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 UNrvERSiry PRESS

66 Tom Ginsburg

Toharia, Juan. 1975 "Judicial Independence in an Authoritarian Regime: The Case of Spain'

Law and Society Review 9: 475-96. Vanberg, Georg. 2004. The Politics of Constitutional Review in Germany. New York: Cam-

bridge University Press Weingast, Barry. 1997. "The Political Foundations of Democracy and the Rule of Law."

American Political Science Review 91: 245-63. 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

power 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)/ 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 - between 2003 and 2005 (Wheadey 2005; Wilson

2005; Radnitz 2010). One factor that appears to be of cenb-al 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

2oio: i09-m) 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.

68 Alexei Trochev

Unexpectedly, Supreme Courts - which are staffed with Soviet-era judges - canceled

rigged elections, thus opening the way for a peaceful change of government. Also

unexpectedly, the incoming governments did not embrace judicial independence,

instead pressuring and eventually emasculating judiciaries, a move voters did not

seem to resist.

Why and how did these Supreme Courts join the protesters and support the

opposition? More generally, why would Soviet-era judges assume a role in electoral

politics at key points during regime change - and challenge the rulers? Under what

conditions do judges in incomplete autocracies deal crushing blows to authoritarian

presidents during national elections - events incumbents try to use to solidify their

rule? Why are such judge-made outcomes often short-lived in such contexts?

To address these questions, this chapter begins by theorizing the conditions that

enable antigovernment judicial behavior and argues that more fragmented autocra-

cies may allow judicial roles to be played more boldly. It then explores the range

of strategies judges may use to rule against incumbent Executives and the func-

tional roles judges play when they challenge the legality of elections in incomplete

autocracies. It argues that although politics in these regimes may provide oppor-

tunities for judges to rule against the rulers at crucial moments, such rulings may

neither reflect nor result in political leaders' broader acceptance of judicial power

or expanded judicial roles. The chapter proceeds by summarizing the unexpected

roles the Supreme Courts played in the colored revolutions in Georgia, Ukraine,

and Kyrgyzstan behveen 2003 and 2005. It argues that by creatively mixing law and

politics and building on the weakness of nondemocratic leaders, judges were able

to prevent them from stealing elections. It concludes by assessing the effects of

these risky and bold antigovernment judicial decisions. Although these moments

of judicial courage were accepted by both outgoing and incoming governments in

each country, they alone were not sufficient to expand and entrench judicial power.

Landmark court rulings may have limited effects because ruling elites want no con-

straints on their rule, including those imposed by independent and assertive courts.

In short, judicial boldness at regime change does not necessarily lead to expanded

judicial power or independence, or to expanded judicial roles in governance in the

new regimes. As Table 2.1 shows, judicial boldness in all three countries failed to

improve judicial independence.

THREE CONDITIONS THAT MAY ENABLE JUDGES TO DECIDE CONTESTED ELECTIONS IN SEMI-AUTHORITARIAN REGIMES

Under what conditions do seemingly dependent judges rule against authoritarian

leaders? The political and legal conditions that enable judges to rule against the

rulers in authoritarian and semi-authoritarian regimes - regimes that persist despite

the third wave of democratization (Magaloni and Krichelli 2010) - have received

greater attention in recent years, as students of comparative politics have increasingly

Fragmentation? Defection? Legitimacy? 69

TABLE 2.1. Judicial framework and independence in Georgia, Kyrgyzstan, and Ukraine,

2000-2011

2000 2001 2002 2003 2004 200$ 20o6 200J 2008 2009 2010 2011 2012

GEO 4 4 4-25 4-5 4-5 5 4-75 4-75 4-75 475 4-75 5 5 KYR 5 5-25 5-25 5-5 5-5 5-5 5-5 5-5 6 6 6 6.25 6.25

UKR 4-5 4-5 4-75 4-5 4-75 4-25 4-25 4-5 4-75 5 5 5-5 6

Source: Freedom House (2012). The ratings are based on a scale of i to 7, with i representing the highest

level of judicial independence and 7 the lowest. Ratings in bold are for the years in which supreme courts

canceled fraudulent elections.

explored the power of various institutions, including courts, which were assumed

to shape politics and policies (Levitsky and Murillo 2009). I outline three condi-

tions here: political fragmentation; elections (at least semi-competitive ones) and

constitutionally defined barriers against nondemocratic rule (e.g., accessible judi-

cial review); and judicial jurisdiction in politically salient areas (which tends to be

awarded when authoritarian Executives have multiple mechanisms to control the

courts).

In seeking to address important questions about the role of courts in nondemo-

cratic regimes, court watchers noted that opposition groups actively used law and

courts to fight authoritarian Executives and succeeded in some cases (Newberg

1995; Widner 2001; Shambayati 2004; Helmke 2005; Moustafa 2007; Ginsburg and

Moustafa 2008; Popova 2012). Without pretending to have found the key to unlock

the black box of judicial power, scholars concluded that one of the crucial conditions

that enabled the opposition to use law and courts as a weapon against incumbents

was the fragmentation of the ruling regime as reflected in leaders' declining popular-

ity, growing divisions within the governing coalition, economic crises, civil wars, and

so on. The inherently fragmented nature of incomplete autocracies allows courts to

preserve some degree of judicial integrity and use their powers to challenge rulers

and influence political change. In particular, fragmentation in these regimes allows

judges to shield the judiciary's informal system of promoting and sanctioning judges

from interference by authoritarian rulers, and defect from the ruling regime when

they sense that the incumbents are too weak to punish them and incoming leaders

are strong enough to protect them.

The fragmented nature of incomplete autocracy in Georgia (Jones 2006), Ukraine

(Carothers 2002: n), and Kyrgyzstan (Collins 2006) facilitated successful (colored)

revolutions and the downfall of unpopular presidents (Kuzio 20053; Way 2005;

Areshidze 2007; Huskey 2007) who had failed to consolidate their power, pre-

pare their successors, or maintain control over important segments of political and

business elites, media, and security services.3 As I show in this chapter, Georgian

3 Political fragmentation is also exacerbated by the breakaway regions in Georgia, the East-West divide

in Ukraine, and the North-South split in Kyrgyzstan.

70 Alexei Trochev Fragmentation? Defection? Legitimacy? 7i

President Shevardnadze, Ukrainian President Kuchma, and Kyrgyzstani President

Akaev failed to fully control their judiciaries, which allowed Supreme Courts to can-

cel the results of national elections that these autocrats had attempted to steal. The

level of judicial challenge, however, varied among the three countries. Kyrgyzstan

had the smallest number ofantigovernment judicial decisions, and only a handful of

its judges displayed autonomy from President Akaev (BBC News 2000; Collins 2006:

183-184, 229-231). By contrast, Ukraine's President Kuchma repeatedly complained

about judges issuing unfavorable rulings.4

Second, the existence of institutionalized sites of contestation, such as regularly

held elections and courts, provided an opportunity both for the opposition to demon-

state these regimes' weaknesses and for the rulers to legitimize their regime. The

fact that Georgia, Ukraine, and Kyrgyzstan held elections regularly after the fall of

the Soviet Union - and that opposition candidates were allowed to run for office

and complain to courts against violations of electoral law - shows that having con-

stitutionally defined barriers against nondemocratic rule is another condition that

enables judges to rule against the rulers. To be sure, these barriers both have to be

stronger than the paper on which they are written and be activated by the opposition.

