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

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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 preferences?

       Why is constitutional change without considering the preferences of the people doomed to fail?

       Should political culture (both civic and political values) be given equal, if not more, attention as proposals for reform of constitutional rules?

      This book aims to provide those answers and an opportunity to re-evaluate Britain’s current uncodified constitution. In doing so, it provides some insight as to a possible transparent, inclusive, participatory pathway around current impediments. It posits a recurring but controversial question: is Britain’s historical unwritten arrangement really worth defending? Any such defence, if it is to occur, would be made through a re-development of core political and civic virtues through greater political interaction between political elites and the people. Reliance simply on written rules, duties and responsibilities is not enough. Some form of social entrenchment of human rights (if not legal and political) is clearly necessary to allow the unrestricted cultivation of good political culture. Game theory and behavioural economics suggest that, where the conditions are right, the British model, with certain adaptations, could be favourable to better constitution-making. The British model may make less confrontational a process by avoiding any ‘constitutional moment’. It allows, not unlike a ‘revolving constitution’, inter-temporal bargains to lessen the ‘winner-takes-all’ effects of a new or amended constitution. It also encourages an active constitutional culture to develop across generations so that new generations may feel that they have something at stake and a genuine solidarity and fraternity with others who decide the new rules.

      Britain though may need a way to reset the terms of its political arrangement. A one-off constitutional covenant leading to a constitutional convention to deliberate on key constitutional problems may provide a truly participatory and deliberative constitutional statute to renew, reinvigorate and revitalise political relationships. Such a constitutional statute could ensure that Parliament, the Government as well as the devolved administrations benefit from greater popular legitimacy rather than suffer collective malaise, disdain and apathy.

      The book is organised as follows. Chapter 1 provides an overview of what a constitution is and the debate that surrounds its nature. An outline is provided of the British unwritten or uncodified constitution: its operation, its historical origins, and the recent trends challenging its unwritten status. The Chapter also provides an outline of the Bosnian constitution: its creation, the hopes of its drafters, its imposition, and the practical reality of its operation. It explains why comparing these two particular States is important and what we might hope to gain by questioning their design and amendment processes. It emphasises that no particular constitution is paradigmatic. An unwritten one is not necessarily superior to a written one. The process of creation or change, however, necessarily entails a consideration of political culture and history.

      Chapter 2 introduces theoretical ideas about political culture, what it is and how it can be measured. It explains falls in political participation in Bosnia and Britain and the variables that can help explain why people are (or can become) apathetic in a given constitutional structure. In particular, the Chapter looks at how people form views that are not conducive to democratic engagement, as well as views that are hostile to a democratic form of government. The sub-chapters define concepts such as ‘political culture’, ‘political apathy’, ‘political participation’, and proposes a working model for analysis. The Chapter presents the findings of quantitative research (see Appendix A) in respect of political apathy in Britain and Bosnia, with Croatia as a reference point.

      Chapter 3 presents the detailed findings of quantitative research in respect of political culture in Bosnia. The Chapter, in particular, considers whether a ‘poor’ political culture (defined in Chapter 2) is the main variable explaining Bosnia’s political problems or whether there are more persuasive explanations such as institutional failure stemming from foundational constitutional structures. The Chapter roots the questions of constitutional design and amendment in the context of the real political culture of the Bosnian people and sets out why the failure to consider this culture may be helping to perpetuate conflict and simply freeze violent conflict. If Britain and Bosnia have pro-democratic political cultures, the question is posed as to what they may learn from one another in terms of their design and amendment processes.

      Chapter 4 sets out the literature and theoretical principles of institutional design and amendment. It explains why changing formal rules when the underlying beliefs or values of societies remain rigidly opposed will result in failed institutions; and why a failure to change the formal institutions when belief systems are conducive to change imperils those institutions. The sub-chapters set out the three major proposals that have been made to date to reform the Bosnian constitution and the reasons for their failure. The sub-chapters will contrast that experience with the outlier case of the unwritten constitution in Britain and various reforms made to it (with a focus on those made since 1997). The sub-chapters focus on Brexit, Scottish and Northern Irish secessionism, and the unlawful constitutional practices of recent British governments. They interrogate whether it is the existing unwritten constitution (which creates a system of representative parliamentary democracy) that is the source of these crises or, rather, the by-passing of existing constitutional conventions, rules, and institutions. In the one (Britain) it poses the question of whether abandonment of its traditional unwritten constitution is the problem and in the other (Bosnia) it asks whether the foundational moment of the imposed constitution is the source of all the problems. In essence, what can one State learn from the other as calls for reform ring loud?

      Chapter 5 draws on the literature in the fields of game theory and behavioural economics to model the impasse in Bosnia in light of the practical operation of Britain’s flexible constitutional arrangements. It uses game theory to present how ethno-nationalist political elites play a ‘zero-sum’ game in the current Bosnian institutions. Suggestions are made as to how they may be incentivised to give-up their strong ethno-nationalistic decision-making in the current system by introducing a third and critical actor: the people. The Chapter then suggests a solution to the impasse in Bosnia: a revolving constitution.

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