A Constitution of the People and How to Achieve It

The prerogative powers of the monarch are theoretically very expansive12 and have developed over time. They have undergone significant restriction in scope by Parliamentary convention or legislation including, for instance, expressly in the Bill of Rights 1689.13 The courts, under common law, have made clear that the Crown is subject to the law but is immune from civil suit or criminal prosecution. The prerogative powers today include all manner of actions including: conduct of foreign affairs including declaring war and peace; signing international treaties; annexing or ceding territory; grant or withdrawal of British passports; appointment of bishops and archbishops in the Church of England; grant of pardons or commutations in sentence; appointment of the Prime Minister—theoretically anyone the monarch wishes although he/she has always sensibly decided on someone who would be best positioned to command a majority in the House of Commons; royal assent to legislation passed through Parliament; prorogation of Parliament; and the calling and dissolving Parliament until those powers were set out in the Fixed-Term Parliaments Act 2011.

Some prerogative powers are directly exercised by the Prime Minister, acting through Cabinet, without the approval of Parliament. In the past, this has included the powers of declaring war and peace, the issuing of passports, and the granting of honours. The Queen’s or relevant Prince’s consent, by convention, is required before Parliament can debate a bill affecting prerogatives or interests of the relevant Crown, such as hereditary revenue or personal property (Sumption 2020, 109). The Queen ordinarily grants or withholds consent on the advice of her Cabinet (Guardian 2013).

The power to declare war was exercised by the Cabinet in both world wars. Since then, the prerogative power has arguably been altered on the basis that Tony Blair sought symbolic and non-binding parliamentary approval for going to war with Iraq in March 2003; this has meant all subsequent Prime Ministers have sought approval. Notably, David Cameron failed to achieve support for air strikes on Syria in August 2013 and he honoured Parliament’s decision. A new constitutional convention has, arguably, been created that requires Parliament to approve deployment of troops abroad other than in an emergency (Mills 2018). That new convention sits uneasily with the prerogative power to declare war, which in law rests squarely with the monarch as opposed to Parliament. Whether by practice that changes over time remains to be seen. In April 2018, Prime Minister Theresa May, launched airstrikes on Syria without parliamentary approval citing the ‘element of surprise’ and ‘national interest’. As it happens, President Donald Trump had warned President Bashar al-Assad of the incoming missiles four days before via the medium of Twitter (Kentish 2018; Peck 2018). In Britain, the lack of parliamentary scrutiny or consultation for armed action abroad reignited a debate about whether Parliament should formally legislate on such matters to provide clarity (HoC 2011; Mills 2018).

1.3 Overview of the Bosnian constitution

The Bosnian constitution—set out in Annex IV of the 1995 Dayton Peace Agreement—is a relatively short document comprising only twelve, mainly functional, articles and two annexes. It was drafted in the English language, which is not the official language of the country, and has never been officially published in Bosnia’s three official languages. The Bosnian constitution administratively divides Bosnia into two federal ‘entities’: the Federation comprising 51 per cent of the territory and Republika Srpska (RS) comprising 49 per cent of the territory, while reiterating the sovereignty and territorial integrity of Bosnia as a whole. Both entities have their own constitution which are required to be read, and be in conformity with, the Bosnian constitution. There is also the self-governing independent district of Brčko. The district’s status was contested as each entity claimed it was theirs. Its ultimate status was settled by international arbitration.

