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Judicial Power and Consociational Federation: The Bosnian Example

Published online by Cambridge University Press:  01 January 2025

Alex Schwartz
Alex Schwartz*
Affiliation:
The University of Hong Kong
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Abstract

An influential theory, sometimes called the ‘fragmentation hypothesis’, proposes that divided political systems will tend to empower courts because they make it more difficult for political elites to coordinate court-curbing retaliation. Another influential perspective proposes that federal systems are conducive to judicial empowerment because they create a demand for the authoritative adjudication of jurisdictional boundaries and/or they facilitate judicial supremacy over constitutional meaning. If both of these theories are correct, we might expect consociational (ie, power sharing) federations to be especially hospitable to the emergence of powerful courts. With reference to the example of Bosnia-Herzegovina, this article questions this conclusion; it is theorized here that core features of consociational federation will tend to undermine the growth and maintenance of judicial power.

Type
Article
Information
Federal Law Review , Volume 46 , Issue 4 , December 2018 , pp. 631 - 644
Copyright
Copyright © 2018 The Australian National University

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References

1 Hirschl, Ran, ‘The Judicialization of Mega-Politics and the Rise of Political Courts’ (2008) 11 Annual Review of Political Science 93CrossRefGoogle Scholar, 93.

2 See Alex Schwartz and Murchison, Melanie Janelle, ‘Judicial Impartiality and Independence in Divided Societies: An Empirical Analysis of the Constitutional Court of Bosnia-Herzegovina’ (2016) 50 Law & Society Review 821Google Scholar.

3 See ibid.

4 See EU Delegation to Bosnia and Herzegovina, Flash Report: Non-Execution of the BiH Constitutional Court Decisions (European Union, 2015).

5 Alex Schwartz, ‘International Judges on Constitutional Courts: Cautionary Evidence from Post-Conflict Bosnia’ (2017) Law & Social Inquiry (advance online publication) <https://doi.org/10.1111/lsi.12335>.

6 See Christopher McCrudden and Brendan O’Leary, Courts and Consociations: Human Rights versus Power-Sharing (Oxford University Press, 2013).

7 On the ‘fragmentation hypothesis’, see Ferejohn, John, ‘Judicializing Politics, Politicizing Law’ (2002) 65(3) Law and Contemporary Problems 41CrossRefGoogle Scholar.

8 Diana Kapiszewski, Gordon Silverstein and Robert A Kagan (eds), Consequential Courts: Judicial Roles in Global Perspective (Cambridge University Press, 2013).

9 See, eg, Ackerman, Bruce, ‘The Rise of World Constitutionalism’ (1997) 83 Virginia Law Review 771CrossRefGoogle Scholar. For a critical overview of this literature, see Tom Ginsburg, ‘The Global Spread of Constitutional Review’ in Keith E Whittington, R Daniel Kelemen and Gregory A Caldeira (eds), The Oxford Handbook of Law and Politics (Oxford University Press, 2008) 81.

10 Barry Friedman and Delaney, Erin F, ‘Becoming Supreme: The Federal Foundation of Judicial Supremacy’ (2011) 111 Columbia Law Review 1137Google Scholar.

11 Schor, Miguel, ‘Mapping Comparative Judicial Review’ (2008) 7 Washington University Global Studies Law Review 257Google Scholar, 264. It should also be noted that, for most early adopters, constitutional review was not available for individual rights, but rather was—and in some of these cases still is (eg Australia, Switzerland)—confined to disputes about the division and separation of powers.

12 See Ferejohn, above n 7. See also Stephenson, Matthew C, ‘“When the Devil Turns …”: The Political Foundations of Independent Judicial Review’ (2003) 32 Journal of Legal Studies 59CrossRefGoogle Scholar; Tushnet, Mark, ‘Political Power and Judicial Power: Some Observations on Their Relation’ (2006) 75 Fordham Law Review 755Google Scholar.

13 See Tsebelis, George, Veto Players: How Political Institutions Work (Princeton University Press, 2002)CrossRefGoogle Scholar ch 10.

