Paper long abstract:

The constitutional adjudication of an open political confrontation among branches is always a big test for any democratic society. In emerging democracies, the degree of pressure and challenges faced by constitutional courts become much more prominent and sometimes with much higher stakes such as court packing, taming or turning the court into complete irrelevance. When it comes to the constitutional review of open political conflicts, it is always important to see approaches and strategies adopted by constitutional courts to cope with these issues. The chosen approach and the path by courts can decide the fate of the entire state towards the transition to democracy. Will these courts serve as transformative constitutional institutions or conversely, will they become an obstacle for the transition? Will they be able to facilitate the dialogue between political branches or instead take an aggressive and hostile approach thus provoking a greater political deadlock?

This paper will analyze these issues in the context of new democracies in Central Asia and East Asia by drawing parallels between the adjudication of such disputes by constitutional courts. It aims to answer the following question: what was the role of these constitutional courts in the success of transition in Taiwan and South Korea, the downfall of Mongolia and negative experience of Central Asia, particularly on issues related to open political conflicts? It aims at identifying specific patterns and antipatterns shared by these jurisdictions and intends to draw an overall lesson that we can learn from these experiences. It is highly essential to stress that it is not possible to fully understand these cases without contextualizing them into broader politico-legal dynamics that revolved around these states. Therefore, the analysis of each judicial decisions will be made by contextualizing judicial review in broader politico-legal dynamics of the State.

Table of content of the Paper

1. Introduction

2. Aggressive approach: Mongolia

a) Constitutional court ruling on State Great Hural members serving in cabinet positions

3. Facilitative approach: South Korea and Taiwan

a) Impeachment of the president case I and II in South Korea

b) Presidential Immunity Case in Taiwan

4. Tamed Constitutional Courts of Central Asia

a) 1995 political crisis in Kazakhstan and decision of Constitutional Court

b) The Kyrgyz Constitutional Court prior to 2010 events

(a) Kyrgyz Constitutional Court under President Akaev

(b) Kyrgyz Constitutional Court under President Bakiev

(c) The Constitutional

Chamber Kyrgyzstan post-2010 Tulip Revolution

5. Conclusion

Paper long abstract:

Afghanistan has been a war-torn country for the past forty years. Over this time, countless atrocities have been committed and the lives of thousands of innocents have been taken. For example, according to the most recent report by the UN Assistance Mission in Afghanistan (UNAMA), in 2018 alone 10,993 civilians were killed or injured in the country, the highest number of causalities since UNAMA started recording such numbers in 2007. Yet no one has been held accountable for the atrocities, neither in national nor in international courts, and an entrenched culture of impunity continues to flourish to the present day. This lack of accountability is particularly vexing given that Afghanistan has been a state party to the Rome Statute since 2003, and the International Criminal Court (ICC) has jurisdiction over crimes against humanity, war crimes, and genocide committed within the country after May 1, 2003.

The purpose of this paper is to critically examine the situation in Afghanistan after 2003 with regard to international crimes and preliminary ICC investigations, with a close eye on the latest efforts of the ICC and the government of Afghanistan. This paper argues that Afghanistan has not yet fulfilled its basic obligations under the Rome Statute to prosecute grave crimes and cooperate with the ICC; and the ICC has not duly accomplished its mandate in the country by exercising its jurisdiction and prosecuting pertinent crimes. Furthermore, this paper will deconstruct the recent Afghan government's argument against the applicability of the complementarity principle of the Rome Statute, and instead contend that the two-pronged test of unwillingness and inability on the part of the Afghan government has been met and thus ICC intervention is not only legally justified but mandated. The complementarity principle of the Rome Statute permits the ICC to exercise its jurisdiction over international crimes if state parties are not willing or able to investigate and prosecute such crimes. The author will utilize a doctrinal research to analyze the relevant primary sources of law including international conventions, domestic laws, and the ICC cases; and secondary sources of law including academic treatises, articles, commentaries, and agency reports.

Paper long abstract:

The Republic of Azerbaijan (Azerbaijan) makes efforts on better protection of human rights through ratification and implementation of numerous human rights treaties, and improvement of national legislation and practice. In this process it is important to assess the status of international norms in the domestic legal system of the country - the pivotal point for understanding the impact of those norms on the national practice.

The present paper analysing the status of international norms in the domestic legal system of Azerbaijan, tries to reveal the legal force of those norms, as well as the state of implementation thereof.

The first section of the paper analyses the place of international norms in the legal system of Azerbaijan. The second section tries to reveal their legal force and addressing universally recognised norms of international law and ratified international treaties separately, also underlines the special weight of human rights treaties in comparison to other international agreements. The final section discusses the implementation mechanism of international norms in the legal system of Azerbaijan.

It is argued that the ratified international treaties are an integral part of the national legislative system, and have a superior legal force than any other act in that system. Furthermore, the ratified human rights treaties hold an even higher position, as they have, at least, an equal legal force with the Constitution of the country. Therefore, logically the ratified treaties should be applied in situations where the domestic legislation is not (properly) regulating this or another issue. However, the real situation is not so straightforward in the national practice. Thus, although the direct applicability of those documents is legally declared, in reality, they are treated as non-self-executing norms, which can only be applied through domestic legal tools. This undoubtedly necessities bringing the domestic legal acts into conformity with the ratified treaties, so that those treaties are fully implemented in practice.

Paper long abstract:

We determined the most pressing issues faced by advocates and lawyers in Kyrgyzstan as a result of their professional activities. The survey was organized into seven categories: access to the legal profession; right to independent practice; professional immunity; disciplinary proceedings; access to clients; confidential communications with clients; and right to information.

Several trends clearly emerged from this survey. First, most respondents replied that although rights of lawyers are protected by law, in practice, the majority of time, those rights were violated and norms are not implemented. Although an overwhelming majority, 93%, said that there were existing protections for the independence of advocates in Kyrgyz law, 69% of those said that those safeguards were insufficient or ineffective and that their rights were violated.

Second, it appears that in general, the rule of law is respected in broad outlines and lawyers are largely allowed to defend their client's interests. That said, on each of the factors, there are numerous failings in the details and implementation of how lawyers are treated. Further, advocates and lawyers have a low status in society, and as a result, people engage in physical assaults, intimidation and threats without fear of ramifications for their actions.

Our survey found, however, that these issues are overcome-able. The lawyers indicated that they believed these were not larger political attempts to undermine the work of advocates. It is incumbent on the Kyrgyz Bar Association (Advokatura) and Government agencies to work together and ensure that all law enforcement and judicial bodies understand the rights and responsibilities of lawyers and respond appropriately to lawyers' requests. The government should publicly condemn, at all levels, any attack and other acts of harassment against lawyers, and actively seek to prevent such acts.

The Advokatura, as an advocacy body, must ensure that advocates follow established rules and procedures and support adoption of the new Code of Professional Ethics of Advocates. They should also play the role of highlighting and documenting the instances of violations of advocates professional rights when other actors in the legal system do not play their own role.

Non-profit organizations should continue to monitor the situation on the ground and make the public aware when attorneys and lawyers' rights are violated. International organizations should continue to highlight the importance of the rule of law and the benefits a strong legal system brings to Kyrgyzstan and make detailed and specific recommendations to the national government.