Blog of the International Journal of Constitutional Law

Constitutional courts in hot political water in Bosnia & Herzegovina, and in the Republic of Macedonia

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.



3 responses to “Constitutional courts in hot political water in Bosnia & Herzegovina, and in the Republic of Macedonia”

  1. Accursius Avatar

    Just few techincal remarks: in Bosnian constitutional law “consociation” is a taboo term and it is not used (it is even not correct because of, inter alia, unfortunate position of Croatians in Federation of B&H (one of the entities)); the problem is not with citizenship but rather with the ethnocratic position of the “constitutional peoples” which excludes all others (but everyone has the same citizenship – that of B&H AND entities!); two judges are of Bosniak background not Bosnian (they are all Bosnians technically); “foreign” judges cannot come from neighbouring countries (thank God!); the position of foreign judges will probably be abolished if constitutional amendments are ever adopted, and they will codify the existing constitutional custom of division of seats in the CC between the constitutional peoples + adding one seat for the “Others” (this is a constitutional term, believe it or not); as for the unanimity in the decisions, this is to a large degree a result of the appellate jurisdiction of the CC (circa 98% of all cases deal with this – review of the decisions of ordinary courts with regards fair procedure etc.), while the situation is much more diverse in those “real” cases (1-2%), dealing with the core constitutional issues (although, I have to admit they are streamlining their opinions of lately).

    Now to the point. I cannot really comment on these two decisions, which are important (one deals with “entity voting” in the Parliament, a hugely contentious issue, and the other with conflict of interests and barring politicians from holding office as a result of that – testing the proportionality etc), since they have not been published jet. However, I can note one controversy that has arisen. Bosnian constitution has very few limitations on who can be a judge (morality + lawyer). As a result of that today we have at least three judges who were very active politicians before they became, all of a sudden, impartial and independent (two of them very vice-presidents of their parties, with very prominent public image – very often attacking CC – ironic, isn’t it), and I think few others also have some political connection. Well, a month ago one of those judges had written a letter explaining to his former party chief why he had voted the way he did in one decision, referring to that party leader as “the boss” all the time. Media of course got their hand on that letter, and now we have this – well not constitutional crisis, but rather constitutional embarrassment. CC has delayed its decision on the matter to March (they have the authority to unanimously dismiss him, although I doubt that will happen, and it has not happened before). Hence, if foreign judges would be kicked out of the court in the reform process, a mechanism should be envisaged that would make the CC more independent (i.e. Austrian Constitution has a provision that says that anyone who held public office for I believe 5 years prior to appointment to CC cannot be considered).

  2. Ran Hirschl Avatar

    Many thanks for these illuminating comments. They certainly help put things in context. The controversy over the Simic letter, and more generally with respect to judicial independence and impartiality in such a politically charged setting, seems quite relevant to debates over theories of judicial behaviour. I wonder what is the rate of unanimous decisions in those 2% of original, non-appellate, constitutional cases? Are these per-curiam, anonymous rulings or separate but all concurring opinions?

  3. Accursius Avatar

    In these “core” issues, the CC decides in a plenary session with majority vote, with a possibility of dissenting and separate/concurring opinions. There is not enough space here to talk about their voting habits, but it can be said that the court went through a legitimacy crisis during its early period (Constitution stated that the term of the first judges should only last 5 years), during which it also made its most important decisions (like the one on the “constituency of peoples”). They were usually made by majority consisting of two Bosniak (Bosnian Muslim) judges and three foreign judges, while Croat and Serb judges usually dissented. Later courts made decisions with bigger majorities and sometimes unanimously (i.e. on the names of the cities). It can also be observed that the court, or more precisely domestic judges, became less and less activistic (if this is a legitimate term), while foreign judges sometimes dissented or wrote separate opinions because they thought that the judgment should have been more radical in certain areas.

    On a different issue – there is a very contentious topic at the moment in Bosnian constitutional law, with regards the Law On Referendum to be enacted in Republic of Srpska (one of the entities). Although it is said that the law would enable holding of referendum on certain actions of the High Representative of International Community (his decision to prolong the mandate of foreign judges in the war crimes section of the Court of Bosnia and Herzegovina), there is a fear it might be used for secession. Thus, there is a lot of talk whether such right of secession exists, if Republic of Srpska has authority/competence to enact such a law, if the vital national interest of peoples can be activated, whether CC has any role in all of that, if the High Representative can (still) abolish such law etc. Interesting times.

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