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Constitutional Review in Consociations

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Constitutional Review in Consociations Rectifying and Reinforcing: Constitutional Review in Consociations by András Gál Submitted to The Doctoral School of Political Science, Public Policy, and International Relations Central European University In Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy Supervisor: Professor Matthijs Bogaards February 12, 2021 Word Count: 64,816 i Declaration I, the undersigned András Gál, candidate for the degree of Doctor of Philosophy at Central European University Doctoral School of Political Science, Public Policy and International Relations, declare herewith that the present thesis is exclusively my own work, based on my research and only such external information as properly credited in notes and bibliography. I declare that no unidentified and illegitimate use was made of work of others, and no part the thesis infringes on any person’s or institution’s copyright. I also declare that no part the thesis has been submitted in this form to any other institution of higher education for an academic degree. February 12, 2021 Signature ii Abstract The role of constitutional review in consociations – a specific form of power-sharing built on elite cooperation – is a controversial phenomenon both for the conceptual difficulties surrounding it and its mixed empirical record. While authors in the relevant literature agree that constitutional courts may contribute to the protection of human rights in such regimes, they also warn of their undermining potential. The latter stems from an inherent tension between the individualistic, universal values promoted by constitutionalism and the group-specific provisions essential in consociations. The empirical record of constitutional review in consociations covers a variety of cases, ranging from judicial deference to cases of confrontational behavior undermining power- sharing settlements. While the established literature primarily focuses on how courts contribute to the dynamics of consociational regimes (in other words, what they do), this research puts a greater emphasis on how these bodies fulfill general functions of constitutional courts, namely the protection and promotion of constitutional supremacy. The role of constitutional review is investigated in 3 consociations: Belgium, Bosnia and Herzegovina, and Northern Ireland. Comparing corporate and liberal consociations, gradually evolved and post-conflict settlements, civic and common law jurisdictions, offers a substantial diversity in the empirical material, enabling ‘consociation- specific’ inferences across cases. From a normative perspective, the core argument of the dissertation is that due to certain gaps in the decision-making mechanisms of consociations, the involvement of non-majoritarian institutions, such as constitutional courts, is indispensable. This role primarily pertains to the protection of those groups who are deprived of the political instruments of pursuing their fundamental interests, such as non-recognized groups – also known as the ‘others’ – or internal minorities within major social segments. These prescriptive claims are particularly underlined by the dissertation’s principle empirical findings. First, beyond the established literature’s dichotomous view on the role of constitutional courts in consociations, a third pattern emerges. While the established literature sees courts as either deferential towards political elites or confrontative in a way that aims for the liberalization of consociational institutions, this analysis shows that courts frequently buttress strained power- sharing institutions by making confrontative decisions, reinforcing consociations. Second, courts in such contexts frequently employ so-called triadic interpretive methods – like purposive iii interpretation or proportionality analysis – where the respective constitutional provisions are interpreted by invoking an external reference point. Third, courts in consociations are fairly consistent in their use of external references, which bears particular importance in post-conflict settings where courts frequently interpret constitutional provisions through the lens of the peace agreements establishing (or paving the way to) the respective consociational settlements. The dissertation offers two core theoretical, and a number of practical implications. First, courts have a particular responsibility in filling certain decision-making gaps on behalf of underrepresented groups, such as the ‘others’ or internal minorities. Second, courts are at least as important in supporting the functioning of consociations by reinforcing strained institutional mechanisms, as much threat their potential activism poses. In both regards, carefully designed constitutional mandates, external references, and appointment procedures can foster arrangements where human rights and power-sharing do not undermine, but mutually reinforce one another. iv Acknowledgements Fortunately, and to some degree unfortunately, the years of my doctoral studies at CEU were filled with much, much more than conducting research and completing this dissertation. Unfortunately, through my doctoral studies I had to witness how my university is slowly driven out of my home country by nuanced and carefully targeted legislative and bureaucratic measures. Unfortunately, this deprived my university of its home where it got rooted in over 25 years and deprived my home country of a vibrant intellectual community and an institution with a global recognition. Nevertheless, I was fortunate to be part of CEU’s community in these crucial times, experiencing its determination, resilience, and unity in standing up for free thinking and intellectual honesty despite its great diversity. I was also fortunate to fully enjoy and appreciate this diversity over my years at CEU, broadening my understanding of the world we are living in. Furthermore, I was fortunate to be part of a community that constantly inspires its members to reflect on all the profound questions social scientists can and should be concerned with. Before all, I owe a great debt of gratitude to my supervisors, Nenad Dimitrijevic and Matthijs Bogaards for their constant help, support, and guidance. I am particularly thankful to Nenad for his deep and meticulous feedbacks on any kind of work, for all his remarks challenging me in my ways of thinking. The sometimes hours-long conversations in his office through the years offered some new revelations on every occasion, adding a lot both to my research project and to my understanding of the fundamental ideas around constitutionalism, democracy, or human dignity. To Matthijs I am particularly thankful for his guidance on how to navigate my life after CEU, providing crucial insights to the workings of contemporary academia, and sharing important ideas on the development of my research project. Furthermore, I am also greatly indebted to János Kis who served in my dissertation committee, for his wisdom, important insights, and constructive ideas through these years. From CEU’s broader community, I am also particularly thankful to Zsolt Enyedi, Erin Jenne, Zoltán Miklósi, Andres Moles, Carsten Schneider, and Gábor Tóka for the feedback I received at various points of my research project. Furthermore, I immensely appreciate the help and guidance of Robin Bellers from the Center for Academic Writing through my MA and PhD programs at CEU. Though I wish I could express my thankfulness to Artak Galyan in person for his mentoring as a senior PhD student during my first year in the programme, sadly my gratitude can only add to his remembrance in our community. v During my stay at Leiden University in 2018, I greatly profited from the inspiring discussions with Rudy Andeweg, Ingrid van Biezen, Nicolas Blarel, Petr Kopecky, Nicolas Vrousalis, and Frank de Zwart. During my Global Teaching Fellowship Program at the Higher School of Economics Saint Petersburg in 2018-19, I also received inspiring feedback from my colleagues Irina Busygina, Anna Dekalchuk, Ivan Grigoriyev, and Andrey Starodoubtsev. I am also greatly indebted to Alon Harel for facilitating my visiting research fellowship at the Hebrew University of Jerusalem in 2019, and to Hanna Lerner from the University of Tel Aviv for her help and the inspiring conversations during my time in Israel. The help of Etienne Peremans and Willem Verrijdt from the Constitutional Court of Belgium has also been essential in my data-gathering and empirical research. My friends and colleagues at CEU also greatly contributed to the completion of my dissertation with their inspiration, friendship, and support in the most needed times. Among them, we share a particularly large amount of memories with Péter Márton and Ákos Máté whose encouragement, humor, and wisdom were at least as important for my work as the industrial amounts of coffee we had together in the kitchens of the PhD labs and various cafés in the university’s vicinity. Moreover, I am greatly thankful to Dominik Brenner, Gábor Filippov, Dániel Kovarek, Dragan Kuljanin, Olga Löblová, Adrienn Nyircsák, Nena Oana, Elizaveta Potapova, Elettra Repetto, Stanislas Richard, Miklós Zala, Burtejin Zorigt, and others for the unforgettable memories through these years. The administrative staff of CEU also deserves a great degree of appreciation for their constant help and flexibility on all matters. I am particularly thankful to Kriszta Zsukotynszky and Eszter Fügedi from the Doctoral School, and Éva Lafferton, Ildikó Tropa, Borbála Darabos, and Tünde Szabolcs from the Department of Political
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