Tapu Misa: Sometimes the people get it badly wrong

The "March for Democracy". Photo / Herald on Sunday

It wasn't, after all, the mother of all marches the organisers had hoped for.

Auckland businessman Colin Craig sank half a million of his own money into the so-called "march for democracy", hoping for a turnout of 50,000. He got between 4000 and 5000 - some way short of the 8000 or so who turned up for the Boobs on Bikes parade in September.

I'm daring to hope this signals a waning of interest in prolonging the already tiresome debate on the Section 59 amendment. But maybe it's just confusion on what the march stood for.

Was it binding citizens-initiated referendums?

"I don't have that agenda," Craig told a reporter. "My agenda is we've had three [referendums], there was a large majority. I think that any Government that respects the people will see 80 per cent is binding."

So, no and yes then.

Somewhere in the disgruntled mix of people ticked off at not getting their own way were the-right-to-hit-children campaigners headed by Bob McCoskrie and the lock-'em-up-and-throw-away-the-key crowd led by Garth McVicar.

Apparently there were also people still upset that we have more than 99 MPs, or that we haven't kept the number of our firefighters at the same level as 1995 - which is what more than 80 per cent of the electorate who bothered to vote in two (thankfully) non-binding referendums seemed to want.

The catalyst for the march was the Government daring to ignore the result of the recent ambiguously worded citizens-initiated referendum on the child discipline law.

Which means the Government is clearly undemocratic. "The people are the boss and the Government has to listen to them," said Craig.

Well, yes and no.

The trouble with the might-is-right, majority rules brand of democracy has always been painfully obvious for those of us accustomed to occupying minority perches.

As Benjamin Franklin put it: "Democracy is two wolves and a lamb voting on what to have for lunch." In a straight-out numbers game, the lamb always loses.

But representative democracy, as advanced by 18th century British MP Edmund Burke, promotes a higher ideal built on notions of the common good.

Burke felt MPs weren't just delegates, elected to do their constituents' every bidding. While "their wishes ought to have great weight", he argued that an MP's "unbiased opinion, his mature judgment, his enlightened conscience" ought not to be sacrificed in the process.

"Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion."

True to his convictions, Burke backed several unpopular causes during his time in Parliament, knowing that it would probably cost him his seat (which it did), but determined to show "that one man at least had dared to resist the desires of his constituents when his judgment assured him they were wrong".

He was right. Sometimes, the people can get it badly wrong.

Richard Ekins, a University of Auckland law lecturer, cites the example of the United States where "special interests capture the direct law-making process, manipulating poorly informed majorities to make laws in the interests of the promoters".

He says the direct democracy favoured by the proponents of government-by-referendum is also a recipe for inconsistent government. In California, for example, voters in 1978 voted to freeze taxes but then later approved increases in spending, leading to its current budgetary woes.

As Ekins argued recently in a paper for the Maxim Institute, the Government isn't obliged to do whatever the majority wants. "The goal of Government is to do what's in our best interests - to secure the common good, rather than simply to reflect the views of the people. It is Parliament's duty to think carefully and to use its own judgment about the laws it passes."

Good law requires "careful thought in response to detailed facts", for which voters simply don't have the time or resources. Referendums, on the other hand, are responses to "a yes/no take-it-or-leave-it question".

"Parliament gives itself the best chance of considering issues deeply and fully, and coming up with lasting solutions that people will accept, when it takes its time."

Of course, it's best when there is popular support for a law, but sometimes politicians have to lead public opinion rather be led by it, especially when the cause is patently just.

British politician William Wilberforce introduced the first bill to abolish the slave trade in 1791 but it wasn't until 1807 that he finally succeeded, and even then it involved some cunning to get it past those who would have opposed it. It took a further 26 years for slavery to be outlawed outright.

It was too long for many thousands of slaves.

The abolition of slavery, civil rights for African Americans, giving women the vote, and the removal of the legal right that allowed husbands to beat their wives - all would likely have failed if put to the referendum test.

As the philosopher and writer Ayn Rand observed, "Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by the majority (and the smallest minority on earth is the individual)."