The Ambiguous Relationship of Consociationalism And

CEU eTD Collection

T HE AMBIGUOUS RELATIO In partial fulfillment of the requirements f of fulfillment the partial CONSTITUTIONAL ADJUD Supervisor: Professor Matthijs BogaardsSupervisor: Professor Matthijs Department ofPoliticalScience Central European University Budapest, Hungary NSHIP OF CONSOCIATIO Submitted to Submitted András Gál (2015) by

or the Master Arts degree of of

ICATION

NALISM AND

CEU eTD Collection particularlyemphases, for regarding andexplanations certain its its phenomena. aspects certain challenges thesis my Ultimately, design. institutional ambiguous role, however this is not only a behavioral question, but also an important matter of Bosnia and Belgium (notably systems consociationa in operating courts constitutional two of comparison the and concept, relevant the of analysis the through Empirically, societies. divided in democracy on literature specific broader concept of the democracy, rat approaches one how on depends dilemmas normative the to answer ultimate the that fact the to points concepts the of analysis The conflicts. societal of nature entrenched liberal for devices their use they whether importantly, more and systems, political these of stability the to contribute they how hand, are two main questions concerning the role of constitutional courts in consociations. On the one conceptual congruence betweenrelevant thesethemost is notions dile Theoretically,the well. as broader asense in constitutionalism and betweenconsociationalism and adjudication, constitutional and consociationalism between tension arguable an is There Abstract

her than a question of which school one follows concerning the more

- Herzegovina), the thesis argues the courts have an an have courts the argues thesis the Herzegovina), zn toe tt isiuin, hc mro the mirror which institutions, state those izing i

of the relevant literature, relevant the of mma. Empirically, there

l CEU eTD Collection which wasexposed mostly support personal the for mates flat and friends, family, my thank I Finally, work. of piece this writing of period entire the during help important co officially grateful for the help provided by Profe professio excellent and help his He Acknowledgements mns Furthermore mments. reby, I would like to pay special tribute to my supervisor, Professor Matthijs Bogaards for for Bogaards Matthijs Professor supervisor, my to tribute special pay to like would I reby, , read a read

substantial part of my thesis my of part substantial my academic writing instructor, Robin Bellers, also gave very very gave also Bellers, Robin instructor, writing academic my

to me in this specialto me inthis condition

nal support in writing in support nal ssor Nenad Dimitrijevic, who although and provided and ii

people call writing’. ‘thesis thesis. Furthermore, I am also very very also am I Furthermore, thesis.

very

useful feedback and inspiring inspiring and feedback useful –

especially

not not

the last group last the my supervisor would like to like would

CEU eTD Collection and sources Legal internet Bibliography Conclusion comparison Chapter 3 Chapter 2 Chapter 1 Introduction ofcontents Table Acknowledgements Abstract Tableofcontents 3.3 ‘Judicialmodesty’ 3.3 revisited The Belgian3.2 Court: oncautious Cautious decis conclusions 3.1 Consociational courtsjudicial 2.3 and activism Constitutional 2.2 courts the institutionaland design ofconsociations Belgian Bosnian2.1 and consociations compared consociations in courts Key concepts and1.2 contributionsof field former the in constitutional Fundamentalconcepts 1.1 2.3.5 The link link 2.3.5 The between texts structures and 2.3.4 Party system 2.3.3 2.3.2 Federalism 2.3.1 Written constitution asthe2.2.5 Composition emphatic feature 2.2.4 Proportionalitycourt in composition accessibility 2.2.3 Institutional mandate 2.2.2 Constitutional 2.2.1 adjudication1.1.2 Constitutionalismconstitutional and 1.1.1 Consociationalism The Bosnian court: anticipation Between socialization and

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CEU eTD Collection h rgt o rveig eilto o te rud o cntttoaiy ad rirtn in arbitrating and constitutionality, of grounds the on legislation reviewing of rights the having courts all including research, of scope wide a employing with problems any see not do t in review judicial of presence the is condition scope other The sub of parts are which Herzegovina, Iraq, Lebanon, Malaysia, Switzerland) framework, few countries in the world can be described as consociations (Belgium, this Bosnia and to According autonomy. segmental and coalition, grand veto, mutual proportionality, (1969) Lijphart Arend by given of democratization. The first condition structure,consociational two are There deeperandcomprehensive moreunderstanding o of far from the normative basis of constitutionalism itself. Practically speaking, an empirical study institutions, which are congruent with the concept of constitutionalism constitut of idea the of aspects controversial the analysing theory, political of perspective relationship between consociationalism and constitutionalism can the possibly reveal insightful and From gap. research a filling beyond comprehensive perfectly not though systematic, a in literature, narrow generally this to contribute I thesis my In relevance. area of The role of constitutional courts in consociational democracies is a surprisingly underdeveloped Introduction

the design the - national unit (Northern Ireland,national (Northern unit Tyrol). South political science, in spite of its potential theoretical and normative insights and practical and functioning of constitutional courts in consociational systems can provide a provide can systems consociational in courts constitutional of functioning and ls one plus

‘ normal’ democratic settings, but function as a consociational system as a a as system consociational a as function but settings, democratic normal’ an

scope conditions regarding the empirical realm of my study: study: my of realm empirical the regarding conditions scope established mechanism for judicial review, and review,and judicial for mechanism established ,

manner. The rationale behind such a such behind rationale The manner. ,

eciig oscain a s as consociations describing is

based on the classical definition of consociationalism, ionalism: notably, how to approach rights and and rights approach to how notably, ionalism: 1

the dynamics ofsuch settings. , while there are also examples for entities he political system. Hereby, I Hereby, system. political he

ystems characterized by by characterized ystems research project goes far goes project research despite a

sufficient degree degree sufficient having an origin

a CEU eTD Collection of the liberal human rights discourse and the particularistic nature of corporate corporate of nature particularistic the and discourse rights human liberal the of The conceptualinstitutional. t questionrefers tothe in their work; bothhave a normative nature, though one israther while theother conceptual, is the European Court of Human Rights (ECtHR). Generally, one can identify two core dilemmas Rig Human of Convention European the notably institutions, and norms legal supranational of role the on focus particular a with (2013a), courts Bosnian the and Belgian the with dealing book a published who O’Leary, Brendan and McCrudden Christopher with to the intersection between consociationalism and constitutional adjudication can be associat concept, the Netherlands itself never had a constitutional court. character its underdeveloped consociationalism, in courts constitutional of field specific this of state the Regarding cases theempirical be will elaboratedmy in chapter of thesis. short of demonstrati fall but relevant, be might literature relevant the in consociations as regarded both Lebanon, or Iraq of cases the instance, For base. individual an on countries certain with deal to easier ‘democracy’, could easilybe controversial. Neverthel as label broad a such categorizing as issue, sensitive a is democratization of degree sufficient other. the on system political given the in review judicial the and hand, one the on features consociational all of presence the following: the are paper my for conditions scope core the conclusion, In council. or court constitutional consoci where countries or consociations, ‘full’ as classified countries democratic perspective, empirical an both centralized and diffuse models of judicial review (see: Stone Sweet 2012); however, from o state between competences on conflicts ational entities function, all have a centralized model of judicial review with a a with review judicial of model centralized a have all function, entities ational ng an appropriate quality of democracy. However, the problems with these

might be explained with the fact that the inspiring model of the the of model inspiring the that fact the with explained be might rgans and sub and rgans 2

ension between approach theuniversalistic ess, such set with small ofcountries, is it - national units. This scope can include include can scope This units. national

h ‘ls soe odto, the condition, scope ‘plus’ The

The most relevant contribution hts (ECHR) and and (ECHR) hts

existence of existence ed ed CEU eTD Collection their their identity as salient groups. The latter approach could be called as self from base, 2 O’Leary 2009. groups. For pre a more sensedetailed discussion a on the different in structure, institutional the in entrenched are identities 1 is themselves institutions consociational as designed are in courts institutional design decision judicial and the from an international human rights discourse. the means this 488 2013b: O’Leary and (McCrudden modesty’ ‘judicial of concept the stances, judicial certain of legitimacy the acknowledging courts, regard they while independent state agencies, or international actors as rather ‘ex agreements, political of sensitivity the emphasizing strongly agency stand a take clearly O’Leary and among McCrudden work, their In dispersedactors? or institutions be power should settings, consociational in notably: doctrines, powers The concisedescribes inthemost dilemma thenature of this way: constit the identifying to comes it consociationalism,

Bypre oprt cnoitoaim s seii mdl f oe saig wee h slet rus and groups salient the where sharing, power of model specific a is consociationalism Corporate concern eod rte institutional rather second, oscainlss ek o ute eult bten h cnoitd epe o groups. or peoples consociated(McCrudden andO’Leary 2013b: 483) the between equality further to seek consociationalists majoritarian conception of equality is undoubtedly put under pressure by consociation, but a equality between clash a than rather equality, of Consociation betteris understood to involve clash a between two different understandings - - ae apoc, n se oiia atr a ky n iiaig ofit o tensions or conflicts mitigating in key as actors political see and approach, based determination, Lijphart means the way of constitutingLijphartpoliticalwaydetermination, meansof theidentitiesandon groups based

consociational systems is systems consociational ‘above’, instead of establishing the devices for groups to mobilize themselvesmobilize to groups for devices the establishing of instead ‘above’,

for stability, stability, for

lack of the overly asser overly the of lack 1

shaping the especially regarding its pre - making.

viewing

Therefore, in certain cases they disregard important aspects of of aspects important disregard they cases certain in Therefore, behavior ,

the dilemma strongly uent peoples or groups. Probably the following quote quote following the Probably groups. or peoples uent approaches - tive manner of courts in probating legal norms derived norms legal probating in courts of manner tive 489) gains a crucially important role in their argument: their in role important crucially a gains 489)

of the Inactors. other terms,

present in their argument their in present s n h aporae prah o eaain of separation to approach appropriate the on is Nevertheless, Nevertheless, McCrudden and O’Leary focus on 3 -

determining nature (see: Lijphart 1995),

to to varieties the topic the nd consociation. An individualized andindividualized An consociation. nd

of consociationalism, see: McGarry and less emphasized. However, in my my in However, emphasized. less

as a as

ternal players’. Therefore, while -

determining dichotomy between political between dichotomy - determination (Lijphart 1995). the , while embeddedness of

the the the fact that they they that fact the set

and express and beside the the beside of of relevant 2

when the the ,

CEU eTD Collection O'Leary appl O'Leary Issacharoff Samuel with associated most be could term The settings. these in courts constitutional of role 'unwinding' the of concept the notably consociations, in courts constitutional on literature the to unique the Beyond anddeparture O’Leary for point mainresearch. my as the McCrudden of conclusions Ithe consider nevertheless well; approachesasthese accountfrom Taylor 1996; Kymlicka and Shapiro 2014; 2008, Patten 2000; Norman and Kymlicka 2000; 1995b, 1995a, pre consociational and universalism liberal constitutionalism, there is also an important field of of perspective the from sense, broader even an in topic the approaches one if Furthermore, inquiry. of scope my in literature this of relevance the to boundaries certain sets level national the competiti political of logic majoritarian the However, communities. linguistic different from coming judges for quota official an is there as itself, in proportionality of principle the the a includes itself country of architecture constitutional The etc.). 2008; Songer 2012; Macfarlane (e.g. Canada of Court Supreme the on focusing particularly found, be can literature rich fairly a category), ( societies divided in democracies Firstly, ifone approachesthetopicfrom theside of constitutional adjudication, and focuses on relevant. as distinguished be can contributions of sets two literature, further seeking is one If political secondary a is themselves courts the of design the that argue I thesis

context. notion y

and Gutmann and

it with it

of 'judicial modesty', McCrudden McCrudden modesty', 'judicial of in

a certain interpretation. The heart of the concept the of heart The interpretation. certain a strong element of segmental autonomy, while the Court itself reflects itself Court the while autonomy, segmental of element strong

1992; etc.) 1992;

f which of (2004) and Richard Pildes (2008), while McCrudden and McCrudden while (2008), Pildes Richard and (2004) . Certain theoretical considerations will be taken into into taken be will considerations theoretical Certain . - eemnto ad atclrs (e: Kymlicka (see: particularism and determination

oscainls cn e lsiid s sub a as classified be can consociationalism 4

scholarly work on the relationship between and O'Leary emphasize another term term another emphasize O'Leary and

concern compared to the to compared concern

of unwinding of closely

on on on is the is -

CEU eTD Collection divided societies, as judicial review might have virtues, as well as drawbacks from both schools in democracy of topic the approaches one way the on heavily so depend not does embrace In my thesis, I argue that the normative question is highly ambiguous, and the answer one m unwanders? as act courts constitutional should questions: thesis my of parts theoretical the from confirm consociations of constitutional adjudication. model centralized a with operating democracies consociational conditions: scope appropriate question this answer to em are theyarchitectures constitutional the in role unwinding the play to adjudication. related to the f constitutionalism. of meet courts of role unwinding the whether First, problems. research literature the in dilemma pertinent arguably this around questioning the center to aim I thesis, my In consociationalare settingsusuallyestablished tomanage conflict courts might jeopardize political stability (McCrudden Issacharoff (e.g. mandate might argue that such weighty decision with concerns two have might constitutional review. Even if one has normative objections against consociational settings, institutions in following: by

hc hv nraiey usinbe etrs cut mgt o o by so do might courts features, questionable normatively have which

Second, from a more analytical perspective, to what extent rvdn a multi a providing o courts asunwinders? act ield of inquiry the case political elites have no incentives incentives no have elites political case

y netgtn this investigating By s

, I will focus on Belgium and Bosnia, as countries meeting the most most the meeting countries as Bosnia, and Belgium on focus will I , the empirical hypotheses in the literature and the analytical inferences analytical the and literature the in hypotheses empirical the

2004 -

Third notably, consociationalism, constitutionalism and constitutional ). More practically speaking, an overly assertive manner by the by manner assertive overly an speaking, practically More ). the - angle court playing this role. From a normative perspe normative a From role. this playing court , I examine wh

s iw o view

have have to be

. In other other In .

