnel to stafFa full judiciary after transition, so that of necessity low-level

judicial stafFmay remain who have been appointed by the previous regime. This can have significant

Tom Ginsburg The Politics of Courts in Democratization 53

i!"T!l

Judicial Irrelevance

A fourth possibility can also be observed. This is where the courts, for whatever

reason, remain on the sidelines without either supporting or hindering democrati-

zation. Hilbink's (2007) account of Chilean judges during and after the Pinochet

dictatorship seems to fit this story. The courts in Chile had internalized an ideology

of "apoliticism" along with a hierarchical, self-reproducing institutional structure

that rendered judges unequipped and disinclined to take stands in defense of liberal

democratic principles before, during, and after the authoritarian interlude. Nor have

courts been particularly effective enforcers of the policies put in place at the end

of the Pinochet regime, failing to strike infringements on property rights, as well

(Couso 2003). This seems to be a case where the courts were not agents of either

the past or the future. To be sure, after two decades they began to play a role in

transitional justice, indicting General Pinochet before his death in 2006, but overall,

the story seems to be one of general irrelevance.

Summary

We have identified four different roles that courts can play in democratic tran-

sition. Sometimes they serve as agents of the past, policing a transition or even

preserving policies of the authoritarian regime. Sometimes they act as agents of the

future, helping transform the political process and encouraging the consolidation

of democracy. In some rare instances, courts themselves trigger the democratiza-

tion process, encouraging mobilization and tipping the regime into transformation.

Finally, courts can be merely marginal players who neither facilitate nor hinder a

transition to democracy.

FOUR CASES

Impeachment in South Korea, 2004

In 1987, after thirty-five years of more or less continuous authoritarian rule by military

strongmen, South Korea established its Sixth Republic. The immediate trigger had

been large-scale demonstrations on the streets of Seoul, in which a growing middle

class had joined students and labor activists to force political liberalization. The

military leader, Chun Doo-hwan, stepped down; his successor, Roh Tae Woo,

negotiated a deal with the two leading opposition parties, led by Kim Young Sam and

Kim Dae Jung. The three major forces negotiated a new Constitution establishing

a democratic order.

The major issues in constitutional negotiation concerned elections and the role

of the military. Relatively little thought was given to the new Constitutional Court.

In the years since its establishment in late 1988, however, the Court has become

the embodiment of the new democratic constitutional order of Korea. The Consti-

tutional Court is routinely called on to resolve major political conflicts and issues

of social policy, and has rendered many thousands ofdecisions.3 This reflects both

demand from newly empowered civil society, as well as a willingness on

the part of the justices to advance constitutional justice. Among the Court's many

achievements are a delicate navigation of issues of retroactive justice, a complete

overhaul of the country's criminal procedure, the prompting of significant amend-

ments to the National Security Act, and an important administrative law jurispru-

dence (see, generally, Ginsburg 2003; Chapter 7 in this volume; Cho 1997). It is a

classic downstream consolidator.

I have argued elsewhere that the Korean Court's powerful design, and its effective

exercise of power, were facilitated by the fact that Korean politics were quite divided

at the time of the constitutional founding (Ginsburg 2003). Three major political

forces vied for power; they concluded a deal in which presidents would be elected for

a single five-year term. This maximized the chances that each of the major leaders

(Roh Tae Woo, Kim Young Sam, and Kim Dae Jung) would get to hold office, and

they proceeded to win the presidency in three successive cycles. However, because

no party could anticipate that it would be able to dominate the political system, each

had an incentive to empower a constitutional court as well, to minimize the harm it

might suffer when out of power, and allow for opportunities to challenge legislation

and government action.

An unanticipated by-product of this constitutional bargain was weakness in the

major political institutions. Because the Constitution provides that presidents cannot

be reelected, leaders became lame ducks almost from the beginning of their terms.

Furthermore, divided government has not been uncommon, as the National Assem-

bly is often controlled by coalitions of parties that did not include the president's

party. Each Korean president has ended his term in scandal and quite unpopular. In

such a circumstance, the Constitutional Court was seen as a relatively trustworthy

institution and enjoyed a good deal of institutional capital. Other government insti-

tutions are not as respected, and there is even talk at the moment about the need

for constitutional reform. The legitimacy of the Court, and its active role, has been

relatively stable since it emerged in the early years after democratization.

