"Governing without judges": The politics of the Constitutional Court in Serbia

Abstract

This article deals with judicial irrelevance in democratic consolidation, on the basis of the Serbian example. It surveys the politics of the Constitutional Court in post-Milošević Serbia, and shows that the Court has failed to become a significant veto player or an important mechanism for facilitating the transition to democracy. To explain this conclusion, this article turns to the play-it-safe strategy the Court applied in the most controversial political cases, in which it would have been possible to initiate changes in public policy, including cases concerning constitution-making, the state of emergency, judicial reform, and political decentralization. The analysis will demonstrate that the roots of judicial dormancy in political disputes derive from deferential ideology, the anti-politics approach and institutional insecurity. In addition, an approach from legal culture perspective will indicate that the Court's latent incapacity to contribute to democratic consolidation also stems from judges' past habits and extensive ideology of legal formalism. For this argument, militant-democracy cases will provide a good illustration. Finally, from a more theoretical perspective, the article suggests that the passive role to which courts are consigned in authoritarian regimes may decrease the probability for the judges to play an influential role in the transitional phase, and casts doubt on the thesis that an environment of highly divided politics generates robust constitutional review, at least in absence of "insurance thesis" and in societies where sham constitutional courts existed in the previous authoritarian regime.