Human rights should not be decided by referendum

Dear Editor, I wish to address the proposition of a referendum concerning the legal recognition and decriminalization of homosexuality. According to the Guyana Chronicle report dated April 20th 2017, the Government of Guyana issued a letter to the InterAmerican Commission on Human Rights (IACHR) addressing the “issues of human rights violations against young persons in Guyana.” I

encourage readers to read this letter if possible. My own assessment of the letter concludes that it was poorly articulated, contradictory and, ultimately, carries a cowardly recommendation.

The letter begins with the government’s position, declaring “we believe the principle of universality admits no exception. Human rights truly are the birthrights of all human beings.” Government further declared their commitment to “the rule of law”. It was indicated that the issue of repeal was brought to the legislative arm for deliberation, but for some unknown reason the legislative arm considered itself “unfit” for the task. Despite not providing any sound basis for why they think they’re “unfit” on the matter, it is evident by their recommendation that human rights issues have become a matter of public opinion rather than established principle.

Guyana has a representative democracy. In a representative democracy, elected officials who are deemed qualified for public office are placed to conduct the affairs of the Republic, and deliberate on legislation for passing, primarily in the interest of the people. Sometimes there are instances where the public may participate in consultations to provide a platform to better understand citizens’ concerns to craft better public policies. Active public participation helps to ensure inclusivity by involving all sectors of society. Public consultations also aid in building a mutual relationship between government and the governed through reasoned dialogue and debate. (The latter we don’t do much of, which is a necessary component for any thriving democracy.)

In a more extreme version of democracy, known as ‘direct democracy’ the people are the ones who vote on legislation and policy, with little input from elected representatives. Citizens are directly involved in making profound decisions, casting their approval or disapproval by means of a quantified vote. This fundamental aspect of direct democracy can sometimes be invoked in a representative democracy, known as a referendum, as an attempt to resolve to some extent contentious social issues. It is fair to say that this may work in certain circumstances given the political context. For example, a tyrannical ruler may upturn a totalitarian agenda, but can be hindered to eventually discard it by the rigour of the democratic process. On the other hand, it may lead to dire outcomes.

There is an inherent problem with democracy that’s often overlooked: the so-called ‘majority rule’ dictum. According to this maxim, whatever the ‘will of the people’, so shall it be. But what if the will of the people decided by popular vote, for instance, that every household deserve to have guns without going through a thorough criterion to obtain one? Most reasonable people would typically find the proposition outrageous. So, it is not difficult to imagine shortcomings with the maxim of the will of the people. Indeed, referendums are simply not the appropriate decision-making mechanism for every situation.

We are missing a key component of our democracy on contentious social matters: that is active debate. There is also the ethical dimension which is to be publicly debated too. Should the rights of a marginalized group of people be subjected to the ‘will of the people’? Is the government demonstrating the responsibility of protecting its people, regardless of race, creed and sexual orientation or preferences by its recommendation of a referendum? Can a referendum replace principled argument, given executive support and constitutional assurances? My own contention regarding the latter is that human rights should not be decided by referendum. How can the government recuse itself from this fundamental decision and important leap in Guyana’s history but deem an overwhelmingly homophobic public, a public that does not understand homosexuality to be a normal human sexual phenomenon, as fit to make this decision for the entire country? Is the general public more informed on Guyana’s obligations to international human rights instruments? Is the general public more committed to a duty of responsibility and care for every Guyanese citizen? Is the general public more capable of reaching an impartial and objective conclusion based on reason and fairness than the government? Is this the government’s stance?

Even more worrying is the acceptance of the idea that human rights issues affecting a minority and marginalized group of people should be subjugated to the will of the people. This is a form of tyranny, dubbed by philosophers as the ‘tyranny of the majority’. In his Democracy in America (1835), French philosopher Alexis de Tocqueville essentially argued that the ‘abandonment of rationality’ in favour of mere numerical values makes us govern by numbers, not by virtue or excellence. Furthermore, the basis of our faculty to reason is reduced to quantified prejudice, since public opinion is varied, misguided by confusing dialect, indecisive and unsettling. Do we want to be a society led by numbers or by excellence?

Not only is it obvious what the outcome would most likely be if this referendum were to go through, but so too are the implications of seeking a majority vote on what seems to be deciding the fate of people’s lives by reducing matters of human rights and welfare to a public consensus. This is both troubling and an insult to our democracy. While I generally respect the intellectual repertoire of Cabinet, their proposal of a referendum, garnished embarrassingly as a ‘recommendation’, indicates to me that government is more afraid of upsetting their constituency than of doing what is right. This move that should be revoked by local and international entities on the forefront of human rights and equality.

There was hope given to this administration on closing LGBT rights from a matter of contentious debate to no matter at all, remaining true and consistent to constitutional principles and international obligations. President David Granger during an interview with the media, published by Kaieteur News on June 3rd, 2015, was quoted as saying, “There was a time when same-sex relations were punishable by law, but in many countries those laws have been repealed, we have to keep abreast with what is happening in other countries. At the same time we try not to get ahead of what the people want”. It is worth noting that the people of Guyana want a great many things. Some of these things may be fulfilled by the government; others simply would not or cannot. But on human rights issues, there is absolutely no good reason to hold the people of Guyana responsible for granting equal rights and opportunity to their brothers and sisters. That is a job for the government to do: protecting those who are under harsh ill-treatment from certain aspects of society.

We should not let public or political bigotry, prejudice and hate be equated as justice. If the referendum goes through, it would be an unbearable and disheartening moment to be recorded in the history of Guyana. There is an ethical duty of governance. Executive support is not enough. Being “unfit” is no good reason. For our humanity’s sake, revoke the referendum! Yours faithfully, Ferlin Pedro