The Bosnian constitution sets out the responsibilities of the institutions of Bosnia vis-à-vis the entities. Only certain exhaustive and enumerated powers are given to the State; all others are vested in the entities (USIP 2006, 3). The collective head of State, and the executive, is the three-member rotating Presidency comprising: a Bosniak and a Bosnian Croat directly elected in the Federation and a Bosnian Serb member directly elected in the RS. Bosniaks, Bosnian Croats and Bosnian Serbs constitute the three official ‘constituent peoples’ of Bosnia. ‘Others’ and ‘Citizens’ who are referred to in the Preamble to the constitution are left out of all of the substantive provisions in the constitution itself and are, therefore, excluded from the central governing structures. The Council of Ministers (“CoM”), acts as a de facto Cabinet government with one Chairperson. It is collaborative in nature and roles are divided among the three constituent peoples (although not exclusively so). Decisions by the CoM must be unanimous or be approved by the tripartite presidency. The legislature, the Parliamentary Assembly, is bicameral. The upper chamber, the House of Peoples, has 15 delegates: five Bosniaks and five Bosnian Croats chosen by the Federation Parliament and five Bosnian Serbs chosen by the RS National Assembly. It has equal power to the lower chamber, the House of the Representatives, making it unusually and uniquely powerful (Išerić 2016). Decisions of the House of Representatives require approval of a majority which must include one third of members from each entity. Only two thirds of members of the House of Representatives may emanate from the Federation. Any parliamentary decision can be declared destructive of a ‘vital national interest’ by a majority of one of the constituent peoples (USIP 2006, 3). International human rights law is directly incorporated into the constitution and the ECHR has supremacy over domestic law.

The Bosnian constitution was primarily drafted with a view to ending the armed conflict of 1992-1995. Secondary to the cessation of hostilities was the idea of a fully functioning and viable State that would regulate ethnic conflict and overcome the hostility (exponentially multiplied by the war) to the very idea of a multi-ethnic Bosnian State. Franjo Tuđman, President of the newly independent Croatia, and Slobodan Milošević, President of the Socialist Federal Republic of Yugoslavia (“SFRY”), both denied many times having control or being the minds behind the armed conflict in Bosnia14 yet both were key negotiators and signatories of the Dayton Peace Agreement.15 As signatories, Tuđman and Milošević together on behalf of their respective States, agreed to act as guarantors of the Agreement vis-à-vis Bosnia.

Tuđman and Milošević, however, had no specific obligation to ensure compliance by the RS or the Federation (or compliance between them) except in respect of two Annexes seen as ‘critical’ for peace: the Agreements on Military Aspects and the Agreement on the Inter-Entity Boundary Line. That was important. Milošević was always very clear on the right of any Serb entity to have essentially a mandate to conduct foreign policy by having “parallel relationships”; Tuđman had helped negotiate a similar mandate for Bosnian Croats. As Bob Owen, a principal US peace negotiator, candidly revealed: “[..]it was quite obvious to us that he—although he never said secession—regarded that as a sort of slippery slope down which the Bosnian Serbs could slip into the hands of Serbia” (USD Jun 1996, 29). Whenever Milošević was challenged about whether he would ever push the Bosnian Serbs to secede he would always say he would not do it, but he would never commit to “giving up the right to it” (Ibid, 30).16 Tuđman and Milošević were not signatories to Annex IV, which was the Bosnian constitution, and had no commitments to protect it. Perhaps, that indicates the importance that was given to the future of Bosnia as a sovereign and viable State (Gaeta 1996, 156).17

In tandem with the cessation of hostilities, a specific objective of the Dayton Peace Agreement was the return of displaced persons and refugees18 to reverse the ethnic cleansing and territorial separation of ethnic groups that occurred during the armed conflict (Article II.5, Bosnian constitution and Annex 7, Dayton Peace Agreement). The wording of Annex 7, however, precluded complete unreserved return to pre-war homes; an inevitable outcome of negotiating with the perpetrators of ethnic cleansing. Displaced persons and refugees have, in practice, been unable to return to their pre-war homes and many remain in parts of the country to which they were displaced. Some of those displaced may now feel a sense of security around people of the same ethnicity; people who form a majority in the areas in which they have made their new homes (Kasapović 2005, 7). This feeling may reflect the fact that a consequence of attack can be defensiveness: “a desire to reify that aspect of the self that is being targeted” (Carmichael 2015, xiv).

The result was anticipated and, therefore, the Bosnian constitution allowed a human rights framework, as some form of protection, to be drawn up around the demographic realities that war crimes, crimes against humanity and genocide had created (Toal and Dahlman 2011, 7).19 The viability and reconstruction of an independent democratic State has, accordingly, been severely compromised with almost one million out of the two million displaced (out of a population of four million overall) not returning to their pre-war homes. Bosnia’s legacy of ethnic cleansing has not been reversed to return it to pre-war ethnically mixed municipalities but neither has Bosnia been completely ‘unmixed’ into unchanging ethno-territories (Toal and Dahlman 2011, 9). Enough damage, however, has been done to challenge the legal, political and social continuity of a unified Bosnian State under the constitutional structure negotiated at Dayton.

