Alex
Schwartz
Faculty
of Law, University of Hong Kong
Melanie
Murchison
Center
for Law, Society and Justice, University of Wisconsin-Madison
)
Constitutional
courts can play an important role in protecting minority rights and providing a
forum for the non-violent resolution of constitutional disputes. Arguably, this
role is especially vital in post-conflict and deeply divided societies. But if
the politics that divides the society more generally also influences judges, a
court’s ability to play this role – at least impartially and independently – will
be compromised. Our recent LSR article, ‘Judicial
Impartiality and Independence in Divided Societies’, is the first ever
published study to rigorously consider the extent to which ethno-national
politics influences judicial decision-making on constitutional courts.
The
article focuses on the Constitutional Court of Bosnia-Herzegovina. Bosnia-Herzegovina is a post-conflict society,
still grappling with the legacy of the war and ethnic cleansing that ravaged
the country in the 1990s. Following the
peace agreement that ended the war, a new constitution divided and
decentralized power in the country, creating two territorial ‘entities’ and a
power-sharing system to accommodate Bosniak, Croat, and Serb factions (the
country’s three main ethno-national communities). The Constitutional Court is
similarly designed to include two judges from each of these three groups,
alongside three ‘foreign’ judges who are there – at least in theory – to
provide some impartial expertise. For
most of the Court’s existence, the judges have held long-term mandates (with
mandatory retirement at age 70). For the
first 5 years, they were appointed for short and non-renewable mandates.
The
judges have been accused of dividing along ethno-national lines and favouring
claims brought by their own group (or, alternatively, displaying bias against
claims brought by other groups). Our
study examines if there is an objective basis for these impressions. With an original dataset of the Court’s
decisions, and using a statistical technique called logistic regression, we examine
the extent to which the probability of a judge finding in favour of a
constitutional challenger significantly increases when both the judge and the
challenger are from the same ethno-national community. Accounting for other
possible influences, including potential party-political connections between
the judge and challenger, we find evidence of a dramatic effect: the judges are
over four times more likely to find a constitutional violation when the
challenge is brought by a member of their own group.
We
also consider if the Court’s move from a short-term tenure model to a long-term
tenure model had any effect on the judges’ tendency to side with co-ethnic
challengers. We find that it did not; there
is no significant difference between the short-term and long-term appointed
judges in this respect. We argue that
this result suggests that the judges’ propensity to favour co-ethnic
challengers mostly reflects genuine political and/or group biases, as opposed
to a strategic motivation to appease powerful politicians. That being said, we
do find some evidence that the length of time a judge serves on the Court makes
some difference to this tendency: as time goes on, the judges appear to become
more ethnically partial. This effect may reflect a process whereby judges
‘acclimate’ to their role on a divided court over time (evidence for a similar
effect has been found on the US Supreme Court).
Our
article concludes by suggesting some ways in which constitutional courts might
be designed to reduce the potentially damaging influence of ethnic or
ethno-national politics on judicial behavior. Against the conventional wisdom, we argue that
short and non-renewable mandates might be preferable to long-term tenure, at
least to the extent that they reduce the potential for judges to become
‘acclimated’ to dividing along ethno-national lines. We also suggest that the practice of allowing
dissenting opinions should probably be avoided in a deeply divided context like
Bosnia-Herzegovina; though dissents give judges a way to express themselves
(and facilitate the kind of empirical research we conducted for this study),
they also draw attention to political divisions and, consequently, undermine a
court’s ability to speak with a single authoritative voice.