A key factor here was the emergence of a vigorous civil-society movement, in

which lawyers played a crucial role. Influenced by cause litigation in the United

States and elsewhere, these lawyers sought to press for liberal transformation through

law. Courts were one among many milieu used in these campaigns. This legal

complex represented an important external influence on the court, and provided

the needed demand referenced in the Introduction of this volume.

In December 2002, a major step in the country's democratic history came with

the election of activist labor lawyer Roh Moo-hyun as president, the first person

3 Constitutional Court statistics. Retrieved from http://www.ccourt.go.kr/home/english/statistics.jspff.

54 Tom Ginsburg

to hold that office after the three who had negotiated the 1987 Constitution. Roh

represented a new set of social forces. A farmer's son who had passed the country's

notoriously difficult bar exam without a college degree, he represented meritocracy,

liberal activism, and, as the first president born after World War II, generational

change. Roh's ability to pursue his ambitious agenda, however, was complicated by

the fact that his party did not win a majority in the National Assembly. His position

became even less tenable when the party split as a result of generational tensions in

September 2003, and a corruption scandal related to campaign contributions erupted

that October. Roh staked his future on a mid-term legislative election to be held in

April 2004, but - in violation of South Korean law - appeared to campaign for his

new Uri party by urging voters to support it. The majority in the National Assembly

responded with a motion for impeachment that easily achieved the necessary two-

thirds vote (Lee 2005). The impeachment was sent to the Constitutional Court for

confirmation, as required under the Constitution.4 This was the first time any court

in South Korea had been called on to pick a ruler or allow one to be impeached,

and the Court held a series oftrial-like hearings at which the issues were argued.

Surprisingly, Roh's approval rating skyrocketed in the wake of the impeachment,

and his party received overwhelming support at the April 2004 polls, winning an

absolute majority in the National Assembly with 152 out of 299 votes. It is speculative

but generally believed that this indicator of the public's preferences influenced the

court in its decision. On May 14, the Court rejected the impeachment motion. In

addressing the issue, the Court bifurcated the issue into the question of whether

there was a "violation of the Constitution or other Acts" - the predicate for impeach-

ment - and whether those violations were severe enough to warrant removal.

Although the Court found that Roh had violated the election-law provisions that

public officials remain neutral - along with other provisions of law - they decided

that it would not be proportional to remove the president for the violation. Instead,

they asserted that removal is only appropriate when the "free and democratic basic

order" is threatened. Roh's violations were not a premeditated attempt to undermine

constitutional democracy, said the Court.

The incident illustrates two themes in the study of judicial politics. Most obvi-

ously, the Court demonstrated great sensitivity to signals from the broader political

environment. By splitting the difference in a manner that responded to recent signals

from the electorate, the Court gave both sides what they wanted, at the same time

avoiding a constitutional crisis. Second, and more importantly, was the subtle way

in which the Court aggrandized its own power in making the decision. By failing

to simply confirm the National Assembly's factual findings, the Court placed itself

in the position of reviewing the political assessment of the impact the removal of

the president would have on Korean democracy. The Court established itself, and

not the Assembly, as the final arbiter of whether removal was actually warranted.

4 Art. ii2.

The Politics of Courts in Democratization 55

In this sense, the Court ended up enhancing its ability to say what the law is,

and did so in a manner that ensured it would be accepted by the majority of the

public. Roh's political redemption at the hands of the Court proved short-lived. In October

2004, his ambitious plan to move the capital of the country from Seoul was rejected

by the Court as a violation of an unwritten customary constitution of Korea. Roh's

popularity continued to decline, and his other initiatives foundered. He ended his

term in disgrace, and hounded by a corruption scandal, took his own life in 2009. The

Court, on the other hand, is consistently rated one of the most effective institutions

by the Korean public. In a recent poll, for example, it received the highest rating

of any government body (and just behind several large corporations) in terms of influence and trust.5

In considering this juncture hvo themes jump out. First, the Court did seem to

generate a kind of mediate solution by finding that Roh had both broken the law

but also deserved to remain in power. This left him as a weakened president and

enhanced the Court's status. The addition of a political criterion for determining

impeachment cases means the Court will have the final word should similar cases

arise in the future. Second, the Court seemed to clearly respond to electoral signals.

The popular support Roh enjoyed as a result of the impeachment meant that remov-

ing him from office would provoke a major political crisis. The Court avoided this

by listening to the electorate. It was not constraining the new rising forces on behalf

of the old, as in the guarantor model.