usin I nlz te ot motn concepts important most the analyze I question, f 5

unwanders? h cnet Therefore concept. the ether made words and O'Leary are close to this stance), as

the behavior of constitutional courts in

by political bodies with a democratic I m neetd n h following the in interested am I ,

to C

an liberaliz -

prone situations. constitutional courts act as as act courts constitutional s

the normative standards standards normative the e , is

bedded into. bedded I identify three core core three identify I those consociational consociational those it

possible possible for courts

ctive, one one ctive, means

In order order In ight ight one one

of of CEU eTD Collection topic. nuanced each reflectin the threechaptersother. could ontheof validity on the current, rather empirically inspired ana the points, departure theoretical certain on depend strongly dilemmas all parts three The topic. nuanced each reflectin the threechaptersother. could ontheof validity on the current, rather empirically inspired departure theoretical certain on depend strongly dilemmas all parts three The frompoints theof argument analyticalchapter. encount courts constraints institutional perception a as rather courts the by activities unwinding the seeing as notably, incomplete: literatureis relevant the in questioning will inquiry analytical The centripetalism). and (consociationalism

th th eoretical framework, to framework, eoretical directions further possible with together framework, eoretical have have have different scholarly potential. While the answers for the normative normative the for answers the While potential. scholarly different normative the for answers the While potential. scholarly different gether with possible further directions directions further possible with gether on er. Finally, the empirical chapter illustrates the key key the illustrates chapter empirical the Finally, er. , , h rl te ae utbe for suitable are they role the

hypotheses hypotheses in the literature. Therefore, the inferences hypotheses hypotheses in the literature. Therefore, the inferences 6

points, the analytical inquiry relies relies inquiryanalytical the points, In conclusion, In conclusion,

show where the current current the where show , instead of seeing the the seeing of instead , lytical inquiry relies relies inquiry lytical in the study of this this of study the in in the study of this this of study the in

I present I present

a more a more a more a more CEU eTD Collection a b peet mlcty Fr ntne mta vt cn e ie to given be can veto mutual instance, For implicitly. present be can Certain elements of these can be explicit the first two’ (Choudry 2 as aspects other the regarding autonomy, segmental sharing 18 autonomy. segmental and proportionality, coalition, grand listed the aforementioned four characteristics of consociational s LijphartInI article, 6). (1969) Warfamous ofthe his World 2009: end 1960s(Taylor the until th in sharing power of patterns European Western with concerned was Lijphart point, departure his in theory, consociational on scholar distinguished a Taylor, Rupert to According 1969. in consociationalism term The 1.1.1 1.1 in consociations sofar. These aremodesty’. theconceptsand of‘unwinding’‘judicial primarily focus on the development of those specific concepts review critical a a special adjudication constitutional and constitutionalism, consociationalism, concepts key three Therefore, consociations. in courts constitutional of study the to attached In this part of my thesis, I aim to provide an overview e 20th century, particularly the Dutch model, which historically can be dated from the end of - 19) Fundamental Consociationalism ,

Lijphart (especially in the executive, which points back to the element of grand coalition) grand of element the to back points which executive, the in (especially emphasis streamlines streamlines his argument ( of

on h the literature on the more narrowly defined scope of my study; there I will will I there study; my of scope defined narrowly more the on literature the

concepts ow they are interconnected with each other. Furthermore, I will provide Chapter1 008: 19)

can be attributed to Lijphart, who published this idea in an article an in idea this published who Lijphart, to attributed be can

ly pronounced in constitutional structures, while others Theoreticalconcerns furthermore in Lijphart 7

of ‘secondary characteristics that reinforce that characteristics ‘secondary

what theoretical considerations can be Later

which shaped the study on tructures, notably: mutual veto,

(according to Choudry 2008: 2008: Choudry to (according

2012) by emphasizing -

will be discussed, with with discussed, be will representatives

power power courts courts

and and

of -

CEU eTD Collection if a shared s shared a if objection points to the presumption that consociational structures fail to create a shared identity; of consociational arrangements to bring solution on the normative futility of pre participate in political procedures and public life, generally. Their second core objection builds ’ready embrace to have people and above, from articulated pre its Firstly, distinguished. be can consociationalism against objections conceptual interrelated strongly two, concerns, many Among Horowitz. Donald with associated primarily centripetalism, political and societies divided management, deeply in arrangements conflict for blueprint institutional an as Consociationalism, rights Belgium). (e.g. usu is autonomy territorial while seen, Bosnia (e.g. territorial in articulated be can autonomy segmental Nevertheless, consociationalism. not but necessary, a as described be can autonomy segmental Therefore, systems. consociational and states decentralized between feature distinguishing key the as regarded be can government central the in rule shared of constrain the as settings, consociationalism. R of concept the to bound more substantially are they though character, consensus merely instituti other, in also but societies, divided of structures consociational content) constitutional beyond (even majority qualified majori qualified of requirement the with articulated be also can it while groups, recognized constitutionally qieet for equirements - onal arrangements. Grand coalition and mutual veto can be articulated in a similar legal Herzegovina) or non or Herzegovina) ociety can emerge under consociational settings, it can happen through external external through happen can it settings, consociational under emerge can ociety - eemnn ntr (e: ipat 95; notably 1995); Lijphart (see: nature determining y n eti decision certain in ty

rn caiin a b rgre a smtig nqe o cons to unique something as regarded be can coalition grand

- territorial forms (e.g. Lebanon), in itself only the latter can be be can latter the only itself in Lebanon), (e.g. forms territorial - determined and con - ally combined with certain nationwide group nationwide certain with combined ally aig rcdrs Hwvr te requirement the However, procedures. making ,

a calne by challenged was 8

even stituted stituted groups, and questions the capability in

the long term. The reason behind this - might made’ identities if they wish to wish they if identities made’ an

sufficient , alternative solution, called called solution, alternative

that ethnic ethnic that not only be present in in present be only not ,

characteristic of of characteristic identities are are identities ociational ociational - specific specific - based based of

a a CEU eTD Collection moderation is fostered by cross by fostered is moderation ‘T concept, the of core the summarizes Bogaards As sense. broadest possibly institutional around offers he cle group and identities entrench his scholarly works (e.g. 1993, of many in consociationalism criticized who Horowitz, Donald is idea the of advocate known political in ideas important most the as regarded are these c and consociationalism between distinction This illustrative cases solutions centripetalist for observed as and anda wouldratheroptforguarantees decision see can where for they their keeping autonomy, po ’merely’ states of deep mutual mistrust. From another perspective, those elites who could make alternative:post other the as implemented, is consociation where situations it that argue can one Nevertheless, levels. not but following ethnic lines, rather inawaycooperation thatfostersgovernance and shared onmore federalism, etc.); pooling, constituency vote, transferable single vote, alternative con and rules) registration by (e.g. parties national comprehensive quotas); territorial or vote alternative by (e.g. initiatives 2000), 1993, Horo an (see: mechanisms and initiatives as centripetal fostering recommend Therefore, they alternative, etc. secularization, globalization, development, economic like factors, wer sharing work would be simply uninterested in institutions which force them to cooperate, a

certain degree of power. This power. of degree certain

the conceptual alternative of so of alternative conceptual the a

more more widespread arrangement for conflict solution and management. As the most such as such - arrangement incentivizing, or even constraining actors to cooperate in the the in cooperate to actors constraining even or incentivizing, arrangement : a president elected in a way that stimulates nationwide programs and and programs nationwide stimulates that way a in elected president a :

2000) with the argument that consociational settings could easily - a cutting cleavages and, if these do not exist or are limited in limited are or exist not do these if and, cleavages cutting vages closely related to the heart of given conflicts. Instead, conflicts. given of heart the to related closely vages

is very difficult to implement such programs, especially in especially programs, such implement to difficult very is is

be one of the reasons why cons why reasons the of one be - called centripetal majoritarianism, which is based based is which majoritarianism, centripetal called ,

oneIndonesia, can mention Fiji. Nigeria, or 9

entripetalism - an ofit management. conflict electoral system supporting supporting system electoral is particularly important, as as important, particularly is sensual candidates (e.g. (e.g. candidates sensual ociationalism can be be can ociationalism - conflict setting, or or setting, conflict he idea is that that is idea he

The best best The

witz witz

CEU eTD Collection one focusesfrom arguably this on, thick definition and consociationalism, or constitutionalism between congruence conceptual a there is posed: be can question following rights (see: Holmes Preuss2012; 2000; Sajó In 1999). relation to the o scope guaranteed and government, limited law, of rule following: the creating, promoting and procedures maintaining and institutions norms, of set a as defined be can Constitutionalism 1. category. cases, the’liberal’ Otherwise,inother a this in fall thesis the in discussed cases main the that reason the for concept, classical the to following the in However, latter. the for Ireland and Macedonia, Iraq, while former, the for cases pertinent most the are Lebanon Bosnia Belgium, Nowadays, consociationalism. liberal called is approach ’cla Therefore, themselves. mechanisms for shared rule, but shaped in a way c The participation? self normatively of the desire with consociationalism grounded in rule shared for aim the reconcile to possible the consociational hand, other the On feder (alternative or single ar centripetalism of elements core The 61). society, th 1 . ssical’ notion of consociationalism can be labelled as corporate, while the alternative alternative the while corporate, as labelled be can consociationalism of notion ssical’ 2

a Constitutionalism and constitutional adjudicationConstitutionalism constitutional and lism, andstrong institution lism, presidential e n electoral institutions have to foster them deliberately at the political level.’ (2008: net f iea cnoitoaim s n attempt an is consociationalism liberal of oncept transferable a - do they eemnto, hn t oe t pbi iette ad political and identities public to comes it when determination,

categorization of consociational regimes is needed where the the where needed is regimes consociational of categorization

vote, or different quotas for

contradict to each other? The answer depends on the element ory itself was re was itself ory e the following: the e s 10

(Horowitz 1993).

analysis which does not constitute the relevant groups ttribute will be will pronounced. ttribute

of constitutionalism. - thought as well, with the question: is it is question: the with well, as thought , the word word the ,

a qualified qualified majority), crosscutting centripetalist electoral system electoral centripetalist

‘ consociationalism’ refers refers consociationalism’

t that at - Herzegovina, and and Herzegovina, f my research, the

promot

Northern Northern ing

CEU eTD Collection osiuinls (seily hs wr wih rfr o ws rte b Aeia shlr who scholars American by written was to) primarily refer theto particular institutional enviro refer I which work those (especially constitutionalism 3 citizen it is also important to regard citizenship of citizenship is arguably essential in the normative concept of constitutionalism. Furthermore, can one perspective normative a From institutions. powers, of separation ai one if relevant balance consociationalism, I consociationalism, and powers perspective, there is one overarching difference between the classical doctrines institutional the from Nevertheless, government. central the against counterbalance a creates creates an insurance mechanism for non manner, policy fosters inherently which mechanism, a creates coalition grand decision essential specific their of veto) mutual to (referring mechanisms enforcement the and autonomy) segmental of element the in (present substance the ensuring in interested definitely are groups constituent different the practices, constitutional of absol are law of rule the and guaranteedrights aims the Concerning other. each to close fairly are concepts two the procedures, and institutions of direction the from constitutionalism approaches one If

te el o cntttoaim isiuin blne ah other each balance institutions constitutionalism, of realm the n Hereby, I add to have the fact that aconsiderable share of the literature on the conceptual approach to sh - : it it : and does not does and ip making

rights primarily for the reason of being subject to the constitution, and not for being

s riuae i al lmns f oscainls. uul eo iis arbitrary limits veto Mutual consociationalism. of elements all in articulated is ms to examine the operation of constitutional courts, institutions relevant for for relevant institutions courts, constitutional of operation the examine to ms that promotes that allow the arbitrary rule of any group or decision or group any of rule arbitrary the allow

and and ihs Frhroe lmtd oenet s uh s lo absolutely also is such as government limited Furthermore, rights. is n etns hr check where settings in

built in built 3

the interests of one group against group one of interests the however to get

- from the institutions. This distinction becomes particularly particularly becomes distinction This institutions. the arbitrary execution. Finally, sophisticated is the latter in terms of power sharing power of terms in latter the is sophisticated

different impressions. On the one hand, the notion notion the hand, one the On impressions. different

a universal perspective. Therefore, one shall bear 11 utely present in consociational arrangements, asarrangements, consociational in present utely nment their work mostly is related to.

n blne ae nenlzd n the in internalized are balances and an

other. other. segmental segmental autonomy also - - making in an inclusive inclusive an in making maker. Proportionality maker.

out A l A mawie in meanwhile, ; egally regulate egally of

separation of d .

