Informal Constraints and Judicial Councils as Fourth Branch Institutions in the Western Balkans

It is frequently argued that institutional change in a system is initiated by formal rules. However, the success of such changes is determined by informal constraints, also known as informal institutions, which could limit and hinder the effectiveness of formal rules. These informal constraints are frequently embedded features, resulting from legacies of the past and structural deficiencies, usually found in traditions, practices and customs and they directly influence the way formal rules are applied and implemented in practice. Therefore, the institutional equilibrium perceived through the harmonious relationship between formal rules and informal constraints is of crucial importance for any institutional change. Taking this into consideration, it appears that this rather intuitive logic of institutional change has not been taken seriously by the EU in inducing judicial reforms, particularly in the Western Balkans. This could be best observed through the example of judicial councils as one of the main institutional pillars of EU’s approach. Namely, judicial councils have been portrayed and promoted by the EU and several international organizations (CoE, OSCE, WB etc.) as a ‘silver bullet’ for securing judicial independence. The specific features of the institutional design, set through the ‘European standards’, especially their structural and functional logic, classify judicial councils as fourth branch institutions. Judicial councils as constitutional bodies have a clear mandate to safeguard judicial independence, a fundamental pillar of a constitutional democracy. Positioned between the political branches and the judiciary their primary objective is to insulate the judiciary from political influences. Nevertheless, the effects of the establishment and functioning of these institutions on the overall judicial independence in the context of democratization and European integration are far from impressive. It is claimed in this paper that placing all bets on formal rules and good institutional design has not paid off. Good design has not served as a positive catalyst for the desired outcome, securing judicial independence, since informal constraints were overlooked. Informal constraints are not easily quantifiable, and indicators are hard to be defined, thus, tackling them is a heavy and often unrewarding task which the EU and international organizations are not so willing to take. Analyzing the practice in the WB it is observed that there are two main negative outcomes from the introduction of judicial self- governance through judicial councils in a context of specific informal constraints in this region. Those are the creation of new formal and informal avenues for political influence over the judiciary and judicial corporatism taking place through the judicial councils. The two avenues of political influence have been the direct consequence of the of unwillingness of judges to govern themselves, in line with their mentality of ‘professional bureaucrats’ and submissiveness, and the widespread clientelism, both of which are part of the legacies of the past.