In the aftermath to the divorce referendum, political processes that should have been transparent were suddenly fudged. Over the issue of divorce, there was at least one point of clear agreement between the Prime Minister and the Leader of the Opposition – that the referendum result would be respected by both parties in Parliament.
I have never favoured referenda as a tool by which to resolve national issues. But once there was that clear understanding, all notions of good faith must lead to the conclusion that Parliament should now deliver a law that introduces divorce according to the referendum question, as put.
I do not view referenda as good tools for public decision making because they can be, and are, manipulated by existing power structures. There never is a level playing field when the government of the day launches a referendum. Moreover, as has happened repeatedly in Europe these last two decades, when a government unexpectedly loses over some referendum, it arranges to hold it all over again under circumstances which ensure it gets its own way. In Ireland they even reversed the law which tried to give equal resources to both the pro-government and anti-government positions.
Blatant manipulation of the conditions of play when referenda are held also happened in Malta, not least in 1964 and most recently in 2003. These were only obvious to the non-government side; but that’s how it always happens…
Such manipulation may be one reason why in Germany, the constitution bars referenda. The Nazis used them to “democratically” acquire dictatorial powers. It could also be the reason why in certain instances – such as the Montenegro independence referendum – the EU insisted that a 55 per cent approval level was necessary for recognition of the result.
However, there is a more important reason why referenda must be considered with caution in a parliamentary democracy. The latter – ours, at least – is a representative system. MPs are elected by the people as their delegates, their representatives, to deliberate on matters related to the common good and to decide upon them in their name. They decide according to policy principles, programmes and visions about the future which they share with their electorate.
It is true that such decisions are structured in the main through political parties. However, this in no way means that voting in Parliament is exempt from the personal responsibility of each and every representative. To the contrary, each and every vote taken by an MP must be a principled one. When following the party line, an MP’s vote is not being less principled than it otherwise would be. Nor does this detract from its representative nature.
So, claiming that some matters are purely political while others are moral and that therefore they merit separate treatment by the legislator, is in my view a travesty of what Parliament is there for. All decisions taken in the parliamentary sphere are moral… even when they are labeled as trade-offs of one sort or another. They must be taken on a principled basis, whether they deal with joining the EU or regulating IVF treatment.
This is why I personally find appeals to conscience as immaterial when deciding how MPs are to vote. When “conscience” is brought up, this is usually done to justify why an MP should decide to break out on his/her own. But the real point is that an MP decides how to vote regarding any crucial point following full consultation and discussion, on his/her own principled conclusion as a representative of the people.
For instance about divorce: a lawmaker must be principled when arriving at a decision about whether to vote for or against the introduction of divorce. That is the task of legislating. “Conscience”, in the religious, moral or personal sense, comes to play when the MP in his/her private life, must decide whether to go for divorce or not to settle a personal life problem.
Still, the reality is that there are MPs who consider with all sincerity that voting for or against the introduction of divorce (or other topics) could constitute a matter of “conscience”, somehow going beyond the need to arrive always as a parliamentarian, at principled decisions. One must accept that this is a human and a political reality. It forms part of the real stuff that defines representative parliamentary democracy. Therefore, the structures by which the latter is implemented should be sufficiently flexible to allow space for such convictions, without overturning what has been the expression of the popular will. The latter was directly expressed, by the fiat of the people’s representatives.
Those whose reputation or income depends on smirking at Labour will make snide remarks regarding what happened following the 2003 referendum about joining the EU. Nothing however can override the fact that the 2003 referendum was a game financed and run by government, decided by the PN for its sole political convenience, implemented under its own terms and conditions, and without any reference to the fact that the Opposition of the day, right from the start, contested the legitimacy of what was going on.
This was hardly the case with the divorce referendum. It moved forward because the Prime Minister of the day first decided that the divorce issue needed to be put to a referendum, then decided that such a referendum would only be held if the private member’s bill proposing divorce passed through Parliament – to abrogate it. Rightly, the Leader of the Opposition counter proposed that once a referendum was being put on line, it should be held right from the start. And Parliament approved his counterproposal. Since the political coalition underpinning the present government was divided over the issue of divorce, efforts to kill it were doomed.
The point remains: as instruments of direct democracy, referenda undercut the logic of representative democracy. In good faith, the need now is for the proper implementation of the mechanisms of representative democracy in order to carry out the outcome of a direct consultation of the people. Yet the proper function of MPs as representatives – as delegates – of the people must be preserved.
As of now there is in the country a majority which favours divorce. A minority does not. Our parliamentary procedures do allow for an approach by which the minority can be allowed full expression while the majority’s decision is carried out. This can be done under existing parliamentary procedures with due respect for the beliefs and dignity of all sides: those who wish to abstain, vote no, vote yes, on both sides of the party divide. (The question regarding how the Prime Minister as head of the executive and the person who brought matters on divorce to a referendum, will vote in Parliament is a totally unrelated issue.)
It would be the worst example of bad faith to retreat from what the outcome of a direct consultation of the people has decided, on the spurious grounds that this is a moral issue and beyond the principled decision that MPs are bound to take on issues which they must decide as representatives of the people.
For too long our institutions have functioned less than well, not because they are badly designed, but because there has been bad faith in making them function. Too much political action by people in power has been determined by the dictum that “my” side must win at all costs, all the time, under all conditions. So instead of ensuring that there is more good faith in undertaking political action, many find refuge in the excuse that our institutions need “reform” while continuing to indulge in bad faith.
Bad faith plastered among others, in the vague arguments of postponement of the divorce bill, should not be allowed to undermine further the confidence that the people need to have in our institutions, most of all the Constitution and Parliament
ARTICLE, THE TIMES, 22 JUNE 2011