They may also matter less when authoritarian leaders are able to define them and

manipulate them in their favor by rigging elections and creating obstacles for the

opposition to compete in them and survive between them (Brownlee 2009; Gandhi

and Lust-Oskar 2009; Levitsky and Way 2010).

By the time of their colored revolutions, Georgia, Ukraine, and Kyrgyzstan each

had long-serving presidents: Shevardnadze had headed Georgia since March 1992;

ex-Prime Minister Kuchma had won Ukraine's presidential elections twice in 1994

and 1999; and President Akaev had ruled Kyrgyzstan since 1990 and showed no signs

of leaving the office to anyone other than his relatives. However, all three countries

are invariably counted in the global wave of judicial empowerment (Ginsburg 2003:

7-8). All three ratified constitutional bills of rights, enshrined standard safeguards of

judicial independence in their constitutions, and activated Constitutional Courts in

the mid-1990s (Trochev2oo8: 3). All three countries kept Supreme Courts from the

time of the USSR in place (although Georgia and Kyrgyzstan passed new laws on

the Supreme Court in the spring of 1999), and none purged the Soviet-era judiciary.

These top courts, created and reformed by authoritarian presidents who had already

consolidated their power, rarely disagreed with powerful Executives.

Finally, the third condition that gives courts a chance to exercise real power is hav-

ing jurisdiction in politically salient areas, and over electoral disputes in particular.

Without such jurisdiction, judges do not have a chance to intervene in heavy-

weight politics. In theory, authoritarian leaders can keep jurisdiction over electoral

4 According to Kuchma, then-Supreme Court Chief Justice Vitalii Boyko was an "underhanded bastard"

who needed to be dealt with, and local judge Aleksandr Tupitskii in Donetsk (home base ofKuchma's

anointed successor, Viktor Yanukovych) should be hung "by the [expletive] for one night" just for

ordering Kuchma to testify as the victim in a libel case Wilson 200';: i;7. u.'i).

to themselves or grant it to the handpicked Central Election Commission.

tice, rulers use delegating the authority to resolve electoral disputes to the

a mechanism to enhance their legitimacy and demand judicial loyalty

in return. By securing the judicial stamp of approval on elections, authoritarian

;rs demonstrate that the opposition's complaints about electoral outcomes are

mndless and elections were lawful. Autocrats know that they can score points at

home an(^ abroad when they expand jurisdiction of the judicial branch and praise

indicial authority. Autocrats have plenty of tools and resources to ensure that judges

are on their side. In the countries under study, as the political battle between the

increasingly unpopular authorities and the opposition intensified, the pressure on

courts became more blatant (Civil.GE 20030; Popova 2012; ABA CEELI 2004). At

the same time, presidents in these countries raised judicial salaries and appointed

trusted persons to head the top courts, believing that they would control the judiciary

in the same way that generals control an army.

Authoritarian Executives delegated the power to review election results to courts

in each of the three countries under study because they planned on courts being

neither veto points nor window dressing, but instead tame and resilient workhorses in

legitimating their rule (Schedler 2010: ji). These rulers knew that they (not judges)

ultimately controlled whether judicial decisions were implemented, in case judges

unexpectedly issued unfavorable judgments (Trochev 2008). They knew that they

could punish recalcitrant judges and face no retribution for doing so. They also

knew that their judiciary could perform miracles for them like a genie that has been

let out of the botde (ruling against political opponents, banning them from running

in elections, shutting down recalcitrant media outlets, etc.). However, the autocrats

were also confident that they could put the judicial genie back in the bottle when it

was no longer needed (Nodia 2005: 42-43). Just as importantly, if the genie tried to

resist, they had enough tools to discipline it (Moustafa and Ginsburg 2008).

In Georgia, the Justice Council in charge of recruiting judges and enforcing

judicial discipline was a part of the presidential administration. In June 1999, four

months prior to legislative elections, President Shevardnadze nominated and the

Georgian parliament unanimously confirmed a new Supreme Court Chair, Lado

Chanturia. The Supreme Court was authorized to review the legality of adminis-

trative actions, including decisions of the Central Election Commission (CEC). In

July 2001, following his 2000 reelection, Shevardnadze appointed his parliamentary

secretary, Joni Khetsuriani, to the Constitutional Court, and he quickly became its

chief justice. Under Article 89 (d) of the 1995 Constitution, the Constitutional Court

had the power to resolve disputes arising with the constitutionality of elections.

Concerning Executive tools to discipline courts in Ukraine, in February 2002 -

seven weeks before parliamentary elections - President Kuchma grabbed the power

to create courts, define their size, and appoint their chairs and vice-chairs (i.e., chief

justices), except for the Supreme and Constitutional Court. In November 2002,

after a massive PR campaign and Kuchma's promises to double judicial salaries,

72 Alexei Trochev

the eighty-two-member Supreme Court elected (with forty-nine votes) Vasyl Mal-

yarenko as its chief justice, Kuchma's pick for the post. Secretly recorded conver-

sations of Kuchma revealed that Malyarenko was on much better terms with him

than was outgoing Chief Justice Boyko (Kyiv Post 2002). As in Georgia, the Supreme

Court was the trial-level court in lawsuits against decisions of the CEC. Kuchma's

cronies, Serhiy Kivalov and Viktor Medvedchuk, held a tight grip over the Ukrainian

High Council of Justice, the body in charge of selecting and disciplining judges,

and masterminded the rigging of the 2004 presidential elections. Since its activation

in 1996, the Ukrainian Constitutional Court grew increasingly loyal to President

Kuchma and "became instrumental in eroding legislative power and shifting it to

the executive" (Wolczuk 2002: 328). For example, this tribunal approved most con-

stitutional amendments sponsored by Kuchma and allowed him to run for a third

term in office despite the constitutional hvo-term limit (Kuchma chose not to run)

(Wolczuk 2001: 258-260, 273-277; D'Anieri 2007:90-91' 95)-

Finally, Kyrgyzstani President Akaev's pattern of controlling the courts was more

blatant than in Georgia or Ukraine (ABA CEELI 2004). Unlike Shevardnadze and

Kuchma, he did not allow for any meaningful judicial self-governance, and reshuf-

fled local judges and Supreme Court Chief Justices in the same way as he reshuf-

fled government ministers. As a result, during Akaev's fourteen years in office, the

Kyrgyzstan Supreme Court - which has the power to resolve elections disputes -

was headed by five chief justices. In January 2004 - a year before the fraudulent

parliamentary elections that triggered the Tulip Revolution and Akaev's downfall -

the Kyrgyzstan Parliament appointed Akaev's nominee, Deputy Prime Minister Kur-

manbek Osmonov (who, similar to his predecessors, was widely believed to be in

Akaev's pocket [RFE/RL 20040]), to head the nation's Supreme Court. In contrast,

the same person, Cholpon Baekova, who was connected to Akaev by kin, headed the

Constitutional Court (which can review the constitutionality of Supreme Court's

decisions) throughout Akaev's presidency and well beyond his ouster. Similar to

Ukraine, in 1998, the Constitutional Court allowed Akaev to run for a third term in

office despite the constitutional hvo-term limit: Akaev was reelected in 2000 in a vote

marred by fraud. In September 2004, this Court ruled that it was up to the parliament

to decide whether Akaev could run again in the 2005 presidential elections. Prior

to the Tulip Revolution, this tribunal displayed no signs of "strategic" defection,

although Akaev's regime had been steadily losing its support at home and abroad

(Collins 2006: 231).

