The Rule of Law and Safeguards to Democracy - The Right of Dissent

Recent developments in Fiji where the elected government was forcibly removed from office; Zimbabwe where the members of the Opposition were not only prevented from holding a rally and prayer meeting but were arrested and beaten by the police whiles in custody; and Pakistan where the chief justice was suspended under circumstance which undermines the separation of powers and the rule of law; all this calls for a re-examination of the Rule of Law and the concept of democracy.

The International Commission of Jurists at its New Delhi Congress in 1959 defined the Rule of Law as a dynamic concept and as: “The principles, institutions and procedures, not always identical but broadly similar, which the experience and traditions of lawyers in different countries of the world, often having themselves varying political structures and economic backgrounds, have shown to be important to protect the individual from arbitrary government and enable him enjoy the dignity of man.”

It is now universally accepted that the principles of the Rule of Law have found expression and realisation in divergent societies and cultures and can be distilled from the Universal Declaration of Human Rights adopted by the United Nations in December 1948. A recent restatement of the concept was made by Justice Anthony M. Kennedy of the United Supreme Court at the American Bar Association’s Annual Conference held at Honolulu, Hawaii in August 2006 as the :

The Rule of Law:

The clear original meaning of the word Democracy as it evolved from the Greek City states is that it is a form of government where the right to make political decisions is exercised directly by the whole body of citizens acting under procedures of majority rule. This is called “direct democracy”. Few societies practice this form of governance. The second and the most usual meaning of the word is “a form of government where the citizens exercise the same right but through representatives chosen by them and responsible to them through the process of free elections.” This is called “representative democracy”

It is the latter definition which forms the basis of all governments in the Commonwealth both those who have the Queen as head of state or those with elected presidents

The basic principles of democracy can be enumerated as follows:

Free elections are said to be a necessary and inevitable concomitant of democracy. But what do we mean by “free elections?” Free election implies that at reasonably frequent intervals the people, without regard to any factor other than adult standing and their own disqualifying conduct, should have the opportunity of expressing their wishes as to the lines of policy to be followed by their society and also to the person or persons who should implement that policy.

It is difficult to conceive of representative democracy without political parties. Political parties provide a choice for the electorate. The basic attribute of the system is that political parties provide alternative programs and therefore the people choose between programs provided by government and the criticism of those in power by the opposing party or parties.

The concept of opposition has become the bane in many of the new democracies. In the struggle for independence internal differences that exist are buried in favour of the common desire for independence from colonial rule. Indeed it normally ends up in a dominant political party whose leader is perceived as the liberator. Any attempt after independence to criticise such a leader may be construed as treason particularly by those who are beneficiaries of the system because they occupy positions of power with its attendant financial rewards.

The events referred to in some Commonwealth countries of Zimbabwe, Pakistan and Fiji calls into question the fundamental basic principles of The Rule of Law and of Democracy – the right to differ – the right of alternative view point or what l will prefer to refer to a “The Right of Dissent”.

Perhaps democracy should be described as a system that permits several view points to be put across and the electorate allowed to sift them and decide which of the alternatives to follow or even which combination to accept or reject. It is important to emphasise the choice does not mean that the one not accepted is bad. At times the choice may even depend on the biases of the voter or the charm of the leader putting across his view-point.

The essential issue is that there is a right of dissent – to agree or not to agree. It was the French philosopher Voltaire who was reputed to have said “I disapprove of what you say, but I will defend to the death your right to say it.”

There have arisen traces in many developing countries of a warped understanding of what an election is. They seem to understand that an election gives a cart Blanche mandate to the elected government alone to speak for the people and any alternative view is considered an anathema.

The people have a right to disagree with any measures enunciated, contemplated or adopted by the government. These rights can be manifested in several different ways. It may be by letters to elected members of parliament; direct to the president or ministers of government; by publication in the newspapers, radio or television programs.

The right to dissent can also be expressed individually or collectively by demonstrations, by strikes and sit downs. The right is not limited to political parties and can be expressed through pressure groups, such as students unions, trade unions, professional associations such as lawyers, engineers, doctors etc.

The exercise of the right of dissent is sometimes called “peoples power” and has resulted in some countries into bringing about a change not only of policy but forcing the government to resign.

The Rule of Law and the observation of basic Human Rights are embodied in the democratic concept. The Harare Declaration and the Latimer House Principles embody this basic understanding.

All members of the Commonwealth are also members of the United Nations. Universal Declaration of Human Rights which represents the elementary considerations of humanity is also an authoritative guide to human behavior. Three Articles of the Declaration namely:

Article 18 “The freedom of thought, conscience and religions”, Article 19 “Everyone has the right to freedom of opinion and expression. This right includes freedom to hold opinion without interference and to seek, receive and impart information and ideas through the media and regardless of frontiers” and Article 20 “Everyone has the right to freedom of peaceful assembly and association” were further enhanced by the International Covenant on Civil and Political Rights.

The combined effect of the following Articles 18 “the right to freedom of thought, conscience and religion, Article 19 “the right to hold an opinion without interference” and Article 21 “The right of peaceful assembly” and Article 22 “the right to freedom of association with others…” of the Covenant is to accord to citizens of Commonwealth countries the universally accepted rights which represent the fundamental principles that holds the Commonwealth together. We must jealously guard these rights. They are the only safe anchor we have if democracy is to survive and human rights respected.