Second Amendment, Ahmedis and Democracy

Raza Habib Rajaconstitution2

Frankly I would like to say at the onset that I think the Second Amendment which declared Ahmedis as non Muslims is one of the blackest and most shameful act of legislation ever passed in the National Assembly. Its reprehensible content is reinforced by the fact that it was not an ordinance imposed by a dictator but actually passed by majority through legislative process.

The Second Amendment was passed unanimously and compared to other controversial legal ordinance such as Hadood, appears to have a “democratic’ semblance.   In fact at times more than the religious arguments the supporters of the Second  Amendment come up with the “democratic” defense.

Supporters say that after all democracy is a game of numbers and if the law was passed unanimously then it reflected the entire collective will of the people. They also say that democracy has to be consistently interpreted and applied. They say that you cannot be “selective” about democratic norms and apply it to your own wishes. The votes cast by the representatives are the most appropriate approximation of the public will and if a bill is passed unanimously then public will has to prevail. The art of legislation is the way of ensuring prevalence of public will.

Though apparently supported by “democratic” credentials, a critical look would reveal that actually this argument is flawed on at least two major accounts.

To begin with, any law duly passed by the legislature does not necessarily possess the direct approval of the populace. This is actually a classical principal agent problem where agents have been given authority by the principal to act on their behalf. In a legislative setting the agents are the members who are representatives. However, once elected it is not possible for them to revert back to public on each and every bill. Generally speaking the assumption is that since public has given them the vote and therefore in some ways also endorsed their manifesto.  And here also vote does not necessarily imply that every single point in the manifesto has been endorsed by all the voters. There is thus a perception asymmetry here. Following this logic the only bills which have some implicit approval of the electorate are those which are based on the manifesto of the party. The Second Amendment was not the part of manifesto of the ruling party at that time and therefore the argument that it had direct approval of the electorate is flawed. I admit here that numerous other bills also may also suffer from the same problem but since supporters of  Second Amendments often tout “overwhelming” support of the electorate therefore dissection of this argument was needed.

However, skeptics may retort by saying that even if a direct referendum is held there are chances that populace may still decide the same. But then is democracy just numbers?

I think the strongest case against so called democratic credentials of the Second Amendment comes from the philosophical side. Democracy in true essence is not merely a game of numbers but at a philosophical level much more than that. DEMOCRACY HAS TO BLEND IN WITH A TOLERANT CULTURE OTHERWISE ITS POPULAR HEGEMONY OF THE MAJORITY. Hitler was also after all apparently democratically elected.

Laws which are contradictory to tolerance and equality, even if completely endorsed by the majority, though apparently democratic would still not meet the modern liberal spirit of democracy. There is a reason as to why all the civilized democracies have taken extreme care to ensure that while majority does get its way most of the time but not all of the time. Thus a liberal democracy in principle while agreeing to majority rule has to enshrine protection of minorities from possible tyranny of majority.  Yes, majority is needed for ensuring expression of popular will but it does not mean that majority should coalesce to infringe the basic rights of the minority particularly when the later is defined along religious or ethnic lines.

For example in United States, Bills of Right go extra step to protect basic individual freedom. These catalogue the rights that have to be upheld by the government, thus protecting, the rights of ANY minority against majority tyranny. Today, these rights are considered the essential element of any liberal democracy. Essentially the Bills of Right RESTRICT the scope of majority and try protecting the minority.

This idea of prevention of tyranny of the majority was explored in detail by the famous British political philosopher John Stuart Mill.  In his most famous essay “On Liberty” , he wrote:

”The only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others.”

The above principle endeavours to ensure that government elected by majority does not end up being an instrument to exercise tyranny by that majority.

The tyranny of the majority (at times brought through voting mechanism) has been one of the most defining features of the last century. The chequered history in this respect has elevated the need for protection of minorities from possible abuse of the majorities as one of the foremost priorities. The UN’s International Covenant on Civil and Political Rights, defines not just individual rights but also minimum protections for minorities. Article 27 asserts:

“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”

The above clearly shows that democracy is not merely a game of numbers, it has to fulfil the criteria of non violation of basic rights of the minorities. Yes while it is true that majority rule is important as a mean of popular expression but at the same time, it is not the ONLY criteria. A true liberal democracy is a complex phenomenon and would require other caveats such as adequate protection of minorities. In a true liberal democracy the dominance of majority is counterchecked by proper protection of minorities.

What our society needs to learn is that every privilege in this world comes with a responsibility. Freedom of expression comes with a responsibility that it would not be used to malign others and for hate speech. Authority comes with a responsibility that it would not be abused. And above all, majority comes with a responsibility that it would not be used to impose undue will on the minority.

The Second Amendment merits several questions.  Does the majority have the right to assume the power of the Almighty and declare someone as Non Muslim? Does the majority have the right to marginalize a community just because it has different views? Does the majority have the right not only to induce discrimination but institutionalize it in the law of the land? And if a majority imposes its will on a minority, can it justify it as democratic?

These are pressing and uneasy questions and the tragedy is that we know the answer to each one of them. It is a matter of listening to our conscience and mustering enough COLLECTIVE courage.

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