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

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”