There has been no major shift in the Court's role since this watershed case. It

remains a major player in Korean politics, with enhanced legitimacy. The Court's

caseload has gradually and somewhat seamlessly shifted from transitional issues

associated with democratic consolidation to more conventional issues of guard-

ing constitutional democracy, and remains a major player. Continuity, rather than

change in the judicial role, is the trope in this case study.

Adjudicating the Election in Taiwan, 2004

Taiwan's remarkable transformation from Leninist party-state authoritarianism to

multiparty democracy has been rightly celebrated as a central case in understanding

the third wave of democracy. It also provides insights into the role that courts can

play in democratic politics.

As in many authoritarian regimes, courts did exist during the one-party period.

Although courts provided some outlet for contesting policies during the authoritarian

period, they never challenged core policies of the regime, preferring to remain in

a discrete zone of apoliticism (compare Toharia 1975; Hilbink 2007).The crucial

5 See, e.g., JoongAng Daily, July 3, 2007. Retrieved from http://joongangdaily.joins.com/article/view

.asp?aid=2877553-

56 Tom Ginsburg The Politics of Courts in Democratization 57

decisions to embark on democratization were not taken in courtrooms. Rather,

they were taken in the backroom discussions during and after 1985, when President

Chiang Ching-kuo decided to save the Kuomintang (KMT) regime by "returning

power to the people.'

Only once the direction of democratization was absolutely clear did the courts

begin to act, around 1989. Much attention has been given to a dramatic decision in

the democratization process. Interpretation Number 261 of the Council of Grand

Justices. In this case, the Council was called on to determine whether the Old

Thieves" (legislators who had been elected on mainland China some forty years

previously) could be forced to retire in 1990. This was certainly a watershed, but as I

explore at length elsewhere (Ginsburg 2003), the decision cannot be seen as having

been independently determined by judges. Rather, the Council served as part of Lee

Teng-hui's faction within the KMT, helping reform to proceed over the objections

of an intraparty obstacle. Judges were not the triggers.

Once democratization occurred, however, the courts played an absolutely crucial

role as consolidator. As in Korea, lawyer-activists played an important role in the

process, as a new generation sought to enact a liberal transformation through law.

The internal motivations of courts themselves were also affected by generational

change, as a new generation of Taiwanese judges rose in the judicial hierarchy.

At the apex of the judicial system, Taiwanization of personnel (meaning the

rise of Taiwan-born justices to replace those born on the mainland) changed the

internal motivation of the Council of Grand Justices. This top court systemati-

cally removed many of the barriers to participation set up by the KMT. The Court

began a pattern of deciding cases against administrative agencies, using a nondele-

gation doctrine to require tighter links between a reinvigorated political process and

administrative action. Leninist institutions that had been used to ensure ideologi-

cal conformity of teachers and the media were cast aside as unconstitutional. The

Council also instituted a total reform of criminal procedure, ensuring that police and

prosecutors were henceforth under greater judicial scrutiny. After the "Przeworski

moment" occurred and the presidency of the country shifted to the opposition

Democratic Progressive Party (DPP) with the election of Chen Shui-bian in 2000,

a period of divided government ensued, with the Council playing a key mediating

role.

The expanded role for courts came to a head in the heated presidential election

of 2004. The incumbent was Chen, a former activist lawyer. Similar to Korea's Roh

Moo Hyun, he came from a poor background and was something of a political

outsider; he had won election in 2000 with only 39 percent of the vote and, similar

to Roh, had to govern without control of the legislature. His first term was marked

by significant controversy and ineffectiveness, and polls predicted he would lose his

bid for reelection. On March 19,2004 - the day before the election - Chen and Vice

President Annette Lu were shot while riding in an open jeep in Tainan City. The

next day, they were elected by the razor-thin margin of 30,000 votes out of nearly

million cast.6 The losing candidates charged that the shooting had been staged to

elicit sympathy, and filed a suit the next day in the Taiwan High court challenging

the election for legal irregularities. The High Court began to hear the case, and the

litical parties agreed to a recount under court auspices.

Meanwhile, competing investigations were launched to examine the shooting

incident. The government set up its independent investigative committee in early

July. The opposition-controlled legislature, however, thoughtthis would notgenerate

an accurate account, and passed a law on August 24 to set up a special seventeen-

member "March 19 Shooting Truth-Finding Commission." The Commission mem-

bers were to be nominated by political parties on the basis of proportional represen-

tation, and it was granted wide investigatory and prosecutorial powers.

