A Constitution of the People and How to Achieve It

24 Given the different paths Croatia and Bosnia have taken following the war and the relative political ‘success’ of Croatia the comparison is immensely useful in analysing variations, if any, in ‘culture’ and levels of apathy.

25 The World Values Survey is a global database for social scientists studying changing values and their impact on social and political life. The WVS has been carried out in close collaboration with the European Values Study and encompasses data of representative national surveys from ninety-seven societies around the globe, containing almost 90 percent of the world’s population. These surveys show pervasive changes in what people want out of life and in what they believe. In order to monitor these changes, the EVS/WVS has executed seven waves of surveys, from 1981 to 2019. Data set sources: World Values Survey 1981-2019.

26 A poem called “A Text About A Text” by Mak Dizdar [1917-1971] (2009, 71).

1. “A text about a text”: constitutions of Britain and Bosnia
1.1 Searching for the soul of a state

Constitutions have existed for time immemorial. Whenever groups of people have come together for political, social, or economic association, some form of rules, practices or principles have inevitably followed: a constitution of the people for some particular purpose. Rules, practices or principles would have helped people ascertain the terms of their association particularly where differential power dynamics existed among the group. The historical record shows differential power dynamics existed in much of Britain’s and Bosnia’s royal histories.1 There would have been a single monarch, his and sometimes her court, and then the mass of the people. In much of Bosnia’s and Britain’s early histories, differential power dynamics would have also existed between outside influences (such as invading rulers) and the indigenous peoples.

In Bosnia’s case, the major outside influences were Illyrian, Celt, Roman, Slav, Hungarian, Ottoman, Austro-Hungarian, Yugoslav2 and, today, American. The outside influences were interposed by relatively long periods of independence. One such period, in particular, saw the rise of the Bosnian Kingdom (Banate or Banovina) and its associated Bosnian Church in the 12th and 13th centuries. In Britain’s case, the conquering or outside influences were Roman, Norwegian Viking, Danish Viking, Anglo-Saxon, and finally Norman. The Normans were the last of the major conquering forces who won control and, ultimately, assimilated into the English population.

As people’s associations, both internal and external, started to become more akin to communities, with repeated engagement and interaction, the relevant rules, practices or principles may have been written down. Very early in human history those written rules would have been on scraps of bone or skin or stone.3 The earliest known written rules in England are said to be that of Ethelbert of Kent believed to date from c.602-603 which was very early in the formation of kingdoms in England and long before we can talk of a Kingdom of England. In Wales, a type of Celtic law, the Cyfraith Hywel, was codified by Hywel Dda in c.942–950. In Scotland, the earliest preserved code of Scots law appears to be the Leges inter Brettos et Scottos, promulgated under David I (c.1124–1153). Equally, however, a great deal would have remained unwritten. The unwritten rules would have been in the thoughts and, more importantly, practices of men and women. Irish law, for instance, in origin, consisted of the accumulated decisions of the Brehons, or judges, who were guided entirely by an oral tradition developed from custom.

Constitutions of formal political communities were (and remain) not altogether different in nature to the rules, practices or principles formed whenever groups of people have come together for some economic, social or political purpose. Today, we might categorise these formal political communities in a hierarchical pyramid at the top of which sit ‘States’ as the predominant and pre-eminent form of political organisation. A State may be considered, loosely speaking, to be a formal political community bound by some geographical limits. A State in modern political parlance is often synonymous with the idea of a nation or a national community. It is sometimes thought, albeit not without controversy, that a nation can only truly manifest itself when it controls all the machinery of the State. This conception culminated in the post-1648, Westphalian idea of ‘nation-states’. By nation-states we mean that there is, or ought to be, some congruence between the perceived idea of the nation and the boundaries of the State. In practical terms, this means that group characteristics (such as race, ethnicity, language, or religion) which together constitute the nation come, or are brought, together as a formal political community.4 There may be one or more nations within a State and sometimes there may be none.

Within that context, we can locate the idea or concept of citizenship that may or may not coincide with other identities such as nationality or ethnicity (Džankić 2015, 7). Citizenship concerns the legal relationship people have with the State, giving rise to their rights and duties, as well as their emotional attachment to the State and their willingness to take part in the day-to-day functioning of the polity (Ibid, 5). This book concerns itself with States as the formal and formative form of political community.