CEU eTD Collection other hand one should acknowledge that constitutional courts are suitable for being being for suitable are courts constitutional that acknowledge should one hand other court constitutional consociations that intuitive than more is it Though 87). 2005: (Sadurski well as politically and socially speaking minorities, of allies natural counter inherent and operation of logic their By as thecentralized modelof constitutionalreview Sweet (see: Stone 2012). usually built up by andcomposition procedures as a court, exerts judicial review binding a provide act.lattersame The the with constitution the andinterpretationof act, legislative a of constitutionality the on rule to authority final inst the review, judicial exert to right the has court every where model, constitutional diffuse the in present is case former The courts. to similar designed institutions or courts, by done is this the given act complies or contradicts entitled to annul legislative acts brought before it, on ground is which institution, designated a of activity an is adjudication constitutional definition, By inherently citizen for designed relevance of constitutional adjudication, a mechanism which could be regarded as an institution co nevertheless, the question remains the mechanisms of power sharing are dependent sharing in question the to over spills also problem This constitutionalism. liberal of approach individualistic rather the to groups,contrary societalaround largely centered is it) of two ideas, as the logic of consociationalism (especially the ’classical’ a

member of a group constituted by the document. At this point, there is a is there point, this At document. the by constituted group a of member mes to vertical relationships of power and accountability. This concern again points to the the to points again concern This accountability. and power of relationships vertical to mes itution on itution the topof thejudicial hierarchy theother different isonly from consociationalism ,

regimes characte regimes

can su ship rized by mutual guarantees and assurance mechanisms, on the on mechanisms, assurance and guarantees mutual by rized

as to rights protection (see: Shapiro bstitute a classical approach to

with the document. In what protection can the citizen individual trust when it 12

on - majoritarian bias, courts can be regarded as as regarded be can courts bias, majoritarian

the elites who ought to control each other an s

of the constitution, overwhelming majority of cases, case, where a special institution, special a case,where s

a b esnil cos in actors essential be can and Stone Sweetand 2002). Stone the , corporate understanding separation of powers, as

as to as

clash between the the between clash s in

whether power power whether

and that it hasthat it as to

is labeled whether

the -

CEU eTD Collection is (regarding courts as Issacharoff, who developed one of the most frequently used term Samuel and Pildes Richard of work the on focus first I will chapter this in Hence, referringto. key concepts they employ, by chronologically tracking back their use by those the on emphasis greater a put to aim also I Furthermore, approach. their of limitations the and t contributions systematic few the of one also is it but inquiry, of field this to related closely only not is it first as O’Leary and McCrudden of work scholarly the regard I adjudication, constitutional of topic the to contributions former the Concerning consociations courts in 1.2 the sensitivity consoc of with carefulness favorable pragmatically the and rights human universal for pursuit desirable consociational agreement determines to what extent is there a trade the is this Nevertheless, regimes. fragile arguably sensitivity of consociational agreements properly, with special care elites the by maintained and partially fit the picture, but shall not forget that consociational agreements are prim groups off worse and better or minority, similarly courts question the Nevertheless, majorities. political to counterbalances

used in different works. In the following, I will outline the argument of McCrudden and and McCrudden of argument the outline will I following, the In works. different in used , their specific focus on the field closely related to the scope of my research; furthermore, furthermore, research; my of scope the to related closely field the on focus specific their , Key concepts and former contributions in the field of constitutional constitutional of field the in contributions former and concepts Key o this field. Therefore, I primarily aim to present their core arguments, stances, stances, arguments, core their present to aim primarily I Therefore, field. this o suitable to settings where there is no clear distinction between majority and and majority between distinction clear no is there where settings to suitable ’ unwinders iational agreements. iational ;

’ therefore of conflict situations), and present how differently the concept ? ,

The answer of McCrudden and O'Leary is that they they that is O'Leary and McCrudden of answer The courts should rather act 'modestly', handling the the handling 'modestly', act rather should courts

my primary departure point for two reasons: reasons: two for point departure primary my

point where the explicit content of the the of content explicit the where point s

- by McCrudden and O off off between the normatively paid to arises:

the stability of these

Are

authors they are

constitutional arily created ’ Leary

CEU eTD Collection lue f oscainls ws t udrtnig ht tt atoiy ol nt achieve not could Issacharofflegitimacy 88)as feature. their positive 2004: inclusiveness' without authority state that understanding its was consociationalism of allure consociationa regarding Therefore, management. transition and identity) shared a and society shared a of construction the to refers (which building nation are considerations core his societies, divided Wh 73). 2004: (Issacharoff will' political its exercise to majority the of capacity the restricts that law basic of creation the to refer to government its emphasizing mine, to the to approach his In group and practices.institutions the decrease to order in constitutionalism) universal of to the phenomenon of courts re remaining a divided society. By using the term ‘unwinding’ (Issacharoff 81), 2004: he referred consociationalism temporarily, but later shifted towards a ‘normal’ institutional setting, beside South with consociationalism corporate for case classical Bosnia compared he as exclusively, not though arrangements, consociational ‘ mentioning relevant constitutional on adjudication in divided literature societies, particularly emphasized by McCrudden and O’Leary. Its first the in concept essential arguably an is ’unwinding’ term The societies (the so concluding O Constitutionalizing Democracy in Fractured Societies’. His empirical scope included included scope empirical His Societies’. Fractured in Democracy Constitutionalizing ’ er, ih seii fcs n hi cnet of concept their on focus specific a with Leary, ,

a conceptual alternative to their understanding understanding their to alternative conceptual a lism, lism, he primarily focuses on the inclusiveness of these regimes (as he states: 'The - called can

the topic of constitutionalism, he applied a thinner a applied he constitutionalism, of topic the ‘ constitutional incrementalismconstitutional

be traced back to 2004, when Issacharoff publis Issacharoff when 2004, to back traced be

- interpreting constitutional arrangements (based on the doctrines - limiting character: 'I use the term constitutionalism only only constitutionalism term the use 'I character: limiting en talking about political institutions established in in established institutions political about talking en 14

’

by beLerner)will presented. Hannah ’ uiil modesty judicial Africa, a country experiencing experiencing country a Africa, of

osiuinls i divided in constitutionalism - pcfc nrnhet of entrenchment specific

definition compared definition hed his article titled titled article his hed ’ . Finally, before before Finally, . - Herzegovina, a a Herzegovina,

CEU eTD Collection ae te oiia atr itrse i mai in the of one becan review capacityconstitutional fora with judiciariesarchitectures.Therefore, interested actors political the makes that the inherent logic of consociational agreements creates an institutional environment which of Pildes decisi political by promoted value core the as stability emphasizes Issacharoff had a distinct approach to political and judicial decision the possible judicia societies, divided ethnically in (2008) institutions co frequent concept the on understanding The however consociational institutions. This dilemma is present in probably every contribution to this topic speaking) (generally con of cosmopolitan values the mirroring normative arrangements the institutional between of dilemma endorsement clear a see could one Therefore, article. Issacharoff’s governability the that consideration into takes one as understandable, especially is stance particular This possessed bycourts, writes: as he engagement in this process. He does this primarily based on primordial identities and group logics, but does not endorse supportive clearly is Issacharoff because ’unwinding’, judicial of character normative the understand to aims one if important are understandings these All democratically elected governments may take (Issacharoff 2004: 75) d social securingthanunityRather nationalthrough majorformal ofpowersharingaxes the along , ,

certain questionings might different. sound this this stability rather means rigidity. This stance is primarily based on the presumption - uhr ih sahrf. n i bo catr n h dnms o democratic of dynamism the on chapter book his In Issacharoff. with author vso, osiuinls tns o moe iis n h rne f eiin that decisions of range the on limits impose to tends constitutionalism ivision, of consociational regimes was probably the most eminent concern in in concern eminent most the probably was regimes consociational of stitutionalism and the pragmatic concern for the everyday operation of of operation everyday the for concern pragmatic the and stitutionalism l role in institutional development within these settings. Nevertheless, Pildes

of ‘unwinding’ was later developed Richard Pildes, a a Pildes, Richard developed later was ‘unwinding’ of 15

because of ntaining highly fragmented institutional institutional fragmented highly ntaining Pildes

- making compared to Issacharoff. While

provided a provided

the the lack of democratic legitimacy of

an overly active judiciary transforming institutions institutions transforming clearer

understanding ons, in the eyes the in ons, of ;

CEU eTD Collection o stabilize Power book: their of publication to title following the gave O’Leary and McCrudden why group context highly include which constitutions on adjudication their base consociations to rights certain allocates individuals as group members. Nevertheless, this is not only a normative and dilemma, groups, between discriminates frequently constitutions be conflict might two theseIncontent, constitution. national given the in established rights specific the promote prim should courts practice adjudicative whether the of basis constitutional the to points problem This O’Leary. and unwinding Beside references these tothesupremacy constitutions). ofinternational law in by (only arrangements consociational given the establishing agreements particular the not imposing for external, universalistic values, which are parts especially to, entitled are they power the use courts the much how is, work their in question core the Instead, architectures. institutional of dynamism and design the to the supremacy of either politically negotiated, judiciallynor imposed proclaim not do They way. certain a in stances aforementioned the of both incorporates courts T integrationist extra f he way McCrudden and O’Leary (2013a, 2013b) approach the possible role of constitutionalof role possible approachthe 2013b) O’Leary (2013a, and way he McCrudden

as o big aua pros mawie te pre the meanwhile, persons; natural being of cause stability, but also creates the label for ’human rights’ adjudication. Altogether, the specific specific the Altogether, adjudication. rights’ ’human for label the creates also but stability, - political actors, who could move the design of political institutions towards a more more a towards institutions political of design the move could who actors, political - specific rights as well as references to international human rights documents. No wonder s

h dilemma the in

consociational settings, another tension is present in the argument of McCrudden approach. - n h basis the on Sharing Sharing Settlements of of

ht oetal dest potentially what Courts and Consociations, or How Human Rights Courts May De May Courts Rights Human How or Consociations, and Courts

rl pru te nvraitc aus f osiuinls, or constitutionalism, of values universalistic the pursue arily ht h idvdas r euly entitled equally are individuals the that

(2013b), which title does not only include the questioning 16 of of international legal norms and documents, but

abilizing means for people endorsing judicial judicial endorsing people for means abilizing

- determining nature of consociational consociational of nature determining

junl ril peeig the preceding article journal a ,

d ecisions when it comes to

fundamental rights rights fundamental

as courts in - sensitive sensitive - CEU eTD Collection o great too 21 2013a: O’Leary and (McCrudden architecture institutional and legitimacy regime of side the from constitution Bosnian the analyze only they book, their In O’Leary. decisions, and this aspect of the phenomenon their seems to be for part basis a as have courts the constitution of type what important also is it However, concerning arrangementBosnianconsociational (2013a: 84). the endors clearly O'Leary and McCrudden something is This processes. political in interventions possible concerning courts 488 2013b: O'Leary and (McCrudden th create they where argument, their behind force driving the be de the for evidence clearest stabilizing potential of constitutional courts. Altogether, their strong the concern for stability could as it to refer they as O'Leary, and McCrudden reading w important particularly is Cyprus of case The cooperation. of framework institutional the 1960 and 1963, where the constitutional court supposedly played an active role in undermining co also case cited frequently very a Furthermore, (ECtHR). Rights Human of Court European the of jurisdiction the under are and (ECHR) Rights Human of Convention European the ratified countries both is institutions and norms constitutional external and internal between relationship the all, of First analysis. their to features specific Bosnia and (Belgium TheMcCrudden(2013a) factO'Leary that the bookof anddeals wi courts), their onthe but rather politicalas system impact a whole. case the is it (as courts the of the fact, as the main questions do not primarily point on the d of questioning core and structure the in reflected well is democracies consociational of nature an mhss n h constitutions the on emphasis mes from the sphere of European politics: the example of Cyprus between between Cyprus of example the politics: European of sphere the from mes - Herzegovina, with a heavy emphasis on the latter case) latter the on emphasis heavy a with Herzegovina, e i cnrs t te a the to contrast in , in

ueos ok aayig n cmaig constitutional comparing and analyzing books numerous - 489), which refers to the to refers which 489), an important aspect of both situations, for the fact that that fact the for situations, both of aspect important an

themselves. However, it is not only a political political a only not is it However, themselves. 17

srie anr f h EtR n issues in ECtHR the of manner ssertive emocratic mandate and legitimacy ly ly overlooked by McCrudden and

c aution th two European countries Europeanth two e term 'judicial modesty' modesty' 'judicial term e

exerted by domestic by exerted - 33), not placing placing not 33), ,

gives further further gives hen hen - ,

CEU eTD Collection constitution book her in Lerner Hannah by presented is design constitutional on view alternative comprehensive A adopted. be shall constitution parsimonious and comprehensive clear, a solutions, political trusts only if hand, other the on appropriate; absolutely is text constitutional cohesive less a settings, implication can be held: if one is willing to embrace a judicial role in unwinding consociational question the to inferences these translate to aims one if Therefore, practices. activist their for have courts sphere greater This them helps and situation, clearer a in them brings which texts, constitutional of comprehensiveness From one perspective, autho conclusions, though angle, my aim is to find a middle ground other between these two sets of contributions. the or one from topic the approaches one If other. constitution growing dynamically but extended, less Holland 1991; Sadurski 2005; Shapiro and Stone Sweet 2002; Stone Sweet 2000; etc.), while a jud on literature rich the is there hand, one the On literature. In order to assess the activist potential of courts, one could find sources in two different sets of further segregation. the activism and an unwinding role of encourage features even certain or enable, but also manner, could passive text or constitutional active an in behave courts if question simultaneously means that the more vague and inconsistent the constitutional text is, the is, text constitutional the inconsistent and vague more the that means simultaneously

Mkn Cntttos n epy iie Societ Divided Deeply in Constitutions ‘Making - - making, and theevolution of constitutional material inIsrael,India,Ireland, and a C (e.g. societies divided in making

of rs working on judicial activism in general emphasize accuracy and

osiuinl duiain n iie sceis te following the societies, divided in adjudication constitutional

are distinct concepts, as judicial activism itself could also foster ,

group of works on constitutional design and and design constitutional on works of group 18

houdry 2008, 2012; Lerner 2011; etc.) on the the on etc.) 2011; Lerner 2012; 2008, houdry

to sometimes maintain ies’ ,

judicial activism; nevertheless, nevertheless, activism; judicial

limit the power of courts, but but courts, of power the limit a greater degree of legitimacy. legitimacy. of degree greater a

icial activism in general (e.g. (e.g. general in activism icial (2011). As she compares the the compares she As (2011). one might find different different find might

one one

CEU eTD Collection preserving consociations activism judicial to aim I countries, given two the of architectures institutional Therefo manner. comprehensive and careful their between ground middle a from contributions By different slightly bringing together rightsespecially fromcases institutions, thedifferences inwhere are highl provisions separate to possible it is Second, (2008)? Pildes Lerner. of courts. constitutional on literature Furthermore, mainstream there are interesting questions which are present if one the reflects on the conclusions to according least at regimes, these recom constitutional her Ironically, problems by (2011:44 political means beside stance clear a has she general, in but advantages, certain its admit doesLerner idea this labels self ambiguous this, she recommends a combination of clear institutional and proceduralalongside provisions, wel non as differences societal even accommodate (or ambiguous made: is conclusion empirical clear , Firstly, how can one tackle the self the tackle one can how Firstly,

the fracturedsetting bethe will theprimary ofmyanalysis.object . Regarding the h the Regarding .