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15 See Anthony Nibblett, ‘Delaying Declarations of Constitutional Invalidity’ in Frank Fagan and Saul Levmore (eds), The Timing of Lawmaking (Edward Elgar, 2017) 299.

16 Arend Lijphart, above n 14. See also John McGarry and Brendan O’Leary, The Northern Ireland Conflict: Consociational Engagements (Oxford University Press, 2004).

17 Issacharoff, Samuel, ‘Polarized Voting and the Political Process: The Transformation of Voting Rights Jurisprudence’ (1992) 90 Michigan Law Review 1833CrossRefGoogle Scholar, 1860.

18 Ibid 1871.

19 See, eg, Rupert Taylor, ‘The Injustice of a Consociational Solution to the Northern Ireland Problem?’ in Rupert Taylor (ed), Consociational Theory: McGarry and O’Leary and the Northern Ireland Conflict (Oxford University Press, 2001) 309–29; O’Flynn, Ian, ‘The Problem of Recognising Individual and National Identities: A Liberal Critique of the Belfast Agreement’ (2003) 6 Critical Review of International Social and Political Philosophy 129CrossRefGoogle Scholar.

20 For a global overview of the literature, see Garoupa, Nuno, ‘Empirical Legal Studies and Constitutional Courts’ (2011) 5 Indian Journal of Constitutional Law 25Google Scholar. For the US context in particular, see Jeffrey A Segal and Spaeth, Harold J, The Supreme Court and the Attitudinal Model Revisited (Cambridge University Press, 2002)Google Scholar; Lee Epstein, William M Landes and Posner, Richard A, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Harvard University Press, 2013)Google Scholar.

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22 See Jane Stromseth, David Wippman and Brooks, Rosa, Can Might Make Rights?: Building the Rule of Law after Military Interventions (Cambridge University Press, 2006)Google Scholar.

23 Constitution of Bosnia and Herzegovina, Arts IV.3(e), V.2(d). In addition to the ‘vital interest’ veto, the Constitution also creates what is effectively an ‘entity veto’ over state-level legislation. On the use of these veto powers, see Birgit Bahtić-Kunrath, ‘Of Veto Players and Entity-Voting: Institutional Gridlock in the Bosnian Reform Process’ (2011) 39 Nationalities Papers 899.

24 Constitution of Bosnia and Herzegovina arts V.4(b), 4.3(e).

25 Ibid art VI; see Schwartz, above n 5.

26 Constitution of Bosnia and Herzegovina arts I.3, III.2.

27 See General Framework Agreement for Peace in Bosnia and Herzegovina annex 10.

28 Constitution of Bosnia and Herzegovina art VI.3(a). Such disputes may only be referred to the Court by ‘a member of the Presidency, by the Chair of the Council of Ministers, by the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, by one-fourth of the members of either chamber of the Parliamentary Assembly, or by one-fourth of either chamber of a legislature of an Entity’.

29 Ibid art VI.3(b).

30 Ibid art VI.3(c).

31 Ibid art IV.3(f).

32 See Constitution of the Federation of Bosnia and Herzegovina art 5(1); Constitution of Republika Srpska art 8.

33 Constitution of the Federation of Bosnia and Herzegovina pt II; Constitution of Republika Srpska pt II.

34 Constitution of the Federation of Bosnia and Herzegovina pt IV; Constitution of Republika Srpska pt V.

35 Case U-5/98 (Partial Decision Part 3, 1 July 2000) para 54.

36 See ibid paras 86–95 (on the RS entity) and 130–7 (on the FBiH entity).

37 See, eg, Case U-3/13 (26 November 2015).

38 Bieber, Florian, Post-War Bosnia: Ethnicity, Inequality and Public Sector Governance (Palgrave Macmillan, 2005)Google Scholar 128–9.