In short, three conditions - failing to tame the political opposition (which mani-

fests itself in fragmentation), allowing the opposition to compete in regular elections

and complain to courts, and granting courts the power to review the conduct of

election officials - appear to be necessary for judges to rule against incumbents

during highly contested and fraudulent elections. Facing these conditions, judges

may choose to expose electoral fraud or condone it either explicitly or quietly. How

and why did the Supreme Courts in Georgia, Ukraine, and Kyrgyzstan choose the

Fragmentation? Defection? Legitimacy? 73

extreme and untested route of canceling the results of rigged elections? The answer

to this question requires careful examination of both judicial strategies and the roles

sought to play when they chose, against all odds, to rule against powerful pres-

idents at the most controversial moments. To be sure, these strategies are context

:, as judges on different courts in different countries face different kinds of

i, have different loyalties to the regime, and experience different intra-court

dynamics.

JUDGING CONTESTED ELECTIONS IN SEMI-AUTHORITARIAN REGIMES: JUDICIAL STRATEGIES AND ROLES

With the benefit of hindsight, we now know that authoritarian leaders may miscalcu-

late. They may overestimate their own capacity to keep judges (and other elements

of the ruling regime) in line and the strength of the opposition and its ability to

mobilize street protesters and attract elements of the ruling regime. By exploiting

the miscalculations and weakness of nondemocratic Executives, and by creatively

mixing law and politics, Supreme Court judges in Georgia, Ukraine, and Kyrgyzstan

did not let authoritarian presidents steal elections. Unexpectedly, these judges chose

to switch sides and play three important roles: resolving crucial election disputes;

monitoring election officials and exposing massive vote fraud; and resolving dead-

locks during regime change. Was this a display of genuine judicial independence

that could potentially lead to fairer elections and more accountable government?

The answer is yes, according to the opposition groups that were victorious in

these disputes, and the judges themselves. Opposition groups argued that they had

a strong case: they had obeyed electoral law; collected evidence of vote fraud; and

sued the authorities for violations of their electoral rights. Supreme Court Judges

likewise claimed that they had simply followed the law: they heard both sides

of the electoral dispute; examined the evidence; applied preexisting electoral laws;

determined numerous elections irregularities; and consequently overturned election

results. This, however, does not answer the question of why judges switched sides

and followed the law at these moments and not others. As we shall see, judges did

so in part because they found a way to engage in creative decision making that went

well beyond the letter of law.

Another more cynical answer, preferred by the losers of the colored revolutions,

is that judges were prepared to defect to the opposition once they realized that the

incumbent regime was losing power. Arguably, Argentinean judges often "strate-

gically" defected this way, even before the incumbents achially lost their power

(Helmke 2005). According to this view, canceling the results of rigged elections

reflects continued judicial dependency: it has nothing to do with law and everything

to do with the balance of power between the rulers and the opposition.5 The stronger

5 On the crucial importance of the distribution of power between the rulers and the opposition, see

McFaul (2002).

74 Alexei Trochev

the opposition, the more likely judges are to abandon the incumbent regime. How-

ever, as I have argued, the top courts in Georgia, Ukraine, and Kyrgyzstan grew

increasingly loyal to authoritarian rulers precisely when the popularity of the latter

began to crumble. There were no signs of strategic defection by judges and no signs

of them strategically currying favor with the opposition. Whenever there were judi-

cial decisions inconvenient to Shevardnadze, Kuchma, or Akaev, their top courts

intervened and reversed them and tried their best to punish recalcitrant judges.

Rather than defecting to an increasingly popular opposition gradually as in the

Argentine case, Supreme Courts in Georgia, Ukraine, and Kyrgyzstan defected

"on the spot" through the creative use of legal resources. The courts in all three

countries were able to use this strategy precisely because they had not engaged in

strategic defection and were thus trusted by the rulers to hand down verdicts against

the opposition. Judges preferred to use this strategy in all three countries because

incumbent presidents - although widely unpopular6 - retained sufficient resources

to punish recalcitrant judges. The unwillingness of the Constitutional Courts to

intervene in these electoral breakthroughs shows that many judges chose to play it

safe and wait and see who would win in these rigged, chaotic (and in Kyrgyzstan,

violent) elections.

Defecting judges may deliver tangible benefits to the opposition that it should

consider helpful to its cause of overthrowing the ancien regime. However, judicial

invalidation of election results or mandated recounting of ballots may not help the

opposition if it allows the status quo to continue: incumbents (unless they fled the

country) remain in office and retain control of scheduling new vote or recounting

ballots. As I will explain, because of the presence of the three conditions outlined,

Ukraine's judges delivered the most benefits to the opposition; Kyrgyzstan's judges

delivered the fewest.

Judicial Roles in Georgia's 2003 Rose Revolution: Exposing Vote Fraud

Georgia's parliamentary elections were held on November 2, 2003. Seventy-five

legislative seats were contested in single-member districts and 150 seats were to be

allocated according to party lists on a proportional basis.7 Then-U.S. Ambassador to

Georgia Richard Miles called the vote "a mess from start to finish" (Areshidze

2007: 149)- The U.S.-based National Democratic Institute together with the

Georgian NGO International Society for Fair Elections and Democracy (ISFED)

quickly produced parallel vote tabulations, announcing that six electoral blocs had

gained parliamentary representation; the National Movement, a party led by the

6 President Shevardnadze (Georgia) and President Kuchma (Ukraine) enjoyed the same (13%) approval ratings several months prior to fraudulent elections. This is why I treat their lack of popularity as

constant.

7 At the time, the Georgian Parliament consisted of 235 seats with 10 seats reserved to the secessionist

regions ofAbkhazia and South Ossetia, neither of which Georgia controlled.

Fragmentation? Defection? Legitimacy? 75

head of the Tbilisi City Council Mikheil Saakashvili, had gained 26 percent of the

vote; and pro-government blocs had received 27 percent of the vote. Saakashvili

called his supporters to the streets to allege that the elections had been rigged and

demand the resignation of President Shevardnadze. The CEC announced the offi-

cial election results only on November 20, the last day of vote counting as allowed

the election code: pro-government blocs received 40 percent of the vote and

Saakashvili's National Movement 19 percent (Areshidze 2007:153-170).

Throughout this "vote-counting" period and the whole election campaign, the

ISFED actively used courts to fight against electoral violations. Prior to the elec-

tion, courts heard more than fifty election-related complaints concerning changes

to the composition of precinct election commissions, inaccuracies in voter lists,

reinstatement of de-registered opposition candidates, and so on (OSCE/ODIHR

20043: 14; Georgian Times 2003: 6). The judiciary was extremely active in hearing

election disputes, sometimes working well into the night to meet tight deadlines

(OSCE/ODIHR 2003: 7). These legal battles in the local courts produced mixed

results. In some cases the courts took bold decisions and ruled against the govern-

ment (Caucasian Knot 2003; Civil.Ge 2003b). In other cases, they deferred to the

CEC or declined to consider cases on the merits (OSCE/ODIHR2003: 7; Interna-

tional Crisis Group 2003: lo). As of November 18, there were more than three dozen

cases pending before various courts contesting election results in single-member

districts (Areshidze 2007:168). Although the ISFED insisted that legal battles were

more effective than street protests, it did not expect the courts to annul election

results because neither the Constihition nor election law" gave them the power to

do so (Hedges 2003: 5).