- as constitutional incrementalism. When it comes to the to comes it When incrementalism. constitutional as eiiin (enr 01 43 2011: (Lerner definitions , and therefore enable courts to potentially play the unwinding role in in role unwinding the play potentially to courts enable therefore and ,

istory of the two courts, their attempts their courts, two the istoryof lines of research of lines mendations would rather foster an active judicial role in role judicial active an foster rather would mendations - 46). l as centripetal transformations. In order to achieve to order In transformations. centripetal as l

19 - 4 ad group and 44)

in order to investigate my questions in a morea in questions my investigate orderto in interest problem of the elites, the concern of of concern the elites, the of problem interest

e we aayig h cntttos and constitutions the analyzing when re, the the for - scholarly literature, I aim to find Iaim tofind literature,scholarly specific rights. In general, she she general, In rights. specific highlight

identities and group and identities - formal) constitutions can can constitutions formal) at

‘ unwinding’ or rather unwinding’or role of the of role

yinstitutionalized? elements that judici s -

specific specific solving solving foste ary

r , ,

CEU eTD Collection be presented through them the most illustratively. Second, constitutionally speaking, many many speaking, constitutionally Second, illustratively. most the them through presented be corporate 'classical', co as functioning are which few, those for examples are countries two In my thesis, I focus on Belgium and Bosnia instit on look closer a taking while features, consociational their on focusing by hand, one the one parts, two in done be inquirywill This embedded. are theyarchitecture where institutional the In the first part of my analysis, I will courts have perform indeed these if examine to aim I Second, practice. adjudicative their to approach this enable should certai however, role; their perceive courts the how of question a as of this sees literature the in discourse dominant the Though settings. consociational unwinders as acts could courts if is, first The literature. existing the in concerns the to The empirical analysis of my thesis is seeking the answer for two core questions, closel of these institutions. focus on the more practical empirical questions, through a survey in the relatively short history operat courts constitutional these surrounding frameworks constitutional the comparing by question, second the on focus to aim I work, my my thesis, I was focusing on the first question, In role? unwinding this play courts do Finally, unwinders? become courts could Second, settings? consociational of unwinders the be primarily courts should be Firstly, important. to seem questions three account, into literature of body existing the Taking Chapter2 nsociations, therefore the theoretical dilemmas raised concerning consociational setting can can setting consociational concerning raised dilemmas theoretical the therefore nsociations, utional arrangements fostering inthe activism following. judicial -

Theconstitutional design and environment ofthe courts

the role the existing literaturethe role the tothem. existing imputes examine the institutional design of these courts, alongside - Herzegovina for two general reasons. Firstly, these 20 discussing ing in consociations. Following that, I aim to to aim I that, Following consociations. in ing

n conditions in the constitutional design constitutional the in conditions n

this this normative tension. In this part of

the former part of of part former the

y related

CEU eTD Collection information. Talking about the nature of these institutional systems, it is hardly debatable that that debatable hardly is it systems, institutional these of nature the about Talking information. descr comprehensive and complete systems political these on literature rich Bosnianon their particularlyconsociationalfocusing state architectures, Asthereisa features. important most the introduce to aim primarily I chapter, this In 2.1 appropriateregime. quality ofthe democratic the question all elections postponed the and institutions democratic the around anomalies Furthermore, Lebanon also could be seen as a possible country included in the analysis, bu enough illustrative be could index, its on status ‘free’ or free’ ‘partly House short fallen regimehas the country adoption of the post relevant. instance, For system. political their thresho of qualities sufficient democratic a the reachregarding not do but review, judicial for mechanism established have Nevertheless, there are few countries, which constitutionally qualify as consociations, and also qualifyas democracies. consociation introduction: the in established and one onone withany case other study, particularlythe presence ofmultidimensional (territorial features are similar in the two cases, which would make any of the two c Belgian Bosnianand consociations compared linguistic

might might not be used

case, as the relevant literature relevant the as case, has federalism. )

the right - war constitution in 2 in

to for

maintain

judicial review (

every scholarly inquiry, the fact that the country never reached the Therefore, these two countries fulfill all the scope conditions conditions scope the all fulfill countries two these Therefore, ing iption, but rather mention the most important background background important most the mention rather but iption,

democratic standards democratic views

(Keil 2013; Lijphart 1981) Lijphart 2013; (Keil 005 (Taylor 2009), an in Article 93 of the Constitution). Nevertheless, s, have provisions on judicial review, and could could and review, judicial on provisions have s,

21 the country as a consociational regime since the since regime consociational a as country the

though the rankings of rankings the though d the features of the Belgian and and Belgian the of features , I do not do I , Federal

(Freedom House 2015) House (Freedom ase ase hardly comparable Supreme Court of Iraq might be a a be might Iraq aim to aim

provid Freedom Freedom t the the the e ld

a .

CEU eTD Collection cnmc catch economic Therefore 1932) in only language state group dominant culturally the was Walloon the hand, one the the institutional procedure, though with different motivations and therefore different aims. Dutch decades the through went Belgium As 341 was also mirrored by as regarded was Bosnia diversity, non but decentralized the of part was as a unitary and democratic state; meanwhile p power are structures o stories the features, common these beyond Nevertheless, institutions. with divisions societal severe manage to intent an through cr top the is cases both in similar feature other the complexity, their Beside be discussed inthe followingtwosections. these far other being two courts from activist,context arefor both require frequently might provisions wor constitution's the of accuracy institutional the on depending arbitration, jurisdictional complicated that fact the for court, t in both countries would be strong candidates for the title of the most complicated political system eation, as n he world. Normally, this constitutional environment would suggest a strong constitutional constitutional strong a suggest would environment constitutional this Normally, world. he - 342; Keil 2013:53). - - speaking Flemish and the French sharing structures sharing te wr itrse i a ertra dcnrlzto, hc wud nbe their enable would which decentralization, territorial a in interested were they , either totally - up (Swenden and Jans 2006: 879). Meanwhile, the richer Flemish regions regions Flemish richer the Meanwhile, 879). 2006: Jans and (Swenden up

of them was created from below, in a motion of 'coming together', but rather

the autonomy that different ethnic groups enjoyed (Bieber and Keil 2009: ifrn. eoe eeaiain n te salsmn o sophisticated of establishment the and federalization Before different.

which one refers to as consociationalism as to refers one which ;

n h other, the on

'Yugoslavia within Yugoslavia'; within 'Yugoslavia - - - eortc uolva Frhroe wt is ethnic its with Furthermore, Yugoslavia. democratic long decentralization, both salient ethnic groups (the (the groups ethnic salient both decentralization, long speaking speaking Walloon) were intere

receding its current constitutional regime 22

Wallonia

a worse was

(as Dutch was recognized as a a as recognized was Dutch (as the - specificreasons, will which

the Belgium was functioning functioning was Belgium help of certain political political certain of help - off in economic terms. terms. economic in off sted sted in carrying on with

character f creating the federal federal the creating f - down nature of their their of nature down ding. However, However, ding.

of the entity the of ,

Bosnia Bosnia One One

CEU eTD Collection decisions, importantly most constitutionalamendments. cabinet (Article 99). Mutual veto is ensured by the requirement for qualified majority in Dutch of number equal an requiring provision architecture. state ins and bodies public the in detectable of majority overwhelming the within state are the of spheres all in found consociationalism be can Proportionality of elements other all as Nevertheless, Belgium not only function happenedin 1984. relatively phasethisprocess, ina late of establishment The thesis). my of chapter last the in discussed famous (the institutions consociational the on case judicial important an triggering system, legal the of reading the in clashes caused jurisdictions, these between overlaps and contradictions be might there points, certain linguistic regions (Article 4) are also important regarding schooling and cultural institutions. In the governing bodies legislative the own in issues autonomous their have regions and communities these Both Articles 1 Belgian (see federalstructure the cornerstones of communities linguistic the structure, created newly the In 881). 2006: Jans and (Swenden decentralization of process incremental long 48 French, German, mixed Brussels) (Dutch,in 1963 was the first important regions step ( linguistic four into country the of division the speaking, Legally a two aimed emancipat for cultural further - 49). This was followed by a new, federal constitution in 1970, which triggered an 18 year 18 an triggered which 1970, in constitution federal new, a by followed was This 49). - dimensional decentralization process.dimensional decentralization titutions (Peters 2006). Grand coalition is fostered by the constitutional the by fostered is coalition Grand 2006). (Peters titutions ir jurisdictions (Articles 116 (Articles jurisdictions ir ion (2006:879 Mathieu s

as a complex federal state, but also as a consociation,

and the territorial regions can be regarded as the the as regarded be can regions territorial the and 23 - -

Mohin and French and - 880). These different ambitions resulted880). in These ambitions different -

117). Beside this, the aforementioned aforementioned the this, Beside 117).

case before the ECtHR, which will be will which ECtHR, the before case

- - 3 of the Constitution of Belgium). Constitution ofthe 3 speaking ministers in the federal federal the in ministers speaking McCrudden McCrudden and O’Leary 2013a:

f h cntttoa court constitutional the of several several

which which s CEU eTD Collection Bosnia o Herzegovina, and Bosnia simply name the bears which itself, country the with confused be to (not Herzegovina and Bosnia of Federation the units: two into divided is country the level, a is there that means This regards multi one a in provided is if autonomy Segmental consociationalism. instance for seen, clearly be can groups relevant the as experts, foreign of res the group mirrors arrangement institutional a by written was itself text constitutional the Though signs of an imposition, temporary character, and the framework of an international protectorate. the Therefore, 2). Annex (e.g. there still are but provisionary, be to meant were which constitution the of part those in mentioned still is position the constitution, though quasi a as created Herzegovina and Bosnia v. Finci r later only and English, document constitutional institution political the Though character. imposed its Firstly, ca which characters, specific very three has constitution of the Dayton Peace Agreement part integral anwas constitution country's the as 1995), and 1992 (between itself war civic the em Bosnia of structure institutional current The cleansings. ethnic and crimes war groups, during the severe and brutal Balkan wars, it became the venue of the most inexplicable Yugosla the during Though premises. different radically through structure constitutional non the to Compared

- the legal basis of its authority (the former Annex 10) is no is 10) Annex former (the authority its of basis legal the ezgvn i isl) ad h Srin niy te so the entity, Serbian the and itself), in Herzegovina i, ona a rgre as regarded was Bosnia via, - procurator position by the international community (Keil 2013 (Keil community international the by position procurator - violent and incremental change in Belgium, Bosnia arrived to its current its to Bosniaarrived Belgium, in incrementalchangeand violent eceived a Bosnian, C Bosnian, a eceived itself was written by foreign legal scholars, its original language was was language original its scholars, legal foreign by written was itself

territorial division of power in two levels. Firstly, on the national national the on Firstly, levels. two in power of division territorial

(United Nations 1995) ). Furthermore, the office of the High Representative was was Representative High the of office the Furthermore, ). an ults of the negotiations, the mutual distrust between distrust mutual the negotiations, the of ults

xml o paeu co peaceful of example 24 roatian, and Serb translation (para 6 (para translation Serb and roatian,

, which ended thefighting in1995. The st their shadow on the entire regime. entire the on shadow their st s -

called - were parts of the bargain, the the bargain, the of parts were layered model of federalism. federalism. of model layered -

longer existence between ethnic ethnic between existence constitution still bears the the bears still constitution eulk Srpska Republika the

part of the Bosnian the of part core elements of of elements core : 121 : erged from from erged lifetime Sejdić - . The The . 123

and and

of of ); r

CEU eTD Collection courts is also fairly different, as the concern for stability has a different meaning in the the in meaning different a has stability for concern the as different, fairly also is courts the surrounding environment international the and factors security the Furthermore, different. constituti the behind legitimacy the and polities, two the of background historical the this, Beyond complexity. their is embedded are courts the where environments institutional the between similarity core the conclusion, In the cabinet have tobefrom members th national level is the Constitutional Court has to be invoked (Article IV/3/e joint a of c a reach can they if establishment group ethnic every from members three the with committee triggers chamber upper the in veto a while V/2/d), (Article being chamber ( upper the in entity each from representatives of majority the or Constitution), the of V/2/d (Article presidency the of member Any veto. mutual regimes, consociational of pillar another of Both proportion. demographic contains also legislative the of chamber upper the Furthermore, Serb. one and Croatian, one Bosnian, person as the head of the state, a collective three one having of instead instance, For parity. means cases many in proportionality Furthermore, every public institution practical in present widespread, is proportionality instance, For architecture. constitutional The further elements of the 'consociational package' are also very clearly present in the Bosnian operatesas a centralizedunitary polity. hand, other the On Croats. the and Bosnians the between power shared former operates as a federation within the federation, with 10 autonomous cantons, maintaining jeopardized. In case of presidential veto, a qualified majority in the legislative is needed is legislative the majorityin qualified a veto,presidential of In case jeopardized. an Article Article IV/3/e) can block legislation if they see the 'vital interest' of their ethnic group equal number of representatives from every salient ethnicity, regardless of their their of regardless ethnicity, salient every from representatives of number equal ensured at

by the constitutional provision that

the federal level (both levels of the federal structure; Keil 2013: 105). these two institutions play an important role in maintaining maintaining in role important an play institutions two these ons, which is the basis of their adjudication their of basis the is which ons,

e Serb entitye Serb V/4/b). (Article 25

member

- Presidency was established, with one f). Finally, the grand coalition on the prescribes

that at least one

the the Republika Srpska Republika onsensus; if not, if onsensus; ,

are sharply sharply are - third third of ly ly

CEU eTD Collection ananticipated actoris decision (Stone 2000)by whose Sweet everyone. post ex political decisionstheform in iscitedbefore it them the judge but negotiations, in part take not do courts addition, In actors. political of consensus t and consideration, into taken be to have actors several of preferences and views the where consociations, to applies particularly This tendency act. to capacity their constraining possibly actors less having in interested generally decision political influence cannot otherwise who courts, strong establishing in interested actors as regarded be can groups those generally courts, constitutional and actors politicalbetween relationship the approaches one If 2.2.1 what characteristics ofthese principles the courts ofconsociationalism. core mirror con a is whole a as system the that fact the by influenced is structure state the within courts constitutional of position the if is question first The settings. these in institu the between connection the on focusing questions two examine to aim I thesis, the of part this In 2.2 changes to possibilities perceive its ownrole neutrality. its and international institution incorporated into the Bosnian constitutional structure also sig post the to compared economica Constitutional courts the institutionaland design ofconsociations Political self

judic tional architecture of consociational regimes and the design of constitutional courts constitutional of design the and regimes consociational of architecture tional lly developed Belgium, which is deeply embedded in the European integration, integration, European the in embedded deeply is which Belgium, developed lly ial review. Therefore, courts cannot be regarded as an additional party, but rather rather but party, additional an as regarded be cannot courts Therefore, review. ial - interest and theconstitutional mandateinterest and courts of - ofit ona Fnly te at ht h Bsin or i a quasi a is court Bosnian the that fact the Finally, Bosnia. conflict - aig Sdrk 20) Othe 2005). (Sadurski making 26

he court has the capacity to act beyond the beyond act to capacity the has court he -

regardless of talking aboutregardless an oftalking

sociation. The second is second The sociation.

