A President of all the people

Has anybody trumpeting the “sovereign rights of the majority” given any consideration to why we have a proportional electoral system?

In Western democracy   ̶   founded on a belief in popular sovereignty   ̶   most people agree that, at least at some level, the fundamental principle of majority rule should prevail and that the majority may take political decisions because it is the majority. However, many people also acknowledge that certain issues   ̶   such as amending the Constitution or impeaching the President   ̶   may legitimately require more than a simple majority.

This paradox of democracy exists because we accept that, although majority rule is a fundamental principle within a democracy, an equally compelling imperative of a liberal and civil society is that individual rights be protected and a neutral political framework be maintained. In the Western political tradition, this generally means a Constitution prescribing rules and rights that are beyond the ability of simple majorities to alter or abolish.

This popular idea of democracy, which is also the case in Malta, exists comfortably within the notion of limited majoritarianism, and in spite of this paradox, few people question the legitimacy of the Maltese political system because of the existence of supermajority rules. This comfort, however, often escapes certain people who are troubled by supermajority requirements or find them inconvenient.

We have had several instances over the years of politicians asserting “superior” rights for the majority; in fact, I think that most of the prime ministers in my lifetime have done so.  I am not sure whether I should now include current Prime Minister Robert Abela, who was reported to have said that, while the requirement for a two-thirds majority in the appointment of a President is now entrenched in the Constitution, “one must also respect the equally important democratic principle: the sovereignty of the majority of the people.”

Dr Abela did add that his statement didn’t mean that the Labour majority would impose one position or another, but he added that “this principle (of majority rule) must be respected”.  In response, the Nationalist Party said that the law is clear that “there has to be an agreement between both sides of the House (Parliament).”

In my view there is no ambiguity in the provisions of the Constitution: the relevant majority for the appointment of the President is two-thirds and any other concept of majority rule is out.  The majority of the people have no say in the appointment of the President; they would only have a say were they to elect the President directly.   It is two-thirds of the MPs in Parliament who do so.  Both political parties agreed to this in 2020, and they did so in the knowledge that it was the proper thing to do.  They also agreed that there wouldn’t be any anti-blocking mechanism and that too was the right thing to do, as it forced them to agree on somebody who is acceptable to both sides. 

Let me also say that I, for one, would never accept that there is nobody in Malta who can fulfil the functions of the Presidency as is required by the Constitution.   The Constitution does not specify that the person concerned should be “progressive”, as the Prime Minister said, though personally I would prefer that he/she should be so.  However, I hope that the provision of Article 49 to appoint a temporary President will not be conveniently used to waylay the two-thirds majority requirement.

Is the majority sovereign?

The question of whether the majority is sovereign deserves deeper discussion, irrespective of the appointment of the President. No one has given as pithy an answer to this question as the brilliant and controversial constitutional theorist Carl Schmitt: “Sovereign is he who decides on the state of exception,” he wrote in 1922. 

In democracies, it is the people who are the Sovereign, not even Parliament.  It is amazing that one even finds a 2021 document published by Repubblika that states that the Parliament is sovereign.  It is only through free elections that legislative sovereignty is transferred to parliament which, as a second-order sovereign, elects the executive.  Through these two delegatory steps, democratic governments in parliamentary regimes can only lay claim to a derived form of sovereignty.  In fact, one could refer to the government as a third-order democratic actor.  This holds for day-to-day politics as well as time-consuming decision-making processes.

It is a misunderstanding to argue that it is possible to legitimise any measures taken by a government simply through the alleged support of the population, particularly if measured by opinion polls.  With this logic, a whole range of authoritarian forms of government would be justified, from Putin to Orbán.  A complete democratic justification calls for a two-fold legitimisation: that of the majority support of the population and substantive legitimisation through the democratic constitution and the Constitutional Court.

We have often heard references to the term “tyranny of the majority”, first used by Alexis de Tocqueville in his book Democracy in America.  To avoid this risk, many countries have gone down the road of having three branches of the State: a legislature, a government, and an independent judiciary.  The very reason for this is to mitigate the destabilising effect of the superior force of an interested and overbearing majority on a government.