On the evening of November 21, a day after the CEC announced the election

results, the ISFED asked the Supreme Court to order a recount of the ballots cast

for 150 seats under the proportional system. The Court accepted the complaint,

and the judge-reporter (who prepares the case and drafts the decision) informed

the CEC about the lawsuit. CEC officials told the judge that the recount was

impossible because of the disorderly tabulation of the voting protocols coming from

the electoral precincts and the CEC's falsified calculations. On visiting the CEC

offices, the judge-reporter saw that they were full of voting protocols piled up in a

chaotic manner in addition to opened bags with voters7 ballots. The judge scheduled

a hearing on the case for November 24 and announced that it would be heard by a

three-judge panel.8 The election code gave the Supreme Court five days to issue its

decision.

However, neither President Shevardnadze nor Saakashvili (the former justice

minister who led the party that had gained the most votes) waited for the Supreme

Court's decision. The next day - November 22 - was the last day of the twenty-day

post-election period within which the Constitution (Art. 51) required the first sitting of

8 Author's interview with a judge, Tbilisi, May 5, 2oo8.

y6 Alexei Trochev

the newly elected Parliament, the final step required to recognize its authority. Using

the Constitution's silence on whether this session had to await any judicial decisions

on electoral irregularities - and choosing not to condemn the alleged election fraud

(which might have disarmed the protesters) - Shevardnadze attempted to convene

the new parliament. In response, Saakashvili led the protesters, holding red roses,

into the parliament building, disrupting the session (Eurasianet 2003; Fairbanks

2004: n6; Areshidze 2007:175-180).

Shevardnadze's bodyguards whisked him to his residence outside Tbilisi;

Saakashvili's supporters roamed the Parliament building and stormed other gov-

ernment buildings. They faced almost no resistance, as many of Shevardnadze's

ministers and advisers had resigned and joined the opposition a few days earlier

(Eurasianet 2003). After intense negotiations mediated by Supreme Court Chief

Justice Lado Chanturia and the Russian Foreign Minister Igor Ivanov, President

Shevardnadze resigned the following day, completing the Rose Revolution (or coup

d'6tat).

On November 24, after opposition leader Saakashvili's team took over the actual

power in the country, the Supreme Court heard the case concerning the elec-

tion results. At the start of the hearing, the plaintiff (ISFED) changed its com-

plaint and asked the Supreme Court to cancel the results of the elections for the

150 seats allocated under the proportional system, rather than simply order a ballot

recount. Clearly, this new demand was motivated by the opposition's desire to hold

new parliamentary elections for these seats in conjunction with new presidential

elections, which had to be held within forty-five days of Shevardnadze's resignation

according to the Constitution (Art. 76). At the trial, CEC officials admitted numer-

ous electoral violations and accepted all charges against the CEC. The next day,

the Supreme Court canceled the results of the elections for the 150 seats allocated

under the proportional system, reasoning that the widespread fraud committed by

election officials at all levels made it impossible to recount the ballots or determine

the will of the people.9 However, the Court did not say anything on the legality of

the remaining seventy-five legislative seats contested in head-to-head races, because

ISFED had not asked the Court to cancel the elections for these seats. Chief Justice

Chanturia, who did not take part in the hearing, repeatedly asserted that his Court

acted according to law and had the right to review actions and decisions of the high

government bodies, and that the Rose Revolution was constihriional (Baiandurlu

2004).

The Georgian Constitutional Court - by contrast - did not switch sides, probably

because justices remained loyal to Shevardnadze and viewed the Rose Revolution

9 Specifically, the judges compared the data from the protocols of nine randomly selected district elec-

toral commissions with the figures in the nationwide CEC protocol, found numerous discrepancies,

concluded that the CEC had violated electoral law, and invalidated the CEC protocol of election

results. Decision of the Supreme Court of Georgia No. 8-11-36-54-03 of November 25, 2003 (on file

with author).

Fragmentation? Defection? Legitimacy? 77

as a coup d76tat. On November 27, a group of more than eighty MPs, fearing

that the Supreme Court lacked the power to cancel elections results,10 petitioned

the Constihjtional Court to rule the results of the 2003 elections unconstitutional

2004a: 21). The Constitutional Court found that the complaint did

not satisfy technical requirements and gave the plaintiffs three days to correct their

tition. On December i, the complaint was resubmitted, but the Court found the

inadmissible because its signatories had fallen below the required number

(forty-seven) ofMPs." Interim President Nino Burjanadze chose not to bring a case,

and as a result the results of the single-member elections stood, although many

believed that these elections had also been rigged.12 In fact, the newly constihited

CEC certified those elections, allowing the newly elected MPs from those districts

to retain seats in the new parliament (OSCE/ODIHR 20043: 22).

Whereas international observers hailed the Supreme Court's boldness, domestic

politicians criticized it. Ironically, it was the opponents of the outgoing president,

rather than pro-Shevardnadze groups, who blasted the Supreme Court. A left-wing

Labor Party leader charged that the Court had overstepped its authority (Chikhladze

2003). By contrast, Mikheil Saakashvili - who won the January 2004 presidential

elections with 96 percent of the vote - openly accused the Court of doing too little:

judges should have canceled the election results for all 225 parliamentary seats, not

just the ones from the party lists (RFE/RL 2oo4b). These accusations may have

prompted the prediction made by one judge: "I don't think the Supreme Court will

issue such a decision ever again!"

To sum up, fragmentation and competitive elections and judicial review of elec-

tion results made the Georgian Supreme Court's partial cancelation of the 2003

election results possible. It was as legal as the Rose Revolution. The Court exposed

electoral fraud and annulled the results of rigged parliamentary elections only after

it became clear that the opposition had won. Prior to the Rose Revolution, the

opposition did not expect the Court to cancel election results wholesale and thus

only called on it to order a ballot recount. However, following Shevardnadze's res-

ignation and the transfer of power to Saakashvili's team, the opposition changed

its legal claim, requesting that the Court cancel the election results, and faced no

objections from CEC officials. The Court was no longer resolving a dispute, as both

plaintiffs and defendants agreed on all counts. However, the Court's invalidation

of the CEC's certification of the vote was the necessary legal formality to re-hold

party-list elections. At the same time, the chief justice served as an intermediary

10 Indeed, the Constitution (Article 890]) states that disputes over the constitutionality of elections fall

into the exclusive jurisdiction of the Constitutional Court.

" Under Art. 89 of the Georgian Constitution, the constitutionality of elections can only be challenged

by one-fifth of parliament (forty-seven MPs) or the president.

12 According to a survey conducted immediately after the elections, 92% ofTbilisi residents believed the

elections had been rigged and 68% favored the annulment of the results of the vote (Sumbadze and

Tarkhan-Mouravi 2004).

78 Alexei Trochev

between the rulers and the opposition during the revolution, reflecting his moral

authority in the eyes of politicians and judges.

