Constitutional Design v. Constitutional Degradation: Strengthening the Rule of Law in Bosnia-Herzegovina

The concepts of “constitutional degradation” and of “divided societies” are closely linked, as the former is at the core of the challenges posed by the latter, namely societies divided along ethno-cultural lines, and in which these lines are relevant markers of political mobilization. Indeed, the outcome of the tensions among groups may be violent (e.g., civil conflicts, ethnic cleansing, genocide), but even in absence of violence they may have a corrosive effect on the constitutional structure of the State. Consequently, this paper addresses two aspects: (1) how the processes of constitutional degradation take place in divided societies, and (2) to what extent they depend on the adopted model of constitutional design. Given the complexity of the subject, this article aims at exploring the topic by focusing on a specific matter in a determinate case study, namely the judiciary in Bosnia-Herzegovina. Indeed, Bosnia is a classic example of a divided society where the model of constitutional design introduced a complex judicial system. First, the paper deals with the theoretical framework of the concept of constitutional degradation in divided societies and focuses on the judiciary as a vulnerable area undergoing a process of degradation. Then, it examines how the Bosnian constitution designed the judiciary, and how the consociational model introduced by the Dayton Peace Agreement influenced its organization, especially at the state level. Finally, the article explores the problematic aspects emerging from the process of degradation, by taking into account the key priorities set by the 2019 Commission Opinion and the findings of the Priebe Report. Moreover, it recalls the proposals of constitutional reforms currently lost in the stalemate of the Bosnian political institutions, caused by the Dayton-system itself. This last element leads to the overall conclusion: the impact of constitutional design arrangements on divided societies should not be underestimated, as it can easily lead to a process of constitutional degradation.