Thursday, November 16, 2017

Rights, representatives, referendums, rule of law

You have to be happy, I guess, about the remarkable Yes vote in Australia's mail-in plebiscite on gay marriage: more than 60% in favour -- and with a huge turnout too, though that's probably influenced by Australia's mandatory voting laws (which didn't apply in this case, but does for elections). A big popular approval for gay marriage is surely an affirmation of how opinions have progressed in the developed world.

Except that putting fundamental rights to a popular vote, where they are as likely to be denied as affirmed, is always a terrible idea. As Emma Teitel writes, it seems likely to encourage countries like Iran to hold similar referendums (where the no vote would be immense), and then smugly tell the world they are just as democratic as Australia or Ireland. Do minorities only have rights when the majority is prepared to concede them?  These referendums have more to do with the cowardice of elected representatives and the cynicism of party strategists than respect for popular mandates.

Which leads to a thought about representative versus plebiscitary democracy. I have yet to attempt a full take on Peter Russell's really admirable constitutional history of Canada, Canada's Odyssey, but one of the places he goes wrong, I think, is on the nature of representative government.  "The structure of parliamentary democracy that came with responsible government had two features that were problematic then and remain so today. One was the executive's domination of the legislature." (at 119, though it's a point he repeats frequently).

You practically have to affirm this belief to retain your card as a member in good standing as a Canadian political scientist, I guess, but it is false as history and misleading as current events.

In Canada the responsible government period was marked by the constant fall and remaking of cabinets as backbenchers shifted their allegiances among factions, and the early confederation period was the same, with John A. Macdonald's government being defeated by its own backbenchers a few months after it had won a substantial electoral majority in 1872, and party leaders (Alexander Mackenzie, Mackenzie Bowell, Robert Borden) frequently being reviewed and sometimes replaced by the parliamentarians they were accountable to.

And take a look at the world today:
  • Shinzo Abe is practically a unicorn in Japanese politics, for having been in power for five years, Japan being a parliamentary democracy where party leaders (even prime ministers) are weak, vulnerable, and frequently removed by their own caucuses.  
  • Jacinta Ardern is prime minister of New Zealand today. Six months ago she was a largely unknown backbencher, but her Labour party caucus thought its then leader was unlikely to be a winner, swapped him out for Ardern, and secured a minority government in the ensuing election.  If she fails or falters, the government caucus will review and replace her just as easily.  
  • In Britain, the death watch is on for Theresa May's prime ministership. May has been using the Brexit referendum result as an excuse for ignoring Parliament, as her executive team worked out an exit strategy that would not be submitted to the people's elective representatives... referendums trumping accountability once again.  Except the people's elective representatives, including many in May's own caucus, have proven unwilling to be ignored. They will impose parliamentary accountability for whatever deal May strikes -- and at the same time the Conservative caucus seems likely to replace May with someone who seems more competent/electable.
In other words, there are parliamentary democracies all over the world where the executive is regularly -- and appropriately -- dominated by the legislature, rather than the other way around. The fact that we currently have an aberrant version in Canada does not negate the general rule.

Update, November 17One of our Australian readers weighs in on gay rights:
This question should never have gone to a referendum. Once the new legislation had been written, it should have been presented to Federal Parliament straight away. There would have been plenty of opportunities for debate and amendments inside both the lower house and the Senate.
But now 62% of Australians voted positively, what next? We still have to see new legislation being presented in both houses and some members of Parliament will still vote against marriage equality (in a conscience vote). This could be so, even if their electorate voted 100% for marriage equality in the referendum.

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