The new rulers of Georgia (Saakashvili won presidency with 96 percent of the

vote, and his party won the pariy-list elections with 67 percent of the vote), however,

made sure that the courts would not continue to intervene in politics. President

Saakashvili - whose governing style reflected little tolerance for either accountability

or anything inherited from the ancien regime - purged the Supreme Court, shrunk

its size from forty-four to nineteen justices, forced Chief Justice Lado Chanhiria

into honorary exile in Germany, and transferred jurisdiction over electoral disputes

to the Tbilisi Court of Appeals without the possibility of appeal to the Supreme

Court. This lowered the visibility of complaints against electoral violations and

helped the regime cover up vote fraud. In 2008, when Saakashvili was reelected with

53 percent of the vote and his party won parliamentary elections with 59 percent,

only three out of ten Georgians believed that the elections were fair (Sumbadze

2009: 192). International election monitors criticized the courts in Saakashvili's

Georgia for turning a blind eye on claims of irregularities in subsequent national

and local elections (OSCE/ODIHR 2oa8a: 23-24, 29; 2oo8b: 19-22,27-28; 2010:23-

24). Numerous experts noted that judicial involvement in protecting human rights

remained "inadequate" or raised cause for concern (ABA ROLI 2009: 3; Freedom

House 2012; Hammarberg 2011). The December 2009 survey commissioned by the

United Nations Development Program (UNDP 2010) found that 73.2 percent of

respondents said the government either fully or partially controlled the judiciary.

With regard to elections or other sensitive issues, the courts ruled in a partisan

manner under Saakashvili's one-party regime.

Judicial Roles in Ukraine's 2004 Orange Revolution: Deciding Election

Disputes and Resolving High-Stakes Deadlocks

Ukraine's Orange Revolution took place a year after Georgia's Rose Revolution,

and there is considerable evidence that both the authorities and the opposition in

Ukraine learned a great deal from peaceful regime change in Tbilisi (Bunce and

Wolchik 2011). On October 31, 2004, Ukraine held presidential elections, which

outgoing president Kuchma had predicted would be its "dirtiest" (Kuzio 20056:30).

The CEC announced that Viktor Yushchenko - a former prime minister and the

leader of the opposition that used the color orange in its campaign - received

39.9 percent of the vote; then-Prime Minister Viktor Yanukovych - Kuchma's

protege - received 39.3 percent. As neither captured a majority (the threshold needed

to win office), the two advanced to a mnoff, scheduled for November 21. This second

round was marred by blatant voter fraud, which received worldwide attention thanks

to thousands of domestic and international election observers. On November 22,

the CEC announced that - with 98 percent of the ballots counted - Yanukovych

was leading the polls, and two days later officially declared him the winner with

Fragmentation? Defection? Legitimacy? 79

)ercent of the vote against Yushchenko's 46.6 percent. By this time, Yushchenko

had called for street protests - heeded by hundreds of thousands of Ukrainians (far

more than in Georgia) - and taken a symbolic oath as the next Ukrainian president

in the half-empty parliament building.

As in Georgia's Rose Revolution, courts were actively involved in election dis-

,. Both the opposition and the government resorted to courts to accuse each

other of vote fraud throughout the campaign (Committee of Voters of Ukraine

2005). on ttle ^ay ofti'le first-round presidential election (October 31), judges heard

,561 complaints concerning irregularities in voter lists (Korrespondent.net 20043).

Following the runoff, regional courts handled some 11,000 complaints about alleged

vote fraud (BBC News 2004; Guardian 2004). Similar to Georgia, the results of

these court battles were mixed. On the one hand, several regional courts reinstated

representatives of the opposition to local election commissions, corrected voter lists,

made it easier for Ukrainians living in the West to vote, and dismissed lawsuits

filed by Yanukovych's lawyers (Wilson 2005: no). On the other hand, local courts

ruled in favor of the authorities on many occasions (OSCE/ODIHR 20046, 20040),

even canceling the results of the vote in two election districts (200 and 203) where

Yushchenko was ahead (ProUAzoc^a). For the Yushchenko camp, battles in regional

courts - which many assumed to be controlled by the authorities (Wilson 2005:

146) - were very important, as the only legal recourse open to the opposition was to

lodge legal complaints against vote fraud in polling stations before regional courts,

and then appeal them to the Supreme Court. However, jurists from both political

sides agreed that the courts, including the Supreme Court, lacked the power to

cancel district or nationwide election results, let alone to order new elections across

the nation (Krushelnycky 2004; Peuch 2004; Ulcrayinska Pravda zoo^a; Katerinchuk

2006: 91).

However, as in Georgia, the Ukrainian Supreme Court proved these experts

wrong. Chief Justice Vasyl Malyarenko charged his deputy, Anatoly Yarema, with

overseeing the legality of the elections. Justice Yarema, who had risen through the

judicial ranks in Western Ukraine, headed the Court's twenty-one-member Civil

Chamber, which was in charge of hearing election disputes. Justice Yarema took

his job seriously and publicly admonished election officials for poor handling of

voter lists. More importantly, the Court upheld Yushchenko's complaints against

the cancelation of the vote count in three election districts - 100,200, and 203 - in

which he was ahead (ProUA 20040, 2004b; Wilson 2005: m).

Shortly after the CEC's November 22 announcement that the preliminary results

of the runoff showed Yanukovych in the lead, Yushchenko's legal team asked the

Supreme Court to overturn the announcement.13 Submitting numerous examples

of the falsified vote in eastern Ukraine, Yushchenko's lawyers argued that the CEC

3 Katerinchuk (2006), one ofYushchenko's legal advisors, provides an account of the role of lawyers in

the Orange Revolution.

8o Alexei Trochev

could not declare Yanukovych the winner owing to the massive vote fraud in the

second round of voting. The next day, however, the Supreme Court Justice Olexandr

Potylchak refused to hear this complaint on procedural grounds (Korrespondent.Net

2004b), much as the Georgian Constitutional Court did during the Rose Revolution.

In response, overnight, Yushchenko's lawyers assembled ten bags of documentary

evidence of massive violations of voting rights and electoral procedures.14 They

resubmitted their lawsuit on November 25 - "the key day of transition (Wilson

2005:127) - asking the Supreme Court to: (i) declare that the CEC acted unlawfully

during the vote counting; (2) invalidate the CEC's announcement that Yanukovych

had won the runoff; (3) declare that serious violations of election law had occurred

during the runoff; (4) invalidate the results of the runoff in Yanukovych's home

region; and (5) indicate that the winner should be elected on the basis of the results

of the first round alone (Prescott 2006: 228).

