A Constitution of the People and How to Achieve It

ibidem-Press, Stuttgart

In tribute to my teachers

—past, present and future—

with particular gratitude

for my mother, aunty, and uncles

Contents

ACKNOWLEDGMENTS

FOREWORD

INTRODUCTION

1. “A text about a text”: constitutions of Britain and Bosnia

1.1 Searching for the soul of a state

1.2 Overview of the British constitution

1.3 Overview of the Bosnian constitution

1.4 Comparative constitutional histories

2. “Look a shoot is sprouting”: measuring culture

2.1 Political culture in theory

2.2 Political culture in practice

2.3 Political culture applied to Bosnia and Britain

2.4 Problem of political apathy

3. “Going back to whence I sprang”: assessing apathy

3.1 A-systemic orientations

3.2 Anti-systemic orientations

3.3 Absence of interpersonal trust

3.4 Institutions as an explanation

4. “We’ve still not found a cure”: constitutional rules

4.1 Constitutional choice and change

4.2 Recurrent crisis and rarefied reform in Bosnia

4.3 Rising strain amidst weak reform in Britain

4.4 Reform dilemmas and deadlock

5. “We need to uncover lost paths”: modelling change

5.1 Modelling intransigence

5.2 Modelling the failure of reform

5.3 Modelling successful evolution in the short run

5.4 Modelling future co-operation and participation

6. “A text about hope”: lessons from Bosnia and Britain

6.1 Debate, deliberation and participation

6.2 Lessons for Bosnia and post-conflict societies

6.3 Lessons for Britain and pre-conflict societies

6.4 Pathways out of constitutional quagmires

BEYOND LAW, PRESCRIPTIONS AND CONCLUSIONS

AFTERWORD

APPENDICES

GLOSSARY

REFERENCES

ACKNOWLEDGMENTS

This book would not have been possible without the conversation, counsel and guidance of a great many friends and colleagues who have added immeasurably to my understanding of politics, law and international relations over the course of my academic and professional callings. Our interactions have made writing this book enjoyable and highly rewarding.

I am very grateful to Professor Philippe Sands QC, Sir Geoffrey Nice QC, Baroness Helena Kennedy QC, Hon. Dr Brett Mason, Dr Valery Perry, and Margaret Owen OBE for their contributions to this book, as well as their critical thoughts and reviews. A much better book is the result.

I am indebted, in particular, to my friends and mentors: Helena Kennedy, Geoffrey Nice, Valery Perry, Kyrie James and Salim Ibrahim. They have often given up their valuable time, without asking for anything in return, to help resolve dilemmas and difficulties. In this case, they have extended their kindness to tackle seemingly intractable ones in Bosnia and Britain.

I would like to give thanks to a number of colleagues who contributed directly to the preparation of this book. Valery Perry is a leading scholar on Bosnian constitutional reform. Without her constructive, challenging and critical comments whatever nuance and distinction there is in this book would have been lost.

I was very privileged to have been taught, and encouraged in my thinking about Bosnian constitutional reform, by the late Zdravko Grebo. He never once suggested that conventional thinking might be the answer to elusive endeavours in pursuit of peace and justice. As one of the young leaders of the first mass protests in Yugoslavia, he inspired many a mind to stand upright, and without fear, in the face of powerful and insurmountable behemoths. I hope I am a worthy student.

I had insightful discussions about constitutions with Dr Kurt Bassuener, Professor Daniel Sewer, and Ewelina Ochab. Kurt Bassuener provided much food for thought drawing upon his many decades of experience and scholarship on the Bosnian constitution.

Dr Rachel Kurian and Alina Trkulja provided useful comments and direction as to the structure of my original thesis and Dr Mansoob Murshed, a specialist in game theory, helped develop the models adopted in this book through his feedback.

I received very helpful critical suggestions on either the proposal or parts of the draft manuscript from: Dr Miles Jackson, Mark George QC, Andrew MacDowall, Dalila Sadinlija, Kate Young, George Mitchell, Kerim Suruliz, and Natasha Jackson. This book, in style and substance, is much improved as a result. Among the kind readers of the manuscript was Patrick Page. As a master of the written word, he led me on a testing, but extremely rewarding, journey in questioning all my defaults as to style. I am grateful to him.

