By Toni Čerkez
The task of this essay would be much clearer if I were to write it in Serbian/Croatian/Bosnian language (BCS). Namely, I want to investigate what it means to be “constituent” in contemporary B&H. And being “constituent” strikes me, as one who has spoken English for most of his life, as a very confusing adjective. What in the world does it mean to be “constituent” of a political system? Does it not mean that, like all citizens, you constitute the republic? Unfortunately, not in B&H. Let me clarify. “Konstitutivnost”, or “being constituent” (or constituency), is one of the fundamental political myths structuring contemporary Bosnia and Herzegovina (B&H). It is a principle stipulating the triune constitution of the country, based on its three dominant ethno-national groups that “constitute” it as it is. Hence, they are known as the constituent peoples and are juxtaposed to all the “Others” who make the country, as all are citizens, but are clearly not ‘constituent’, or whatever that means, of it.
The political myth underpinning this category emerges out of the narrative of ‘war’. War, the foundational act of B&H’s contemporary existence, when the three ethno-national groups entered a brutal conflict, is not unlike the original sin of Adam. The breakdown of Yugoslavia and especially its expression in the bloody conflict in B&H set the framework of time and space anew, both literally and figuratively. In B&H today, we speak of the pre-war era as if it were a bygone age, thousands of years old, like a B.C. to our A.D. Moreover, we speak of “their” and “our” territories as if possessing territory were a natural quality. Ethnic territorialization, in that sense, is the essence of politics in this country. Thus, nature and culture in B&H are fundamentally ethno-territorialized. There can be no nature if it is not Croatian, Bosniac or Serbian (BCS), and culture itself is always presented in terms of three. It is as if we have played with Descartes’s “great deceiver”, only to find, unlike Descartes, the mind in ethnos and the world in territory. Categories of “Bosnia” and “Herzegovina”, as geographic regions, are second in this order – the territory is fundamentally ethnicized.
The category of “constituent peoples” is a seemingly naïve looking formulation in the Preamble of the Annex IV of the General Framework Agreement for Peace in Bosnia and Herzegovina (GAP, or the Dayton Peace Agreement), which is the Constitution of B&H. Far from it being naïve, it is a necessary myth to legitimize the flows of ethno-national possession, balance of power, and division of the spoils of war (territory, bodies, politics) in the country. The (in)famous sentence of the Preamble goes as follows: “Bosniacs, Croats and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina.”
As the GAP was written in English, the ‘constituent’ probably served to emphasize “ustavotvorni” or “konstituentni” (i.e., those who make the Constitution), thus denoting three ethno-national sides reaching an agreement to end the war “along with” citizens and the “Others”. Alas (!), since the Constitution has never been officially translated, the “constituent” turned into “konstitutivni”, or its more literal cousin “constitutive”, meaning integral, essential, fundamental. What hydrogen and oxygen are to water, the constituent peoples, the narrative goes, are to B&H. The ‘Others’, the rest, is just a group, an undifferentiated mass somewhere ‘out there’. And yet today, despite its importance, we are all somewhat confused by this category, not least because it operates in the background of the dysfunction of B&H’s political system. This dysfunction is subtended on B&H’s rigid constitutional ethno-centrism, which gives way to a fundamental tension between ethnic and civic conceptions of politics and society, manifest in the reality of structural violence committed by the irrepresentability of the “Other”, or the “Others”, in state institutions. What constituency means is being singular, atomized, and unique. But the irony can only escape those who are not careful: how can one group be singular and atomized in a constitutionally multicultural country? Indeed, the sui generis constituent paradoxes abound. What does it mean then?
