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Friday, July 29, 2011

Essay on Democracy - Concept of Rule of Majority

The Greek etymology of the term Democracy is “demos” which means people and “kratos” authority and rule.  Literally, it means rule of the people.  Some define Democracy as “a form of political organization in which citizens, together, equally share power” (Linda McKay-Panos 1).  Numerous and various definitions have already been given for the term democracy making it a very confusing and difficult concept.  They agree about one thing though.  Democracy is not a simple concept. It is therefore better to describe the essential features of a democracy

One of the features of the democracy is the rule of the majority.  This is the idea that a nation is governed based on the will of the majority.  This is manifested during election time when the majority chooses the legislatures who will represent them.  In every election, the people’s choice as to who they think should lead the country is the paramount consideration and their expressed will must at all times be given effect. 

The question now is considering that the majority prevails in a democracy, what protection do the minorities have against the majority? Does democracy protect the rights of the minority? 

Before the rights of the minority can be protected, it is first important to establish the definition of the minority.  According to Francesco Capotorti, Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1979 defined minority as “A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members - being nationals of the State - possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.”

In simplest terms, determining whether a person belongs to the minority is not a matter of number.  For example, in Third World Countries, the lower class which comprises 60-75% of the population can be the minorities as opposed to the upper and middle which comprises 25-30%.  Minorities, therefore, are those people who, regardless of their number, because of their political, economic, social, national, and ethno-cultural origins need our protection.  

In a democracy the rights of the minority are always protected.  While the majority rules in a democracy it does not mean that the rights of the minority shall be trampled upon.  Protection of the minority is a built-in feature of a democracy.  This is manifested in the principle that in a democracy no one person is above the law.  Our government is a “government of laws and not of men” (John Adams, Massachusetts Constitution).  The principle that we follow is the rule of law.  No one man in this country is so high that he is above the law and that no officer may defy the law with impunity.  All of the officials in our government are all mere creatures of the law and are duty bound to obey them.  Even the President the highest elective official in a democracy must submit to the law.  His powers can be checked by Congress and his actions can be annulled and declared unconstitutional by the Judiciary. 

The obligation of Democracy is to protect them.  It needs to ensure that those who are marginalized, underrepresented, and disadvantageous are given at least equal attention by the government.  In fact, it is perfectly valid and legal to give preferential attention to the minority. 

The protection of the rights minority is exemplified in the First Amendment to the United States Constitution where the state seeks to protect the free exercise of religion by the public and prohibits the state from establishing a religion.  This affirms that the state is neutral in religious matters.  While it desires to protect all, it does not seek to prefer one religion over the other nor disparage one religion against another.  The state seeks to protect all persons regardless whether he is a believer or non-believer.

One particular example is the early case of Engel v. Vitale (370 US 421), otherwise known as the School Prayer Case.  The case involved a prayer which was required by the board of regents in a public school to be recited, which says: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." The Supreme Court eloquently said that “it is no part of the business of the government to compose official prayers for any group of the American people, to recite as a part of a religious program carried on by the government.” (370 US 425)  While the prayer practiced by the school was, in this case, acceptable to the believer, the same however was not acceptable to the non-believer.  By allowing the recitation of prayer in a public school, the state practically aligned itself with the worshipper as against the atheist and the agnostic.  The state cannot merely disregard the rights of the minority regardless of its opinions and perceptions of their beliefs.  It has to maintain strict neutrality in religious matters.  This, according to Carter, is the essence of religious liberty  (Carter, The Separation of Church and the State 104).

Aside from the Religious Freedom, the US Constitution also protects the right of the minority against unreasonable search and seizure, against cruel and unusual punishment, and against curtailment of their Freedom of Expression. 

The US Constitution is not the only source of the protection for the minority.  Even state and federal laws have been a source of refuge for the minority.  One of these laws which changed the lives of almost every worker in this country is the Civil Rights Act of 1964.  Before the enactment of this law, the minority was discriminated and not given equal opportunity in the aspects of hiring, promotion, training on account of his race, color of his skin, his religion, his sex, disability, age, or his national origin.  With the enactment of laws employers are now prohibited from discriminating against certain individuals based on race, color, religion, sex or national origin (The National Archive 1).  A violation of this law and the other equal opportunity laws will result to the imposition of penalty of fine and imprisonment.  Race, color, sex, creed, and age are now classes protected by the State (The National Archive 1).

The other laws that protected the employees are the Equal Pay Act of 1963 which protects men and women who perform equal work in the same establishment form sex-based discrimination, the Age Discrimination in Employment Act of 1967, which protects individuals who are 40 years of age, and the Americans with Disabilities Act of 1990 which prohibits discrimination against qualified individuals with disabilities.

Also, the state protects the minority by giving them the opportunity to directly participate in running the affairs of the government.  While the essence of representative democracy is that the majority selects representatives to be their law-makers, critics often complain that some sectors do not get their desired representation because their legislatures are often guided by their own selfish interest.  Thus, the direct democracy principle as adopted whereby the citizens were given the opportunity to amend the state constitution or to create their own state-level legislation.  According to Du Vivier, the initiative and referendum is well-accepted by the minority.  Currently, almost all state except Delaware provide for a state-level direct citizen voting and twenty-four states offer their citizens the citizen initiative method of bypassing their legislatures completely in creating new laws (Du Vivier 1).

One of the three pillars in a democratic society is the courts.  The Supreme Court has also affirmed its role as a protector of the minority rights by interpreting the constitution, reviewing the validity of the executive and legislative acts in the light of their conformity with the fundamental law.  This is what the Supreme Court did in the landmark case of Lawrence v. Taylor (539 US 558).  In this case, Lawrence and Taylor were caught by a law enforcement officer while in the act of having private and consensual anal intercourse.  They were immediately arrested and placed in confinement for violation of Texas anti –sodomy law which prohibits a person from engaging “in deviant sexual intercourse with another individual of the same sex.”  In rendering the said provision unconstitutional, the Supreme Court declared that the Texas Law prohibiting sexual intercourse between people of the same sex violates the due process clause.  It bears stressing that the petitioners were caught in a moment of sexual intimacy.  They were both adults who willingly gave their consent to such intimacy.  There was no physical force, intimidation or coercion involved.  The right of liberty of every individual under the due process clause gives them the freedom to engage in private conduct without government intrusion and interference.  Further there is no valid reason to be advanced by the government for its intrusion in the affairs of private individuals.  In effect, the State affirmed the right of the gay couples to express their love and devotion to one another.  So long as their expressions of love are done within the confines of their home then their privacy will be respected and protected.

The end-goal of a Democracy is the promotion of welfare of all the people.  As the real sovereignty behind the elected legislatures, the people are the reason why the government exists in the first place.  It is a government of the people, by the people and for the people.   Democracy however also entails that the state should adopt measures designed to ensure stability and equilibrium within the society.  Achieving stability and maintaining equilibrium means that the state should take reasonable steps so that those who are disadvantaged, marginalized and underrepresented because of their political, economic, social, national, and ethno-cultural origins be given preferential attention. Thus, the state should always strive, as a matter of social justice, that those who have less in life should have more in law. 

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