Lily Lewis, through a fortuitous turn of events, assisted me with some further research on political culture in Bosnia and Britain and contributed to those chapters. I had remarked to Lily, knowing she had no prior connection with Bosnia, that it was no coincidence that the Golden Lily happened to be the symbol of Bosnia. I hope this book, and Lily’s contribution, will help add to the corpus of knowledge on good political culture and its cultivation, growth and bloom in both Bosnia and Britain.

Last but not least, I would like to thank my colleagues at Ibidem Press who have been unfailingly kind, supportive and helpful from proposal to publication: Jakob Horstmann, Valerie Lange, Dr Soeren Keil, and Dr Jelena Džankić.

Although the suggestions and comments of these readers greatly improved the final manuscript, I alone am responsible for the interpretations appearing in this book and for any flaws, errors or omissions that remain.

Aarif Abraham

Garden Court North Chambers

Manchester, February 2021

FOREWORD

Fifteen years of involvement in international cases that followed the collapse of the Socialist Federal Republic of Yugoslavia, or SFRY, made me acutely aware of the particularities of the constitutional situation that faced Bosnia and Herzegovina, the sovereign State which emerged from that collapse. It also left me cognisant of the apparent differences with the situation faced by the United Kingdom of Great Britain and Northern Ireland.

I recognised that matters of history and politics, of culture and identity, will combine to weave distinguishable constitutional arrangements. Yet I also knew, not least from the research that went into my book East West Street, that a situation which exists at one moment in time can, within just a few years, change very radically. That was the case for the city of Lemberg, which had, in the late 1920s, a diverse and multinational population, but within two decades found itself with a totally different population.

As a part of the Austro-Hungarian empire, and then the SFRY, Bosnia was largely made up three majority communities—Bosnian Muslims, Catholics and Orthodox Christians. There were other minority groups too. As the SFRY dissolved, a violent conflict in Bosnia exposed all populations to such unimaginable horrors that—eventually and belatedly—the international community was catalysed into action. A ‘peace’ was negotiated, then concluded in 1995 at a military base in Dayton, Ohio. Out of this process a new constitution emerged.

Britain’s unwritten constitution, by contrast, is said to be ancient, one that establishes a parliamentary democracy that threads together the four ‘nations’ of Scotland, England, Wales and Northern Ireland. The composite constitution goes back many centuries, through and beyond empire. It is said to be unwritten and characterised by a particular flexibility.

The differences between Bosnia and Britain appear stark. What might be learned from an exercise in comparison?

Bosnia’s constitution was imposed. It is codified, rigid, difficult to amend. The people had no direct say in its creation, on the basis that they harboured “ancient ethnic hatreds.” The constitution is seen by some to institutionalise divisions that many believe to be debilitating. It seeks to ensure a formal equality of the three main ethnic groups, with strict rules on elite power-sharing, which some consider to undermine the freedoms and rights of individuals. Aarif Abraham poses some important and searching questions about a constitutionally-imposed system of group segregation, one that arose in the context of international crimes. If the people of Bosnia do not harbour supposed ancient hatreds but have a political culture that is democratic, tolerant and accommodating, he asks, might another constitutional future be envisaged? What circumstances might cause the different groups and their elites to abandon this structure for a different one? Can the people of Bosnia truly control their own democratic destiny within the current constitutional straightjacket within which they now exist?

With its different model, Britain claims, by contrast, a high degree of constitutional longevity and slow evolution. Yet it has faced its own challenges, all the more so today, following its departure from the European Union and the real possibility that Northern Ireland and Scotland may, within the foreseeable future, leave the Union. Such a fundamental change to the system has not happened for 350 or so years, but new divisions and polarisations appear to be eating away at some constitutional fundamentals. There is contestation over devolution and independence of the four nations, as well as the various regions, over distributions of wealth and socio-economic entitlements, and in respect of human rights (and, it might be asked, who would have imagined, just a few years ago, that Scotland would be able to shut its border to visitors from England, in the face of a health pandemic?) Such developments cause Mr Abraham to raise other questions, equally significant. Has a practise of moderate constitutional tinkering put the entire structure at risk? Has there been a fracture in the delicate balance between executive, legislative and judicial power and authority? Can the British constitution resist the challenges of extreme nationalisms and populisms?

