Business World, 19 September 2017


It is a common misapprehension that the essence of democracy is sufficiently defined as the popular will expressed through elections or plebiscites and as implemented by the rule of the majority. Vox populi vox Dei, the saying goes, and on this basis elected representatives believe they have carte blanche to change rules big and small, violate unwritten codes, deviate from customary behavior, and reduce established institutions. Such is the implicit justification cited by those who recently voted to impeach the chief justice (and who also threatened the vice-president, the ombudsman, and the Comelec chair), those who would kill the human rights commission by defunding it, and those who would short-circuit constitutional change in order to place the country under indefinite Dutertian rule.

Given the President’s high approval ratings, it is argued, it behooves everyone to move in lockstep, support his policies, ease his vexations, and disable his enemies. In the words of a senator: “Kung ikaw nagtatrabaho ka sa gobyerno at hindi mo gusto mga polisiya ng namumuno, eh di umalis ka.” The Speaker’s words carry a similar message, appealing to a putative majority: “Kung sinasabi na ng karamihan na hindi niya ginagampanan yung trabaho niya, hindi niya ginagawa, eh dapat mahiya ka na eh.” Either conform — or wither and die.

A similar urge to conformity was present at the beginning of the Nazi era in Germany when Hitler’s star was on the rise.

Following the Nazis’ popular electoral victory in 1933, the demand was for Gleichschaltung (“synchronization”), i.e., the reorganization of politics and society to conform to the victorious party’s ideology and policy. Existing institutions were pressured to prove that they had aligned themselves with the Nazi party line, being required to affiliate with Nazi federations, to change their leadership (especially pressuring Jews to resign), to dismiss problematic members, or simply to dissolve themselves if they were unwilling to adjust. More crucially, the elected parliament, with heavy Nazi representation, willingly surrendered its powers to Hitler as chancellor and president.

Question: were these “democratic” actions? They were after all enacted by an elected government with no doubt a substantial degree of support in popular opinion. Remember, Hitler had won 43% of the popular vote in the last elections. (President Rodrigo Duterte by comparison got only 39% of the vote, though since grown to 82% approval.) If vox populi is indeed vox Dei, then there should be no reason to object to such measures.

So suppose a majority of the electorate (not just 39%) decides to abrogate the present constitution, establish a dictatorship, and never hold elections again. Would that be democratic? That’s like asking: is a man free to sell himself into slavery? Can majority rule justify democracy committing suicide?

Herbert Spencer, the great Darwinian, sought a similar test of the reasonable limits of majority rule and popular opinion when he asked what people would think if parliament — perhaps heeding dire Malthusian warnings — were to pass a law ordering all infants born in the next decade to be drowned. He asked, “Does anyone think such an enactment would be warrantable? If not, there is evidently a limit to the power of a majority.” His example actually hits close to home. Congress only recently considered the president’s suggestion to lower the age of criminal responsibility to nine years (i.e., considered putting grade-three pupils in prison!). It is fortunate they chose not to heed his call — but only just.

In practice many issues are placed beyond the reach of majority rule or public opinion — for good reason. One is simple efficiency. The innocence or guilt of accused persons, the valuation of damages and property claims, people’s tax liabilities, the incidence of poverty and the growth rate of GDP, the actual number of drug-users — all these are (or ought to be) decided not by vote or influence but by bureaucrats and judges. Such is the pragmatic solution to a well-known result in public-choice theory — Arrow’s Impossibility Theorem — which implies that a universal application of majority rule in deciding issues is likely to be inefficient, inconsistent, or both. The solution is to remove such decisions from the political realm and leave them in the “undemocratic” care of specialists exercising informed discretion. The political independence and professionalism of the bureaucracy and the courts are part of constitutional design. It is foolish and uninformed of politicians to demand that they conform to political trends and opinions of the day, no matter how “popular.”

There is a deeper reason however for putting some things beyond the reach of majorities and public opinion: to avoid the possible tyranny of the majority. So much the worse if “the majority” is in reality being manipulated by demagogues.

In principle, civil liberties and the bill of rights are really intended to protect minorities; a majority after all needs no protection from itself. And since none of us knows when and how we might be a minority in the future, such guarantees must be couched in universal terms. Rosa Luxemburg put it best: “Freedom only for the government’s adherents, only for the members of a party — no matter how numerous these are — that is not freedom. Freedom always means the freedom of those who disagree.” [Freiheit ist immer die Freiheit des Andersdenkenden.]

In placing human rights, civil liberties, and the administration of justice — including institutions that guarantee them, such as the Supreme Court, the Ombudsman, and the Human Rights Commission — beyond the pale of politics, society makes a credible commitment that it will not be arbitrary or be swayed by current political opinion and habit, e.g., that drug users are beyond salvation and so may be killed without too much compunction; or that “intelligence reports” are sufficient grounds to publicly denounce and persecute individuals.

To attack the integrity of these institutions is to place in doubt that universal commitment to due process and against arbitrariness. Yet this is exactly what politicians caught up in the hubris of commanding a majority do when they seek to bend independent institutions to their will.

Pushed further, this is bound to end badly. And — since this is a business paper — this also means ending badly economically.

Since the threatened institutions and constitutional guarantees are universal, their erosion is bound to affect business confidence as well. Viewed historically, most investment crises in this country (from Marcos’s original power grab to Arroyo’s desperate attempt at a second term) have mostly been related to attempts to improvise beyond limits set by the Constitution. That remains true today. As proof, we already witness how direct foreign investments, both in pledges and actual flows, have declined relative to year-ago levels under Duterte’s watch. Major fiddling around with the Constitution is bound to worsen investor’s hesitation, and Duterte’s charisma is not enough to offset it.

The point is made: without universal rights that extend to minorities, without autonomous institutions guided by reason and justice, the mere existence of a majority in numbers does not embody democracy. It is still only a mob. It is in this sense we should understand the words of Alcuin, the medieval scholar who was among the first to use the phrase when he advised Charlemagne: “Nec audiendi qui solent dicere, vox populi, vox Dei, quum tumultuositas vulgi semper insaniae proxima sit (Do not listen to those who like to say vox populi, vox Dei, for the noise of the mob always verges on madness)