Several of the now independent countries, once republics of the former Yugoslavia are a constant source of politically signficant constitutional jurisprudence. The last week provided two illustrations. As our avid readers will recall, the European Court of Human Rights held last December that the “consociational” or “power-sharing” pact in Bosnia-Herzegovina (one of the outcomes of the 1995 Dayton Accords dealing with parts of the former Yugoslavia) unduly discriminated against politicians representing ethnic and religious minorities not included them in that pact. This brought to the fore the familiar tensions in post-conflict settings between a pragmatic, realist approach to constitutional power-sharing and a more principled or idealist approach to constitutionalism.
As expected in such a charged setting, the Constitutional Court of Bosnia and Herzegovina finds itself quite often in a boiling political cauldron. Its jurisdiction and composition were redefined in the Dayton Accords. By convention, two judges come from a Bosniak background, two of Croatian background, two of Serbian background (representing the largely Serb Republika Srpska), and three are internationally renowned jurists who cannot be citizens of Bosnia & Herzegovina or of any of its neighbouring countries. Currently, these are Prof. David Feldman (Cambridge), Prof. Constance Grewe (Strasbourg), and Tudor Pantiru (of Romanian-Moldovan decent, and former judge of the European Court of Human Rights). Judgments are published in Bosnian, Croatian, Serbian and English (just think of, say, USSC rulings published in 4 languages). The ECtHR ruling brought about talks on a constitutional amendment that could change the post-Dayton status quo. This may, under one scenario, lead to the elimination of the international judges component. In the meantime, the vast majority of the Court’s rulings are unanimous, probably in order to enhance the Court’s legitimacy and signal institutional unity in a political system that is anything but united.
In the last few days alone, the Court dismissed two showcase challenges to core constitutional provisions, one launched by the Bosnian member of the tri-partite presidency, the other by the Croat member of the presidency. It also contemplated its position with respect to the public appearances of one the Court’s own judges, Krstan Simic (of Serbian descent), who prior to his appointment to the Court in 2007, served, inter alia, as a prominent defence counsel (most notably, for Biljana Plavsic) before the International Criminal Tribunal for the former Yugoslavia in The Hague. Perhaps our readers in B&H can shed some more light on these cases.
Meanwhile in the Republic of Macedonia, a new lustration law came under constitutional scrutiny. The law has been advocated by the right-wing nationalist government and opposed by the SDSM (Social Democratic) party, a “third-way” successor of the communist party from the Yugoslavia days. The Constitutional Court temporarily froze several articles of the lustration law while it considers whether it would be constitutional to apply lustration to secret service informants active from 1991 onward, after Macedonia had declared its independence. The right-wing government attacked the Court for its decision to suspend parts of the lustration law, suggesting the opposition has an undue impact on the Court, while the center-left opposition said the government merely tries to intimidate the Court and to pave the way for an approval of the all-out lustration. Either way, the judicialization of politics, writ extra large. And that’s only one week in the life of these two constitutional courts.