Figure 1.3A—Ethnic composition according to the 1991 census—before the armed conflict—and ethnic composition according to the, contentious, 2013 census, by relative/absolute/two thirds majority and sub-divided by the 143 municipalities

Source: Bosnian Statistics Agency

Figure 1.3B—Bosnia by entity sub-division and by canton sub-division

Source: Bosnian Statistics Agency

Despite the new demographic realities that created the distinct ethno-territorial borders (see Figure 1.3A), the principles of group autonomy and power sharing were worked into the Bosnian constitution. By ‘power sharing’ Lijphart (2004, 96) denotes the “participation of all significant communal groups in political decision-making, especially at the executive level. ‘Group autonomy’ means that communal groups have authority to run their own internal affairs, especially in areas of education and culture” (Ibid). The two aforementioned features are characteristic of ‘consociational democracy’. Consociational features, in favour of Bosniaks, Croats and Serbs, are found in all the institutions of the State including: the Presidency, the Council of Ministers, the Parliamentary Assembly (House of Representatives and House of Peoples), and the Constitutional Court (See Chapter 4). In summary they include: decentralised asymmetric federalism to give wide autonomy to the two territorial entities; proportionality of representation of the three ethnic groups within the executive, legislature and judiciary; grand coalitions for the Presidency and Council of Ministers representing all major ethnic groups; and minority vetoes in the executive and legislature (DPA 1995; Bieber 2006; Keil and Hulsey 2013, 2020).

All territorial units in Bosnia, which largely coincide with electoral units (in the form entities, cantons in the Federation and municipalities in the RS), are based on ethnic criteria with the exception of two cantons in the Federation and the self-governing independent district of Brčko in Northern Bosnia (Keil and Hulsey 2020, 2). According to the most recent census in 2013, Bosnian Serbs make up 80 per cent of the population in the RS divided into 64 municipalities, Bosniaks have a significant majority in five of the Federation’s 10 cantons, and Bosnian Croats are a majority in three cantons in the Federation and are the larger of the two in the mixed Bosniak-Croat cantons. In the Federation, the 10 cantons are layered on top of 79 municipalities. In total there are 143 municipalities across the country. As shown in Figure 1.3A, the contrast between the ethnic homogeneity today with the very heterogenous population mix in the pre-war municipalities could not be starker.

1.4 Comparative constitutional histories

British constitutional history

The precise origin of the British constitution is somewhat nebulous as might appear the constitution itself to an outside observer. Both the constitution and its origins are bound up with myth, legend and reverence that is subject to competing interpretations and historical narratives. These narratives take a distinct flavour depending on the set of circumstances Britain as a State and Britons generally find themselves in. The politics of the day are hard to separate from issues of fundamental constitutional importance.

Depending on where a political commentator stands on a particular issue of the day, they will often wish for leverage from British constitutional history to uphold their claim in being right. That is true of those seeking to uphold traditional or conservative conceptions of the British constitution or, equally, of those preferring a more modern or liberal re-imagination of the constitution. The Magna Carta of 1215 is one such constitutional document, which just 10 years after its issue acquired a symbolism associated with liberty of the individual (albeit then, only for free men). The Magna Carta is readily marshalled today to uphold the view that ‘foreign’ human rights standards are not required to be incorporated into UK legislation because the British gold-plate, and always have, their own laws with better standards. ‘Look at the Magna Carta’ they say as they point to its now famous clause 40: “‘to no one will we sell, to no one deny or delay right or justice.” That is notwithstanding that the Magna Carta had little to say about rights that are now recognised as universal (such as the rights to free speech, free assembly, freedom of religious belief) and offered no real means of redress when rights were infringed (other than possible war between the King and the barons). At the same time, others will say that international human rights standards are necessarily British as they derive from, and are specifically inspired by, British laws such as the Magna Carta and the Bill of Rights of 1689.20 Most importantly, discussions in the UK are framed around a generally legitimizing centre—the constitution—however nebulous it may appear to an outsider.21

Most historians have traced the origin of the British constitution to the Magna Carta of 1215.22 It was in 1215 when the first concerted attempt was made by major feudal landowners to force King John I to set out meaningful legal restrictions on his power and extract some concessions for the rights of individuals. Had he not acceded to the demands he faced the prospect of armed conflict (Hibbert 2010, 68). The Magna Carta required: consultation with the barons before imposition of new taxes; that every man be given a fair trial and be judged by his peers (other men); that no one be imprisoned without due process of law; and that the behaviour of royal officials was to be controlled (Loughlin 2013; Bogdanor 1997, 3-4).