This important and original book seeks to unwrap these and more challenging questions. Mr Abraham embarks on a comparative exercise, one that contrasts what some view as a pre-conflict society (Britain), on the one hand, and a society viewed as having frozen and embedded a conflict (Bosnia), on the other. As readers, we are invited to reflect on a most fundamental issue of our times: the relationship between a country’s political culture and its constitution.

Mr Abraham sees the cultures of both countries as increasingly moderate and inclined to a broad and democratic political participation. He is maybe optimistic, or right. If he is right, the discrepancy between elite preferences and people’s preferences becomes acute, a space in which the constitutional rules will play themselves out, and the forces for change will be overwhelming.

Could Bosnia adopt some of the flexibilities of the British system? Mr Abraham imagines a revolving constitution, one that would subject existing constitutional arrangements to fixed and regular public debate, to the deliberation and approval of succeeding generations. Properly institutionalised, and with procedural safeguards, he argues, no one should be worse off. At best, everyone might have an opportunity for an enhanced constitution than is currently the case. He seeks a coincidence between the people’s and elite’s preferences.

In a certain sense, Britain already has a revolving constitution, one in which elites are regularly confronted with constitutional issues in the hurly burly of generational day-to-day of politics. Yet, Mr Abraham argues forcefully that some of the conventions, rules and practises that allowed fair and measured constitutional changes are no longer functional. On his view, Britain need not make its constitution as fixed and rigid as Bosnia’s in order to represent all of its communities. It can, however, imagine a more inclusive national debate and process of deliberation, and a four-nation settlement around a new constitutional statute, one that all of Britain’s people might have contributed to.

The book argues that a constitutional settlement owned by all the people will have a greater authority and stability. Mr Abraham offers no prescription on the content of a constitutional settlement but a road map as to how it may be achieved. As such, he succeeds in inviting us to think about our individual and collective roles in constitution-making. He encourages us to be more creative and careful. He asks us to reflect seriously about a people’s political culture, and to cultivate, maintain and enrich that culture so people can contribute to change the way in which they are governed. Such transformation, he argues, requires practice and action, and not just words.

Professor Philippe Sands QC

University College London & Matrix Chambers

London, January 2021

“Words abound in everything

So words are everything but everything is bound by words

For just one word we wait and pray

An ancient word from far away

But we have heard a new word

Verily we have heard a word so new

That be it but whispered the heavens ring”

- Mak Dizdar, The Stone Sleeper 1
INTRODUCTION

Britain has an almost unique constitutional position among States. It is a long-established democracy, comprising four diverse nations, with an uncodified, non-federal constitutional arrangement. The constitution itself is a miscellaneous collection of flexible conventions, norms and rules governing political behaviour. It cannot be found written down in a single place and some aspects of it are not written down anywhere at all. To the ‘outsider’, as well as the most intimate of ‘insiders’, it can be difficult or even impossible to comprehend. The current monarch of the United Kingdom, Queen Elizabeth II, is reported to have remarked that “the British constitution has always been puzzling and always will be.”2 While that may be the case, the constitution has endured for almost three and a half centuries without armed conflict threatening its core structure. The foundation on which the constitution is built goes back further still to the Kingdom of Athelstan, over a thousand years ago. That thousand-year period was punctuated by armed conflict and bloodshed. Even Britain’s recent history saw armed conflict at its periphery and within its imperial dominions. Its constitutional structure, however, has had an undeniable longevity and continuity.

Bosnia and Herzegovina, by contrast, is a relatively recent democracy with an ethnically diverse population (though perhaps less diverse than Britain’s).3 Bosnia emerged in 1995 from three and a half years of devastating inter-ethnic armed conflict. The Bosnian constitution is not in any sense conventional, drawn up, as it was, as Annex IV to the Dayton Peace Agreement.4 With the signatures of the war’s main protagonists, the Dayton Peace Agreement successfully ended the war that ravaged Bosnia following its declaration of independence from the former Yugoslavia.

Neither the Dayton Peace Agreement nor the Bosnian constitution within it, however, created the successful democratic and functioning State envisaged by its chief proponents.5 Instead, it set out complex procedures for governance that have institutionalised ethnic division and led to governmental paralysis. Bosnia, for instance, is composed of two devolved entities, three ‘constituent peoples’, and five layers of governance which, together, count among them a tripartite State presidency, two entity presidents, and fourteen prime ministers and governments.6 In a country of no more than 3.53 million inhabitants (AfS 2013), Bosnia has the highest number of presidents, prime ministers, and ministers per capita in the world. Such a proliferation has made streamlined and efficient government difficult (Belloni 2010, 99). The Bosnian constitution has no popular mandate and lacks any features that may allow future democratic legitimacy. It has been imposed on the people and like other constitutions created in—or mostly for—seemingly ‘divided societies’, it has proved immune from change.