ws, oiiin are politicians rwise,

ex ante nificantly nificantly

or - CEU eTD Collection in non in courts and them between difference a is there courts, constitutional of mandate the Regarding constitutional court,itselfshould theconstitution only beuntouchable it. for le whole the As obeyed. be should constitution first the that is which of expression ultimate the norm, basic governing its on based system 'nega as courts constitutional the In option. soundest theoretically the be could review judicial a centralized of of inventor quasi the role Kelsen, Hans perceived probably court, constitutional 'standard' the for benchmark appropriate an establish to aims one If 2.2.2 the validity intuitions. ofthese on regulations the test to order in and courts, constitutional Bosnian the and Belgian rules, the of procedures composition procedural certain mandate, constitutional the compare th In bargain. consociational the of perspective the from sensitive less to be enforced, but cannot substantially influence policy havin consociationsareinterestedin in elites that assumecan one presumptions, these of light Inthe the credibility each other’s of commitments. in suchsystems. another perspective, From constitutionalcourts can help contribute substantially can framework common the of interpreter impartial the as respected agreements are cornerstones of consociational regimes, an actor who can be regarded b democracies, primarily consociational of image the fit can courts constitutional hand, other the On g constitutional courts, which can act as arbitrators when the common commitments have Constitutional m Constitutional - consociational regimes with a univ a with regimes consociational ecause of the strongly contractual nature of these settings. Since the mutually mutually the Since settings. these of nature contractual strongly the of ecause andate ie eiltr' 18: 16) (1989: legislators' tive

ersal scope of adjudication. In some cases, this is is this cases, some In adjudication. of scope ersal

gal system should be the concern of the the of concern the be should system gal ue hoy of theory Pure - making, especially in areas, which are mitiig h uiy f h legal the of unity the maintaining , law in mutuallyensuring in

e following, I will will I following, e 18) e defines he (1989)

to stability to

CEU eTD Collection procedural and substantive conditions need to be met for these courts can apply their their apply can courts these for met be to need which conditions considered be substantive to and has procedural also it courts, the of powers of scopes the regarding When 2.2.3 some insight theoriginal ofthe to intentions constitutionalframers. cornerstones of the consociational agreement as a whole, therefore the textconstitutional gives One can clearly see that the framers designing original with intentions expressedtheir theconstitutional still court: the interestingly though constraints, constitutional ’hard’ no are there case, Bosnian the In (Swenden 882). 2006: and Jans Courts Constitutional the on limits substantial imposing one as arrangement this seen have c of set this within regarded be can issues other many also but arrangement, consociational the maintaining in crucial are 11) Article in listed rights anti of provisions the instance, For scope. wider provid 142). and 141 (Articles review judicial of protection the Court Constitutional In adjudicator. constitutional the of jurisdiction the on boundaries constitutional strict very the in visible Institutional Institutional limited limited to and Bosnia of institutions between or Entities, or Entity Herze and Bosnia between or Entities the between Constitution this under The Constitutional Court shall have exclusive jurisdiction to decide any dispute that arises ing  

an interpretation on its own howeverjurisdiction; the listed rights themsel hte ay rvso o a Ett’ cnttto o lw s osset ih this with(Article VI/3/a; italics added) consistent is law or constitution Constitution. Entity’s an of provision any with Whether relationship parallel special sovereigntythe and territorial integrity Bosnia of andHerzegovina a establish to neighboring state decision is consistent with this Constitution, Entity’s an Whether :

hs manner, this accessibility . The text itself precisely lists the articles the lists precisely itself text The .

constitution constitution emphasizes those issues, which can be regarded as the

h Blin osiuin moe lmt o te cp o the of scope the on limits imposes constitution Belgian the

- discrimination (alongside other fundamental other (alongside discrimination ases. Nevertheless, political scientists scientists political Nevertheless, ases. including provisions concerning Herzegovina The ,

which contain the rights under rights the contain which

court has has court

including but not but including limited limited govina and an and govina freedom ves have a

in in CEU eTD Collection on ex post review (same as in Belgium, ex ante review is not an option). However, the the However, option). an not is review ante ex Belgium, in as (same review post ex on On the first sight, the provision in B small for instrument an giving not and other, each on control exert to entities the for opportunity and federal the different entities. For initiating constitutional review, a majority of two thirds is needed both in between disputes resolve to tailored clearly are review constitutional of channels institutional group but individual, those defend to potential its beside court, the of character protection rights given affected (Articlea Thisclearly legislation 142). she by sheis canthe presents that prove hand, every citizencan single constitutional initiate review offederal legislat orregional In Belgium, only parliamentary democracies. c different considerably a then give factors institutional or thresholds nevertheless,certain well; asarrangements Bosnian the Belgianand the in present are actors These organs. state other or state of head the democracies), European t one and 10% (between parliament the of share certain a ombudsperson), the or courts ordinary the (mostly character legal a with institutions including often actors, of or both. ex ante Usually review. constitutional initiate can who institutions, different of combination a is there abstfor right the having by enjoy courts model diffuse the following countries to compared bringing issues before constitutional courts in regimes of centralized constitutional adjudication are there as essential, highly is question This powers. constitutional - -

specific rights, which are crucial to the consoc or medium size opposition parties. opposition or medium size

reviews (where possible) can be triggered by minorities, states, can parliamentary triggered of possible) heads reviews (where be The ex post

the regional parliaments as well, it is clear that the core aim is to provide an an provide to is aim core the that clear is it well, as parliaments regional the ex post

reviews

review is possible with a system upholding two principles. On the one

which are more common osnia ract review ract - Herzegovina rather resembles a classical arrangement

aatr rm ht hy ae n standard in have they what from haracter

. In most of the parliamentary democracies democracies parliamentary the of In most . , however greater degree of freedom these these freedom of degree greater however , iational agreement. On the other hand, the -

can be usually initiated by a wider set

more specific limits on on limits specific more hird in most of the of most in hird ion, if ion, if CEU eTD Collection of the head of state to initiate judicial review is one of her veto powers, powers, veto her of one is review judicial initiate to state of head the of right the countries, several in Finally, challenge). the block not but dissent, can groups one by one the by represented is group every (as hand other the on cooperation ethnic enable but ground, ch upper (federal People of House the in threshold same The issues. fundamental very alongside that means This ethnicity. same the fromfellows fragmented ethnically an in Therefore, if political actors aim to trigger constitutional review, they can only do it in coalition; parliament) party thereisno share inmandates a above 20% Representative of House incumbent presently the in threshold, only certain implicit limitations, the party system is highly fragmented: for instance, 2013: (Keil cleavages ethnic the the that Given logic. consociational the towards supportive regulation this makes system electoral p standard the of federalLaw, legislature (Organic Articlethreshold ofone 1). fourth This be can present any in the of chamber upper the and lower the entities, the of parliaments the means which bodies, ini to required are parliamentarians of quarter A presidency. the and legislatures the regarding made be can observations interesting More human rights protection, therefore it is only relevant when speaking about group courts ordinary of right The herself review constitutional consociatio the to procedures these link rather role initiative the with entitled institutions of specificities amber) also makes it difficult for political forces to challenge legislation on a constitutional a on legislation challenge to forces political for difficult it makes also amber)

electoral system is organized at the level of federal units, operating the party sys - thirds of the members, which means that even one representati one even that means which members, the of thirds nal structures. Firstly, contrary to Belgium, the individual citizen cannot initiate initiate cannot citizen individual the Belgium, to contrary Firstly, structures. nal arliamentary democracies, but beyond the fragmented state structure, the the structure, state fragmented the beyond but democracies, arliamentary

party system, the natural allies of certain parties could be their be could parties certain of allies natural the system, party to initiate to -

however, this is not outstanding in a comparative perspective. perspective. comparative a in outstanding not is this however, 118 - 121

(Articles VI/3/b and VI/3/c) does c does VI/3/c) and VI/3/b (Articles ). Furthermore, as there is no national administrative administrative national no is there as Furthermore, ). 30 tiate an ex post review in any of the legislative legislative the of any in review post ex an tiate

crosscutting s (the lower chamber of the federal federal the of chamber lower (the s

(Parliament of Bosnia (Parliament 2 of

coalitions might be formed only only formedbe might coalitions ve from the five delegated delegated five the from ve what the head of state state of head the what arry a character of of character a arry - specific rights. tem follows 015) .

CEU eTD Collection complexity is the most important one. Furthermore, the arrangement which says that half of of half that says which arrangement the Furthermore, one. important most the is complexity groups c gender the of none (e.g. system the in built are quotas other though even institution; every of design the influences which society, of division pertinent the mirrors design This German. Meanwhi community. speaking French the from come to have judges six Belgium, In simultaneously tendencies and design. consociational inits seecentripetalist compare with other countries; meanwh The Bosnian case has several highly unique characters, which partially make it very difficult to Belgium and Bosnia Concernin Macedonia. or Canada like 1969), (Lijphart package' consociational regimes. It also exists in divided societies not embracing the full 'consociational arrangements. to only exclusive not these is courts the of design the in in requirement proportionality this However, consociationalism of cornerstones the of one proportionality, of requirements, concerning education, experience, age, etc. One can clearly discern the principle g certain to belonging ondifferent judges theprovision primarily in Thisdifferenceare composed. is in the way they The most striking differences between courts in divided and non 2.2.4 community. given a of V/2/d) (Article interest' 'vital defined vaguely the any to appealing veto by to presidential, right the have body the of members three the as distrust, mutual symbolizes embodying person a as use could Proportionality court in composition an consist more thantwo

- Herzegovina, both have further peculiarities beyond the quotas for judges. roups, or meeting other specific criteria, beyond the usual professional usual the beyond criteria, specific other meeting or roups, le, one judge from the twelve always has to be proficient in proficient be to has always twelve the from judge one le, - national unity national thirds of the court), it is obvious, which ofthirds is obvious, approach thecourt), it tosocietal ile, the Belgian court is primarily interesting, as one can

However, the institution of P of institution the However, -

while six has to come from the Dutch the from come to has six while - divided settings might be seen g my research, the courts of of courts the research, my g

residency rather rather residency -

CEU eTD Collection distinguished ofhigh jurists VI/1/b). moral (Article standing' be to required are Court Constitutional the of 'Judges precondition: a as following the only professional usual the by constrained Bosnianc requirement as concerning the judges, neither are politicians ethnic the Furthermore, the th appoint to actors political encourages arrangement institutional This judges. 3 appoints ECtHR the while so), do nationalities different from parliamentarians Bosnia of Federation the in while them, elects itself parliament the Srpska, Republika the (in entities their of legislatures the by elected are judges two way: following the in selected are members 9 The consociationalism. corporate of version radical c Bosnian the Contrarily, the selection of moderate,rather candidates. centrist fosters and consensus, encourages regulation This 34). Article Law, (Organic judges the appoints and chooses who today), and 1980s the in both unity, national of symbols few of list a present candidates backed by a to qualified majority (two have parliament the of houses both process, the In consociationalist. other the On politically issues. sensitive decision judicial in part take can elite political the of representatives arrangement, years five least at for parliament judges from both linguistic groups

et representatives best

hand, the selection procedure tends to be centripetalist, rather than than rather centripetalist, be to tends procedure selection the hand,

f their of ourt does not include any centripetal mechanism, but rather offers a a offers rather but mechanism, centripetal any include not does ourt

interest suggests to be a consociational feature as well: through this this through well: as feature consociational a be to suggests

have have to be former politicians, s rte ta cosn cnesa, etit figures. centrist consensual, choosing than rather , 32 -

thirds) thirds) for the monarch (perceived as one of th

onstitution is rather vague in this issue setting issue ratherin this is vague onstitution

- who who served Herzegovina, the caucuses of of caucuses the Herzegovina, ose judges wh judges ose

as members of the o they see as as see they o - making in in making e

CEU eTD Collection following table: Furthermore, the core consociational features in the design of the courts are summarized in the assistant role inpreserving frameworks. existing the co blocks an undertaking (at least in the Bosnian case). On the other hand, limitations on their power often consociational elements in their design encourage the appointment of people not opened to such w answer the settings, consociational of unwinders being them help courts constitutional of design the if question the poses one As Belgium mixture ofconsociational is aninteresting andcentripetalist approaches. of case clear a as seen be can Bosnia requirements, and procedures composition the to comes it When tasks. their among priorities expressed constitutionally the in even or power, of scopes their on limitations the in seen primarily be powers external the Regarding organizations. and requirements internal the and powers, external the regarding both designed, are courts constitutional their way the gen In 2.2.5 Composition astheComposition emphatic feature eral, one can state that there are clear connections of polities being consociational, and and consociational, being polities of connections clear are there that state can one eral, urts, from touching the essential core of the agreements, and giving them only an an only them giving and agreements, the of core essential the touching from urts,

ould be rather 'no' than 'yes'. On the one hand, all all hand, one the On 'yes'. than 'no' rather be ould

corporate consociational thinking, while thinking, consociational corporate and mandate, this can can this mandate, and