By inference, King John I, an absolute monarch, was required to rule according to the law and take into account people other than himself namely the powerful barons and, increasingly, those lower down the wrung: knights of the shires, burgesses of the town and the gentry (Maddicott 2010, viii). The Magna Carta was almost immediately repealed by the King, but it was revived and amended a number of times particularly as the demands for money from the King came with increasingly greater demands for rights and representation (Hibbert 2010, 74). Not many years after, in January 1273, Parliament first met under King Edward I (1272-1307) with representatives from every shire and almost all major towns. Government by then was increasingly contractual between the royal and the provincial (Maddicott 2010, vii-viii). King Edward I, for instance, was criticised for failures in his crusades abroad and he received a grant of tax on condition that he confirmed the Magna Carta (as amended) and added three barons to his regular council (Maddicott 2010, 447). At the Parliament of 1295—known as the Model Parliament because it was more representative than any great other previously—even representatives of ordinary citizens of the towns were present although they did not attend with any enthusiasm. They knew that they were wanted for their money (Hibbert 2010, 78). Nevertheless, their power and influence gradually became more prominent and eventually was formalised in the creation of the House of Commons.

The other major constitutional milestone is identified as the Glorious Revolution of 1688. After the overthrow of the Catholic King James II, the Protestant King William III (William of Orange) passed the Bill of Rights 1689 in England and Claim of Right 1689 in Scotland. Both Acts provided for parliamentary dominance over the monarchy by altering the line of succession and protected some parliamentary rights and liberties to prevent royal abuse of power. A Convention Parliament met to declare that James II had abdicated as he had fled to France fearing for his safety. Parliament invited William of Orange and Mary jointly to the Crown, by Act of Parliament, rather than by the right of hereditary process. Parliament, inevitably, presented the alteration of the line of succession as continuity rather than change; James II’s son was declared illegitimate and, therefore, title naturally vested in William of Orange and Mary. Bogdanor (1997, 5) more accurately characterises this as a limit of royal power over Parliament rather than the citizen at large. William and Mary did not accept the Crown on condition that the Bill of Rights be passed but accepted it notwithstanding ‘their right’ to the Crown (Ibid, 6). The precedent, however, was set. The monarch now ruled with, and through, the consent of Parliament.

The Bill of Rights resulted from an earlier historical event: civil war between the Royalists supporting Charles I and the Parliamentarians led by Oliver Cromwell from 1642 to 1648. It was a war precipitated by Charles I’s belief in the divine rights of kings, his financial greed and his refusal to reform the church. Those issues led him to bypass Parliament and the rights of parliamentarians (Hibbert 2010, 127-128). The mid-sixteenth century period of flux remains significant as it marks the starting point of the longest continuous constitutional, legal and parliamentary culture in the world (Sumption 2019, x; Bogdanor 1997, 8). After 1689, the monarch saw a gradual decline in power brought about largely from the severe curtailment in his/her powers due to the expansive restrictions set out in the Bill of Rights. There was, as might be expected, huge push-back by the monarchy. There was the development of the ‘King’s Friends’ to influence the development of party politics in Parliament. The King bought Parliamentarians to support his own cause. But by the Reform Act 1832, the King’s power to determine policy was relegated to mere influence (Bogdanor 1997, 10). Ministers who had previously served formal roles as advisors to the sovereign later merely informed him of decisions that had already been taken (Bogdanor 1997, 15).