Formal definitions of what exactly a modern constitution is differ greatly. Generally, we might understand a constitution of a State to serve three principal purposes. The first is to delineate the authority given to the State institutions or organs. A constitution thereby acts as a constraint on the power—as opposed to formal authority—of its principal institutions and, in particular, on the executive which functions as the government. The principal institutions are often the executive, the legislature and the judiciary. The second purpose is to set-out the basis for interaction between the State institutions and its constituents, the people. It is useful for a constitution to resolve the issue of the participation, or the representation, of the people within those institutions and whether that participation is to be formal or informal and direct or indirect.5 The third purpose is to outline the rights and obligations of the people vis-à-vis the State and in some cases their responsibilities. Responsibility can mean two things. Responsibility of the people to State institutions and people’s responsibility to each other via the machinery of the State itself such as its justice system. This three-fold typology for defining a constitution is relatively modern. The typology does, however, loosely model constitutions that were pre-modern.6

It is difficult to ignore that the terminology used to describe constitutions and their function are distinctly anthropomorphic. It is, however, not by chance that we have inherited such terminology. A constitution, for instance, we say, is ‘created’. Creation necessarily entails a maker and even, perhaps, a higher power. A power which somehow ‘births’ the foundational moment of the State, particularly a nation-state, into being. A State we say is ‘born’ and popularly, in the context of male-dominated power structures, it is perceived often as female on conception. Just as gender is socially constructed, the nation-state too is socially constructed. It incorporates ideas about ‘manhood’ and ‘womanhood’ (Yuval-Davis 1997). As such, a nation-state, in societies with patriarchal norms, is characterised as ‘feminine’ in nature. She is expected, as the ideal mother, to reproduce the nation with her children. In that process, the nation-state, sometimes, also impermissibly lays physical claim to women’s bodies which by inference are an extension of the nation-state.

A State which coalesces with the idea of the nation is seen to have boundaries around ‘her’ as well as her body politic (her sons and daughters). Both of these require protection from alien intruders which may infect, harm or penetrate the body (Duhaček 1997) and, therefore, the ‘organs’ of the State are mobilised for State-sanctioned violence. This violence in the cause of protection emanates, usually, from the ‘sons of the nation’ imbued with the rhetoric of loyalty, betrayal and sacrifice. They are, in turn, often led by a founding father who stands, all powerful, as the Godhead (Iveković 1993, 115-116, 120-122). In some instances, States have notably taken on board this almost religious iconography and conceived the birth of their State as immaculate in conception. The father figure, of course, co-opts, or becomes synonymous with, that higher power alluded to earlier. Sometimes the nexus between the dear father figure transforms the motherland into the fatherland. And then the power and control of the leader becomes tantamount with the power and control of the State itself over others.7

The ascribing of human characteristics to a clearly non-human thing goes to the heart of how a constitution is understood and perceived. The further one goes with the metaphor, the further one moves away from the idea of a constitution as an abstract or functional document simply concerned with rules and institutions. People ascribe such human characteristics to a constitution for myriad reasons, which are relevant to the issue of constitutional creation, design or change.

 Is a constitution, to carry the metaphor yet further still, the soul of the body politic and, therefore, its real, pure and metaphysical core?

 Is a constitution rather the skeleton providing some foundational structure to the body politic that allows the body to function but is, in and of itself, of no further dynamic utility?

 Is a constitution perhaps the skin or the outward cosmetic form of the body providing a surface presentation, in a manner of speaking, of this more complicated and esoteric inner core? Or,

 Is a constitution something disconnected from the body such as the environment within which the body may find function and meaning in order to truly manifest itself?

The metaphor, one might think, can be stretched to breaking point but scholars have alluded, or expressly considered, the constitution, over the centuries, to be each of these humanly things.

Aristotle was considering the nature of political association as early as the fourth century BC. For him, the formal cause of the city-state was its constitution (politeia). Aristotle defined the constitution as “a certain ordering of the inhabitants of the city-state” and the political community as “the form of the compound” (Politics, III.1.1274b32-41). He argued that whether the community is the same over time depends on whether it has the same constitution of the people which bring with them certain ideals, values and objectives (III.3.1276b1–11). The constitution, according to this formulation, is not a written document, but an immanent organizing principle, analogous to the soul of an organism. The constitution, therefore, is “the way of life” of the citizens (IV.11.1295a40-b1, VII.8.1328b1-2).

But the citizens in the Aristotelian city-state were those of the (minority) resident population who were privileged enough to possess full political rights (III.1.1275b17–20). Women, slaves, working-class men and non-residents were excluded. It was much like Britain until the movements for universal suffrage or the Britain of the colonies. It was only until the passing of the voting rights acts in the 19th and 20th centuries that most men and then women were granted suffrage. It was long after then that Britain granted to its imperial possessions in the British Empire independence and self-determination. A constitution, therefore, can include as well as exclude even when it is conceived of as the soul of a State.