On September 15,2004, legislators from the DPP requested the Council of Grand

Justices to enjoin the Truth Commission Act and provide an interpretation of its

constitutionality, pursuant to provisions allowing any group ofone-third of legislators

to challenge acts as unconstitutional. In early November, the Taiwan High Court

rejected the lawsuit, calling for nullification of the electee status of the president

and vice president. The Court found that the recount had upheld Chen's victory,

this time by a margin of 25,563 votes. Although this was a smaller margin than the

figure announced by the Central Election Commission in March, the difference

was not of a magnitude to affect the outcome, said the Court.

All eyes then turned to the constitutional case. On December 15,2004, the Coun-

cil of Grand Justices issued Interpretation Number 585, holding parts of the "Special

March 19 Shooting Truth-Finding Commission Act" Unconstitutional. In particular,

provisions granting the Commission the exclusive power to investigate the incident

and Commission members full prosecutorial powers were seen to violate the consti-

tutional separation of powers scheme.7 Provisions setting aside the National Secrets

Act and other generally applicable rules also did not pass constitutional muster. A

provision purporting to allow the Commission to order a retrial of a final judicial

decision on the case was held to violate rule-of-law principles. In short, the legisla-

ture was limited in its investigatory powers to those related to its own constitutional

functions, and could not encroach on Executive or judicial powers.

At the very end of 2004, the Taiwan High Court rejected the suit, seeking to nul-

lify the election results. The Executive investigation continued, eventually holding

that the shooter was a disgruntled citizen who had suffered financial problems he

attributed to Chen. Because he had committed suicide shortly after the shooting,

no criminal prosecution went forward.

This series of cases placed the Taiwan courts at the very center of the political

controversy surrounding the 2004 election. The courts ended up allowing Chen

Shui-bian to retain office, a decision that was no doubt legally sound and also

6 The referendum failed for lack of 50 percent of the electorate voting on it.

7 Interpretation 585, Sec. 5.

58 Tom Ginsburg

deferential to public preferences. As in South Korea, however, the decision did not

prevent Chen's popularity from continuing to plummet. A series of scandals impli-

cated his wife and son, and he is currently appealing a life sentence for corruption.

The Council, however, continued to remain a popular branch.

As a matter of judicial strategy, the Taiwan court system acquitted itself well

in this series of events. They broke up a potential crisis into several discrete legal

issues, to be decided by different courts using different procedures. The Council

of Grand Justices turned an egregiously unconstitutional statute into an ongoing

opportunity for constitutional dialogue by framing the issue as the general scope

of legislative powers to conduct investigations. A crisis was averted, judicial power

enhanced, and consolidation was furthered. As its counterpart in Korea, the Court

was a consolidator.

The aftermath of the case has not seen a major shift in judicial role, but some

concerns about judicial legitimacy emerged in 2010 with the discovery of some

instances of judicial corruption. This led to the reinvigoration of debates over judicial

reform, as members of the bar and others called for a more responsive, accountable,

and independent judiciary. No doubt the courts' roles will evolve in response to

these events.

Picking and Rejecting, a Populist in Thailand, 2001 and 2008

Thailand's politics have been notoriously unstable, with a history of coups and

short-lived civilian government. The country's overall stability, however, has been

maintained by a stable bureaucratic structure. Consistent with many other civil-law

jurisdictions, the judiciary was seen essentially as a bureaucratic structure. Judges

saw themselves as technocrats, staying away from politics.

After a large set of demonstrations protesting one of the countries many coups,

the Constitution of 1997 was a major effort to resolve the country's chronic political

instabilities; it was the first time that a constitution was adopted with widespread

public involvement. The Constitution included a plethora of independent agencies

to oversee politics: the Electoral Commission, Audit Commission, Human Rights

Commission, Ombudsman, Supreme Court, Supreme Administrative Court, Con-

stitutional Court, and National Counter-Corruption Commission. A new Constitu-

tional Court was a central institution in this scheme, as it was charged with policing

the other independent bodies in addition to its role in interpreting the Constitu-

tion and resolving jurisdictional disputes among governmental authorities. Among

other powers, it could confirm findings of and evaluate disclosures submitted to the

National Counter-Corruption Commission (NCCC).

