A Constitution of the People and How to Achieve It. Aarif Abraham

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СКАЧАТЬ 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 СКАЧАТЬ