A Constitution of the People and How to Achieve It. Aarif Abraham
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and a lack of adherence to important international norms and rules as seen by a sustained government campaign to dilute people’s human rights protections.14
On one view, these crises have all been resolved precisely because Britain has a flexible constitution and a sovereign, representative Parliament. The current government maintains that there are checks and balances between the branches of government, that human rights protections for the individual under common law go back centuries, and that arrangements for devolved and local decision making has ensured continued responsiveness to local needs. Ironically, the same government had planned radical changes to the British constitution because they believed changes were needed to address “trust” and a “destabilising and potentially extremely damaging rift between politicians and the people” (Conservative Party Manifesto 2019).
On another view, however, these recent crises have emanated precisely from a lack of formalised rules which could provide some clarity. The political opposition, for instance, characterise as ambiguous the arrangements for power distribution between institutions (horizontal power), power sharing between the central government and regional administrations (vertical power), and the human rights protections accorded to individuals under domestic legislation. Human rights legislation can be repealed by an express majority vote, as in the case of European Union rights post-Brexit and as the government has threatened with the European Convention on Human Rights.15 There have been calls for a far deeper entrenchment of constitutional rules in respect of some of the existing arrangements seen to be under threat. In respect of horizontal power distribution, there is said to be a strong case for institutional checks and balances on the executive through greater legislative and judicial scrutiny. In respect of vertical power distribution, this might mean securing a firmer statutory footing for the devolution settlements of three of the four nations of the United Kingdom. In respect of human rights, this would mean a permanent statute guaranteeing certain socio-economic, civic and political rights that cannot be repealed by a simple parliamentary majority. The debate has centred on whether it is finally time for Britain to codify and entrench its constitutional foundations as almost all other modern democracies have done.
What might Britain and Bosnia learn from each other, and what might other countries learn about the process of creating or amending constitutions by considering these two contrasting cases?
This book challenges the acceptance and proliferation of overly legalistic and/or entrenched constitutional models. Those models are largely characterised by abstract, prescriptive, and mechanical rules created in a single constitutional moment.16 They have gained almost universal acceptance in both developed countries and countries transitioning to democracy. But these models have sometimes created and reinforced the very divisions and polarisations that they were intended to resolve. If, however, the culture of the people is conducive to accommodation, trusting of difference, and democratically oriented, then introducing the capacity to change the constitution need not be feared.
In Bosnia, informed public participation and deliberation in a constitutional design process, on a fixed and repeated basis, with some procedural safeguards, could introduce a flexibility in political life in Bosnia that was, perhaps still is, present in long-evolved democratic polities like Britain. The capacity to change the constitution every new generation (a ‘revolving constitution’) could allow, with careful calibration, the possibility of catalysing evolutionary outcomes in the short run. Britain itself may be reminded of its own tradition.
Unlike Britain, Bosnia cannot afford to wait to evolve towards a new constitutional settlement. One unfortunate and very real pathway out of the current deadlock in Bosnia is collapse and the other is a return to violent conflict. If the people in Bosnia are much more accommodating than the ethno-nationalist political elites representing them, then the presumption upon which the current constitutional arrangements were built were incorrect. Furthermore, that presumption has helped to perpetuate a collective socio-economic and political malaise from which there is, seemingly, no escape.17
This book’s suggestions for reform are predicated on the fact, as demonstrated, that the people are accommodating, human rights oriented and tolerant. The political culture of the people in Bosnia is conducive to democratic reform. It is, contrary to popular opinion, open to popular participation and retains the capacity for inter-ethnic cooperation and engagement. One of the tests for this claim is whether or not there is evidence proving that political culture in Bosnia is as democratic as its close EU neighbours’ culture. If so, the second test is whether both Bosnia and Britain respectively have political cultures conducive to greater democratic participation. If they do not, then surely this needs immediate and critical attention. If they do, then the objective is to introduce context and an ear for justice into fixed and rigid legalistic constitutional documents by involving the people in key constitutional decisions.18 The aim, ultimately, is to reorient political life towards an inherently democratic political culture.
The current debate in Bosnia is on reforming the content of the constitution by tweaking or changing specific constitutional provisions. The paradox is that reform continues to be unlikely given the special constitutional guarantees accorded to the three constituent peoples. There are few incentives for political elites to compromise their intransigent positions. If anything, the reality is the opposite. Any attempt at reform by one group of elites is seen as an attempt to undermine one group at the expense of the other (at least that is how ethno-nationalist leaders present proposals for reform to their respective ethnic constituencies). It is a classical “beggar thy neighbour” problem. Political elites explain that this conflict, and their own intransigence, is because of the political culture. They claim to behave as they do in the name of ‘their people’ in their respective Bosniak, Bosnian Croat and Bosnian Serb electoral silos. The irony is that the electoral silos correspond closely to ethno-territorial silos created by ethnic cleansing during the war. The same people indicted for international crimes, as a result of responsibility for the ethnic cleansing, were the principal negotiators of the Bosnian constitution.19
It has been taken for granted, by political commentators and academics alike, that conflict between elites in the constitutional structures of Bosnia is a mirror reflection of the latent desire for conflict within the population-at-large. The people of Bosnia are characterised as anti-democratic and pro-ethno-nationalist. Political apathy and deadlock within State institutions, therefore, are held to be a consequence of a lack of citizen initiative and will. A lack of will that emanates from an apparently intrinsic, non-participant political culture.
But this narrative is not supported by Bosnia’s variegated, multi-ethnic and thousand-year history. For much of their history, the Bosnian people have come under the strong influence of foreign powers depriving them of agency. Despite that, Bosnian history is, in fact, predicated on participation, accommodation and tolerance. This book will seek to show that the contrary view is not supported by the evidence including data relating to people’s political preferences since at least 1992. If the people are momentarily apathetic, intransigent, or intolerant, this is because that orientation is a consequence of the war rather than being endemic to the political culture. Later that orientation has been strengthened directly by the constitutional structure agreed—or rather imposed—by the Dayton Peace Agreement. Either way, this Dayton-driven emanation of poor political participation has no reason to remain fixed or unchanging. There is always a possibility for change where there is the capacity, as there is in Bosnia. Such change is imperative before it is too late.
The example of Bosnia is of immediate significance to the British constitution. The constitution of the former provides a cautionary lesson that written codification, federalisation and entrenchment of some rules above others cannot be, in and of itself, a panacea. This book considers whether the lesson from Bosnia is that misunderstanding political culture, ignoring the preferences of people in all their