This power became crucial with the 2001 election bringing Thaksin Shinawatra to

power, a billionaire-turned-politician. Described as Thailand's Berlusconi, Thaksin

had little in the way of a substantive policy platform other than populist promises

of wealth for the countryside. Similar to his Italian counterpart, he had long been

The Politics of Courts in Democratization 59

linked with corruption. In early 2001, when Thaksin was still running, he was found

the NCCC to have filed a false asset report. After Thaksin's party subsequently

won the elections, the Constitutional Court was put in a difficult position when

it was called on to confirm the NCCC decision. The Court found that the false

report had not been filed deliberately, and thereby allowed Thaksin to take the

post of prime minister. As in South Korea, the Thai Court seemed to respond to

democratic signals and found that the violation, however serious, did not justify

overturning the election.

Thus began a long chapter that ultimately led to the Constitution's demise.

Thaksin subsequently consolidated his hold on power, acquiring political par-

ties by merger and acquisition. Gradually, he began to influence all the inde-

pendent institutions, including the very ones designed to oversee corruption, as

well as the Constitutional Court itself. He did this through a combination of

appointments, intimidation, and bribery. The independent NCCC, which refused

to acquiesce to Thaksin's demands, was disbanded and new appointments left in

limbo. In early 2005, Thaksin won reelection when his Thai Rak Thai Party cap-

tured an overwhelming majority of parliamentary seats, making it impossible for

the opposition to mount a vote of no confidence. Soon thereafter, mass protests

erupted in the wake of Thaksin's manipulation of law to allow the tax-free sale of

his company, and Thaksin was investigated for corruption. Because the NCCC

was not operative, the case went to the Constitutional Court. The Court's pro-

Thaksin reputation seemed confirmed when it found that there was no justiciable

case.

With no help from any political institutions, anti-Thaksin members of the public

began to demonstrate in the streets, calling for his resignation or impeachment.

Thaksin then dissolved Parliament and called a snap election for April 2, 2006,

but the opposition chose to boycott it, saying Thaksin should step down first. The

election went ahead anyway. Thaksin's party won 80 percent of the seats, running

unopposed in many districts. However, a series of irregularities led the Election

Commission to set aside the election, and Thaksin continued in office only as a

caretaker. Shortly thereafter, the king met with the leaders of the Constitutional,

Supreme, and Administrative Courts and publicly called for them to resolve the

problem. However, itwas unclear exactly what sort of judicial resolution was possible,

with demonstrators on the streets both in support of and against Thaksin.

The Constitutional Court responded by annulling the April election, and three

election commissioners were jailed on the grounds that the time allowed for the

election campaign had been too brief and that some polling booths had been

positioned to allow others to view the ballots as they were cast. Five new election

commissioners, who had just been chosen after months of deadlock, would be

replaced. Nevertheless, with the Senate and other political institutions at a standstill,

the appointment process could hardly operate. The Constitutional Court had failed

to resolve the problem completely.

6o Tom Ginsburg

A few months later, before a new vote could be held in November, the military

staged a bloodless coup and abolished the 1997 Constitution. An Interim Consti-

tution disbanded the Constitutional Court, although many of the other guardian

institutions were able to continue to function. The power of judicial review was trans-

ferred to a new Constitutional Committee, consisting of the Chair of the Supreme

Court and the Chair of the Administrative Court, along with five justices of the

Supreme Court elected by their colleagues. No doubt this reflects disappointment

in the Constitutional Court that had allowed Thaksin to take power in the first place

and later seemed to serve his interests.

The Interim Constitution also outlined a process for constitutional reform and, in

August 2007, a referendum approved the country's eighteenth Constitution, bringing

the first chapter to a close. When subsequent elections returned Thaksin's new

party to power, even as he was in exile, a new round of electoral disputes broke

out, requiring intervention by the Electoral Commission and a new Constihrfional

Court. Competing street protests ensued. In September 2008, the Court was called

on to decide if the new leader, Thaksin's handpicked successor Prime Minister

Samak Sundaravej, had to leave office because of a paid appearance on a television

cooking show in violation of the Constitution. Again faced with a de minimis legal

violation, this time the Court sided against the electoral majority and in favor of the

opposition anti-Thaksin forces, who had supported the coup d'6tat.

