Judicial Power and Consociational Federation: The Bosnian Example
| Date | 01 December 2018 |
| DOI | 10.1177/0067205X1804600409 |
| Published date | 01 December 2018 |
| Subject Matter | Article |
THE BOSNIAN EXAMPLE
Alex Schwartz*
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.
I INTRODUCTION
It is an understatement to say that federalism is contested in Bosnia-Herzegovina. The
country’s Constitutional Court has been both a major protagonist and victim of that
contestation. On the one hand, it has embraced a striking judicialisation of ‘mega
politics’, intervening in the kind of ‘matters of outright and utmost political significance
that often define and divide whole polities.’1 On the other hand, the Court has also been
internally riven by the same ethno-national divisions that afflict the society more
generally;2 it has been criticised and threatened by powerful elites;3 and its decisions
have often been unimplemented and sometimes openly defied.4
Elsewhere, I have argued that the Bosnian Constitutional Court has not always
shown sufficient sensitivity to the limits of judicial power and, consequently, may have
*
The University of Hong Kong.
1 Ran Hirschl, ‘The Judicialization of Mega-Politics and the Rise of Political Courts’ (2008) 11
Annual Review of Political Science 93, 93.
2 See Alex Schwartz and Melanie Janelle Murchison, ‘Judicial Impartiality and Independence
in Divided Societies: An Empirical Analysis of the Constitutional Court of Bosnia‐
Herzegovina’ (2016) 50 Law & Society Review 821.
3 See ibid.
4 See EU Delegation to Bosnia and Herzegovina, Flash Report: Non-Execution of the BiH
Constitutional Court Decisions (European Union, 2015).
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exacerbated some of these difficulties.5 I will not revisit those criticisms here. Instead,
this article considers some of the theoretical implications that the example of Bosnia-
Herzegovina may have, both for our understanding of the role of courts in deeply
divided federations and for our understanding of judicial power more generally. Some
scholars predict that constitutional courts will be deferential to power sharing
arrangements.6 It is also theorised that constitutional systems that fragment political
power—as the federal and consociational aspects of the Bosnian system clearly do—will
tend to empower courts.7 The Bosnian experience is not a straightforward vindication
of either of these theoretical expectations. The cases canvassed here show how the
Constitutional Court has actively transformed the workings of federalism and power
sharing in Bosnia-Herzegovina. At the same time, the challenges the Constitutional
Court has faced suggest that consociational federalism may be an especially precarious
environment for judicial power.
II THEORIES OF JUDICIAL POWER AND CONSOCIATIONAL
DEMOCRACY
One of the most important questions in comparative constitutional law and judicial
politics is the question of what factors make courts more or less consequential.8 An
influential line of theory proposes that federalism is a key driver of both the
establishment of constitutional review and the subsequent growth of judicial power.9 A
federal division of legislative and executive competencies creates a compelling rationale
for empowering an independent constitutional tribunal; elites dispersed across the
system’s constituent units and orders of government need a mechanism to protect their
respective turfs against jurisdictional encroachment. Moreover, jurisdictional disputes
between orders or units of government create opportunities for courts to assert
themselves and establish their supremacy over constitutional interpretation—authority
that can later be leveraged in other kinds of disputes that have little or nothing to do
with federalism.10 Although the universe of polities with constitutional review is much
broader than the universe of federal systems, it is notable that many early adopters of
constitutional review—eg, Austria, Australia, Canada, the United States, and
Switzerland—were classical federations.11
5 Alex Schwartz, ‘International Judges on Constitutional Courts: Cautionary Evidence from
Post‐Conflict Bosnia’ (2017) Law & Social Inquiry (advance online publication)
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 John Ferejohn, ‘Judicializing Politics, Politicizing Law’
(2002) 65(3) Law and Contemporary Problems 41.
8 Diana Kapiszewski, Gordon Silverstein and Robert A Kagan (eds), Consequential Courts:
Judicial Roles in Global Perspective (Cambridge University Press, 2013).
9 See, eg, Bruce Ackerman, ‘The Rise of World Constitutionalism’ (1997) 83 Virginia Law Review
771. 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 Erin F Delaney, ‘Becoming Supreme: The Federal Foundation of Judicial
Supremacy’ (2011) 111 Columbia Law Review 1137.
11 Miguel Schor, ‘Mapping Comparative Judicial Review’ (2008) 7 Washington University Global
Studies Law Review 257, 264. It should also be noted that, for most early adopters,
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Judicial Power and Consociational Federation: The Bosnian Example
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These intuitions about federalism are related to another line of scholarship that
emphasises how political fragmentation insulates courts from political interference and
court-curbing retaliation.12 The idea here is that the more a political system is divided
and host to multiple veto points, the more difficult it becomes for any one faction to
control or discipline the judiciary. If, for example, judicial appointments require the
cooperation of both the legislature and the executive, and each of those institutions is
controlled by a different political party, then the courts are unlikely to be beholden to
any single faction. Similarly, a court will be relatively unconstrained by the threat of
court-curbing retaliation if the associated mechanisms—impeachment of judges, salary
freezes, ouster clauses and constitutional amendment, etc.—require the cooperation of
more than one faction. In such circumstances, it is only where the preferences of all the
relevant veto players align against a court that judicial power can be checked.13
Both the federalism and fragmentation hypotheses have some obvious relevance for
consociational democracies. By definition, consociational democracies institutionalise
political fragmentation; on the assumption that the polity is already deeply divided—
and so inter-group or cosmopolitan political parties are unlikely to succeed—
consociational arrangements seek to ensure that multiple parties, representing all major
societal ‘segments’, control the various institutions of government. The classic
consociational formula—first articulated by Arendt Lijphart—is composed of four
institutional features: inclusive executive power sharing (ie, government by ‘elite cartel’
or ‘grand coalition’), group autonomy (in either territorial or functional forms),
proportional representation (with respect to the election of legislators and/or in the
composition of the public service and the allocation of public funds more generally), and
mutual veto powers (at least over matters of particular group interest).14 The group
autonomy aspect of consociational democracy can take the form of a full-blown federal
division of powers (eg, Belgium, Bosnia-Herzegovina, Switzerland). Where this occurs,
one would think that the conditions are especially ripe for dramatic judicial
empowerment. The federalism component creates the need for an umpire to settle
jurisdictional disputes. Meanwhile, power sharing and veto points fragment political
power in such a way that no faction can unilaterally control or discipline the courts.
But consociational veto points are probably a double-edged sword for judicial power.
While they may help to deter court curbing, they can also make the implementation of
judicial decisions more cumbersome. Constitutional systems differ with respect to the
effect of a judgment of unconstitutionality on the legal validity of legislation, but
generally speaking the choice is between invalidating a law with immediate effect or
delaying its invalidity, leaving it in force for some
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