Some political theorists assert that the very notion of democracy entails the existence of a neutral political framework (no media monopoly, no capture of state institutions, free elections, etc) around which different interest groups in society compete for policy outcomes.  Their point of departure is that the system should not favour any group and preferences, thus giving it an air of both external legitimacy and neutrality.  Once a particular interest group or a particular desired outcome obtains a majority, however, then simple majority rule should prevail.

It sounds reasonable, though the pre-conditions for a neutral framework are hard to guarantee, as we have found out in Malta.  This is why some other political theorists have argued that it is consistent with our conceptions of popular sovereignty to favour certain (and only certain) pre-existing preferences by not allowing the majority to rule on those (and only those) specific issues.  Two such issues, for example, are those of the appointment and removal of the President and the Chief Justice and changes in the Constitution

Benjamin Franklin once said that “Democracy is two wolves and a lamb voting on what to have for lunch.” This description illustrates very clearly the limits of majority rule, where an understanding of democracy is reduced to the power of the most numerous.  It also evocatively reveals the risk that a sufficiently broad interest group (the building industry or a group of corrupt people) might capture a majority and dominate the minority.  In this scenario, democratic regimes are no less tyrannical than authoritarian ones; the tyranny of the many simply replaces the tyranny of the one or the few.   Is that the Sovereign we want?  

Of course, a freely elected majority has a moral force but is it a foregone conclusion that its components will be guided strictly by disinterested rationality and concerned only with the common good?   This is why the will of the majority in a true democracy must be limited.  As Didier Mineur said in his book Le Pouvoir de la Majorité (The Power of the Majority), a majority system is the right one to have provided that everyone has an equal share in collective decision-making.  This is eminently the case of the election of the President of Malta.

A proper democracy

So, coming back to the election of the President, the majority’s right to appoint him/her is now thankfully circumscribed by the two-thirds requirement, the more to “foster a sense of unity within the country”, as the Prime Minister said.  However, as to steering “away from conservatism”, as Dr Abela further added, I beg to differ.  If whoever is chosen will be President of all the people and the people include a sizeable minority who have conservative views, then that President, within the limits allowed by the Constitution, needs to take such views into account.

We are therefore faced with an extremely challenging conception of democratic legitimacy.  No wonder that Jacques Rousseau himself cynically considered such a challenge more appropriate for gods than for mere humans.  Guided by the view that the will of the majority is in reality rarely something other than a dominant particular will, several of Rousseau’s successors like Immanuel Kant suggested limiting the power of the many and  passing the popular will through the filter of representatives, even judges, who are deemed more able than the masses to identify the general will.   But this, in turn, could be judged as an elitist view – why should we assume that an MP or a judge is worth more than a shipyward worker in saying what the general will is?

Thus, if a majority decision enters into clear contradiction with the principle of the equal value of citizens, including citizens who are not part of the majority, it cannot be considered democratic. Indeed, it breaks the democratic social contract which consists in recognising each other as equal in value.

Has anybody trumpeting the “sovereign rights of the majority” given any consideration to why we have a proportional electoral system?  Are we to assume that this is sheer coincidence?  No way, it is because the builders of the Maltese constitution did not want the ‘winner takes all’ approach (the Westminster system), where a substantial chunk of people are disenfranchised.  Or does the sovereignty of the majority mean that only its ideas are legitimate?  No way, a proper democracy means that completely different ideas – whether they are progressive or conservative or liberal  –  are encouraged to compete and can prevail and become the majority.   

From this point of view, appointing a President to make sure that progressive ideas prevail is a bad idea.  Had we had a popularly elected President, then it would have been a completely different matter, because in that case he/she would obviously be elected by whichever section of the population, be it progressive or conservative, has the majority.   Mind you, presidentialism in itself consolidates the ‘winner-takes-all’ outcome, making it less likely that the power structure would be one for all the people.

Photo: Shutterstock

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