IS MAJORITY RULE NECESSARILY REFLECTIVE OF DEMOCRATIC VALUES?  14.01.2004           

By Kazi Anwarul Masud (former Secretary and ambassador)

The fourth President of the United States, one of the framers of the US Constitution, and the man credited with making the Bill of Rights a part of the US Constitution, James Madison wrote in the Federalist Paper that it was of great importance in a republic not only to guard the society against the oppression of its rulers but to guard one part of the society against the injustices of the other part. If the majority was united by a common interest, the rights of the minority would be insecure. James Madison advised that in forming a government which would be entrusted with rule by men over men, the great difficulty to be faced would not only be for the government to control the governed but also for the government to control itself. Madison had foreseen the distinct possibility of the tyranny of the majority and thought that the greatest safeguard against such tyranny would be the existence of large number of sects and divergent interests and opinions that would divide people in ways that coalition of stable majority would be impossible to form. But then the founding fathers were creating a Republic and not a democracy ruled by the majority so profoundly elucidated by Benjamin Franklin in reply to a woman’s inquiry as to the type of government the founders had created, Franklin said: “ A Republic if you can keep it”. In the eighteenth century many great people, perhaps informed of the excesses of the French Revolution followed by the Reign of Terror warned people of democracy as representing spectacle of turbulence and contention, incompatible with personal security or rights of property and doomed to a short life and violent death. So James Madison defined a republic to be a government deriving all its powers from the great body of people in which the leaders hold “their office during the pleasure for a limited period or during good behavior”. Such a government, therefore, avoids the dangerous extremes of either tyranny or mobocracy and shows respect for statesmanship, liberty, justice, reason and progress.

Fear of majoritarian rule is nothing new. Great men through out the ages have feared the excesses of such rule in which laws are flouted, elections are rigged, public representatives are bought to form a majority which once so formed , in total disregard of the will of the people will embark upon the process of complete disenfranchisement of the minority. Reflecting on the French Revolution Edmund Burke spoke of the most cruel oppression upon the minority that in a democracy majority of the people is capable of inflicting with much greater fury that can ever be apprehended from the dominion of a single scepter. Indeed the tyranny of the majority was first conceptualized by French political writer and statesman Alexis de Tocqueville which has become seminal to the study of human rights.  His basic premise was that historically liberals have feared tyranny because they feared the arbitrary and rapacious power of despots and oligarchs who had no reason to concern themselves with the welfare of the many. There was no guarantee, he argued, that majority would be any more concerned with the interest of the minority and democracy itself, therefore, did not take away the problem of tyranny. There could be two distinct bases to fear the tyranny of the majority. One could be economic exploitation by the majority of a stable long term identifiable minority, sometimes called “permanent” minority. The other reason could be threat perceived by the majority emanating from cultural, ethnic or ideological differences of the minority groups which could result in tyrannical behavior of the majority towards the minority community. Tocqueville found the American legislators exposed to the whims of the majority and “the moral authority partly based on the notion that there is more intelligence and wisdom” in majority opinion and that the number of legislators was more important than their quality. He also found overwhelming the moral power of the majority opinion, its ability to ostracize, its tendency to enforce conformity thus forcing average person to simply abdicate responsibility for taking part in political debate and accept majority opinion as his own.

John Stuart Mill forcefully argued against the tyranny of the majority. While conceding the fact that in a democracy minority must yield to the majority, he questioned the thesis that because the majority can out vote the minority therefore the minority need not be heard. He argued that democracy thus constituted gave powers to the government of the numerical majority, who may be, and often are, but a minority of the whole.  In such cases, Mill asserted, “ there is not an equal government, but a government of inequality and privilege, one part of the people rule over the rest, there is a party whose fair and equal share of influence in the representation is withheld from them contrary to all just government, but above all contrary to the principles of democracy”. One can therefore convincingly argue that rule by majority is not necessarily democratic. No one, for example, would call a system fair where 51 percent of the population is permitted to oppress the remaining 49 percent in the name of majority rule. In an essentially democratic society majority rule must be coupled with guarantee of individual human rights that in turn serve to protect the rights of the minorities. Since in a democratic society the government is only one element coexisting in a social fabric of many and varied institutions, it is essential that Constitution put limits on the power of the government where fundamental rights of the citizens are put beyond the violative jurisdiction of both the executive and the legislature. Besides in a Constitutional Democracy diverse organizations exist which do not depend upon the government for their existence, legitimacy or authority and this diversity confers upon the society the character of pluralism.