The Thai story involves two different key junctures. In the first, the Court deferred

to a democratic majority to allow Thaksin to take power despite his corruption. The

Court was playing the role of democratic consolidator, allowing a popular leader to

take power. In contrast with the Taiwan and South Korean examples, the person the

court delivered power to was neither democratic nor ineffective. He methodically

undermined the country's independent institutions, including the Constitutional

Court itself, so that it was not in a position to deliver benefits to the opposition or

Thaksin. However, the risk taking that had earned Thaksin a fortune led him to step

over the line, provoking demonstrations and political crisis. This led the king to call

on the Constitutional Court to resolve the problem, but it was unable to, and was

itself disbanded after the 2006 coup.

The second juncture took place in 2008 under the new Constitution drafted under

military rule. This time, the Court appeared to be playing the role of downstream

guarantor for the coup makers and their political allies. It appeared to be completely

willing to constrain the new forces around Thaksin. This case suggests a generalizable

hypothesis: consolidator courts that are subjected to democratic reversal may play

the more cautious role of guarantor in the next iteration of democracy.

Triggering Democracy in Pakistan, 2007

In March 2007, Pakistan's General Pervez Musharraf attempted to suspend the

chief justice of the Supreme Court, Iftikhar Mohammad Chaudhry for "abuse of

The Politics of Courts in Democratization 6i

power and nepotism." Analysts tied the decision to Chaudhry's resistance to the

establishment of military rule in the restive North-West Frontier Province and the

willingness of courts to take cases involving disappearances afifected by the military.

The courts had gradually enhanced their power (Chias 2008). The timing was also

related to a series of cases in which Musharrafs rule was challenged in courts.

Pakistan's courts have a long history of dealing with the legality of exceptional rule,

generally being supportive but also trying to limit the temporal duration of states of

emergency (Mahmud 1993; Newberg 1995).

Justice Chaudhry responded by resisting the attack and framing it as directed

against the judiciary as a whole (Sanchez Umbarri 2007). The attack prompted

broad demonstrations from the bar, which took to the streets to protest the decision

and was joined by a broad coalition of supporters of the civilian political parties.

The legal complex was mobilized. The legal controversy ended in the courts, and

featured the remarkable spectacle of the Supreme Court reinstating Chaudhry on

the grounds that his dismissal violated the law. No doubt this reflected the overall

position of the courts in common-law Pakistan, however, it also marked a sharp

departure from earlier incidents in which the courts blessed dictatorship. In terms of

internal motivational factors in the courts, many ascribe the change to Chaudhry's

leadership, suggesting contingency rather than structure.

Pressure continued to build on Musharrafs regime and he was forced to allow

former Prime Minister Benazir Bhutto to return to the country through a combi-

nation of judicial decision and pressure from his most important ally, the United

States. The Supreme Court found that Ms. Bhutto and Former Prime Minister

Nawaz Sharif had, as citizens, an inalienable right to return to the country. Sharif,

however, who had been in exile in Saudi Arabia after fleeing corruption charges,

was not permitted to reenter the country until mid-November.8

Musharraf then announced that he would run for office. This seemed a facial

violation of the Constitution, which prohibits the president From holding any other

position'? and requires military officers to take an oath not to engage in politics.10 In

late September, however, the Court surprised observers by holding that Musharraf

himself could run for office, by a vote of 6:3. This decision prompted protests from the

bar association. Without getting into the legal merits of the decision, the effect was

certainly to signal to Musharraf that the Court was not inexorably opposed to him.

The Court appeared to be avoiding a crucial mistake of the Thai Court -consistently

siding with only one side in a deeply divided political scene. The decision seemed to

suggest that the role of the court was not to pick winners and losers, but to structure,

to the extent possible, a fair contest for leadership of the country. Before Musharraf

was reelected by the Parliament, however, the Court announced that it would hear

"Home and Away," The Economist, September 15, 2007, pp. 31-33.

9 Constitution of Pakistan 1973, Art. 43.

10 Constitution of Pakistan 1973, Art. 244; Third Schedule.

62 Tom Ginsburg

a new constitutional challenge and announce whether the election was valid after

the fact. The Court reasserted its role as the final arbiter.

On November 3,2007, before the Supreme Court could rule, Musharraf declared

a state of emergency, and arrested thousands of activists, lawyers, and political party

workers. Taking a page from his American counterparts, he decried judicial activism

and terrorism in the same breath. Bhutto and other political leaders were put under

house arrest; a Provisional Constitutional Order (PCO) was issued prohibiting any

court issuing an order against the president, prime minister, or any person exercising

powers under their authority. The PCO further put the Constitution in abeyance,

saying that the country would be governed "as nearly as may be by the Constitution.""