In the moment when all kinds of forces endeavor to remake B&H’s Constitution, when all kinds of ‘non-papers’ and initiatives are presented to the worlds of Brussel-elites and Washingtonians, I wonder: What is to be done? Where are we going? Is this all that we are (i.e., “constituent”?)? Does identity come before affinity? To tackle these questions, I want to denaturalize the idea of being constituent as a political myth. Denaturalization can, of course, lead to a new perspective or even a new naturalization. Hence, and to be clear with you, I want to denaturalize “constituent” in order to populate B&H’s political discourse with some other myths. I scream deterritorialize (!) when others forcibly territorialize. I think blasphemy when they say ‘reality’. And I speak ‘mesh’ when they speak ‘purity’.
The Myth as Is
When I write that being constituent is a myth in today’s B&H, I am being quite serious. Myths are, if we follow the structuralist anthropology of Claudé Levi-Strauss, structures that give meaning to a general worldly disorder; they are conduits, intermediaries, and distributors of socio-political and cultural relations. Here, I want to begin telling a “political myth”, following Haraway, in order to retell the story of B&H. This does not mean that I want to extirpate historically important and formed identities from its future structure, or from debates on its future structure, and replace them with a patently liberal myth of ‘liberal democratic’ state, a ‘melting pot’, or a multiculturalist utopia. I do take these to be rather inappropriate terms, even colonizing terms, in the context of B&H. Multiculturalism is evident in the “triune” constitution of the country, thus being inherently unironic and reactionary if observed from my standpoint. Rather, here I seek to find an ‘opening’ wherein we can grasp the ironic nonsense of being constituent, without losing out of sight the fact that B&H is a plural society. Plurality is my myth because its position allows for interstices of seemingly intractable ethnic divisions, or the Christian-like ethno-triumvirate, to break down. If observed from the standpoint of plurality, being constituent is as funny, a good joke, as much as it is an unpalatable reality. Irony, then, is about telling stories that seem unlikely under current conditions. In B&H today, plurality does seem unlikely.
The myth of the triune constitution of B&H is, and like most myths, a lived (political and social) reality. Unlike most myths, it is codified (in B&H’s Constitution). The sovereignty of B&H is based, according to that myth, on the sovereignty of three ethno-nations that have agreed to form it. And, historically speaking, the three groups do shape the idea of “peoples” of B&H. If we consider the ZAVNOBiH assemblies as the beginning of B&H’s statehood in modernity, we can clearly see that “Muslims, Croats and Serbs” together with all the peoples living on her territory, created the socialist B&H, which was to be incorporated into the Socialist Federal Republic of Yugoslavia. In that sense, the importance of the three ethno-nations is highlighted, but it is not constitutionally essentialized as “constitutive” of a particular kind of order.
In the Dayton B&H, founded in 1995 with the signing of the GAP, the idea of sovereignty of the three ethno-national groups was elevated to the core of the Constitution. Thus, a seeming balance between the ethnic and the civic aspect was established, except that the ‘civic’ aspect, as we now know from verdicts such as Sejdić-Finci, was structurally downgraded. The ethnic principle came to overrule the Constitution, thus making B&H into an “ethnopolis”. As David Campbell writes, the triune constitution was not a product of historical relations of the three ethno-national groups, affirmed directly in the ZAVNOBiH assembly, but rather of a war-time constellation of power. In that sense, the ZAVNOBiH assembly was not followed by a structural division of country into ethnically homogenous territories (although constitutionally into two federal units called ‘entities’), nor was it followed by the ‘national key’ principle; Dayton was. Thus, in the Dayton B&H, the constituent peoples consider themselves politically to be bound to particular territories in B&H and those territories as bound to them. Following Derrida, Campbell calls this ‘ontopology’, thus indicating a particular alignment of territory and identity as constitutive of a given identitarian political order.
Although, incidentally, the term “constituent” is used only three times in the whole of B&H’s Constitution, today it is seen as an essential condition for political equality of the three dominant ethno-national groups, because it is the basis upon which the ethno-national parity in decision making is constitutionally established. But, and as I argue right below, this importance rests on a misconception stemming directly from the ‘original condition’ of this myth – war – which tells us that territory and ethnic ‘space’ in politics are essential for B&H’s statehood. My myth claims that the War overwrote history; we have never been constituent.
