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The Post-Soviet Constitutional Rights Community

William Partlett, Melbourne Law School

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2019, see here.]

To this point, most of my posts have focused on the top-down construction of post-Soviet constitutionalism. For instance, I have focused on the success of judicial review in constitutional courts.   In this post (my final one), I intend to focus on a different factor in the success of post-Soviet constitutionalism: bottom-up pressure from non-governmental, human rights organizations and lawyers (what I call the “constitutional rights community”). As Eva Pils describes in her work on China, these individuals and organizations are critical sites of activity in shaping both the direction and social practices of post-Soviet constitutional justice. 

There is a vast diversity of commitments to constitutionalism in the post-Soviet states.  On one hand, the Baltic states (Estonia, Latvia, and Lithuania) have built robust systems of constitutional law that have resisted much of the backsliding taking place in other parts of Eastern Europe.  On the other hand, similar textual commitments in constitutions in other parts of the post-Soviet space have remained unimplemented.  For instance, in parts of Central Asia and the Caucasus, paternalistic “national leaders” have ignored constitutional texts amidst calls for a return to pre-communist unity, harmony, and patrimonial leadership. In Turkmenistan, for instance, the first President—calling himself Turkmenbashi—renamed the month of January after himself and made an entire mythology of his life mandatory in schools. In other countries, official mythologies of national identity have been introduced.  Amidst this personalization of power, written constitutional texts have mattered little.  

A critical factor in driving this diversity is the activity of what I call the “constitutional rights community.” In the Baltic countries, a strong top-down commitment to implementing rights provisions has been underpinned by a constitutional rights community strongly devoted to the project of using the constitution as an instrument of change.  By contrast, a key factor underpinning the failure of textual rights commitments in Central Asian and Caucasus constitutions is the vulnerability of the constitutional rights community to government persecution (and therefore its relative weakness).

In recent years, some post-Soviet countries have grown weary of the corruption that plagues highly centralized governance; street protest and election results have created openings for constitutionalism.  The constitutional rights community will play an important role in seeking to enforce long-ignored rights contained written constitutional texts.  A good example is Kyrgyzstan.  Kyrgyzstan has long been dubbed an “island of democracy” in central Asia.  This moniker owes as much to its vibrant constitutional rights community as its top-down practice of constitutionalism. In fact, top-down, Kyrgyz constitutional justice has a problematic past.  In 2007, the constitutional court was captured by then-president Bakiev and invalidated a series of constitutional amendments weakening presidential power.  In 2010, after the fall of President Bakiev and the collapse of the Kygryz state, a group of politicians devised a new balanced checks-and-balances, semi-presidential constitution to replace its old super-presidential one.  They were, however, careful to avoid creating a powerful constitutional court again; instead, they built a more limited constitutional chamber three years later. This court has subsequently issued a series of important decisions but has kept a far lower profile. Yet it once again faces political pressure from the authorities.  In a recent case, the government removed a judge from the constitutional court in order to pressure the chamber to support its decision to bring in biometric data for elections. 

A more constant factor in Kyrgyzstan has been the activities of its vibrant constitutional rights community. This community has long played an important role in advancing Kyrgyz constitutionalism.  For instance, the Bir Dzuino group has a long history dating back to the early 1990s of using art and culture to advance human rights in Kyrgyzstan.  Furthermore, the legal clinic Adilet—based in Bishkek—has long focused on widening access to constitutional justice in Kyrgyzstan.  One of its most important current projects is very practical: simply updating the “procedures and mechanisms for submitting appeals to the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic and their consideration.” These groups will play an important role in helping to build the foundations of Kyrgyz constitutionalism, both by raising awareness of constitutional rights and making constitutional justice accessible to average people. 

Looking more broadly, it is clear that the constitutional rights community plays an important role in other post-Soviet states as well. The Memorial organization—which has its roots in the late Soviet human rights movement—seeks to advance constitutional rights and prevent a return to totalitarianism around the post-Soviet space.  It has branches in Ukraine and Georgia which are also experiencing openings.  In Russia, the Institute for Public Law and Policy is very active in bringing together constitutional law academics and practitioners interested in the project of Russian constitutionalism.  In Moldova and Armenia, rights organizations will play a critical role in shaping the success of the recent political openings in these countries. 

The importance of these groups is reflected in the increasing repression of these groups by governments afraid of constitutional scrutiny.  For instance, in Russia, the Supreme Court recently granted the government’s request to close down a prominent rights group called For Human Rights. For this reason, constitutional scholars interested in the project of constitutionalism in the region should devote as much time to studying the constitutional rights community as they do formal legal institutions.  The prospects and content of post-Soviet constitutionalism will continue to be one shaped as much from the bottom-up as the top-down. 

Suggested citation: William Partlett, The Post-Soviet Constitutional Rights Community, Int’l J. Const. L. Blog, Dec. 4, 2019, at: http://www.iconnectblog.com/2019/12/the-post-soviet-constitutional-rights-community/

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Published on December 4, 2019
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