CEU Electronic Theses and Dissertations, 2021
| Author | Gál, András |
|---|---|
| Title | Rectifying and Reinforcing: Constitutional Review in Consociations |
| Summary | 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 ‘consoci ation-specific& #x2019; 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 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. |
| Supervisor | Bogaards, Matthijs |
| Department | Political Science PhD |
| Full text | https://www.etd.ceu.edu/2021/gal_andras.pdf |
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