CEU eTD Collection and Bosnia 2012; Constitutionalthe Court through Amendments with Constitution of 1995 with Amendments through 2009; Organic Law Constitution Belgium’s Sources: comparison 1:Table eea ad sub and governments federal ordinary courts proposal, in all of the bodies sub representatives two and if legislative, national giventhe legislation political single citizen, being affected by or law science in degree specified offices certain in experience of years 5 members parliament of years 5theshallhaveof judgesa half courtthe members one than represented none of the genders shall be less Germanin proficient be to has one least at speaking judges 6 Dutch two choosesstate the judges a of of head (with the which from thirds), majority state of qualified head chambers the of list legislative a propose two constitution the of parts certain to limited - long experience as as experience long

- speaking and 6 French Core consociational features of the Core features of consociational

Belgium

- addts to candidates hrs f the of thirds

on the join

- - -

hr of third [Belgium] national national

- -

actors whocan initiate postex professional requirements constitutional mandate specific requirements regarding the judges abstract review composition 34

Belgian and Belgian and constitutionalBosnian

Special Act 6of January 1989 on none Human of the Rights (ECtHR) Court by appointed European judges 3 separately elect the judges and the and Bosnia Bosniak the Herzegovina, of Federation thethe in judges; the ofelect entities bodies legislative the unlimited ordinary courts housesboth of the parliament one members the of Presidency not Bosnia and Herzegovina

- specified fourth of representatives in representatives of fourth

rain caucuses Croatian

Herzegovina’s

courts in

CEU eTD Collection Divided So - 4 tested. more exploratory part of my thesis follows, where the weight of theoretical specu section. previous the in analyze the topic of general more the in discussed features general more with deal will section this institutions, consociational to connection their and While the previous chapter was and lowthresholds judicial forreview. initiating judicial independence, existence or absence of administrative courts, competitive party system, namely, ’ activism; judicial foster can which characteristics, institutional certain identifies Holland activism, judicial designand betweenconstitutional relationship the discussing When phenomenon, Holland approachesfollowing: as it the Perspective Comparative book the of chapter introductory the in Holland Kenneth by established design. constitutional their on based practices, the from courts Bosnian and assess to Iaim theory, consociational perspectiveof Belgian the of features institutional the examining After 2.3

structural conditions structural This section of my thesis is substantially based on my term paper titled ‘Regulating judicial modesty? a comparative study on the Belgian and Bosnian constitutions’, written for the course ‘Democracycourseinconstitutions’, Bosnian thefor andwritten Belgian the onstudy comparative a Consociational courtsjudicial and activism epe n itrss hn f hy a cnie tesle t te eouin f narrow of resolution the to themselves confined disputes. (Holland 1991: 1) had they if than interests and people adjudication of legal conflicts but adventure to make social policies, affecting thereby many Judi

il ciim oe it eitne hn ors e o cnie hmevs to themselves confine not de courts when existence into comes activism cial cieties’ in the Winter term of the academic year 2014/15 at the Central European University

thresholds forthresholds initiating judicial review, as the issue was already discussed ’ 7 (1991:

Based

(1991). As judicial activism might be grasped as a rather behavioral behavioral rather a as grasped be might activism judicial As (1991).

on - primarily 9). the conclusions conclusions the These are the following: written constitutions, federalism, constitutions, written following: the are These literature

focusing 35

In this undertaking, I employ I undertaking, this In

on constitutional courts. constitutional on

on of this of how much room they have for unwinding unwinding forhave they room much how

how the courts themselves are designed, 4

section, as well as this as well as section,

Therefore, I will not will I Therefore, Judicial Activism in in Activism Judicial

the framework framework the lations lations can be

chapter , the the ,

CEU eTD Collection can be used as a ground for legislative veto the Bosnian Constitution only applies the rather the applies only Constitution Bosnian the veto legislative for ground a as used be can vetoes can be one example. In Belgium, the Constitution precisely lists those provisions, whic mutual on Provisions difference. this of nature the illuminate possibly can examples relevant differences between the two t qualitative the on elaboration full a allow not do paper this of limits the Though legitimacy. On the other hand, it is more difficult to develop public legitimacy with such a vague source of in the more the is, text constitutional the clear less the since provisions constitutional vague general, In courts. constitutional the of situation the influence heavily also text the of language the and accuracy the Furthermore, legitimacy Bosniancase. compared tothe wider with document a on decisions its base can Court Constitutional Belgian the that clear one part of the Dayton Agreement incremental change (Swenden and Jans 2006), the Constitution of Bosnia and Herzegovina was and internal an of result a is structure federal Belgian the of development the While different. Firstly, the twocourtsI haveFrom here these,focus tooperate. ontwo. which in context the change ultimately which differences, significant are there Nevertheless, catalogu including constitutions, written with systems law civic categories: same the in placed be can countries the Holland, by outlined perspective a From 9). (1991: activism 7). (1991: Nevertheless, l power’ judicial and restraint parliamentary of ’source possible a as that labels When discussing the importance of a written constitution with a bill of rights, Holland generally 2.3.1 Written constitution

as wasit mentioned in Chapter 2, ater he adds that common law systems provide a more fertile ground for judicial

exts, exts, in general, the Belgian Constitution is arguably clearer. Two -

in a way, externa

the the origin of the constitutions themselv

lly ’ imposed terpretation by the court matters. matters. court the by terpretation

’ (Keil (Keil 2013). Therefore, it is invite

judicial activism, judicial es is radically es of rights. of es h CEU eTD Collection a direct and an indirect way. The direct conne direct The way. indirect an and direct a inbecan phenomenonregardedboth adjudication. This constitutional andbetween federalism Bosnia and Belgium of cases The powerare sharing considering legal important vertical on provisions constitutional the reasons, good for Nevertheless, example. similar a unitary thepost furthermore, state; bodyactivist most and strongest probably the regardedas was 1998 and between1989 Court Constitutional in found be can courts constitutional strongest the that observation his considering especially factors, important most the of one as regarded be can federalism Holland, of analysis the According 2.3.2 amendmentsX/2). (Article en Articles certain with X/1), (Article enough is majority qualified a Bosnia, in meanwhile, 195); (Article amendment the approve to needs legislation new the of majority greater has authority, court Belgian the regard, this From court. by provided interpretation binding the is inescapable more the document, the change to it is difficult more the courts: given the Finally, the flexibility or rigidity o ‘ that requires only law Bosnian the judges, the of etc. background, professional education, a gives law specific a Belgium, in While example. another be judges can criteria eligible constitutional for hand, other On ‘vital the vague interests’. of term Judges shall be distinguished jurists of high moral standing’ (Constitution, ofhighJudges jurists standing’ shallbedistinguished (Constitution, Article moral VI/1/b). Federalism

federal states (1991: 7). Later counter Later 7). (1991: states federal

as an attempt for constitutional amendment triggers new elections, where a qualified exerting judicial exerting

review in the world, in spite of operating in aoperating of in spite in world, the reviewin f the constitutions also determines the room of maneuver for - transition Constitutional Tribunal in Poland can be cited as Tribunal Poland in citedtransition Constitutional be as can - Herzegovina clearly illustrate the pertinent connection connection pertinent the illustrate clearly Herzegovina 37 ction can be illustrated with the fact that in both both in that fact the with illustrated be can ction ‘

room -

examples occurred; especially the Hungarian Hungarian the especially occurred; examples ’

for judicial activism. ccurate descriptions concerning descriptions ccurate

highly centralized highlycentralized trenched against against trenched

CEU eTD Collection the electoral system has a substantial role in shaping the party system. Nevertheless, if one one if Nevertheless, system. party the shaping in role substantial a has system electoral the that clear also is it architecture, state meant strictly the of part not is system party the Though 2.3.4 comes tothe en it when enjoy, courts constitutional monopoly great how influences question judicial this of activism, perspective the From court. administrative an on provisions lacks completely comp strongly a alongside appointments, of regulation the by in let are politicians former where court (a pattern French From this regard, there is a great contrast between the two cases. While Belgium resembles the is controlled solely by the constitutional court, or certain power sharing: notably, whether the compliance of state institutions with public law provisions of perspective horizontal a from matters courts administrative of absence or existence The 2.3.3 chambers 77 (Articles two the between labor of division the concerning especially clarity, greater arguably provides constitution Belgian the cases, both In legislation. federal the of chambers upper and lower grasped in the legislative division of labor between center and periphery; furth legally be can which actors, certain between veto mutual the from comes effect indirect The units (see: A of maintaining the unity or congruence between federal law and the law created by sub task the with commissioned directly actors only the are courts constitutional the constitutions Party system AdministrativeCou rticle 142 in the Belgian Constitution and Article VI/3/A in the Bosnian document). forcement ofconstitutional provisions.forcement

- 81). rts

etence

- ae amnsrtv cut, h Bsin constitution Bosnian the court), administrative based 38

issues are ruled by an alternative body. ermore, between - national national

CEU eTD Collection but rather the institutionalization of ethnic differences and the fragmentalization of the party party the of fragmentalization the and differences ethnic of institutionalization the rather but Therefore, inthese cases, notthe competitive nature ofthe party system play majority. groups; (and notqu an absolute judgeswith appointcan the caucuses otherfurthermore, different the the of consent the without judges the nominate can entities different the as and the political approve the list of candidates with a qualified majority, a consensus is needed both in the ethnic extremely are also applies inference This differences. ethnic of institutionalization the concerning difference a make itself procedures the nevertheless, procedure, selection the in pertinent most the is dimension political the necessarily not that Bosnia of case the in Serbian and Croat, Bosnian, while Belgium, of case the in Walloon and (Flemish communities different the representing judges for settled quotas the Though different. considerably are courts two the perspective, this From and embrace an assertivemanner. overly legislature. the with Contrarily, if the aforementioned confronting poli in motivated be not might courts judges, the appointed might depend on the temporary situation in the legislature: if those powers are in majority, who the legislatures) who appoint the judges, are sufficiently balanced. (primarily bodies those whether courts, the of composition the with concerned particularly is Generally, when emphasizing the importance of a competitive party system, Holland (1991: 9) about speaking when appropriate most the consociationalism, regulations taking the institutional onparty considerationcompetition into be not might Holland of considerations in etgts hw h pry ytm a fse o dsorg jdca atvs, the activism, judicial discourage or foster may system party the how vestigates,

fragmented spectrum. spectrum. On the other hand, the Bosnian system lacks the need for consensus, . Given the fact that both houses of the Belgian parliament have to to have parliament Belgian the of houses both that fact the Given . tical side is in minority, courts could turn into their agents,

besides acknowledging that both party systems systems party both that acknowledging besides

- Herzegovina)

In case not, judicial activism acknowledge the fact fact the acknowledge s

the general role, alified) .

CEU eTD Collection positioned. Therefore, as taking one more step towards a more a towards step more takingone as Therefore, positioned. are they where reality the in peculiarities certain certain and literature between relevant the tension in presumptions a is there that see clearly can one courts, these of environments insti the comparing and analysis, the for framework theoretical the establishing After dependent onthe self predictable more also and transparent, more as perceived be could itself) within the constitutional architecture, activist features included rather in the position (clearer framework the designing of way Belgian the discourse, rights individual modesty judicial activism, but in certain cases might urge for it, whether the court aims to exert o not does design institutional therefore deadlocks; governmental from forward move to helping or gaps, legal in filling of motivation the with happen could court the of in the des which are regarded as avoidable, such as vague constitutional language or lack of sophistication factors, from come often court Bosnian the of capacities activist possible the Nevertheless, the design the the court of itself, to comes it when hand, other the On court. Bosnian the for behavior judicial enabling factors more are there architecture), institutional (concerning aspects of set first the regarding that judic accommodating framework constitutional the Comparing 2.3.5 analyzed. are systems consociational when reconsidered strongly be to has judiciary the of position system. Therefore, one might suggest that The link link The between texts structures and ’

ign of shared decision

or not. On the other hand, regardless of the normative stances on centripetalism and centripetalism on stances normative the of regardless hand, other the On not. or - chosen chosen ’ modesty - making. From this point of view, the possibly activist behavior Belgian setting seems to enable more.Belgian to setting judicial activism seems ’

of the given court.of the the connection between party system and the possible

empirical view on the subject I subject the on view empirical ial review, one could observe observe could one review, ial

design of the court -

and also less less also and l enable nly ’ tutional tutional judicial

CEU eTD Collection the topicfor ofmy the final thesis. part be will which establishment, there since institutions, these of history the towards turn to aim

CEU eTD Collection Court Court already had a record 2,200of judgments (Theunis 2004: 4) 6 court with the post Issacha example,another As Bosnia. on focusesbook the of rest the 5 draw and comparing remarksintheconclusion ofchapter. this separately, courts two the of record historical the discuss will I general. comparability, in law constitutional Belgian on working scholars the challenge for even significantwhich isa Belgianconstitutional jurisprudencethesis, inmy imba this find 4 2005: (Theunis perspective jurisprudential general a from difficult speaking) (broadly Constitution the of interpretation the even makes which cautious, fairly are decisions Belgian the of practice adjudicative Bosnia. on focuses heavily consociations in courts constitutional on literature existing the that coincidence a not comparison the makes This institutions. consociational to connected Bosnia of Court Constitutional the decade, a than more by Bosnian the than older is court Belgian the Though observing actionstwoinsti ofthe the closely bodya Commission, Venice bythe reports and literature, scholarly on primarily based literature and my thesis), by comparing the record of Belgian and Bosnian constitutional courts, estab frameworks theoretical the of appropriateness the assess to is inquiry in my thesis, focusing on the behaviour of courts. Therefore the core aim in this chapter Af Chapter3

For instance, the book by McCrudden and O’Leary (2013a) has only one chapter on Belgium, while Belgium,on chapter one only has (2013a) O’Leary and McCrudden by book the instance, For In 2006, 11 years after the first judgment was rendered in the Constitutional Court of Belgium, the Belgium, of Court Constitutional the in rendered was judgment first the after years 11 2006, In ter addressing the normative and analytical questions, I aim to turn toward the empirical empirical the toward turn to aim I questions, analytical and normative the addressing ter lance in the literature uncomfortable, I cannot incorporate a section of section a incorporate cannot I uncomfortable, literature the in lance -

Constitutionalcourts operating in consociations:briefa - - transition SouthAfrican institution. Herzegovina has more important landmark cases in adjudicating issues issues adjudicating in cases landmark important more has Herzegovina 5