Unexpectedly, Supreme Court Justice Ivan Dombrovskii - who made his judi-

cial career in Western Ukraine - accepted the lawsuit, scheduled the hearing for

November 29, and banned the CEC from publishing the official election results,

the final step in the confirmation of the vote. The outcome of the case was any-

thing but predictable. Whereas there were hundreds of thousands of people on the

streets of Kyiv, it was not evident that the opposition had won the election. Indeed,

the main entrance of the Supreme Court building was decorated with the slogan

"Yanukovych - the Choice of2oc>4."15 The Cabinet of Ministers met as if nothing

was happening (as did the Parliament), and ordered the election results to be pub-

lished (Wilson 2005: 134). The CEC, security forces, law-enforcement agencies,

and media remained on the government's side; European Union mediators had

yet to land in Kyiv (Wilson 2005: 140). Kuchma, who wanted to extend his term

in office and prepare a safer retirement, insisted that the Court could issue only

"some recommendations" to the government (Wilson 2005:147), and Yanukovych's

lawyers and the CEC likewise claimed that the Court lacked the authority to cancel

election results across the country, let alone order new elections. Ordinary Ukraini-

ans expected little from the judiciary, known for its toothless, biased, and corrupt

decisions; even Yushchenko's team was not sure what the Court could really do for

their leader.17 Justice Anatoly Yarema was allegedly taken to the presidential villa

and "instructed" on how to handle the case (Katerinchuk 2006: 291). Meanwhile,

Chief Justice Malyarenko actively lobbied for cancelation of the election results

from both rounds and for the holding of new elections within three months, the

solution preferred by outgoing President Kuchma (Mostova 2004).

14 Author's interview with lawyers on Yushchenko's team, Kyiv, April 2008.

15 Yushchenko's lawyer, Svitlana Kustova, who delivered the lawsuit to the courthouse, managed to tear

down the banner (Katerinchuk 2006: 69).

16 The results were not published only because opposition MPs physically occupied the government

printing house.

'7 Interview with lawyers on Yushchenko's team, Kyiv, April 2008.

Fragmentation? Defection? Legitimacy? 8i

However, the authorities would prove to have been overconfident in their ability

to control the Supreme Court. On November 29, when the judges assembled for

the first time to hear Yushchenko's case, they unexpectedly decided that the whole

Civil Chamber (hventy-one judges) - headed by Justice Yarema - would hear the

pew claim to cancel the results of the nationwide vote and allowed live TV cameras

in the courtroom. Although according to the law the Court hears cases in three-

judge panels, this case required unprecedented solidarity and transparency: justices

needed protection from political pressure and threats by the government in order to,

expose electoral fraud. By that time, the judges surely sensed that the opposition was

lining strength because of numerous defections in the security services, Parliament,

media, and business elite. Indeed, Yushchenko's bodyguards protected judges who

leaned toward his side, and their family members (Moyer 2005: 7-8; Katerinchuk

2006: 29l).18

To the surprise of many, in the course of the hearing, judges threw out most of

the requests made by the CEC and Yanukovych's lawyers. At the same time, judges

demanded more factual evidence of voter fraud from Yushchenko and agreed with

many of his lawyers' requests despite their numerous legal blunders.19 Judges went

to the deliberation room to discuss every motion brought by the parties, thereby

reaching their decisions in secret, as the law required. Even Chief Justice Malyarenko

was barred from entering the deliberation room (Katerinchuk 2006: 276).

On December 3, after five days of the full-blown televised trial - in which judges

reviewed several thousand pages of documentary evidence and heard the oral tes-

timony of election officials - the Supreme Court ruled for Yushchenko on almost

all counts (Ukrayinska Pravda 20045). The Court slammed the CEC for failing to

check regional election protocols, handle complaints in a timely manner, or control

the processing of absentee ballots, and for allowing mass violations of electoral law.

Relying on evidence produced by grassroots activists in the Yushchenko camp and

the security services who taped the conversations ofYanukovych and CEC officials,

the Court declared that these mass violations infringed on the constihitional prin-

ciple of free elections and precluded the possibility of determining the will of the

electorate in the whole country.

However, judges also refused Yushchenko's request to declare him the winner

on the basis of the results of the first round of voting alone. The Court argued

that because none of the candidates gained more than fifty percent of the vote

in the first round, Yushchenko could not be declared the winner. Instead, the

Court discovered" a new remedy for Yushchenko and voters: a repeat second-round

presidential election to be held on December 26. Yushchenko's lawyers insisted that

the "creative" and "innovative" nature of this judge-made discovery was necessary to

uphold the people's constitutional right to vote.20 Thus, against all odds, the Court

My interviews with lawyers in Yushchenko's team confirmed this as well as Yushchenko's protection.

'9 Rakhmanin (2004) offers critical analysis ofYushchenko's legal team.

20 Interview with lawyers in Yushchenko's team, Kyiv, April 2008.

82 Alexei Trochev Fragmentation? Defection? Legitimacy? 8?

11,111:!!!

canceled the election results, and ordered and scheduled a new runoff between

Yushchenko and Yanukovych.

This Ukrainian verdict was bolder than the Georgian Supreme Court's ruling,

discussed previously. Simply canceling the election results, as the Georgian judges

did, would have been a weak" decision tantamount to deferring to the incumbents.

Instead, Ukraine's top judges - working under enormous pressure from both sides -

sided with the opposition. By liberally interpreting the Elections Act and directly

applying constitutional provisions, judges set the date and format of elections against

the wishes of both the Executive and chief justice (who advocated a whole new elec-

tion in three months). Moreover, post-decisional dynamics show that the opposition

was also deadlocked over the issue of conducting the new runofif. Thus, there were

few signs that politicians were ready to reach a consensus on the timing and proce-

dure of new elections, if the Court were to defer to political elites. In short, by setting

a date for the runoff, the Court "completely changed the political game" (Wilson

2005:147).

As in the Georgian case, this judicial role was met with criticism. Yanukovych

lashed out atthe Supreme Court for overstepping its jurisdiction, issuing an unlawful

decision, and intruding in the domain of the Constitutional Court, the only tribunal

that could draw directly on the constitutional principles of free elections, in his opin-

ion (Prescott 2006: 228-230). On December 7, Yanukovych's team petitioned the

Constitutional Court to annul this Supreme Court judgment. Meanwhile, the oppo-

sition, defectors, and Western negotiators applauded the Supreme Court (Romovska

2004). In fact, close attention from the West restrained Ukrainian authorities from

using force against protesters and defying the Supreme Court. On December 8,

five days after the Court spoke. Parliament reached a compromise and amended

the election law, paving the way for the repeat second round on the date set by the

Supreme Court. On December 15, the Constitutional Court refused to hear peti-

tions against the Supreme Court verdict on the grounds that it lacked jurisdiction to

oversee the constitutionality of judicial decisions. Contributing to its reluctance was

the fact that at the time, the eighteen-member Court barely had a twelve-member

quorum to make decisions (two judges were on sick leave and four judgeships were

vacant thanks to the skillful sabotage of pro-Yushchenko groups in Parliament), and

was unlikely to arrive at the ten votes needed to issue a judgment on the merits of the

case (ProUA 200401). However, more importantly, by that time the Constitutional

Court realized that the Orange Revolution had won and chose to go with the flow.

