From the Disconnect to the Detachment Problem of the EU Induced Judicial Reforms in the Western Balkans: The Case of the European Model of Judicial Self-governance

Abstract

Reviewing and commenting on the role of the U.S. federal judiciary in shielding constitutional democracy Sujit Choudhry points out that partisan capture of the judiciary is probably a lesser concern compared to the indifference and self-interest of and within the judiciary. This represents another confirmation in the long line of arguments that the issue of judicial independence is not only a matter of structures and institutions but also of judicial culture, something that is frequently omitted in the approaches taken by the EU or international organizations. The Western Balkan countries provide an unambiguous case in which this has been clearly confirmed and where the issue of the (in)compatibility of the existing judicial culture, imbued with the remnants of the ‘socialist’ legal tradition, with judicial self-governance through strong judicial councils is raised. One of the main lines of criticism of EU’s approach towards the rule of law has been related to the so-called disconnect problem between membership obligations and accession conditions. While this problem is being addressed by the EU’s nascent internal rule of law policy another ‘disconnect’ is surfacing and gaining importance. This new ‘disconnect’ problem, or more accurately a detach problem, is perceived through the existing gap between the formal rules and informal practices, especially in the EU’s external rule of law policy. The assessment of the formal rules is frequently detached from their actual implementation which is heavily influenced by the informal practices. Taking the example of judicial (self)governance the detach problem could be encapsulated in the notion of separate but not independent judiciary. This notion demonstrates the result of introducing a model of judicial self-governance amidst a judicial culture which is not characterized by a culture of independence as one its central pillars. North Macedonia represents a paradigmatic case for the Western Balkans in this respect. It was the first country to initiate a large EU induced legislative reform already in 2005 by adopting a large package of constitutional amendments related to the judiciary. Despite the high level of alignment of the domestic legal framework with the European standards the implementation of these rules has neither brought an entrenchment of judicial independence nor created judges resilient to internal and external threats to their position and status. The dominant traits of the judicial culture seem to be rather intact and perpetuated firstly by the outdated formal legal education and judicial training as well as through the judicial socialization. This paper detects the main traits of the dominant judicial culture and how they are relate to the existing model of judicial governance. In a nutshell, judicial autonomy did not translate into judicial independence in North Macedonia since the introduction of new formal rules has not been accompanied by pertinent changes and transformation of the judicial culture. Thus, the introduction of judicial self-governance has led to a situation under which the judiciary is being separated but not independent from the other branches of power resulting in a lack of genuine judicial ownership over the process of judicial governance. Choudhry’s caveat on the threat to the judiciary posed by indifference and self-interest in the context of North Macedonia is translated into a judicial culture characterized by fear, apathy and clientelism. Such a conclusion is based above all on two examples: the election of judicial and lay members of the Judicial Council and the interesting case of a judicial clerk presiding over this body.