An intermediary view has seen the constitution as much less esoteric and more akin to a skeleton around which the body politic is formed. Whilst the skeleton is intimately connected and indeed is critical for the functioning of the body, in day-to-day life it is not particularly relevant until things go wrong. On this view, political turmoil “can operate like an X-ray, lighting up the bones around which the body politic is formed. And we suddenly realise that we can no more live without a constitution as we can without a skeleton to support our flesh” (Stourton, BBC 2017). This view sees the constitution as far removed from the people but paradoxically inescapably close.

A somewhat different use of the metaphor is to consider the constitution as not human at all. Rather it is more analogous to the environment in which the critical human component of a State, the body politic, must operate. This strand of thinking is most prevalent in the modern age. The constitution in extremis is merely an abstract construction. An important abstraction but without very much relevance to the way people really live their lives. It is simply concerned with the form and function of government: the right to, and frequency of, elections; the provision of some basic human rights protections; and ultimately little else more. Constitutions are just the ‘rules of the game’ so to speak. Rules that only concern a handful of people at the top.

Discussions and indeed disagreements about constitutional creation, design or amendment go back to the very beginning of political action and thought.8 Broadly, discussions on constitutional design relate to two major aspects. The first aspect is whether the foundational moment of a constitution is an imposed legal settlement or a freely negotiated social contract upon which all members of society agree to govern their affairs. The second aspect is about content. Should a constitution include a link to important social or moral values, delineate the authority and powers of institutions, and provide for individual or group rights including representation in institutions? Some of these issues are resolved expressly at the outset and others are determined through time as a constitution becomes a ‘living instrument’. In taking either of those routes to a constitutional settlement, what is deemed essential to a constitution must necessarily come before what is the desirable content of a constitution. That is why the process of constitution-making becomes highly important. It is the sole concern of this book.

In terms of form and substance, therefore, constitutions can be as close to the soul of a State as one might want them to be. A constitution may reflect the social, cultural and moral virtues or norms of the people who expressly or tacitly accept the State, and the way it functions, as legitimate. And accept it they must if the State, bound by constitutional rules and norms, is to function properly. A constitution, however, may be devoid of any sociological or metaphysical basis if all it is considered to be is an abstract, prescriptive and instrumental document setting-up an environment in which any State or people may operate. Over time, an empty vessel may indeed be filled with something worthwhile should it remain intact. The question, however, of whether it remains intact and what exactly is worthwhile cannot be answered simply by gauging the political opinion of the majority at a particular snapshot in time through national elections. Longer term social, moral and cultural norms, collectively known as ‘political culture’, must be ascertained in a far more rigorous way if the process of constitution making is to be truly reflective, participatory and inclusive. This is where considering the British and Bosnian constitutions as well as the histories of their development is relevant.

1.2 Overview of the British constitution

The British constitution, famously, is not written or codified in any single document. Some elements are not written anywhere at all. Those unwritten elements are rather a product of experience, whether that was the experience of the monarch, the monarch’s government in Parliament, or the monarch’s counsel (as a pre-cursor to the judiciary). Over time, experience became custom and even later still hallowed convention until, of course, such time that the convention is dis-applied. Even the British constitution’s most important written elements—legal rules created by Parliament or by the courts under common law—may be unwritten just as easily as they were made. Parliament may repeal any previous Act of Parliament by simple majority vote. Important constitutional principles, however, may only be repealed if the intention to do so is made express by Parliament.9

It is a great strength of the British constitution that many important constitutional documents, particularly in relation to fundamental rights, have stood the test of time. They have remained on the statute books and have been faithfully applied by the courts. But that such fundamental rules or practices may not succumb to popular whims, prejudice or ‘transient passion’, as Turpin and Tomkins (2012) call it, is not guaranteed at all.

Certain rules or practices that most people might consider fundamental have been diluted by Parliament despite vociferous and principled opposition. These include the defendant’s right of peremptory challenge of jurors, or their right to silence when charged with a crime or the right to trial by jury. In each of these cases the right has either been expressly removed, diluted or abrogated by Parliament (Turpin and Tomkins 2012, 7).