Its judges prudently chose to stay on the sidelines of this historic electoral dispute:

judges had several months left on the bench before their term expired and they did

not want to take any chances of losing their generous retirement packages.21

In sum, political fragmentation and competitive elections allowed the Supreme

Court to set the rules of this electoral breakthrough. By handing down an explicitly

21 Interview with a clerk of the Ukrainian Constitutional Court, Kyiv, April 2008.

litical decision building on both the spirit and letter of the law, the Court played

three important roles during regime change. First, it resolved a bitter electoral dispute

in a unique decision that humiliated the incumbent Executive and remained in

the national memory. Second, judges monitored the CEC, discovered numerous

blatant violations of electoral law, protected the whistleblowers (CEC members who

openly spoke out against vote fraud), and vetoed its illegal behavior. Third, judges

resolved political deadlocks, stepping in to tell embattled elites who were unable to

compromise what to do. Expecting totally new elections, outgoing President Kuchma

delegated the resolution of this hot potato dispute to the Court in order to avoid

blame for an unpopular decision. Only five days after the Supreme Court judgment,

the Ukrainian parliament managed to reach consensus on how to conduct the Court-

ordered runoff election. The CEC organized the new runofiF in order to repair its

reputation and avoid its own dissolution. On December 26, ViktorYushchenko won

the runoffwith 52 percent of the vote against Yanukovych's 44 percent. On January 20,

2005, the Court rejected Yanukovych's allegations of vote fraud and confirmed that

Yushchenko had won in a free and fair election.

As in Georgia, however, incoming rulers tried their best to minimize judicial

constraints on their power and successfully weakened courts. President Yushchenko

promptly transferred the Supreme Court's power to review election results to the

newly created High Administrative Court and repeatedly accused the Supreme

Court of thwarting Ukraine's democratic development. Both incumbents and the

opposition pressured the courts, particularly during national elections. Meanwhile,

public approval ratings of Ukraine's judiciary fell from of 21 percent to 4 percent

in the course of Yushchenko's presidency (Trochev 2010). His successor, Viktor

Yanukovych (elected in 2010), narrowed the Supreme Court's jurisdiction even

further and purged the Court (Kyiv Post 2011). At that time, 4 percent of Ukrainians

approved of the performance of courts with 57 percent disapproving (Razumkov

Centre 2011). Judicial empowerment did not stick because incoming rulers learned

from their predecessors that courts had to be kept under tight control.

Judicial Roles in Kyrgyzstan's 2005 Tulip Revolution: Legalizing

the Unexpected Transfer of Power

Kyrgyzstan's Tulip Revolution, named for the color of the country's national flower,

took place in March 2005 in the wake of rigged parliamentary elections (that were

nonetheless the freest and fairest in Central Asia to that point) (Radnitz 2010:135).

This revolution was quicker, less organized and even less expected than Georgia's

and Ukraine's. Looking back, its achievements are also much more ambiguous.

Politicians' reactions to the roles courts sought to play during and after this electoral

breakthrough reflect this ambiguity. President Akaev repeatedly warned that he

would not allow a revolution similar to Georgia's and Ukraine's to occur. Some 388

candidates competed for 71; legislative seats but only -?i seats were filled in the first

84 Alexei Trochev

round of voting on February 27, 2005." Opposition candidates ran in only two dozen

districts, and only seven were elected either in the first or second round of voting,

held on March 13. The CEC took its time, and on March 22, registered sixty-nine

newly elected MPs.

Just as in Georgia and Ukraine, courts in Kyrgyzstan were actively involved in the

resolution of election disputes throughout the campaign, and their work produced

mixed results. According to the OSCE/ODIHR (2005), in disputes over candidate

registration, some courts applied the Election Code inconsistendy and appeared to

be biased in favor of particular candidates. In a number of instances, courts disre-

garded petitions by CEC representatives against de-registration of candidates; the

Supreme Court likewise upheld several de-registrations, even when the grounds

for de-registration were not well evidenced or concerned minor infractions and the

CEC argued against them. The Supreme Court also de-registered two candidates

shortly before the elections, a violation of Article 56 of the Election Code, which

established a five-day moratorium on candidate de-registration prior to election day.

Finally, there were cases where court decisions were ignored, and election commis-

sions made decisions contradicting both court rulings and the law. OSCE/ODIHR

monitors suggested that "the practice of ignoring court decisions appears to be a

direct result of politically motivated decisions by courts and election commissions."

Following the vote, courts invalidated results reported by individual polling stations

in a number of constituencies, leading to repeat voting in order to determine the

winner and even to the replacement of the winning candidate - sometimes after can-

didates had already received their mandate (OSCE/ODIHR 2005: io-n, 18-19, 24).

Unlike in Georgia and Ukraine, however, in Kyrgyzstan de-registered candidates

usually brought hundreds of their supporters to protest at local courthouses and

even at the Supreme Court (Radnitz 2010:131-166). The crowds were peaceful and

dispersed in an orderly fashion following court rulings, and this tactic worked well

for the losing candidates, who flooded the courts with complaints despite the lack of

trust in the judiciary. For example, former Minister Jeenbekov, who ran against Pres-

ident Akaev's sister-in-law, brought out hundreds of protesters to surround the local

courthouse and succeeded in foiling attempts to de-register him. On February 28,

a crowd of 3,000 gathered in Aravan village in southern Kyrgyzstan to demonstrate

against alleged misconduct by Mahamadjan Mamasaidov, the rector ofOsh Kyrgyz-

Uzbek University, who had received the most votes in the first round. They blocked

the Aravan-Osh highway until the next day, when the Aravan district court agreed

to hear the case (International Crisis Group 2005:4-5).

Indeed, this tactic would eventually succeed in unseating President Akaev. Feed-

ing on their unexpected successes, by March 2005, public protesters had captured

numerous government buildings in key southern cities and were demanding the

22 Kyrgyzstani MPs were then elected in seventy-five single-member districts. Election law required

a runofiF between the top two vote getters when no candidate received a first-round majority. Most

Fragmentation? Defection? Legitimacy? §5

resignation of President Akaev, whose home base was in northern Kyrgyzstan. On

jVlarch 21, Akaev ordered the Supreme Court to review the results of elections in

districts where results had elicited a sharp reaction in society." He clearly trusted

the Court and did not sense that its judges would defect to the opposition - which

did not trust the Court and did not expect judges to change the result of the ballot

lua 2005; Peuch 2005). The next day, the CEC registered sixty-nine newly elected

MPs, and the new parliament held its opening session immediately thereafter. Dur-

ing this session, president Akaev repeated that he would not resign and ordered

law-enforcement agencies to maintain law and order in the capital. On March 23,

)lice dispersed a crowd of hundreds of protesters in central Bishkek and the oppo-

sition repeated its call for Akaev's resignation as well as that of the Supreme Court,

CEC, and other central government officials. Meanwhile, Cholpon Baekova, the

chief justice of the nine-member Constitutional Court, spent hvo days fruitlessly

trying to see Akaev to attempt negotiations (International Crisis Group 2005: 8).

On March 24, the opposition held a major rally in Bishkek's central square, during

which protestors unexpectedly stormed and captured the headquarters of central

government. Conflicting reports suggested that President Akaev fled to Moscow or

Kazakhstan. Meanwhile, Chief Justice Baekova announced on TV that the prime

minister resigned.

At 10:00 P.M. that day, Supreme Court Chief Justice Kurmanbek Osmonov

announced the thirty-three-member Supreme Court's (unanimous) decision. It

canceled, on procedural grounds, the CEC's registration of the new members of

Parliament, and returned the mandate to the "old" parliament until April 14, the con-

stitutionally set date for the expiration of its mandate. However, Osmonov insisted

that the ruling (which he described as both a "political" and a "legal" decision) did

not represent a cancelation of the results of the first- or second-round parliamen-

tary elections, thus creating the possibility for politicians to find a way out of the

deadlock (OSCE/ODIHR2005:24; RFE/RL 20050). The judgment was made in an

atmosphere marked by extraordinary uncertainty: the opposition was unprepared for

Akaev's regime to crumble, and unaware of his whereabouts and ability to launch

a forcible comeback. In contrast with Georgia and Ukraine, the Kyrgyzstani Court

did not expose vote fraud or broken vote-counting procedures. Its chief justice mas-

terminded the judgment without hiding its political nature and paved the legal way

for the outgoing Parliament to fill the void created by the disappearance of President

Akaev.

