One must consult the public when making law but law-making cannot be left to the masses
Earlier this month, the Nobel Peace Prize was conferred on Colombian President Juan Manuel Santos. He had brokered a peace deal attempting to end a half-century-old civil war between the republic and the Revolutionary Armed Forces of Colombia, called the “FARC”. The Nobel Prize could be a consolation prize. Just days before the announcement of the Nobel Peace Prize, the people of Colombia voted against the peace deal in a referendum.
The margin of defeat had been narrow: 50.2 per cent to 49.8 per cent. Even if the peace deal had won the referendum it would be obvious that nearly one half of the nation was against it. When 260,000 people have been killed in five decades, it would be natural that public emotions against forgiveness could be high. It is easier to declare war than to make peace embracing an enemy. The political campaign that actually scuttled the peace deal related to two primary features. FARC leaders who would confess to war crimes in a special tribunal would get an eight-year sentence of “restricted liberty” — stopping short of going to jail. For the next two elections, the FARC would have a token reservation of 10 seats in the 268-seat legislature.
In successfully opposing these features, a deal that would have enabled removing land mines, locating “disappeared people”, replacing cocaine agriculture, rehabilitating child warriors, and more importantly, bringing to an end a half-century civil war, was defeated. One would have thought that even if unwilling to forgive, the people of Colombia would have been willing to pay even an expensive price to secure peace. Opposition to the peace deal could have also been based on the premise of getting maximum political capital without serious intent to derail peace. Yet, in the making of history, one has to be careful about what one wishes for. Strident political opposition in the belief that momentous changes provide a chance to build political visibility without much expense (or damage) can actually lead to inexplicable outcomes.
Referendums are a complicated business. They require boxing highly nuanced and complicated situations into the binary compass of a yes-or-no vote. Each side can overstate the risks and rewards of the outcome. In situations where there can never be a single correct answer (and life is full of them) referendums can go horribly wrong. In the case of Colombia, if the will of the people was indeed not for peace on these terms, even the deal would eventually not have been honoured, and civil war could have broken out later when suppressed resentment would have festered long enough for new eruptions.
Take the Brexit referendum. A marginal vote in the United Kingdom as a whole supported leaving the European Union (51.9 per cent to 48.1 per cent) — a true reflection of the values a majority of the people of the UK support. However, Scotland had voted emphatically to remain in the EU (62 per cent to 38 per cent) — a true reflection of the values an overwhelming majority of the people support. The Scottish were out-voted by those in England and Wales. Only two years earlier, the Scots had chosen to remain in the UK with a highly-divisive-although-decisive vote (55.3 per cent to 44.7 per cent). Now, they may want another referendum on whether to stay in a UK that is not part of the EU.
This is why in almost every political system law-making is not left to the masses on the street. One must consult the public when making law but law-making is the job of lawmakers. The masses are free to choose law-makers and empower them to make laws. Their role stops there. Mature political systems have an Upper House (Rajya Sabha) with diverse indirectly elected representation to be a check and balance on the directly elected representatives of the masses in the Lower House (Lok Sabha). To ensure that those in the Rajya Sabha do not get deluded, the purse strings are held only by those in the Lok Sabha. All matters involving taking out or bringing in money into the treasury are passed by the Lok Sabha even if the Rajya Sabha has a diametrically opposite view — more about that in the next column.
In Australia, perhaps fearful of being seen taking positions on a controversial subject, a non-binding plebiscite has been suggested for determining if gay marriages should be made legal. In other words, although the people of Australia have voted Members of Parliament, the MPs want the masses to provide inputs. This may be a smart move for politicians on both sides of the divide, who could then say they only followed the diktat of the people. In republics that have a robust constitution, even if the masses desire to change it, they would have to follow the constitution in how they change it. The extent to which basic features can be tampered with would also fall for interpretation by courts that are charged with interpreting the constitution.
Picture the Income Declaration Scheme, 2016, to give amnesty for past tax violations being put to vote in a referendum akin to Colombia placing controlled amnesty to the FARC before her people. Likewise, picture a proposal to convert the Siachen Glacier into a no-man’s land to seek a mutually face-saving cross-border peace deal with Pakistan being put to a referendum. An electorate that voted a government into power impressed with an anti-black money campaign would likely have rejected an amnesty. If spun well, it may have supported the scheme too. Yet, urban Indian voters who may be happy to grant amnesty to tax violators would be highly likely to consider vacating Siachen as an unthinkable non-negotiable slight to their national pride.
It is for a reason that in the 67 years after the Constitution took effect in India, there have been just two real referendums and that too in small regions and under controlled circumstances. In Goa, after an Indian military invasion drove out the Portuguese, a referendum was held not about whether to join India but about whether to join Maharashtra or to be a Union Territory. Goans eventually got full statehood only in 1987 — a move that the current Delhi government is working hard to emulate.
In 1975 (the year of the Emergency) the Indian military moved into Sikkim (then an independent country although a protectorate) to arrest the king and take charge before a referendum was held on whether to join India. A 97.5 per cent vote to abolish the monarchy and merge with India emerged. In Kashmir, a recommended plebiscite has been rendered impossible by both India and Pakistan. Neither nation will vacate the portion it holds for the plebiscite to be fair. The demography of Kashmir on each side of the Line of Control has been differently but indelibly altered. No Nobel Prize will get awarded for peace here in the foreseeable future, even as a consolation prize.
This edition of the column Without Contempt was published in the Business Standard on October 11, 2016