Resize Text: Most of the literature on courts in the post-Communist region assumes that a powerful judiciary is indispensable in the establishment of the rule of law. This assumption stems from the claim that only assertive and independent courts can constrain incumbent politicians and prevent them from acting above the law to further their own interests. Scholars applauded the bravery of the first Russian Constitutional Court, which challenged Boris Yeltsin and bemoaned the reluctance of the second one to challenge Vladimir Putin. They criticized the passivity of the Ukrainian Constitutional Court and praised the unparalleled activism of the Hungarian Constitutional Court as well as the unexpected activism of the Bulgarian Constitutional Court.
This article seeks to allay the enthusiasm for post-Communist judicial empowerment by showing that sometimes a powerful judiciary can threaten the rule of law. More specifically, the article uses an analytic narrative approach to demonstrate that the powerful Bulgarian Constitutional Court has fanned the flames of a “war of attrition” between the executive and the ordinary judiciary. There are no winners in this “war of institutions” (as the conflict is often dubbed in the Bulgarian press), only the occasional Pyrrhic victory. In large part due to this inter-institutional conflict, Bulgaria has become a poster child for failed judicial reforms among the post-Communist members of the European Union.
Bulgaria’s experience should serve as a cautionary tale for those post-Soviet states that are most advanced in their democratic transitions and also subject to EU pressure to advance the rule of law via the strengthening of their judiciary. This group, of course, includes the Baltics, Moldova, Georgia, and Ukraine. While a measure of judicial independence is always desirable, judicial empowerment should not be pursued as a panacea. The Bulgarian “war of institutions” demonstrates that a powerful judiciary can carry potential negative externalities.
Executive-Judicial Conflict and the Perils of Judicial Empowerment in Bulgaria
Courts are powerful when they have the jurisdiction to intervene in salient public issues, the discretion to deliver rulings of significant impact, and the authority to make powerful actors comply with their decisions. By all of these measures, Bulgarian courts (both the ordinary judiciary and the Constitutional Court) are powerful. However, Bulgaria is far from having consolidated the rule of law. On the contrary, the Bulgarian judiciary has not tackled corruption and organized crime. At best, is inefficient; at worst, corrupt. It is wildly unpopular with the public, which believes that the courts promote special private interests rather than justice. Annual reports, issued by the EU for the past decade, have criticized several Bulgarian cabinets for failing to push through the necessary judicial reforms. After the seeds of the EU enlargement policy failed to produce tangible results, in 2008 the EU resorted curtailed over 500 million euro in funding that Bulgaria was scheduled to receive.
Instead of working together to fix the obvious problem, the two branches of the Bulgarian government have been locked in a bitter conflict for most of the post-Communist period. The executive has made numerous attempts to reduce judicial unaccountability and inefficiency through institutional changes. Every time a new draft of the 2001 Judicial Power Act (the law on the institutional organization of the judiciary) enters parliament, however, the judiciary cries foul and denounces the executive for its purported assault on judicial independence. Often, the judiciary also responds with rulings that undermine the government’s policy program. Many of the battles end up in the Constitutional Court, which has inspired a trend toward the judicialization of Bulgarian politics, as the Constitutional Court invariably sides with the ordinary judiciary. The EU, in the meantime, keeps complaining—and rightfully so—that judicial reform is not producing any tangible results.
This confrontation produces solely negative externalities for everyone involved. Executives bear the costs of losing important cases in the courts, and suffer reputational costs as a result of their failure to push through recommended judicial reforms. 2008’s loss of 500 million euro in EU funding is only the latest quantifiable loss incurred by the executive. The judiciary also loses because its dismal reputation in society only decreases when judicial leaders denounce reforms, which are often promoted by the EU. And clearly, the country as a whole loses; two branches of government are involved in a bitter dispute rather than in a productive relationship. So why does this suboptimal situation persist? Why can’t Bulgaria fix its rule of law problem?
Maria Popova is an assistant professor of political science at McGill University. Her dissertation on judicial independence in Russia and Ukraine won the American Political Science Association’s 2007 award for best dissertation in public law. Her new project examines the effects of institutional structure on the judiciary’s willingness and capability to tackle political corruption.
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