Despite the perceived significance of the Magna Carta, the origins of the British constitution have been shown to go back further still. Historians have shown that the roots of the English Parliament—a precursor to the British—go back to early Anglo-Saxon times. Bogdanor (1997, 2-3) has claimed that, even as far back as the Anglo-Saxons, succession to the throne was not just a matter of descent but in reality, was determined by the leading territorial magnates comprising of what was called the Witan—the council of the sovereign’s advisers—that retained a power to depose a sovereign who proved inadequate. Most would agree that such councils certainly played a large part in determining the royal succession even if they could not quite depose inadequate sovereigns (Maddicott 2010, 442). Maddicott (2010, vii-viii), in his magisterial account of the origins of the English Parliament, tracks the trajectory of the first truly national assemblies to the reign of King Aethelstan in 924 and documents their progression all the way to the deposition of Kind Edward II in 1327 which saw the parliamentary commons, from knights of the shires to burgesses of the town, fully engaged in a ‘great national act of State’. Maddicott (Ibid) persuasively argues that, at heart, the assemblies all stemmed from a relatively primitive practice: “a leader, usually a king, taking counsel with his great men”. These assemblies or Witans, a feature of Germanic political organisation, were used to confirm the accession of kings, adjudicate legal cases and give effect to royal policies and practices. These gatherings, albeit ad hoc and lacking institutional qualities, nevertheless rested on relatively broad political participation, making “them to a degree representative of peoples and places long before the days of elections and constituencies” (Maddicott 2010, 2). It was really only under King Aethelstan, following King Alfred’s attempt to unify and defend England against the Danes in the late ninth century, that royal control was imposed through development of local institutions (shires, boroughs, mints, ealdormen, sheriffs) and, critically, assemblies. These assemblies dealing with affairs of the realm were periodic, large in size, had continuity in formal attendees (which came from across the social, religious and political spectrum) and meetings were recorded by charter and decisions passed as legislation (Maddicott 2010, 4-5, 441-442). The seed was planted for the constitutional monarchy and the Parliament that was to follow: the ‘lineal descendant’ of the Aethelstan assemblies (Ibid).

This historical overview is, of course, to ignore the vast development of Britain under the Roman Empire until 410 when the Romans fully packed up and left; leading to complete civilisation decline and preparing the way for Anglo-Saxon invasions after a period of local Romano-Britain rule (Wood 2010). Even with the Norman conquest of 1066—which decimated the country—over time, some 150 years after the conquest, the assemblies of Aethelstan and specific features of its operation returned. One form in which it did was the Commune Concilium. Landowners’ obedience to the monarch was contingent on royal protection and the reintroduction of national taxation meant that some of the representational qualities of earlier Witans were reintroduced (Maddicott 2010, 444). Whilst absolute royal power still prevailed, William the Conqueror (1066) and Henry I (1100) had promised in their coronation charters to observe the laws of Edward the Confessor in return for obedience of their subjects (Maddicott 2010, 452). In no other European State, as Bogdanor (1997, 3) argues, did the local or provincial interest and royal government interests become so tightly enmeshed as they did in the couple of centuries following the Conquest.

The cursory overview of British constitutional history provided here, is not to suggest or imply any sort of evolutionary linear progression or the untrammelled march of rights and democracy in England and then, later, in Britain. The Magna Carta like any other charter, or bill or act was not entrenched, and parts were often expressly repudiated. Oftentimes it was completely ignored by powerful monarchs. The fact that the Magna Carta led directly to the beheading of the Charles I—who repeatedly bypassed Parliament and in 1629 decided to rule without Parliament entirely—shows precisely how far monarchs abused what were considered to be enforceable rules whether tacit or express in a charter. Monarchs purported to suspend legislation all the way up to the early 18th century (Loughlin 2013; Sedley 2013).

Charting the history of the English Parliament from 924 to 1327, Maddicott (2012, ix) notes that parliamentary history was far from steady or purely evolutionary but was “subject to happenchance at every stage”. What this book does attempt to show is that certain milestones in British history acquired a symbolism and the principles which were derived from them became entrenched by practice, custom and later still in accepted political culture. As Bogdanor (1997, 4) notes, the Magna Carta was used by Parliamentarians as a weapon against the divine-right theory of the Stuart Kings that led directly to the confrontations culminating in the Glorious Revolution. Sir Edward Coke claimed that the Petition of Right of 1628, which limited the royal prerogative, was derived directly from the principles of the Magna Carta: “enabling reformers to declare that it was they who were the genuine conservatives since they were acting in conformity with long-established principles” (Bogdanor 1997, 4-5). Even today, political stakeholders consider it worth their while to petition for change whilst identifying themselves with the institutions of State—symbolic or otherwise—and its interests.

