Popular sovereignty and rights of the people

By R.M.B Senanayake

Our politicians and civil society groups talk about popular sovereignty or the sovereignty of the people as a sacrosanct principle justifying any action of the Government if it has the consent of the people through a referendum.

In practice it would of course mean the decision of the majority of the people. President J.R. Jayewardene extended the life of Parliament through a Referendum. President MR frequently refers to the will of the people to justify his actions.

This extension of the concept of sovereignty of the people to cover direct decisions by the majority of the people, is not really what the proponents of democracy meant. By popular sovereignty political philosophers like Rousseau meant the principle that the authority of the government is created and sustained by the consent of its people who are the source of all political power.

Popular sovereignty

Popular sovereignty is the principle that the authority to rule is drawn from the people. It is created by the consent of the people and is sustained by the continued consent of the people. Before the American Revolution, few examples existed of a people deliberately creating their own governments.

Most people in the world had experienced governments as an inheritance — whether monarchies or expressions of raw power. The Americans were the first to self-consciously create a government explicitly relying on the authority of the sovereignty of the people (or “popular sovereignty”).

This assertion of the people’s sovereignty however contains a dangerous dynamic of making people think that whatever they decide by majority vote is right and can and should be carried out by the government which it chose. It also raised the popular expectation that the people’s wishes must be satisfied no matter what. So we find in today’s debate on devolution of power that the people’s will must prevail.

Selfish and power hungry politicians are invoking the people’s consent as to whether there should be devolution of power to the Tamil minority or not. So we find Wimal Weerawansa collecting signatures of the people in the streets to a petition against devolution of power. But there are fundamental individual and minority rights that no people can curtail because they constitute a majority.

Should the people be consulted on the rights of the minorities? Should the people be asked to vote on whether cattle slaughter, gambling and liquor banned? What if the people decide that since this is a Buddhist country and Buddhism is guaranteed the foremost place in the Constitution, these practices should be banned and the ban enforced by the State? Should the government of the day ban cattle slaughter because the Buddhist monks immolate themselves for such a ban?

USA prohibition movement

One is reminded of the prohibition movement in USA. Spurred by the temperance movement’s crusade against alcohol and liquor licensing, local option laws there empowered local voting majorities, in a referendum-like manner, to decide annually at the ballot box whether or not licenses would be issued. Similar option polls were also held in Madras in the 1970s.

In the USA debates on the issue resulted in a reassessment of fundamental tenets of American popular sovereignty. Lawyers inspired by James Madison’s warnings about majority tyranny argued for limits to popular political empowerment and majority rule and stressed the responsibility of representative democracies to protect minority rights. So lawyers representing pro-liquor forces convinced Delaware’s highest court to declare local option polls unconstitutional.

Not only did their ideas reverberate in other court decisions and policy debates of the period, but they established a lasting practice of questioning ballot box legislation grounded in the ideas of James Madison and other elite thinkers concerned about the threat of majority tyranny. In the process, pro-liquor groups helped democratise the tradition of questioning majority rule for future use by other non elite minorities.

So popular sovereignty cannot be invoked to deprive the rights of individual citizens or the rights of minorities? Hayek said “to call ‘law’ everything that the elected representatives of the majority resolve, and to describe as ‘Government under the law’ all the directives issued by them – however discriminating in favour of, or to the detriment of, some groups of individuals – is a very bad joke.  It is in truth lawless government.  It is a mere play on words to maintain that, so long as a majority approves of acts of government, the rule of law is preserved.”

Oratory of demagogues

The ancient Athenians who practiced direct democracy realised that the people were too ignorant and unstable in their opinions and could be swayed by the oratory of demagogues. So they ‘ostracised’ (exiled to the islands) demagogic orators. Chandra Jayaratne has sent me the words of a former Rector of S. Thomas’ College Mount Lavinia during the time of SWRD who for the first time made use of the power of the demagogue. “it is certainly the age of the demagogue (‘vachalaya’), the man with the loud voice and fluent vocabulary and specious tongue who debases his gifts by devoting them to misrepresentation of facts, the stirring up of hatred, the vilifying of persons and causes to which he is opposed; the man with much cleverness but little wisdom who is prepared to sacrifice the peace and prosperity of the country to the gaining of some petty personal or party triumph.”

We should be aware of the perils of demagoguery which the ancient Athenians discovered. Despotic rulers always use the demagogues to justify their actions.

Misunderstood and misinterpreted

The constitutional wisdom of the eighteenth century European thinkers of the Enlightenment is lost in our conception of democracy and democracy is treated in our popular parlance as almost synonymous with majoritarianism. But popular sovereignty never meant absolute validity of the will of the people. We have misunderstood and continue to misinterpret.

There are spheres of individual and social living where the will of the people cannot dictate to the individual. What if the majority of the people decide that that everybody should practice Buddhism or speak only the Sinhala language or abide by the ethical values of Buddhism and that if they don’t they should be deprived of citizenship and driven out of the country  or even tried and executed?

These are areas where the popular will cannot be allowed to move in. There must be areas of civic society that must remain protected by constitutional barriers. These include fundamental human rights, freedom of religion and minority rights. Even if the 70% Sinhala Buddhists to a man sign the petition of Wimal Weerawansa, these rights cannot be abrogated.