Beyond the existence of easily recognizable landmark cases, the general the cases, landmark recognizable easily of existence the Beyond

tutions. tutions. ors ih epan hs hnmnn a ms o its of most as phenomenon, this explain might courts comparison

roff (2004) compares the Bosnian the compares (2004) roff 6

u t te ifclis in difficulties the to Due lished so far (both in the the in (both far so lished particularly difficult; it is is it difficult; particularly - 5). Though I Though 5).

general

CEU eTD Collection n hn, h cut argued court the hand, one the On Constitution. federal the of provisions core the violated documents two the of sections dis bin legally were constitutions entity’s two the of preambles the whether Firstly, issues. major two on focused ECtHR the decision, its In the national (2013a: units 87). in ‘Others’ as to (referred people co certain in resulted altogether which language, Bosnia of (Federation entity other the of constitution the other, aga discriminatingfor 86 2013a: O’Leary and (McCrudden unit federal ( entity presimember the of Izetbegovic, Bosnian the case the Chronologically, another 2004,called case from rendered a verdict, which qualified ECtHR this as a landmar the 2009, in later, years few A ECtHR. the at remedy a sought who Finci), Jakob Court first (in 2006) dismissed the constitutional challenge of the applicants (Dervo Sejdić and as country, the of borders the beyond gone has second the while Bosnia, Finci and ( named cases the especially Amongthese, consociationalism. literatureon the beyond even attention, international wide attracted which decisions, important several relatively its During 3.1 2000) and 2000) nstitutional language) being excluded from excluded being language) nstitutional rmnto i fc (aa 11 (para fact in crimination The Bosnian court: Between anticipation and socialization and anticipation Between court: Bosnian The Republika Srpska Republika ’) have drawn particular international attention. The former case was decided within within decided was case former The attention. international particular drawn have ’) Sejdić and Finci v. Bosnia and Herzegovina and Bosnia v. Finci and Sejdić short history, the Constitutional Court of Bosnia of Court Constitutional the history, short inst everyone else living in the territory of territory the in livingelse everyone inst ), as it defined one ethnicity (Serb) as the constituent people of the the of people constituent the as (Serb) ethnicity one defined it as ),

osiun Peoples Constituent ht h cntttoa pemls ae n motn ‘normative important an have preambles constitutional the that Place Names, - 25

osiun Peoples Constituent

dency, challenged the constitution of the Serbian of theSerbian constitution challenged the dency, will bewill discussedsection. inthis ding ding 43 important

- is the first, as it happened in 2000. Alija Alija 2000. in happened it as first, the is 87). On the one hand, this was problematic was this hand, one the On 87). - k decision. Furthermore, beside these two,

hrfr i ter rvsos o cause do provisions their if therefore

constitutional (2009, usually referred to as ‘ as to referred usually (2009, . eod wehr h challenged the whether Second, ). the Republika Srpska Republika the - Herzegovina) had a similar similar a had Herzegovina) - Herzegovina rendered rendered Herzegovina provisions Constituent Peoples Constituent

the Constitutional the

the sub the . On the On . Sejdić -

CEU eTD Collection 7 cleansi ethnic the to due changed had which situation, ethnic altered the mirrored that names municipality the adopt to problematic ch than more was it perspective moral a ethnic from hand, one the On problems. core demonstratedtwo altered the mirror to wanted authorities re By 99). 2012: Stacey and (Choudry Srpska Republika re to attempt the down struck unanimously judges the decision of logic different clearly A alsostronglythe consociation theeffects but ofthe illustrates itself, ofthedesign court itself. Peoples court. the of members Serb and Croatian the of votes the against jud international the and Bosnian the of support the with 5:4, in resulting ballot a after annulled was legislation the as tendencies, centripetalist foster to wanted who and situation, it itself, decision the individual rights that promote ethnic intermingling must be protected’ (2012: 98). However, in co peaceful the encourage to meant are government of institutions the of conclusion the regarded Stacey and Choudry federation (2013a: can arguablyregarded 87), which as bean view. centripetalist the of territory entire the in units constituent as groups ethnic all declared court the hand, the Court was rather focusing on the internal consistency of the consti interpretations as well invok did so, even though the parliament of the co their therefore character’,

Furthermore, allCroatian and Serb judges attached a joint dissenting opinion to the decision. ing the scholarship of Hans Kelsen, the ‘father’ of centralized constitutional review, as as review, constitutional centralized of ‘father’ the Kelsen, Hans of scholarship the ing

decision is not only important from a jurisprudential perspective and the character of of character the and perspective jurisprudential a from important only not is decision was obvious which group was more interested in maintaining the current the maintaining in interested more was group which obvious was 11 (para Constitution US the on ntent strongly matters (para 25 (para matters strongly ntent

- making applied at the ' the at applied making ng and persecutions of the civil war. Therefore, from a a from Therefore, war. civil the of persecutions and ng Republika Republika Srpska 44

decision as the following: ‘consociational ‘consociational following: the as decision

aracter of them (2012: 99), which which 99), (2012: them of aracter Constituent Peoples Constituent - - name certain municipalities by the the by municipalities certain name naming the municipalities, the Serb the municipalities, the naming

provided a sophisticated argument, Place

Constituent Peoples Constituent s Name' s 7 -

existence of ethnic groups, ethnic of existence Therefore, the Therefore, tutional tutional text. On the other

case in 2004, where where 2004, in case ); in its argument, its in );

). The Court Court The ). Constituent

ges,

CEU eTD Collection relationship between constitutional adjudication and deliberative democracy points to the fact fact the to points democracy deliberative and adjudication constitutional between relationship consideration. into Name Decla UN the and ECHR, the documents, decided unanimously the in case suggests the a rather parochial decision in votes the of distribution the but law, international invoked substantially sides that observe might one However, court. constitutional phenomenon, notably the effect of international law in general on the behaviour of the Bosnian wider possibly a of part as regarded be can judges international the of presence the However, 102). Court the of members local the on effect socializing a have presumably who body, the in judges international the of presence the to point primarily they phenomenon, the explaining tent rather are they though tendency, detectable empiricallyan asdifference this see Stacey and Choudry decision. univocal and clear very a made court the case this in but legislation, the defended have would sugges would this the then procedures, of appointment logic the of because entities, own their of interest the pursue judges that assuming of the inBosnia constituent peoples and Herzegovina’ ‘the contested legal provisions are not consistent with the constitutional administrative act was challenged, the Court used clearly normative language when stating that Peoples, Constituent the to similar very was decision the of conclusion the Interestingly, 100). (2012: more practical perspective the measures did everything but foster restoration and reconciliation ). So beyond this possible explanation, there are at least two factors, which might be taken

in spite of the strongly different way of making the decision itself. Though only an an only Though itself. decision the making of way different strongly the of spite in tv i epann te ehns bhn i. eetees we i cms to comes it when Nevertheless, it. behind mechanism the explaining in ative

Firstly, from a rather ‘soft’ perspective, the literature investigating the the investigating literature the perspective, ‘soft’ rather a from Firstly,

lcs Name Places - making logic concerning certain parties. Contrarily to that, ain f ua Rgt (aa 4 n 28 and 14 (para Rights Human of ration

45 ae oe ih ol fn rfrne t two to references find only might one case,

t that at least the Serb members of the court court the of members Serb the least at that t

(para 55

in the in Constituent Peoples Constituent

Places Name Places principle of the equality ). However, if we ). However, if

case, both both case,

Places (2012: CEU eTD Collection slightlyanticipated differently tothe logic. the play ob also could to one however, role, failed unwinding Court Constitutional the cases, two former the Unlike discriminative. were which tothe ECtHR, declared divided), they turned on provision this electoral regulation decisions these (in cases three in challenges constitutional their the of presidency collectivefederation, and the chamber,upper the House of Peoples. After Bosnian the court turned down the in membership for eligible Bo not of were citizens they Herzegovina, Jewish and Roma as themselves identified they electoral As on regulations. regulation the challenged Finci, Jakob and Sejdić two Dervo 2006, named in gentlemen, instance For decisions. its of some overrided practically ECtHR but court, In some cases, the possible intervention by the ECtHR was not only anticipated by the Bo 2001). Commission 72 2013a: O’Leary and (McCrudden consociation Bosnian Comm Venice the as known commonly (more Law Through Democracy for Commission European the Europe, of as themonitoringclearly internationalforums, anticipate Council stanceofthe body of the unwind the the plays where court domestic situation a to compared equilibrium consociational the in intervention radical more a meant have might which decisions, their overriding Strasbourg in court anticipatedthe of the ECtHR can be regarded as a more ‘hard’ instituti or the force of argument instead of interest (Ferejohn and Pasquino 2003). Second, the presence fosters deliberative virtues in decision fr courts constitutional of regulations procedural and design institutional the that

ission) exerted very clear criticism on the corporate elements of the the of elements corporate the on criticism clear very exerted ission) n rl. rm hs ead te osiuinl or could Court Constitutional the regard, this From role. ing - making, such as the endogenous changes of preferences,

serve that the decision the that serve 46

onal constraint, as the judges could have - 80; Scholsem 2002; Venice Venice 2002; Scholsem 80; even the international judges judges international the even - making patterns operated operated patterns making snia and and snia equently equently snian snian CEU eTD Collection Herzegovina the total exclusion of representatives of the other communities (para 48. cle above) 22 paragraph (see Commission Venice the of Opinions the rule, majority of reflection asimple be would which system political for ripe be not still may time that and Herzegovina and Bosnia to there is no requirement that under Herzegovina] the andConvention Bosniato [of Government the with agrees [ECtHR] Court the while addition, In Bosnian court: the of behaviour balancing this illustrates statement alternati following finding The solutions. for institutional exhortations the with together stability, political with concerned was body the much how expressed and system, constitutional Bosnian the of nature peculiar decision itself.F the than rights), human protecting of mandate the with court international (an ECtHR the of character the mirroring more was outcome the that mention also should one Nevertheless, between rules composition connection the clear how see also should one theory, consociational of perspective the from Furthermore, exhausted). are protection rights for means domestic the all if invoked be only composition, institutional embeddedness, and th their regarding clear absolutely is situation their between differences the Nevertheless, 478). (2013b: arrangement consociational the towards moves unwinding to comes it when ECtHR rather O’Leary, and McCrudden like scholars, other Therefore, judgments, orfor the factthattheBosnian court could easilyanticipate assertive its behaviour. On the other hand, one should also acknowledge the role of the ECtHR, either for its occasional following opinion: and Choudry instance, For it. condemning than rather court Bosnian the of activity the endorse scholars international picture’ ‘big the regarding Nevertheless, arly demonstrate that there exist mechanisms of power of mechanisms exist there that demonstrate arly n te eln o te oscainl power consociational the of indispensable forgingto peace amassivelyin divid decline the and Bosnia in integration greater towards moves of driver a been has Court the Furthermore, ).

or instance, the ECtHR demonstrated a great a ofsensibility the degree instance,demonstrated theECtHR towards or

, appointment procedures and judicial outcomes might, appointment proceduresand judicial outcomes be. abandon totally the power 47

e type of cases before them (as the ECtHR can

- hrn arneet otn en as seen often arrangements sharing ed society (2012: 102). - sharing which do not automatically lead to lead automatically not do which sharing

Sejdić and Finci v. Bosnia and - mhsz te oe f the of role the emphasize sharing mechanisms peculiar

Stacey formed the the formed Stacey

ve ve CEU eTD Collection would have based on its one expectations the meets also Belgiancourt the of record the court, Bosnianthe Similarlyto 3.2 outcome, inaunanimou the hand, other the On convictions. and interests entrenched locally the mirrored clearly judges the by contai richly decision Peoples Constituent the as Herzegovina, Bosniaand of Court Constitutional the argumentationby of style the and judges international of presence the between connection the on intuitions different have also might opaq more even picture the makes judgements the of opinions dissenting and texts the reading However, valid. as seen be could Issacharoff and Pildes by established Therefore one might conclude that on the level of the judgements and outcomes, the dichotomy Herzegovina opinion (Dissenting massacre’ conclusion of his opinion by saying that ‘I cannot endorse a Court that sows ideals and harvests In his conclusion, he expressed his opinion on the possible consequences of the judgment in the judicial doctrine, who Bonello, Giovanni Judge of opinion dissenting the is this for case strongest The perception. their in primacy its expressed but n ECtHR the of members some Furthermore, The Belgian Court: oncautious Cautiousdecisions conclusions v. Bosnia andHerzegovina in Bonelloof opinionJudge (Dissenting flaw a than strength a like more self judicial make that these as such situations is It existence. democratic the in u placed Accords be Peace Dayton the put to State liquidiser and to start respondentlooking for something else. the I, for my part, doubt ordered that any State should has Court The Places Name Places ).

nder any legal or ethical obligation to sabotage the very system that saved its saved that system very the sabotage to obligation ethical or legal any nder which would ratherwhich therelevant match domestic concepts on courts:

design and institutional embeddedness, though the connection between s way, whichwouldhave easily happened withaninternational court. case only mentioned certain international legal sources, but led to an to led but sources, legal international certain mentioned only case ).

f ug Bnlo in Bonello Judge of -

in spite of being an international judge international an being of spite in ot only demonstrated their concerns for stability, stability, for concerns their demonstrated only ot 48

ned international jurisprudence, but the votes votes the but jurisprudence, international ned edć n Fni . ona and Bosnia v. Finci and Sejdić ue. Furthermore, one one Furthermore, ue. Sejdić andSejdić - restraint look restraint

