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