This discourse has now come to a stage where it can be asserted that majority rule per se does not reflect the essence of democracy. The complexity of the modern world has rendered Athenian or direct democracy irrelevant because despite restrictive conditions for citizenship prevalent in then city state modern mass suffrage democracies can not function nationally as did the Athenian system. Direct democracy, however, in which all citizens are allowed to influence policy by means of a direct vote or referendum on particular issues, can be resorted to. For example, in a parliamentary system a government can fall if it is voted out through a no-confidence motion in parliament. But in the case of Bangladesh article 70 of the Constitution, further constricted by the 4^th and 12^th amendments, makes it impossible for an elected member of parliament to vote against the party on whose nomination he/she got elected to parliament. Therefore any government which has been able to cobble a majority in parliament has no fear of being defeated in the House, and having no reason to be responsive to grievances either of the people or the MPs can become dictatorial. This article can be criticized on grounds of infringing on the fundamental rights of the members of parliament; and, undermining the spirit of responsible government. In such cases people can become hostage to a dictatorial government. A way out could be referendum to ascertain if people have confidence in the government in power. Besides, in some representative democracies provision for representative recall provides procedure by which constituents can remove a representative from office before the end of his/her term of office. This instrument of direct democracy, however, is only available to fourteen US states and the Canadian province of British Columbia. Whether such a system can be used in a developing country like Bangladesh may be seriously considered. The basic idea is to get relief from a government which appears to have failed miserably to provide the basic political goods to the people.

In cases where an elected government becomes totally unresponsive to peoples’ demands and behaves in autocratic manner, one could consider strengthening counter-majoritarian institutions in the country. One such institution is that of Ombudsman, originally a Swedish institution and now established in about eighty countries. Ombudsman is a person appointed by parliament to investigate citizens’ complaints of executive and bureaucratic injustices and maladministration. In situations where public disenchantment with politics and trust in politicians become so low that people start believing that politics is the conduct of public affairs for private advantage or that an honest politician is one , who after being bought, remains bought; necessity of counter-majoritarian institutions can not be over emphasized. For the third successive year Bangladesh has been called by Berlin based Transparence International as the most corrupt country in the world which, according to US Congressman Joseph Crowley is a “bad sign” for Bangladesh. According to the latest intelligence report, law and order situation has been deteriorating alarmingly throughout the country with no sign of improvement  and that about one thousand incidents of snatching and robberies take place at Dhaka alone every day( Bangladesh Observer—14.01/04). With such reports even the most objective observer of Bangladesh politics would find it difficult to credit the government of achieving success in the basic planks of the party’s manifesto presented to the electorate before the parliamentary elections. Given the situation prevailing in the country it is surprising that The Ombudsman Act passed by the parliament in 1980 has not been given effect by successive governments since then.

Independence of judiciary as a counter-majoritarian institution is no less important. “There is no better test of the excellence of a government” writes James Bryce “than the efficiency of its judicial system, for nothing more nearly touches the welfare and security of the average citizen than his sense that he can rely on the certain and prompt administration of justice”( Modern Democracies—1929). Unfortunately in Bangladesh the process of separation of judiciary is yet to be completed. In the case of the Election Commission though entrusted by parliament to independently conduct and control the election process, various laws regulating the EC and the electoral process impinges on its independence. For example, EC secretariat is attached to the Prime Minister’s office; members of the EC are rarely appointed in consultation with the Chief Election Commissioner; Returning Officers who are Deputy Commissioners of districts have the principal function of pronouncing election results of parliamentary elections.

In today’s world, particularly among the major powers, there is an emerging consensus that “democracy deficit” would not be tolerated because suppression and oppression of people lead to failed governance which ultimately threatens global security. Democratization of violence due to governmental failure to control law and order has to be avoided at all cost. It would be advisable for the state to create a culture of peace, nationally and internationally, based on respect for human rights, participation of all people in the political life of the nation reflecting diversity and pluralism. Mere practice of numerical majority will defeat the very essence of democracy which contains the core of civilized values so essential for struggling nations like Bangladesh.