Under a constitutional democracy, both the de facto and de jure legitimacy of government are determined by the outcome of the choice of the people, which is voluntarily expressed through popular ballots in which the candidate with the majority of the votes cast receives the mandate. The requirement of an election, in which the electorate is given the opportunity to freely choose from a variety of candidates canvassing their peculiar ideas of governance and ideologies, provides the principal distinction between a democracy and many other forms of governments: informed choice.
After our recent essays touching on the Egyptian uprising, where we attempted some analyses of the differences between the supremacy of the constitution and the notion of sovereignty as a political concept in the animated discourse centred on the nature of the modern state and the sources of its legitimacy, a few readers somehow insinuated my wilful undermining of democratic regimes in favour of the mob or riotous crowd, depending on how one sees the role of the population in Egypt.
It demands no repeating the fact that I have spent the better part of my life teaching and propagating constitutionalism and the rule of law all over the world. It is therefore incorrect to associate me with anything that is remotely undemocratic.
A constitutional democracy must accede to the needs of the people who are the ultimate sovereign; but whenever a government decides to rule without hearkening to the yearnings of those who elected it, it forfeits its legitimacy and, at that point, the constitution under which it was elected will no longer be available for its protection. Instead, it would be its nemesis because the same constitution recognises that "sovereignty belongs to the people" from whom the government "derives its legitimacy".
This is the rationale for the general expectation that governments exist at the pleasure of the governed. Anything short of that would indeed be less than democratic. This noble idea stemmed from the much-talked about "social contract" through which the modern State is said to have evolved out of the primitive "state of nature". It is a view strongly canvassed by noted philosophers like Hobbes, Locke, Rousseau and many others.
Most nations have fully adopted the logic encapsulated in these theories especially as they relate to the fundamental responsibilities of governments to their citizens. The earliest adoption of this view as a non-negotiable template for governance was during the American Declaration of Independence where it was asserted that: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.
"That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it and to institute a new government… as to them shall seem most likely to affect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly, all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.
"But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security".
Many other countries have constitutional declarations proclaiming similar sentiments and expectations, namely, that it is the people who have the final say as to whether or not a government continues to enjoy the right to remain in power. That much, for example, is the same philosophy that is encased in the preamble to our constitution which proclaims: "We the People…"
This clarification became necessary because the subject-matter of the debate raises very serious constitutional issues touching on the legitimacy of government. The idea is that people should be encouraged to initiate well-thought out responses presented as publishable essays and comments for general enlightenment as against personalised "comments" appearing as footnotes, which often provide anonymous platform for all sorts of entries and, in some cases, hate-filled stuff. It is my strong belief that the political health of the polity ultimately depends on the free market of ideas expressed openly without let or hindrance.
It must be said that a government, democratic or not, will endure only if it takes the interests of the people as priority. On the contrary, a supposedly elected democracy could easily forfeit its legitimacy if it no longer does the biddings of the electorate or becomes a material, an ethical burden or an outright embarrassment to the people. It is to avoid falling into this pitfall that open criticisms, both constructive and, sometimes prejudicial, spearheaded by the Press, have become an integral part of constitutional democracies.
There are other ideological typologies that also reasonably meet the needs of their people. The Chinese, for example, have exploded the long-held Western-generated myth that communist/socialist governments are inherently inefficient economically by the way they have overtaken the West with their astronomical economic prosperity while countries like Greece and the United States operating democracies have failed to sufficiently meet the economic needs of their people. We have also seen how the UAE, an Arab monarchy, has done very well economically in Dubai, leading to greater welfare and security for their citizens while Nigeria, a constitutional democracy with all the paraphernalia of separation of powers has woefully failed her people in the key areas of security and welfare. So, the days of illusory isms are over.
The only government worth protecting, in my view, is the one that sees itself as steward and not the master. It is in that context that we sought to appraise the debates that recently took hold of the intellectual community following the fall of the Morsi regime which was hinged on the jural and conceptual relationships between the supremacy of the constitution and the sovereignty of the people. Our take remains that the people is supreme and governments exist to do its bidding. The acclaimed superiority of democracy over all other forms of government is based on the expectation that it puts the people first always. Otherwise, there is nothing sacrosanct about it.
