A Constitution of the People and How to Achieve It. Aarif Abraham
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agreeing constitutional arrangements will simply lead to failed institutions and instability.
There is no doubt that dissatisfaction exists in Britain. Dissatisfaction is prevalent among the devolved powers, among the regions, among the haves and have-nots, in the quality of political elites, and in the manner in which political elites carry out their duties and how they are elected (or not, as in the case of the House of Lords—Parliament’s upper chamber). There is a clear need for something other than the status quo to address constitutional issues in Britain outside the day-to-day of parliamentary politics. The classic British fudge, muddling through with partisan, ad hoc, changes to its constitution are not sustainable. The underlying constitutional issues have precipitated many crises and have resulted in attacks on judges by the media and the executive. The executive has failed to understand the significance of fundamental unwritten rules and practices and the consequences of attacking them for short-term political gain. With a rise of nationalism, different political parties, have precipitated centrifugal and centripetal forces which wrestle with secession from the Union, or, on the contrary, further centralisation. Meanwhile, there are calls for a reassertion of nativism, originalist or ‘orthodox’ (depending on your view) interpretations of people’s fundamental rights. These calls compete against international norms that Britain is bound faithfully to interpret, apply and fulfil either by treaty or custom.
This book demonstrates that, when it comes to constitutional issues, there is a significant discrepancy between the preferences of the elites and those of the people in both Britain and Bosnia.
In Bosnia, constitutional structures, when combined with the legacy of the war, have tended to favour the election of ethno-nationalist elites. The Bosnian constitution, and by extension its institutions, is the most significant impediment to the bridging of societal divides. Its reform, therefore, must be the priority. But such reform must have a popular mandate. Elites, isolated from the people,20 are unable and/or unwilling to undertake reform that is conciliatory, moderate and accommodating. These elites are seemingly locked in revolving doors without an exit. Using adaptations from game theory (mechanism design and implementation theory) and behavioural economics (prospect theory) a ‘revolving constitution’ is proposed to break the impasse. A revolving constitution would subject parts of the constitution—as opposed to ordinary legislation—to greater civic participation and input (through, referendums, civic initiatives and deliberative assemblies) on a fixed basis every new generation.21 Fixed and repeated interaction between elites and the people would introduce a flexibility and democratic legitimacy into political life that is currently lacking these characteristics. A widely agreed constitutional covenant would ensure such a process would be transparent, properly institutionalised, and contain procedural safeguards. These safeguards would ensure no one is cut out of the process or that current arrangements are not simply torn-up by one group. This can be achieved with: rules requiring joint and concurrent referendums in all significant entities, municipalities and cantons; civic initiatives that cut across ethnic lines; and inclusive constitutional conventions for deliberation. With these safeguards, it is clear that the people and elites would be no worse off than under the status quo; even if the people might be as intransigent as elites. A revolving constitution would guarantee that the outcomes of reform would accord with the median or average voter. Elites in the constitutional reform space, currently interacting only with each other in the parliamentary or presidential arena, would be incentivised or ‘nudged’ towards considering the preferences of the people in the electoral arena.22 If the people are just as intransigent as the elites then current constitutional arrangements will remain in place. If it is true, however, as the evidence suggests, that the people are more accommodating than political elites then regular interaction between elites and the people can lead to far greater constitutional change than is currently possible and a far greater likelihood of accommodating behaviour amongst elites. The revolving constitution can help publicly manifest the underlying political culture of the people: democratic, tolerant and accepting.
The revolving constitution is far from being a revolutionary construct. It does not, like revolutions in general, impose a winner takes all solution by immediately empowering or disempowering one group over another in the political game. Repeated interaction and engagement by the people and elites in the constitutional reform arena would tend to speed-up constitutional evolution, recreating a process that allows flexibility to be established in polities like Britain. If it is right that the people are more conciliatory and accepting than political elites (as this book demonstrates they are) then this evolution will stand in bold defiance of exclusive ethno-nationalism. The possibility of regularly (though not too frequently) amending the constitution, with civic involvement, would set in motion a process rather than determine an outcome. A process whereby political elites are incentivised to pursue moderate and accommodating reform could, incrementally, alter the shape of everyday politics in Bosnia. A standard may even be set for other plural, multi-ethnic polities to follow—both to help regulate existing conflict and avert conflict in the future.
In Britain, it is evident that piecemeal and partisan constitutional changes and the use of modes of decision making that are outside the accepted rules and norms has had a corrosive effect on the institutions of parliamentary democracy. Parliamentary democracy is predicated on representative institutions rather than institutions of direct democracy. It is evident that there is a need for inclusive, participatory and deliberative processes to reform aspects of the British constitution so that a fairer settlement can be achieved to address disparities in: wealth and regional equality; the equality of the four nations; the application of human rights and the international norms thereof; and the representation of the people in Parliament. There is a strong case for a constitutional covenant to begin a process: to inform the electorate and elites, to understand the significance of reform and where it might be really needed through consultation; and, ultimately to open an informed national debate and deliberation—among political elites and the people—in order to form a cross-party consensus as to which aspects of Britain’s unwritten constitution are fundamental. This might include the production of an impartial code or guide to the current arrangements to facilitate understanding and debate (HoC 2014). The process towards a covenant is not utopian in nature but rather a practical mechanism: the people can be nudged into this process given the preferences they have expressed in favour of more involvement, participation and a need for a change from the status quo.
The Bosnian experience shows that there are some principles which must be at the forefront of any constitutional reform endeavour in Britain. The process of any reform proposal is all critical. Measuring political culture is as important as carrying out polls on the day-to-day issues that concern the electorate. This enables a better understanding of where the electorate stands on the fundamentals of democracy, participation and the idea of living together. Public participation in the process must be provided for and ought to be genuine and meaningful to help nurture, consolidate, and develop good political culture. And, finally, pragmatic buy-in of political elites is necessary to avoid spoilers and to avoid scenarios where it is perceived that at the end of the process the winner will take all. With some of these principles it may well be possible to consider whether the British people, across all four nations and in all their diversity, may come to new political understanding, perhaps towards a kind of Magna Carta of the People, around which political elites, stakeholders and the people may coalesce.23 There will be no shortage of questions requiring answers, for example:
How do you accommodate different national interests in a union of nations without descending into a nationalist “race to the bottom”?
How should constitutions deal with veto rights on decisions by national or minority communities?
What are the risks of entrenching some rights above others, in particular, the rights of whole groups or nations?
What are the pitfalls of using referenda in a blunt manner (as was done in the referendum to leave the EU) and what might be more ‘sensible’ ways of ascertaining people’s