Only the five Supreme Court justices who took an oath to uphold the PCO would

be allowed to remain; the other hvelve were placed under house arrest, along with a

number of Provincial High Court justices. Chaudhry called for resistance, from his

house arrest (Ghias 2008).

Musharrafwas eventually forced to resign his military post through the interven-

tion of the United States. After Bhutto's December assassination, elections returned

a coalition of civilian parties to office. Despite campaigning on a promise to restore

the judges to the Supreme Court, the civilians dithered, largely because of tensions

behveen the judiciary and Pakistan People's Party leadership (chiefly Bhutto's wid-

ower, President Zardari), and it took another round of struggle before the judiciary

was fully restored. In the end, however, the judiciary emerged with significantly

enhanced status.

The story of Pakistan's courts thus involves shifting judicial roles. Historically,

courts had blessed and rationalized authoritarian rule in Pakistan. Although the

basic structural conditions of Pakistan's courts and lawyers were not fundamentally

different in the early twenty-first century than in earlier rounds of dictatorship, there

was a slightly different international environment, and different leadership in the

person of Chief Justice Chaudhry. This changed the internal motivation of the

courts, leading them to play - for the first time - a triggering role for democracy

leading to a new equilibrium of enhanced judicial power. Perhaps the major lesson

to be drawn from this case study is the important and contingent role of judicial

leadership in helping the courts navigate political junctures and evolving roles.

Pakistan's key juncture may well be viewed by historians as having been at the

very center of the return to democracy. However, the drama reminds us that seeking

a place in history is fraught with danger for courts as institutions. The Supreme

Court itself has suffered, although as of this writing it is again engaged in high-

profile disputes with the government and army. Courts need allies, and sometimes

from unexpected places. The domestic legal complex was not enough to mobilize

a popular movement to overthrow Musharraf, and outside intervention was the

decisive factor in democratization. All that said, however, Pakistan seems to be a

Provisional Constitutional Order No. i (2007) Art. 2.1.

The Politics of Courts in Democratization 6?

case of an upstream trigger, and serves as somewhat of a caution to other courts

considering this risky role.

LEGACIES AND ROLES

In each case described in this chapter, courts had developed some sort of established

role in the political system, and then were confronted with pressure to play a new,

very central role: picking a leader in a highly contested situation. These cases also

involved varying roles in terms of democratization. We observed two (and a half)

cases of a court playing a consolidation-type role (Korea and Taiwan, with Thailand

i997-2clo(3 a^so falling into this category), one case where the court served as a trigger

(Pakistan), and one in which the Court appeared to be a guarantor (Thailand after

the 2006 coup).

We have focused on how these cases affected democratization, but what were

the effects on the judicial roles that are the focus of this volume? Do the four

cases tell us anything about the conditions under which we might see different

roles being played, particularly in situations of picking leaders? I do not seek here

to articulate a complete theory, and my sense is that individual trajectories will be

determined in large part through the skill and choices of judges themselves, as well

as the inclinations of other political actors. That is, there is a significant role for

judicial agency in accounting for variation across cases. Nevertheless, I can offer

some speculative thoughts.

First, consider the authoritarian legacy. In our four cases, judiciaries in general had

a relative degree of autonomy in the authoritarian period. However, hvo of our cases

(Korea and Thailand) involved Constih.itional Courts that had not existed in the

initial authoritarian period and were products of the new democratic constitutional

scheme. Instead of giving constitutional jurisdiction to the ordinary Supreme Court,

both new democracies created new courts. Neither new court played a role as a

guarantor. In neither case, in other words, was judicial empowerment associated with

hegemonic preservation (cf. Hirschl 2004). The insurance argument works better

in the Korean context, in which the Court was part of a constitutional agreement

among three parties of equal strength. However, the courts were not agents of the past:

when presented with cases to choose leaders, both courts chose to issue majoritarian

decisions that overlooked technical violations of the law to reflect recent electoral results.

The outcomes in terms of judicial role, however, were quite different across these

hvo cases. The Korean Court, very similar to the Taiwanese Grand Justices, has seen

its role steadily grow, even as it moves from a phase of democratic consolidation to

more conventional protection of constitutional democracy. At no time after democ-

ratization was well along did the role dramatically change. The Thai case, on the

other hand, illustrates how picking the leader can lead to crises that force a shift in

the judicial role. The court initially attempted to facilitate consolidation by allowing

64 Tom Ginsburg

'1:1

the newly minted majority of Thaksin Shinawatra to take over. It subsequently

sought to balance various political forces and encourage constitutional dialogues.