The outgoing parliament immediately appointed opposition leader Kurmanbek

Bakiev as both an acting president and acting prime minister. On March 28, the

CEC registered the newly elected MPs again, but several seats remained contested

in courts. Newly registered MPs forced the old Parliament to disband. Meanwhile,

courts continued to hear cases concerning election disputes. In one case, a Bishkek

court determined electoral fraud, ruled against a pro-government candidate, and

86 Alexei Trochev

8oo supporters occupied regional government buildings in Naryn, a town in central

Kyrgyzstan, demanding that the Naryn regional court overturn its decision to annul

the results of a tight race in the town (RFE/RL 20050).

Cases concerning five additional contested parliamentary seats ultimately para-

lyzed the Supreme Court. On April 26, 80 protesters stormed and occupied the

Supreme Court building (300 more surrounded the courthouse) and demanded

that their 5 candidates be declared winners in the parliamentary elections. They

also demanded that the whole Court resign for aiding and abetting electoral fraud.

Supreme Court Chief Justice Osmonov submitted his resignation only to withdraw it

two weeks later; other judges refused to resign. The police were nowhere to be found,

and the protesters occupied the courthouse until June i, despite judges' repeated

pleas that they leave. That day, a 200-strong people's militia - mostly supporters of

the election winners in the five districts in which parliamentary seats were being

contested - stormed the Supreme Court and evicted the protesters (Pannier 2005;

Toktogulov 2005). However, protesters continued to block Chief Justice Osmonov

and judges in the Civil Chamber (which handles election disputes) from entering

the courthouse until July (Slovo Kyrgyzstana 2005).

Osmonov claimed that the incoming government did not offer any protection

to the Supreme Court against the protesters because the Court refused to obey

Bakiev's requests to award parliamentary seats to his cronies (Slovo Kyrgyzstana

20io). Having won presidential elections in July 2005 with 89 percent of the vote,

Bakiev pressured the Supreme Court to uphold the 2007 fraudulent parliamentary

elections, packed the judiciary with at least 100 cronies, and fired the chief justice

in January 2008. Other judges also felt ever-increasing pressure from the powerful

and grassroots protesters (International Crisis Group 2008). The interim government

that came to power as a result of the 2010 uprising against Bakiev adopted a new

Constitution, purged the Supreme Court, abolished the Constitutional Court, and

brought criminal charges against top judges.

To sum up, political fragmentation and highly contested elections enabled Kyr-

gyzstan's Supreme Court to participate in the Tulip Revolution. In contrast to Geor-

gia and Ukraine, Kyrgyzstan's Supreme Court admitted that it had to mix law with

politics and act quickly but cautiously to pave the way for the transfer of power to new

government without upsetting election winners. However, judges did not become

the heroes of the Tulip Revolution because weaker but more violent opposition in

Kyrgyzstan did not see the behavior of the Supreme Court as defection from the

outgoing regime, and the incoming government tried its best to keep judges under

its tight control.

CONCLUSION

Judicial power moves in mysterious ways partly because of the nature of the polit-

Fragmentation? Defection? Legitimacy? 87

as they assume new roles in governance. Three cases of unexpected electoral

breakthroughs and peaceful government change in Georgia, Ukraine, and Kyrgyzs-

tan revealed that judges sometimes choose to perform important functions in regime

transiti011- Politically, the inherent fragmentation of power in semi-authoritarian

regimes allowed some judges to develop both formal and informal protections of their

;rsonal independence and that of their court. Authoritarian rulers appeared over-

confident in entrusting judiciaries with settling crucial election disputes. Legally,

jurisdictional rules (which Supreme Courts in the three cases under study skillfully

bent) and intense pressure from parties to electoral disputes mattered. Opposition

candidates in semi-authoritarian regimes such as Ukraine, failing states such as

Georgia, and clan-based societies such as Kyrgyzstan used litigation very actively

and gained favorable results.

Facing unpopular rulers in contexts marked by blatant electoral fraud and rising

street-level protests. Supreme Courts in all three countries unexpectedly switched

sides and ruled in favor of the opposition. They canceled election results by over-

stepping their jurisdiction. By mixing law and politics and appealing to the spirit

as much as the letter of the law. Supreme Courts monitored the functioning of

election commissions, and denounced the manipulation of elections by the out-

going regime. Thus, the Supreme Courts boldly delegitimized the ruling regimes

in all three countries. In Ukraine, the Supreme Court also resolved the deadlock

behveen the authorities and opposition by setting the date for a repeat runofF of a

highly contested presidential election. In all three cases, judges were able to get away

with playing a crucial role in electoral governance partly because they calculated

correctly and partfy because they knew how to twist legal rules.

This does not mean, however, that these Courts will continue performing these

functions happily ever after or that the demand for independent judicial authority

among politicians and society will increase. Indeed, agile politicians learn from

their predecessors that they should keep judges under control and that they face no

punishment for making the courts pliant. The fact that the perpetrators of electoral

fraud were never brought to account in Georgia and Kyrgyzstan and in Ukraine they

even managed to regain high government positions through competitive elections

shows that pliant courts may persist because they provide important benefits to the powers that be.

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Constitutional Authority and Judicial Pragmatism

Politics and Law in the Evolution of South Africa's

Constitutional Court

Heinz Klug *

Judging from comments in judicial opinions and academic journals, South Africa's

Constitutional Court is held in high esteem around the world. Although this might

seem an unsurprising response to the highest court in a post-apartheid South Africa,

this chapter argues that the Court's image as well as its judicial authority are the

product of a very particular set of conditions and politics and cannot be taken for

granted now or in the future. Implicit in this argument is the idea that the Con-

stitutional Court plays a number of different roles that vary over time. In order to

understand the evolution of the Constih.itional Court and of its roles in the gov-

ernance of the country, it is important to explore three dimensions of the Court's

history and function, which taken together, provide insight into the way in which

the courts and judges have entered into national political life, and what differ-

ence their participation has made in the construction of constitutional democracy

in South Africa. These three dimensions are: (i) the sources of judicial authority;

(2) the practice of the judiciary in exercising this authority; and (3) the challenges

faced by the court as political conditions shift, and as it is confronted with increas-

ingly difficult cases rooted in seemingly intractable socioeconomic and political conditions.

In terms of the causal framework this volume employs, we can identify three

distinct sets of factors that have helped to define the roles the South African Con-

stitutional Court has performed: (i) the original conditions that enabled the Court

to issue the rulings for which it has become famous; (2) the internal motivations

or actions of the Court; and (3) the external influences that encouraged the Court

to adopt the stance it has taken. These three factors provide a means to identify

and evaluate how particular cases and events have shaped each of the three dimen-

sions that need to be explored in order to understand the roles the Court has and

Evjue-Bascom Professor of Law, University of Wisconsin Law School, Honorary Senior Research

Associate in the School of Law, University of the Witwatersrand.