Bosnian constitutional history

Bosnia, like Britain, has a rich and varied historical tradition stretching back to at least the 10th century. It was then when its name—without hyphenation or sub-division—is mentioned for the first time in writing, as a geographical entity, by an Eastern Roman Emperor, Constantine VII Porphyrogenitus, in his work ‘On the Governance of the Empire’ (Malcolm 1994, 10). Bosnia is known for its breath-taking beauty and vastly diverse landscapes symbolised by mountain ranges, salt lakes, flood plains and virgin forests. It is not surprising, given its geographical richness and biological diversity, that it has been settled since, at least, the Palaeolithic age, and permanently since the Neolithic. Some of Europe’s oldest cave paintings (dating to between the 12th and 16th centuries BCE) are found at Badanj Cave, near the town of Stolac in Bosnia’s region of Herzegovina (Clancy 2013, 13). In recorded history, Bosnia, which would have formed part of Illyria, was taken over by the Romans in 168 BC. The region frequently switched hands between Byzantium and Rome in the centuries that followed. Christianity reached Bosnia in the seventh century following the work of Greek missionaries. Bosnia, whose then borders overlapped with those of Montenegro, Serbia and Croatia, was to remain ostensibly Christian until the 16th century when Islam began to be adopted en masse at the height of Ottoman rule (Carmichael 2015, 11).

Bosnia’s present borders are largely consistent with its administrative boundaries under the later period of Ottoman rule from the 15th to the 19th century. It had similar borders under King Tvrtko who secured independence from Hungary in 1353. Bosnia was occupied and administered by the Austro-Hungarian Empire from the 1878 Congress of Berlin through to WWI. In 1910, under the Austro-Hungarians, Bosnia’s first written constitution was promulgated; a constitution that expressly mentioned the Serbs, Croats and Muslims as the “native peoples” (IDEA 2016). On 4 December 1918, after the defeat of the Austro-Hungarians, Bosnia became part of the newly created Kingdom of Serbs, Croats and Slovenes, dominated, as the name suggests, by the Croats and Serbs (less so the Slovenes). A so-called ‘Vidovdan’23 Constitution, generally agreed between the Bosnian Muslim parties and Serbian radicals in 1921, initially allowed administrative autonomy. King Alexander, however, annulled it in 1929 and replaced it unilaterally with a new constitution in 1931. The country’s name was changed to the Kingdom of Yugoslavia in an attempt to develop a wider Yugoslav patriotism and to prevent, as he saw it, local ethno-nationalism to flourish (Džankić 2015). Bosnia retained a Parliament but no independent governance structure. After 31 January 1946 and until the armed conflict in 1992, Bosnia was one of six constituent republics of the communist regime of the Federal People’s Republic of Yugoslavia (and then the Socialist Federal Republic of Yugoslavia (“SFRY”)) together with Croatia, Macedonia, Montenegro, Serbia and Slovenia. The constitution was largely developed from the Soviet constitution of 1936 and recognised five nationalities save for the Bosnian Muslims. Amended constitutions followed in 1952, 1963 and 1974 but it was not until 1963 when Bosnian Muslims were mentioned in the constitution alongside Serbs and Croats (IDEA 2016). It was only in the 1974 SFRY constitution that equal rights were stipulated for all nationalities living in the SFRY.

Bosnia’s religious and cultural milieu was one of its distinctive characteristics even as far back as its early royalist foundations in the 12th century (notwithstanding its shared heritage with its neighbours or its status sometimes as a vassal of foreign powers). The medieval Bosnian Church, for instance, was unique and regarded itself as the true successors of Saint Peter. It was seen as heretical by its dominant Catholic and Orthodox neighbours who vied with one another to wipe it out. It was said to present an existential threat to orthodox Christianity, but that was most likely a justification for other motives including annexation of territory.