For reasons largely beyond the Court's control, the country's political institutions

gridlocked, and the Court died in the 2006 coup. The new Constitutional Court that

was established in 2007 has played a more aggressive role in constraining elected

institutions on behalf of the more conservative urban elite, a shift from democratic

consolidation to downstream guarantor. The suggestion is that the proximity of the

disbanding of the first court led the second court to be more cautious. A shock to

the system, in other words, can lead to a reformulation of judicial roles.

Pakistan's own long history of judges constraining power at the margin but giving

sanction to states of emergency seems to have drawn to a close in the most recent

iterations of government-court conflict. Judges seem to have sought to play a trig-

gering role, and were ultimately successful. Their stature certainly emerged gready

enhanced through the sequence of events discussed here, although it remains too

early to predict whether their enhanced legitimacy represents even a temporary

equilibrium.

CONCLUSION

This essay has provided a framework for thinking about the political role of courts and

law in democratization, through the lens of four cases involving choosing leaders.

These cases seem fraught with danger for courts, as they risked alienating major

political forces, and a major technique of judicial craft - namely issuing mediate

decisions - is not always available.

The cases indicate that successful approaches depend on the broader role of

courts in the political system. In autocratic settings, courts may on occasion seek

to trigger a democratic tipping, but this is a dangerous course that rarely succeeds.

Once democracy is relatively entrenched, the successful courts combined sensitivity

to majoritarian pressures, with an ability to transform the dispute from one about

personnel into one of principle. Serving as an agent for one of the parties, as in the

hegemonic preservation model and Thai examples, does not seem to be a successful

strategy, at least not in a period of pressure on the constitutional bargain. Although

the particular role of courts must of course depend ultimately on the decisions of

individual judges, the ultimate conclusion is a modest one: courts seem to play an

important but second-order role in democratization.

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Fragmentation? Defection? Legitimacy?

Explaining Judicial Roles in Post-Communist "Colored Revolutions"

Alexei Trochev*

One of the key insights of research on comparative judicial politics is that judicial

moves in mysterious ways: strong courts sometimes fail to command the

obedience of other political actors, and weak courts sometimes compel rulers to

obey adverse rulings. Neither the trajectory nor destination of judicial power is set in

stone: the de facto power of courts moves in a nonlinear fashion and shrinks as often as

it expands (Chavez 2004; Vanberg 2005; Moustafa 2007; Trochev 2008; Staton 2010).

As the editors remind us in the Introduction to this book, judges' internal motivations

as well as the external influences on courts interact in complex ways, leading courts

to play very different roles. Drawing on judicial experiences in resolving highly

contested electoral disputes in three post-Soviet countries (unique occurrences in

this region),1 this chapter provides empirical evidence of this variation.

Georgia, Ukraine, and Kyrgyzstan are the only post-Soviet states that underwent

"colored revolutions" - peaceful mass protests against fraudulent national elections

that toppled incumbent presidents - behveen 2003 and 2005 (Wheatley 2005; Wilson

2005; Radnitz 2010). One factor that appears to be of central importance to these

conflicts, but that so far has received little attention, is the differing role assumed by

the courts in supporting these revolutions.2 Unexpectedly, the political opposition -

in addition to street protests - actively used litigation to expose electoral fraud.

Associate Professor, School of Humanities and Social Sciences, Nazarbayev University, Kazakhstan.

Author is grateful to the Social Science and Humanities Research Council of Canada for the financial

support and to the Tinatin Tsereteli Institute of State and Law of Georgia's Academy of Sciences for

the logistical support. The author thanks Aleksander Rusetsky, Anna Dolidze, Oksana Syroid, and

Vasyl Hubarets for their insights and kind help. Although the Kazakhstan Constitutional Court canceled parliamentary election results in 1995 (Olcott

2010: 109-111) and the Yugoslav Constitutional Court canceled presidential election results in 2000

(Thompson and Kuntz 2004), these decisions were believed to be in favor of incumbent presidents

Nazarbayev and Milosevic.

For example, in their comparative analysis of these electoral breakthroughs, Bunce and Wolchik (2011:

115,141) only note the importance of the judicial role in Ukraine, and do not explain it.