The Discontents of Being Constituent
What I mean by “we have never been constituent” is simply this – in B&H, historically, ethnic groups never constituted the country by the fact that they were three ethnic groups. Rather, they constituted the country by being peoples of B&H. Thus, there was never a need to specifically establish ethnic “constituency” and parity in the Constitution and in institutions. Unfortunately, today we do not speak of ‘peoples’ of B&H but rather of three ‘sides’ or ‘groups’ living on its territory. The difference is not semantic and naïve at all, it is fundamentally political.
If we look at the original English formulation of the Preamble, Bosniacs, Croats and Serbs are marked as ‘constituent’ but at the same time their constituency plays no more a defining role in the Constitution than do “Others” and “citizens”. In that sense, if we look at the formulation closely, we will see that BCS define the Constitution only “along with” Others and “citizens” of B&H, not by themselves. This is confirmed by the Constitutional Court of B&H itself when, in the “Ljubić“ case, it accepted the formulation that stipulates that in B&H there exists a sort of „double constituency “, whereby BCS and „Others and citizens“ constitute the country together. In that sense, while delineated as specific collectivities (i.e., Bosniac, Serb and Croat), the constituent peoples are no more BCS than they are „Others“. All B&H’s citizens constitute, or make, the country. The question must be asked, then – Why do we live in an ethnopolis? Why, if all B&H’s citizens constitute the country together, is the country perceived to be an ‘ethnopolis’ in which the scales always tip in favor of the triumvirate? It seems that the language of the Constitution, and dominant interpretations thereof, gave way, in a sense, to socio-political movements ‘on the ground’.
As I wrote earlier, the B&H War, which lasted for three and a half years, is perceived as a fundamental matrix against which socio-political and constitutional developments in the country are measured or juxtaposed. The constitutional structure of the country, a product of wartime relations and negotiations, freezes the conflict in a sense by deferring to the ethnic principle, or the principle of being constituent, understood in the conventional sense, where the country is split into “three”. As the three ethno-national groups are ‘constituent’ or sovereign, they ultimately ‘make’ the country. Thus, even the Constitutional Court, in the same case as above, elevates the principle of equality of constitutional peoples as the “crowning” principle of the state. In that sense, the ontopological connection of terrain to identity becomes entrenched as a purification of identities. Although the Constitution does not distinguish in the Preamble between citizens with more rights and “lesser” citizens, in practice this distinction is made every day, and finds its legitimization in the Constitution. This is visible in the upper house of B&H’s Parliamentary Assembly, the House of Peoples, where only the BCS as constituent peoples are represented, or in the Presidency of B&H, to which only the BCS can be elected. Furthermore, it is visible in cases in which the three “constituent” peoples discriminate against one another by way of ethnic engineering.
In that sense, and despite my interpretation (or the one of the Constitutional Court of B&H) of being constituent in B&H, the necessary corollary of constituency is such that it entrenches socio-politically the practices of purification, territorialization and separation of all against all. Equality is the goal of the Constitution, but it is disintegrated at the outset, in its first sentence. Thus, there is a disconnect between constitutionally professed intentions and declarations of equality and the principle of constituency, insofar as this principle is ontopologically reified, or understood as the three-fold division of the country. And to go against it today is perceived as going against some religious dogma; it is blasphemous. Hence, and if we follow Jean Luc Nancy’s Being Singular Plural (2000), we can say that “being constituent” corresponds to “the complete system of reduction to identity”. Given that only three identities are carefully delineated in the Constitution as opposed to “Others”, it does not take a genius to figure out which identities matter (and in which territories of the country they matter).
