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Center for Constitutional Studies and Democratic Development | Research | The Role of Constitutional Courts in the Challenges to Democratization and the Protection of Human Rights in Central Asia

The Role of Constitutional Courts in the Challenges to Democratization and the Protection of Human Rights in Central Asia

Main Researcher: Dr. Čarna Pištan

Abstract

The project on "The Role of Constitutional Courts in the Challenges to Democratization and Protection of Human Rights in Central Asia" aims to examine the progress made during the last two decades by the five former Soviet Union republics of Central Asia in their efforts to introduce democratic reforms and to identify the major obstacles they have encountered up to now. In adDr.essing this topic a special evaluation is made of the contribution offered to these efforts by Constitutional Courts and the functions and tasks assigned to these constitutional adjudication bodies in further strategies for democratization and protection of human rights. The study on the role played by Central Asian Constitutional Courts is particularly relevant because the outcomes of the research could shed light on problems and obstacles that countries may encounter during the democracy building process not only in the post-Soviet Union sphere but also in other regions that seem hostile to democratization such as Asia and the Middle East. Thus, a successful democratic transition in Central Asia may also serve as a model to nearby countries that face the same challenges.

Research Questions

The experience of Central Asian nations in the past two decades raises important research questions: What are the reasons for the failure of a democracy building process in Central Asian countries? What type of authoritarian regime is emerging in these countries? In which way did the so called "colored revolutions" of the 2000s influence a new wave of democratization in Central Asia? What are the current human rights standards in this region? What is the role of Constitutional Courts (or similar bodies) in these regimes? Are constitutional judges really independent from the political branches of government? Have these recently established Courts played an active role against central governments or are these Courts mere servants of these regimes? Have Central Asian Constitutional Courts a real chance of becoming the guardians of democratic values declared in the Constitution? In deciding politically sensitive cases are these Courts pro-democratic in their orientations or is their pro-democratic performance compromised by the pressure exercised by the executive?

Research Activities in 2013/2014

To understand the reasons of the current weakness of the democratic processes in Central Asian nations and give a coherent answer to the research questions the research activities was structured as follows:

  1. The initial phase of the research was focused on examining the dynamics that a democracy building process assumed through the Central Asian region, identifying the reasons of the failure of a democratic transition and its political, economic and social transformation. Moreover, in this initial phase the research was oriented to understand how the transition resulted in the establishment of (semi) authoritarian regimes through the region. To this end the research was based on a preliminary examination of the constitutional history of the five Central Asian states (i.e. their common communist past as constituent republics of the former Soviet Union which was followed by the study on the emergence of the five Central Asian countries as independent states after the fall of communism and the collapse of the Soviet Union). Then, the study focused on the transitional period looking, in particular, at the new constitution-making process initiated by all of the Central Asian countries in the middle of the 1990s. This implied an analysis of both the form of State and the form of government prescribed by the newly adopted Constitutions which was followed by an examination of the rise of constitutional justice through the Central Asian region. The research also focused on the model of constitutional review adopted in the Central Asia through an overview of Constitutional Courts' powers.

  2. During the second stage, research was focused on identifying the reasons of the failure of a democracy building process which led to the consequent consolidation among the Central Asian nations of (semi) authoritarian regimes. The latter trend implied both an analysis of constitutional changes that have occurred in the various Central Asian countries at the end of the 1990s and a further exam of the evolution of the form of State and of the form of government in the five countries. In order to identify both the nature and the dynamics of the non-democratic regimes that emerged through this region the research was then oriented on verifying the current standard of human rights in Central Asia as well as the recent progress made by these countries in reforming the state institutions. In this sense, focus was out on verifying if the recent colored revolutions (2000-2004) have produced a new wave of democratization in this region that seems hostile to regime change.

  3. Finally, the role played by Constitutional Courts in the evolution of Central Asian republics' form of State and form of government was analysed in order to identify the missions and tasks to be adopted by these Courts in further strategies for democratization and protection of human rights in Central Asia. In a context in which (semi) authoritarian regimes are still in force verifying the approaches and orientations adopted by constitutional adjudication bodies when called to decide matters concerning the protection of human rights and sensitive political issues is particularly relevant. In fact, Constitutional Courts may play a fundamental role through the judicial activism in the process of transition and democratic consolidation as well as in protection of fundamental rights and freedoms.

  4. The experience of Central Asia over the last twenty years has produced a lot of theoretical material, normative and legal acts and constitutional case law that was examined during the first year of the research activities in order to answer the research questions. To this end Dr. Pištan spent two months (from April 20, 2013 through June 20, 2013) at the Benjamin N. Cardozo School of Law as a Visiting Research Fellow.

Research Results. Presentation and Publications

The first results of this research were presented at the:
  1. International Round Table "Politics and Constitutional Justice", University of Regensburg, Germany in November 2012. Paper presented: The Chameleonic Nature of Central and Eastern European Constitutional Courts: Are the rest of the post-Soviet Union Courts mere agents of their regime?

  2. IACL World Congress of Constitutional Law, 16 - 20 June 2014, Oslo, Norway. Paper presented: Pseudo Constitutionalism in Central Asia: Curse or Cure

  3. Second Turkish Italian Seminar of Constitutional Law, 25 - 26 September 2014, Scuola Superiore di Studi Giuridici, University of Bologna. Paper presented: "Semi-presidentialism in Central Asia: a way for a successful installation of authoritarian rule?". The papers will be published as part of the Conference proceedings.

Next phases of the project

Phase two of the project will involve in the field research regarding the critical role played by Constitutional Courts in Central Asian Republics. Accordingly, one or more field trips to the area are to be scheduled in 2015. On site, Dr. Pištan will visit libraries, research centers and interview local experts.

In fact, the objective to be achieved in the next phases of the research is a detailed report verifying the contribution offered in these matters by Constitutional Courts in assessing the progress made by Central Asian countries in the protection of human rights and in the reform of State institutions. The detailed report will be presented in the context of an internal workshop organized at the Bologna Center involving expert discussants, which will provide an opportunity to discuss the results of the project in house, before implementing a broader dissemination strategy. Indeed, after the internal workshop, the CCSDD plans to organize an international conference involving local and international experts, practitioners and scholars. A final publication gathering all the results of the research will conclude this project.


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