In some instances, the courts, where they have had sufficient legal basis and authority, have declared such attacks on fundamental rights as incompatible with the British constitution. Famously, in the case of A v SSHD,10 the House of Lords held that indefinite detention without trial of non-British nationals, who were suspected of being terrorists, was contrary to right to liberty and security of the person because it discriminated against foreign nationals (contrary to Art. 14 of the European Convention on Human Rights (“ECHR”) although it was not unlawful per se. Following a tradition of judicial conservatism and considering the sovereignty of Parliament over all other institutions, the majority did not rule on whether the government was right to derogate from the ECHR (under Art. 15) on the basis that there was a ‘threat to the life of the nation’ allowing such derogation. The judges were careful to implicitly acknowledge that they are unelected and must not make or be seen to make policy. Lord Hoffman, in a stinging dissent in the case, argued that the power of indefinite detention was fundamentally contrary to the British constitution because it was both unlawful and there was an impermissible derogation from the ECHR:

“In my opinion, such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory” (A v SSHD, para. 97).

The case of A v SSHD demonstrates the difficulty of interpreting constitutions as well as rights. Given the nebulous nature of the British constitution a helpful starting point would be to identify precisely what it is or means today, as precisely as is possible, before moving to consider its origins.

In simple terms, the British constitution is a miscellaneous collection of flexible conventions, practices and rules governing political behaviour. Britain is a constitutional monarchy which means it is a State headed by a sovereign who rules according to the constitution which puts at its centre a sovereign Parliament (Bogdanor 1997, 1). Britain and New Zealand are the only two constitutional monarchies in the world where the constitution remains unwritten. It might be more accurate to say the British constitution is ‘uncodified’ as large parts of the body of law that would ordinarily form the constitution is written down. Its written elements appear in the form of primary legislation, delegated legislation, common law precedent produced by court judgments, and government guidance. Britain is also only one of two States, proper, in the world which have unwritten or uncodified constitutions. Israel, Saudi Arabia and Sweden’s constitutions might also be considered as relatively uncodified although they do have significant Basic Laws comprising constitution-like fundamentals.

The British constitutional arrangement, with Parliament at its centre, has endured for over 350 years since the ‘Glorious’ or ‘Bloodless’ Revolution of 1688-1689. The origins of parliamentary sovereignty lie in the Bill of Rights 1688 and the Coronation Oaths Act 1689. Whilst the constitution has remained in place, Britain’s underlying institutional structure has undergone gradual change as have the nations which comprise the ‘United Kingdom’. Britain today comprises four nations—England, Scotland, Wales and Northern Ireland—which are held together in an uncodified, non-federal arrangement. There is no legal document in Britain identifying the country as ‘a State’ to which rules and principles can be ascribed or attributed. Historically, its public law has developed from interaction between parties arguing in the courts over what are the responsibilities of government over something in the public realm (as opposed to disagreements between private persons) (Turpin and Tomkins 2012, 12-13). The nature, extent and reach of the State, and its officials, organs and bodies, has developed over time. Not unlike Britain’s democracy this development has been in a partial and piecemeal fashion.11 Britain though is undoubtedly recognised as a State under international law.

Britain’s political institutions are constituted as follows. The executive is comprised of a Prime Minister and Ministers from the majority party who sit in ‘Cabinet’ as Her Majesty’s Government. They run the administration of the State supported by an a-political and professionalised bureaucracy called the Civil Service. The party with the next largest majority forms Her Majesty’s Opposition. Parliament is the legislative body which has the power to make and un-make any law it wishes through primary legislation—Acts of Parliament—or related delegated legislation such as regulations, instruments and orders in council. Parliament is supreme over all other sources of law and indeed the monarch herself. Parliament has two chambers: an unelected upper chamber, the House of Lords, and the elected lower chamber, the House of Commons. Parliament creates law and the monarch is expected to adhere to it and has been expected to since the late seventeenth century. The judiciary is composed of judges who, since 2006, have been appointed by an a-political commission. Courts adjudicate on private disputes between legal persons as well as public disputes between the government and its citizens by way of judicial review and/or application of domestic or international human rights law incorporated into domestic legislation. Judges are also an important source of uncodified ‘common law’ which they create by applying or interpreting past precedent or creating new precedents where past practice is not instructive. The institutional structure under the British constitution mirrors the ‘separation of powers’ principle. That principle is often a formal feature of presidential and other modern systems of government: ensuring a strict division between the executive, the legislature and the judiciary. In reality, however, the British system may be better characterised as having a fusion of powers which are, in theory, finely balanced—how finely and whether the scales have tipped in favour of one institution over another is an issue addressed in Chapter 4.

As Parliament is supreme, no Act of Parliament may bind a subsequent Parliament. No single piece of legislation, therefore, may be entrenched giving it priority over any other. It is for this reason that no legislation has a special, constitutional status, conferred on it per se. Some fundamental constitutional conventions, rules or laws, however, may only be repealed or abrogated, if Parliament makes its intention to do so explicit. A number of fundamental pieces of primary legislation may be identified, as have the courts over time, including:

 Magna Carta 1215 (as amended and reissued in 1225)—set out that the sovereign is subject to the rule of law and provided some basic rights to free men including no taxes without common consent or imprisonment without cause.