The discontents of being constituent in B&H are such that one can never be anything more than BCS. Even if some are not BCS, they are “Others”. But to be “Other” is to be nothing at all. Othering as a practice is both political and legal in B&H today; as a matter of fact, it is constitutional. This is the uncomfortable reality and the myth of “being constituent”, resting on the strict matrix of war as a division into three, reproduces this reality constantly. But this is precisely why we have never been constituent. And this is the irony of the myth itself: unless we move away from constituency and into something else, we will feel its contradictions, but will never take them to be as anything else but the necessary reality of living in B&H. From my position, these contradictions are just funny (even if very serious). Thus, the gap between the declarations of the Constitution and political practices sanctioned by it is a gap that is found in the political alignment of post-war relations. It has nothing to do with the history of B&H in the pre-war period. It is a new moment which cannot be allowed to last any longer, not least because it simply does not work. Historically, we have all been constituent in political practice and therefore there was never a need to constitutionally (and politically) delineate and mark who “constituent” is. And since we have all always been constituent, we have actually never been “constituent” (in the sense in which the Constitution prescribes it now). With that in mind, the question must be asked if this myth is beneficial for B&H’s political development? Is being constituent the only way to go for this country or is there another way for us to establish a plural polity? The answer to the former is no, the answer to the latter is clearly ‘yes’ – there is a way.
Plurality or Five Proposals for an Opening
As an answer to these questions, and as a part of the Youth and Constitution project, I propose here five political-constitutional principles and changes aiming to replace the idea of “constituent peoples”. These five changes follow the three injunctions from above, which respond to the irony of constituency: Deterritorialize (!), de-purify (!), and blaspheme! As such, they offer us an opening into ways of thinking B&H ironically – what do we start with if constituency makes no sense? Well, here goes:
- We do not need the principle of “constituency”. Clearly, and understood in the way it is understood in contemporary B&H, constituency is a product of the war. It is a myth full of contradictions, many of which have been sanctioned by various European and B&H courts. It is time to look back into our own history and move away from being ‘constituent’, and move away from tripartite ethnic parity. I propose to really revive the relevant commitments of the ZAVNOBiH assembly and define “Others” as citizens of B&H. Then they can have a voice and then we can all have a voice. War is no more a reality than ZAVNOBiH. It is no more a reality than democracy in the 21st century. It is no more a reality than our commonness.
- Instead of splitting the society into three ethno-sovereign parts, I propose to constitutionally think of B&H as a ‘plural’ society. This has nothing to do with European multiculturalism per se, as historically Bosnian multiculturalism precedes any modern debate of “inclusivity” and “tolerance” and does not inherit its liberal mindset. We are of each other; we mutually constitute our identities. Without B&H, Bosniacs, Serbs and Croats would not be what they are. Without them, however, Bosnia and Herzegovina would still exist.
- Move away from ‘liberal’ notions of individualism but also from liberal notions of ‘ethnic’ identity. We must go in the direction of crafting a society and politics which stand in constant struggle with liberalizing tendencies. Groups, individualities, and identities are all mixed in together rather than separated.
- We need to embed ‘plurality’ in the constitution. As will become clear in our proposals later, plurality knows of no “national keys”, it knows of no “ethnic parity”. What it does know is the principle of “sharing”, “participation” and “representation”. State institutions across the board must be filled with citizens from different communities, but they must not be locked into an ethnic battle for possession. Community comes before parity. Affinity comes before identity.
- Federal state. Some historic reality remains, some configuration of military-political power, splitting B&H into two sorts of entities, remains. But let us rephrase it, let us reattune it to the realities of 2021. Federal units, clearly defined in their relationship to the state, and clearly subordinated to it, ensure that the principle of plurality can be territorially embedded by de-territorializing ethnic possession. Federalism and not hybrid consociationalism is the future of B&H. Republika Srpska is not “Serbian”. Federation of B&H is not “Bosniac”. Those little pesky cantons down our beloved south are not “Croat”. They are in our proposal merely parts of a federal structure and balance of national, not ethnic, power.