Most written constitutions are a product of war or revolution and are imposed by political elites who do not formally consider the views of ‘their’ people, even if they occasionally invite them to ratify the new arrangements. The absence of popular participation is not always fatal to the working of a constitution, but it can be if the political culture of the people differs from these rules-that-create-all-rules which the people are then required to respect.

This book seeks to contrast the two very different models of constitutional design in Britain and Bosnia. They sit at very different ends of a spectrum. The comparison goes to the heart of what a constitution is understood to be. Is it imbued with meaning, culture and history and, as such, is the soul of a State and its people? Or is it merely a functional, abstract and prescriptive set of rules which create the practical environment in which the people go about their everyday business?

In Bosnia, abstract and prescriptive constitutional rules have real world consequences. The Bosnian constitution has maintained and reinforced ethnic division and led to governmental deadlock. There are critical aspects of the constitution that require reform and there has been no shortage of proposals for reform.7 All reform proposals since 2005 to amend the Bosnian constitution, however, have been driven by political elites and have failed. These failures are to the immense detriment of individual human rights,8 and amount to at a colossal economic cost to the electorate. Up to 55 per cent of the entire State budget,9 some 3 per cent of the country’s GDP, is spent on government administration, largely as a result of Bosnia’s highly complex system of government (PIC 2020). By comparison, the cost of the Britain’s central government administration is approximately 1.36 per cent of the State budget, some 0.5 per cent of the country’s GDP.10

Why has reform not succeeded? As this book will seek to show, efforts have been impeded by intransigent, narrow, and nationalist positions adopted by the political representatives of Bosnia’s three official ‘constituent peoples’: Bosniaks (Muslims), Bosnian Croats (Catholic Christians) and Bosnian Serbs (Orthodox Christians). These representatives sit in a number of constitutionally created institutions: the Parliamentary Assembly, the State Presidency and the two federal entities of Bosnia (Republika Srpska and the Federation). Intransigence is made possible due to vetoes, strict ethnic quotas and decentralised powers accorded exclusively to the three constituent peoples, all at the expense of such individuals or groups as are not specifically recognised by the Bosnian constitution. The constitution collectively and dismissively describes, although does not define, those not falling withing the three constituent groups as “Others” or “Citizens”. Others loosely comprise those identifying as “Bosnians and Herzegovinians” or those refusing to politically affiliate with any of the three constituent groups and the corresponding ethno-national political parties.

The Bosnian constitution was premised on the notion that the people, harbouring ‘ancient hatreds’, are divided, meaning that it is preferrable to leave decision-making in the hands of political elites.11 Meanwhile, experts warn about the latent desire of political elites for renewed armed conflict. In the international arena, powerful countries like Russia, China and Turkey are pursuing their own narrow self-interests in the Balkans and this has exacerbated local ethno-national competition. The economic and political manoeuvring of these powers demonstrates their intention to rescind the international communities’ guarantee to maintain the peace in Bosnia. In the domestic arena, ethno-nationalist elites in Bosnia are vying with each other for support in their secessionist ambitions by appealing to predatory neighbours, namely Croatia and Serbia. These international and domestic pressures are compounded by US dis-engagement from the region over the past decade. This has created a power vacuum in the region for other international actors to fill.

In Britain, the constitutional arrangements seem to have worked relatively well historically in maintaining stability and adapting to needed political as well as socio-economic change.12 The British constitution does not have a formal mechanism to give priority or permanence to one piece of legislation above another.13 This is generally true of statutes that have constitutional significance and means that, where political practice is accommodating and respectful of traditions, adapting the constitution in accordance with changes in society is evidently much easier. A number of recent crises, however, have put the constitution to the test. These crises include: the process leading to the UK withdrawal from the European Union (“Brexit”); constant appeals for secession from Scotland and Northern Ireland; the breakdown of centuries-old conventions as seen with the unlawful prorogation of Parliament by the Prime Minister in 2019; the placing of limits on Parliamentary scrutiny by the government; 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.