Finci -

formed a formed

CEU eTD Collection Education in Belgium” v. Belgium v. Belgium” in Education of 42 and 32, 25, 19, 13, (2013a: 52 parents for option the narrowing barriers administrative substantial were there prohibited, parents to bring their children to Dutch French considerable a having but heart of the issue was the following: in the region surrounding Brussels, belonging to Flanders, remedied been not The O’Leary 2013a: 47). Belgium v. Cleryfayt and Belgium” v. Belgium the cases: specific two discusses mostly literature jurisprudential The 12). 2005: (Theunis adjudication o frameworks domestic the beyond only found be can injustices the institutional for remedy appropriate an as ECtHR, the in made been have structure consociational The seems be thanunfalsifiable. to logical rather speculation this however, caution, its of strengthen can maintenance body the and in structures) establishment consociational the of part were themselves (who politicians former intuitivelymea might This court. Belgian the of history longdecade ‘non b example, the connection between the composition procedures and decision For case. Bosnian the in is it as clearly as seen be cannot outcomes the and arrangements the e seen clearly in the Bosnian case, in Belgium one can only seek for the explanation of the of explanation the for seek only can one Belgium in case, Bosnian the in clearly seen e se premises all culminate in the fact that all the relevant judicial decisions on the Belgian the on decisions judicial relevant the all that fact the in culminate all premises se Belgian Linguistics - finding’, given the fact that only absolutely tentative decisions can be seen in the three three the in seen be can decisions tentative absolutely only that fact the given finding’, “Relating to Certain Aspects of the Law on the Use of Languages in Education in in Education in Languages of Use the on Law the of Aspects Certain to “Relating - 53). 53). The ECtHR found these measures discriminatory an

by the domestic constitutional court, but only on the European level. The The level. European the on only but court, constitutional domestic the by

(usually referred to as

case presents a problem connected to segmental autonomy, which had

“Relating to Certain Aspects of the Law on the Use of Languages in in Languages of Use the on Law the of Aspects Certain to “Relating (usually referred to as to referred (usually ), which can be regarded as discouraging the territorial co territorial the discouraging as regarded be can which ), - paig ouain tee ee la icnie fo incentives clear were there population, speaking - speaking speaking schools. Though education in French was not

Belgian Li

Mathieu nguistics - Mohin )

from 1968 and ) from 1987 (McCrudden and and (McCrudden 1987 from ) d disproportionate (para 7, n that the incorporation of of incorporation the that n - making patterns can Mathieu f constitutional f - Mohin r all all r - CEU eTD Collection standards,its arriving followingconclusion: at the their of In adjudicating this case, the ECtHR found this arrangement on proportionality concurrent with dimension linguistic and territorial representativ the between inconsistency created this ethno Lingui Belgian the to similarly 60 (2013a: language her or his in oath the take to given was option the group, other the of constituency linguist certain a from parliamentarians if However, amendments). constitutional (including decisions certain for of required number are certain parliamentarians a as majority, qualified for requirements and federalism, of character Mathieu 57, (para limitation’ disproportionate a ‘not as it labelling law, electoral the of provisions power political of nature concer included also but 'package', consociational the from autonomy segmental case, other The could beclearly regardedas centripetal. th On groups. ethnic different of existence - xrsino te pno fte epe nte hie fte eiltr [ legislature the of choiceMathieu the in people the of opinion the of expression free ‘the thwart would as such limitation disproportionate a not is This Council. Flemish Dutch the to belo Dutchand soin oath Communitycandidateselsewillorfor takewho the Council, French candida DutcharenowayindeprivedThey these rightsofmerefactthat by the mustvote for they either the as footing legal same the on election for stand to right the FrenchThe federalist approach by giving an option to the parliamentarians; but on the other hand, hand, other the on but parliamentarians; the to option an giving by approach federalist - Mohin - 1. rcial, hs hnmnn a peet n h Halle the in present was phenomenon this Practically, 61). - e role. Therefore, they were excluded from decisions requiring qualified majority. language group in the House of Representatives or the Senate and sit on the French tes who will take the parliamentary oath in French and will accordingly join the join accordingly will and French in oath parliamentary the take will who tes - Mohin . n hs ae te oe f h polm ae fr came problem the of core the case, this In ). - Mathieu speaking elect - language group in the House of Representatives or the Senate and sit on the on sit and Senate the or Representatives of House the in group language )

- oi ad lrfy v Belgium v. Cleryfayt and Mohin - hrn. oe motnl, n hs ae h EtR ped the upheld ECtHR the case this in importantly, More sharing. ors in districtthe Halle of stics case. At first sight, this provision has gone beyond the the beyond gone has provision this sight, first At case. stics

e other hand, the measures promoted by the court court the by promoted measures the hand, other e 50

- ic group were elected from a territorial territorial a from elected were group ic Vilvoorde enjoy right the vote to and

not only touched the element of of element the touched only not m h multidimensional the om - speaking electors. speaking - ] pr 57, (para …]’ Vilvoorde district, district, Vilvoorde ns about the the about ns ng CEU eTD Collection institutions) and the ECtHR, a transnational body. On the other hand, the Belgian court made made court Belgian the hand, other the consociational On body. transnational a ECtHR, the and institutions) as organized internally also but architectures, institutional consociational th of manner the between difference the clear regards if the in one way decision was the made between institutional design and the behaviour of certain actors. This connection is particularly illu clearly courts the of record historic the Nevertheless, practices. or institutions consociational entrenched challenging court Belgian the of evidence no is there th hand, equilibrium (for instance, by adjudicating Name Places occasionally embraced the unwinding court Bosnian The cases. two the in differently answered be could settings consociational in unwinders of role the play do courts constitutional whether question the to answer The w the constitutional text, fact that not only the institutional design and political environment of the courts matter, but also re cases two these between comparison the Therefore, tradition. legal western produc ‘domestic rathera is constitution Belgian the hand, other the On community. international the of supervision the under also but order, democratic flourishing a establish to intent questionable a with actors between negotiations of results mi document the that fact the Given constitution. Bosnian the the of of nature ambiguous because especially difficult, be might courts two the of comparison a perspective, court the of composition the only not that suggests Belgium, of Court Constitutional the by upheld The fact that in the second case even the ECtHR found those provisions satisfactory which were 3.3 ‘Judicialmodesty’ revisited

matters, but also the constitutional material the body has to adjudicate. From this this From adjudicate. to has body the material constitutional the also but matters, e behaviour of the Belgian court has clearly fit the framework of 'judicial modesty', as modesty','judicial of framework the fit clearly has court Belgian the of behaviour e ), while in other issues the court rather decided to maintain the consociational the maintain to decided rather court the issues other in while ), hich isthe groundfor adjudication. its

role (as was seen in the cases of e domestic courts (which are not only embedded in embedded only not are (which courts domestic e Sejdić Sejdić and Finci 51

Constituent PeoplesConstituent t’, in a country deeply embedded in embedded deeply country a in t’, on the domestic level). On the other

Constituent Constituent Peoples iae te connection the minates , but also if one, butalsoif sees - emphasizes the the emphasizes rrors the the rrors

and CEU eTD Collection the institution itself.the institution t according decisions

o this logic, which presumably could have been behind the designing of of designing the behind been have could presumably which logic, this o 52

CEU eTD Collection h greater the the higher is, structure state the complicated more the Intuitively, institutions. and groups among power fractur highly a means Concerning constitutional adjudication, the relationship is slightly different. rights, some cases in group on focusing through latter the in elites, the to primarily power allocating by the features of these consociationali Nevertheless, constitutionalism. of concept the of part essentially is which settings, consociational in frameworks protection rights strong are there Furthermore, government. constitu of one fosters which dispersion, power equaisconsociationalism common, as in several points have to seem sight, first at consociationalism, and Constitutionalism investigation. under is of constitutional adjudication could be seen differently if their relationship to Regarding the normative aspect of my research, the concept of constitutionalism and the notion contrary ofthis. unw becoming courts on exists these bodies enable them surrounding frameworks constitutional the do extent what to role, unwinding the angl normative a from concept the approach could one how Firstly, whether courts should play the unwinding role in consociational settings; in other terms, In the introduction, I attached three questions to the existing dilemmas in the relevant literature. Conclusion right given to every individual, without further regard. In the former aspect, this happens this aspect, former the In regard. further without individual, every to given right

the to do so. Finally, how much courts do to fulfil this role, so what empirical evidence the likeli

ed per fr n mata abtao. N arbitrator. impartial an for appears need at hood ed

the expense ofindividual rights.the

institutional architecture, with a sophisticated allocation of politica of allocation sophisticated a with architecture, institutional sm disregard an important element of modern constitutional thinking:

for jurisdictional debates; and the more jurisdictional debates occur, inders in these settings, or whether there is evidence on the the on evidence is there whether or settings, these in inders 53

tionalism's core value core tionalism's ted with ted

e. Second, if the courts could play play could courts the if Second, e. evertheless, if one takes into into takes one if evertheless,

a strong institutionalization of stronginstitutionalization a s , the limitation of the the of limitation the , C

consociationalism onsociationalism - specif ic l CEU eTD Collection design of courts hindering their intervention in the consociational equilibrium. Though only the nor in the Bosnian case purely theoretical experiment. role unwinding the fulfil analytical my In confirmingeach other. mutually concept as democracy and constitutionalism seeing of concept the and democracy, seeing of way republican the between dichotomy the notably debate, broader even an from activ unwinding potential the normatively that suggest I settings, as constitutional courts could review pieces of law, but not create new ones. Therefore consociational to alternative coherent a establish to insufficient be to likely very are courts instrumen the However, differences. societal entrenching institutions rigid liberalize and up' 'open to capacity their with role benign a play might courts hand, one the On ambiguous. of achievement greatest the to danger st consociationalism: a as courts see could solutions endorsing People consociational societies. divided in democracy on debate the in assumes one position potential this sight, first On unwilling taking while institutions, and actors between balance the of survival the to contribute also could courts constitutional hand, other the On limited to representative mandate), jeopardizing the consociational equilibrium. In addition, courts extra as regarded be can making legislation annul can courts constitutional that consideration ,

based constitutionality, onits the role of thecourts can be easilyre

influenc or unable inquiry I turned towards the question the towards turned I inquiry ing

to make.

blt. rm cnrptls prpcie te oe f ors s rather is courts of role the perspective, centripetalist a From ability. the the dynamics of daily politics, but also the institutional architecture its

, though on the other hand, one could clearly see certain elements in the in - politi consociational settings, or settings, consociational

action, called 'unwinding', could be assessed depending on the on depending assessed be could 'unwinding', called action, There are no a atr (n em o big non being of terms (in actors cal

strong strong barriers 54

those

decisions

whether wh ity by courts might be rather regarded rather be might courts by ity e be ther for ,

, which , and therefore influence policy influence therefore and

e courts have suitable devices to devices suitable have courts the normative questioning is a is questioning normative the

courts - lce bde, ihu a without bodies, elected

the political actors are are actors political the ,

neither - assessed, and they

in the Belgian, are not ts of ts elf. elf. - CEU eTD Collection for a more comprehensive understanding on the topic. The low number of relevant cases gives relevant The of cases lownumber for thetopic. understanding acomprehensive on more consociations, but suggests the need to use literature on constitutional courts in a broader sense frame the by explained be cannot event This unanimously. measures centripetal promoting court domestic a for example great a is which case the covered not have they that add to important is it though conclusion, manner assertive more a embrace courts international while 'modestly', more behave courts domestic consociations, falsified; Issacharoff The empirical survey in the last chapter of my thesis does not see the depend only perception o not consociations in courts constitutional of role the that fact the factors aforementioned the Nevertheless, situations. these in unwinders as act to disincentives certain have review) judicial of model in courts Belgium constitutional and Bosnia the that suggested has courts two the of design and environment institutional the on analysis the conclusion, In court. Bosnian the by adjudicated themselves, in judges the of behaviour voting the in seen constraining the sides to find consensual figures. The effects of this arrangement c incentives for appointing thejudges actors On the other hand, one could observe that the way the Bosnian court was designed mechanisms a inthelife courtreleased of which restrained onlyvery decisions. in an be might the In manner. activistic their potentiallyundermine courts could ofboth composition onthe regulations of powers,the constra legal 'hard' encounters court Belgian f

their own role, butalso own thelegalwhereare role, embedded their framework they fluential factor, though it is very difficult to empirically detect the internal internal the detect empirically to difficult very is it though factor, fluential - Her crde ad ’er conclude O’Leary and McCrudden

21b 490) (2013b:

zegovina (countries functioning as consociations, having a centralized design of the of design . Earlier, McCrudden McCrudden Earlier, .

Belgian do not do to ints when it comes to the restrictions on its scope its on restrictions the to comes it when ints pursu

55 the few cases on the consociational institutions institutions consociational the on cases few the

ok salse fr osiuinl ors in courts constitutional for established work

court

block them from such practices, but point t point but practices, such from them block e

the interests ofcertain groups, rather than , the incorporation of former politicians politicians former of incorporation the ,

that and O'Leary arrived to the same same the to arrived O'Leary and

codn t ter works their to according ‘ hypo thesis

’ Places Name Places

, of Pildes and an

gives strong s

in be be clearly

n their on .

in o , CEU eTD Collection Bibliography by history,and convictions thenormative ofthose whoshape them ends could be seen from the perspective of the entire political systems, which are heavily shaped Nevertheless, the or scholars. legal procedures, of community epistemic international the to appointment institutions judicial of attachment in mechanisms centripetal of importance the instance, seem arrangements practical certain allow however, conclusions, unerring not does cases of number low the Again, contexts. different significantly in design From a practical perspective, the findings of my thesis illuminate the importance of institutional the design, its in elements consociational has also Lebanon of Council Constitutional the Though topic. the on picture comprehensive more a gain to order in thesis, MA an than resources design. its in element consociational any Nevertheless, further research on Lebanon would be useful in a research having more antime contain not does but polity, consociational which today, as one cannot find a country w courts how be to seems question interesting most the could research further However, dynamics the interaction betweenthe international of and thelocal judges. possibly could which opinions, dissenting and concurring specific the and judges, different of background sociological the concerning research further invite decisions different to tone tentative a ere ‘ output’ ofoutput’ adjudicativepractice its giveimportant might insights.

not consociational themselves in their design. Though such an undertaking is not possible a a centralized a has these these devices could help institu

all empirical findings, on the other hand the different patterns occurring in in occurring patterns different the hand other the on findings, empirical all - style constitutional court court constitutional style also ,

which can be regarded as a investigate broader dilemmas connected to this topic, as topic, this to connected dilemmas broader investigate tions tions reaching their primary goals, but the ultimate 56

would and hc i ol atce t the to attached only is which behave in conso in behave clear .

case for consociationalism,

to be clear. These are, for for are, These clear. be to

ciations, if they they if ciations,

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