39 Ibid 129.

40 See ibid 68–73, 80–3.

41 See Sumantra Bose, ‘Mostar as Microcosm: Power-Sharing in Post-War Bosnia’ in Allison McCulloch and John McGarry (eds), Power-Sharing: Empirical and Normative Challenges (Routledge, 2017) 189, 193–4.

42 Ibid.

43 See Case U-9/09 (26 November 2010), para 71. In addition to the argument detailed here, it was also argued that the quotas discriminated against Croats with respect to the right to vote or stand for office in periodic elections with universal and equal suffrage, a breach of article 25(b) of the International Covenant on Civil and Political Rights, and therefore also a breach of article II(4) of the Bosnian Constitution, which prohibits discrimination in the enjoyment of a range of international and supranational human rights. This argument failed. The Court reasoned that although the quotas were prima facie discriminatory, they could be justified for the sake of power sharing in the context of a deeply divided and post-conflict setting.

44 Ibid para 75.

45 Ibid para 77.

46 Ibid.

47 Case U-9/09: Ruling on Failure to Enforce (18 January 2012).

48 Constitution of Bosnia and Herzegovina art 10.12(1).

49 Ibid art 10.12(2): ‘Each constituent people shall be allocated one seat in every canton.’

50 Case U-23/14 (1 December 2016), para 9.

51 Ibid para 51.

52 Ibid para 52.

53 Horowitz, Donald L, ‘Conciliatory Institutions and Constitutional Processes in Post-Conflict States’ (2007) 49 William & Mary Law Review 1213Google Scholar.

54 See John McGarry and Brendan O’Leary, ‘Iraq's Constitution of 2005: Liberal Consociation as Political Prescription’ (2007) 5 International Journal of Constitutional Law 670; McCulloch, Allison, ‘Consociational Settlements in Deeply Divided Societies: The Liberal–Corporate Distinction’ (2014) 21 Democratization 501CrossRefGoogle Scholar.

55 McCrudden and O’Leary, above n 6, 13.

56 ‘Five Parties Strike Deal on Election Law’, N1 Sarajevo (online), 17 June 2018 <http://ba.n1info.com/a266982/English/NEWS/Five-parties-strike-a-deal-on-Election-Law.html>.

57 See Katarina Andelković, ‘The Standoff over the Electoral Law in Bosnia and Herzegovina’, European Western Balkans (online), 12 January 2018 <https://europeanwesternbalkans.com/2018/01/12/standoff-electoral-law-bosnia-herzegovina/>.

58 Sejdić and Finci v Bosnia and Herzegovina (European Court of Human Rights, Grand Chamber, Application Nos 27996/06 and 34836/06, 22 December 2009).

59 Valery Perry, ‘Constitutional Reform Processes in Bosnia and Herzegovina: Top-Down Failure, Bottom-Up Potential, Continued Stalemate’ in Soeren Keil and Valery Perry (eds), State-Building and Democratization in Bosnia and Herzegovina (Routledge, 2016) 31.

60 Case U-3/13 (26 November 2015).

61 See EU Delegation to Bosnia and Herzegovina, Flash Report: Non-Execution of the BiH Constitutional Court Decisions (European Union, 2015); Damir Banović, Sanela Muharemović, and Kapo, Dzenana, Strengthening the Capacity of the Constitutional Court of Bosnia and Herzegovina: How to Improve Decision Implementation and Enforcement? (Center for Political Studies, 2014)Google Scholar.

62 Criminal Code of Bosnia-Herzegovina art 239.

63 Even where noncompliance is more blatantly deliberate, the Prosecutor's Office has either decided not to pursue indictments or the state court has quashed charges on the grounds that individual officials cannot be held responsible for legislative actions or omissions. See Dzana Brkanic, ‘Bosnian Serb “Statehood Day” Referendum Charges Rejected’, Balkan Insight (online), 19 July 2017 <https://www.balkaninsight.com/en/article/bosnian-serb-statehood-day-referendum-charges-thrown-out-07-19-2017>.

64 For empirical tests of these accusations, see Schwartz and Murchison, above n 2; Schwartz, above n 5.