How to read the popular will

One-time referendums aren’t enough to decide matters of great import. That is why democratic constitutionalism institutionalises checks and balances.

June 29, 2016 01:35 am | Updated September 16, 2016 04:54 pm IST

Decisions that profoundly affect not only the present but also succeeding generations, should not be taken in a rush, or through one-time referendums. This is basic political common sense. But in a voter turnout of 72.2 per cent, 51.9 per cent decided that >Britain should exit the European Union (EU). The consequences of the >Brexit vote are painfully clear. It has triggered off serious after-effects in the field of finance and economics, catapulted demands for Scottish independence, and adversely impacted the issue of how people can learn to live with people of other persuasions in a degree of civility. The EU might not be a perfect model for this learning, but the experiment raised hopes that we may see an end to narrow and chauvinistic nationalism. Given an appropriate political context, people may well turn outwards to other cultures and other places.

This ‘turning outwards’ is essential for collective life, because the lessons the latter part of the twentieth century taught us are bitter. The nation state, which colonised countries fought so passionately for, has proved one of history’s most costly mistakes. There is nothing noble about nationalist prejudice and bigotry. Today we are back to square one. Newspapers have reported heightened racial abuse of ‘immigrants’ in the aftermath of the referendum. The targets of individual and collective ire are probably British citizens. Their future continues to be uncertain.

Neera Chandhoke

Majoritarian anxieties This was perhaps overdetermined because Brexit campaigners fought the battle on the plank of anti-migrants — only if immigrants are prevented from entering the British Isles, people’s lives would be better. This appealed to supporters of Brexit, many of whom are rural-based, poor, and less educated citizens of England. Hit hard by austerity measures of the Conservative government, they lead lives embedded in anxiety. Riding high on precisely this insecurity, 51.9 per cent of British voters opted to close borders and minds, as against 48.1 per cent who opposed the move. Notably a majority vote for remaining in the EU was concentrated in Scotland, Northern Ireland and London. Yet Delhi’s Chief Minister, ever ready to rush in where angels fear to tread, announced that his government would hold a referendum on statehood for the proto-state.

Certainly referral of contentious matters to ‘the people’, and the majority principle puts into practice the basic presupposition of democracy: popular sovereignty. However, democracy cannot be reduced to majority rule. This belief is both crude and frightening. The majority principle is workable, but it is morally unjustified because it violates the right of minorities to secure ‘voice’ in decision-making. Liberals from J.S. Mill, to Alexis de Tocqueville, to Thomas Jefferson and John Adams have feared the ‘brute power’ of majorities, created often through clever demagoguery that plays skilfully on insecurities and excavates hidden fears. That is why democratic constitutionalism institutionalises checks and balances to control excesses of majorities. For example, periodic elections ensure that today’s minority can be transformed into a majority five years hence, provided the process is fair and free. Should matters of great import be decided by one-time referendums, simple majorities, and regionally concentrated votes, with no follow-up?

Lessons from a Swiss canton A system of checks and balances has to be devised for referendums/plebiscites. The first suggestion is that three referendums should be held over a period of six years to vote on the issue. The gap between enables the cooling down of political passions, provides opportunities for reasoned and informed debate, rational examination of the complexities of the issue at hand, and rethinking. History validates this course of action.

Take the case of the Swiss canton Jura. At the 1815 Congress of Vienna, the French-speaking Catholic inhabitants of Jura voiced discontent over the incorporation of the former episcopal principality of Basel into the German-speaking Protestant canton of Berne. This brought the mountainous region of Jura within Berne’s control. After the Second World War, a movement for a separate canton of Jura emerged in the seven districts of the region on the plank of linguistic, economic and political discrimination.

But in a referendum held in 1959, the formation of a separate canton was approved by a clear majority only in the three French-speaking Catholic districts of North Jura. A majority of French-speaking Protestant districts of South Jura, and German-speaking Laufental, remained loyal to Berne. In the 1974 referendum, all seven districts of Jura decided to separate from Berne. However, in a third vote on the issue in 1978, only three of predominantly Catholic districts opted to separate from Berne, and form a separate canton of Jura. One district voted to join Basel-Land, and three other Protestant districts remained in Berne. This decision took effect on January 1, 1979, and a truncated Jura joined the Swiss Confederation as the 26th canton. The move for a separate canton eventually divided Jura on religious grounds.

The democratic deficit The belief that people revise their choices in different circumstances has prompted an online petition to the British Parliament. The petition demands a second referendum on Brexit. More than three million British citizens have signed in. Under the onslaught of collective public ire, the website crashed. In the run-up to the referendum, leading Brexiteer Nigel Farage had stated that if Remain won by a 52 per cent to 48 per cent margin, it would constitute a compelling reason for another vote. Why should the reverse not be equally valid now?

But even if a second referendum or even a third is held, the basic principles and procedures of the exercise have to be clearly formulated. It has been suggested that a decision is binding only in case of a 75 per cent turnout. This is simply not enough. Decisions of such magnitude have to be taken in an atmosphere free of hyperbole, the whipping up of passions against migrants “who take away jobs”, the idea that the government is socially responsible only for citizens but not for people whose labour contributes to the building of the economic infrastructure, and rhetoric that breeds insularity. Unfortunately, politics today has become like instant coffee or noodles; a matter of reaching out to people via the social media instantaneously and unreflectively. Social media, which hosts completely irresponsible, vicious messages, has replaced face-to-face interaction and mobilisation, and defines the democratic deficit of our age. The second suggestion, therefore, is that decisions are binding only if a two-third or a three-fourth majority approves of a course of action, as in the case of constitutional amendments.

Three, the outcomes of referendums need not be binding; they merely place an obligation on a democratically elected government to proceed in a certain way. The reference for this suggestion is the ruling of the Supreme Court of Canada. In the 1990s, Prime Minister Jean Chrétien filed a reference in the court on the issue of Quebecois separatism. Though the Supreme Court ruled that unilateral secession has no basis in law, it also held that clear popular support for secession can engender an obligation on the parent state to negotiate with the leaders of the movement. Notably the British Prime Minister has not stated specifically that the result of the referendum is legally binding. Therefore, in theory, it can be overruled by the British government. One senior labour MP has already recommended that the referendum be considered an advisory, rather than binding on Parliament.

Finally, the option to secede from a country or a regional organisation on the ground that people will lead better lives must be the ultimate delusion in political dream-making. A state of one’s own does not necessarily deepen democracy. Only social democracy can deepen democracy. But Britain has rolled back the welfare state, and a slender majority has offered people racism and chauvinism as consolation. The country has moved from cosmopolitanism to muggy nationalist chauvinism. The Brexit vote has not only closed borders, it threatens to close British minds.

Neera Chandhoke is a former Professor of Political Science, Delhi University.

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