 Charter of the Forest 1217 (as amended and reissued in 1225)—now largely forgotten and superseded only in 1971, this instrument was a radical document on land rights. It was a statute that remained in force longer than any other in England (Standing 2019). It granted free men (commoners) access and use to increasingly vast royal landholdings and unlike the Magna Carta did not only deal with the grievances of the barons. It complemented and evolved from the Magna Carta.

 Petition of Right 1628—reinforced two principles from the Magna Carta—no taxation without parliamentary consent and no imprisonment without cause. It prohibited quartering of soldiers or subjects, and abolished martial law in peacetime.

 Habeas Corpus Act 1679—directed judicial inquiry into the legality of detention of a person.

 Act of Settlement 1701—created judicial independence.

 Parliamentary Acts of 1911, 1949—deprived the House of Lords of its absolute veto on legislation and allowed, in essence, delay rather than veto powers.

 Crown Proceedings Act 1947—allowed civil actions to be brought against the Crown albeit with certain limitations.

 Reform Acts of 1832, 1867, 1884—expanded the electorate of the House of Commons and made representation more democratic in that body.

 Other Acts relating to voting rights in the 19th and 20th centuries—led to parliamentary democracy and universal suffrage (most men received the vote in the 19th century and women in the first half of the 20th).

 European Communities Act 1973—UK became subject to European Community (EC) law.

 Human Rights Act 1998—obliged public bodies to give effect domestically to the European Convention on Human Rights (“ECHR”).

The exercise of identifying constitutional statutes is always fraught. Blaustein and Flanz (1992) offered a list almost 30 years ago which listed over 300 statutes. The most recent versions of Blackstone’s Statutes in Public Law and Human Rights rarely list more than 30 statutes out of over 100 that predate 1975 (Turpin and Tomkins 2012, 5). The difficulty of separating out party political issues and issues of fundamental constitutional importance is neatly seen in the issue of Brexit. David Cameron, who as Prime Minister called the referendum on membership of the European Union (EU) in 2016, did not appear to appreciate that Britain leaving the EU would generate a constitutional crisis. Neither did his party. His pledge to hold a referendum in 2013 was to see off the challenge from an increasingly popular UK Independence Party and influential critics of the EU within his own party (Emerson 2020, 100-103).

The withdrawal process from the EU, as the government has found, has put at risk peace in Northern Ireland, possibly hastened unilateral Scottish secession from Britain, and curtailed the fundamental rights of the British electorate. Cameron called, foolishly, and contrary to the British constitutional tradition of representative democracy, a crude and binary referendum (Emerson, 2020, xiii). A referendum whose outcome was said to constitute the “will of the people” but clearly could not if the people only represented, as they did in fact: only 37 per cent of the electorate once non-voters (27.8 per cent) were accounted for or 51.9 per cent as a simple majority of those who voted. It was only the third such national referendum, as it happens, in Britain’s entire history. The outcome of that referendum has seemingly jeopardised Britain’s constitutional underpinnings or may yet still. It is an issue further considered in Chapter 4.

The ‘Crown’ is the title given to the monarch as the Head of State and she is also the Head of the Church of England, Head of State for assenting countries within the Commonwealth of Nations, and Commander in Chief of the armed forces. The monarch’s constitutional role today is almost entirely symbolic although she nominally retains some residual powers of royal prerogative. These powers confer on her authority to take certain ‘privileged’ actions without requiring authorisation from any other institution. Prerogative powers are, in reality and by convention, exercised by the monarch acting through her Prime Minister and Ministers in Cabinet. She would almost never exercise those powers on her own initiative unless the circumstances were extreme and without precedent. That very remote possibility remains, and some had called for her to oppose the Prime Minister on some aspects of the Brexit withdrawal proposals as well as his advice on proroguing Parliament (Evans 2020). That was on the basis that although the Government had the confidence of Parliament (because no motion of no confidence had been passed under the Fixed-Term Parliaments Act 2011) it did not preclude the Queen, by convention, in not following the advice of the Prime Minister if that conflicted with the express will of Parliament in the form of a Bill presented for royal assent i.e., in relation to refusing a particular form of an EU withdrawal bill (Bowen 2019). The monarch also exerts some indirect influence on the Prime Minister through her weekly private consultations, which occur as of right, with him/her.