The basic liberties of citizens are, roughly speaking, political liberty (i.e., to vote and run for office), freedom of speech and assembly, liberty of conscience, freedom of personal property; and freedom from arbitrary arrest. (John Rawls, Political Liberalism)
Sneaking into a general proposition next week by the Privileges and Procedures Committee about reducing the number of Senators, and having a single day for all elections, is Article 7 of the Draft Public Elections (Amendment No 4) (Jersey) Law. The preamble states that:
This Article does not arise from the work of the Working Party but is a further policy change brought forward by PPC in response to concerns expressed following the June 2010 by-election. PPC has also received correspondence in relation to this matter from the Standing Conference of Women's Organisations of Jersey. The note to the article explains that it is bringing in a deposit of £500 for anyone wishing to stand:
The new Article 21A introduces a deposit for any candidate in an election for Senator, Connétable or Deputy. The deposit is initially set at an amount of £500, which the Committee believes is an appropriate balance between the need to make the deposit meaningful without placing too great a financial hurdle in the path of those who wish to stand for the States. In common with deposit systems used in other jurisdictions, the deposit will be returned to candidates if they receive a certain percentage of the votes, which in this Law has been set at 5% of the persons voting in the poll.
They then make the argument in favour of a deposit:
PPC accepts that there will be those who consider that any form of deposit is unfair, as it may prevent some persons from putting themselves forward for office in the States. PPC believes that this must nevertheless be balanced against the desirability of ensuring that any person who wishes to stand for election, and thereby gain a place on the hustings platform and an entry in any free publication about the candidates, must have some serious chance of obtaining support from at least 5% of the voters or be willing to sacrifice the deposit. Deposits are a common feature of elections in many jurisdictions, and are a common feature of elections in the United Kingdom, where the £500 figure is the deposit for the UK parliament, for the Scottish Parliament and the National Assembly for Wales.
Now what I find most interesting about their case is that - from an ethical point of view - it is sheer pragmatism- what is right is based upon what will work to exclude frivolous candidates, and no consideration has been given to the unintended consequences of this action.
What is more, while UK elections have a deposit for national elections, they conveniently forget that for County Council Elections (which may be larger than a Jersey Parish), no deposit is required. If one example is fair, surely that would be the better one for the size of local constituencies, with the possible exception of Senators.
Their argument has two principal parts - (1) that anyone willing to stand must have a serious chance of obtaining support from 5% of the electorate (2) that a deposit of £500 will not place a financial hurdle against someone standing.
Now as far as the first part is concerned, I would have thought that the simplest way by far would be to simply increase the numbers of people needed to sign a nomination paper to ensure that the person standing had more support than just family and friends.
But regarding the deposit, and the argument in its favour, if we examine this instead from the ethical approach of John Rawls, author of the seminal work "A Theory of Justice", I think this is deficient in several counts.
John Rawls idea of justice is that a just society is one in which any individual cannot know where they will end up in the society, and has to choose what would be just under what he calls "the veil of ignorance":
"No one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities. The principles of justice are chosen behind a veil of ignorance."
Only when the veil is lifted, do we see where we are in society, in terms of advantages and disadvantages. The basis for this is that even with self-interest, we would be forced to ensure that society protected and supported those disadvantaged, because we might find, when the "veil of ignorance" is lifted, that is our own position.
From this, Rawls deduces two basic principles of justice. The First Principle of Justice is that "each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others." The Second Principle of Justice is that "offices and positions must be open to everyone under conditions of fair equality of opportunity".
One weakness of the proposition is that in considering what would be a "financial hurdle", the Committee is clearly not looking at those disadvantaged, such as pensioners or someone on income support. It might be that they have a good deal of public support in a Parish, but because they have to have £500 up front, they are effectively barred from voting.
This clearly goes against Rawls' second principle of justice because it means that the opportunity for standing is not a condition "of fair equality of opportunity". It also seems clear that, for the Committee to consider the "veil of ignorance", they should have considered this kind of scenario, the worst-case scenario, rather that settling for what seems like a very privileged outlook.
Now deposits could be made fairer if there was a means testing for income, so that people below a certain threshold would have a deposit based on a percentage of their income, enough to deter someone frivolous, but not enough to constitute a serious financial hurdle. This would then accord with the Second Principal of Justice.
Why is this important? Because an examination of deposit systems shows that they can quite easily be used and manipulated as a means of excluding poorer minorities from engaging in politics by standing for election, especially with the "first past the post" election system.
Notable, the Green Party in the United Kingdom was severely hit by loss of deposits:
The media coverage of the Spring Conference of 1997 focused on the idea that the Green Party might not contest the forthcoming general election, accompanied with the regular commentaries about how the Party was a spent force. The Party was seriously discussing its election strategy, acknowledging that it always gets hopelessly squeezed by tactical voting in general elections, losing all of its deposits with under 2% of the vote. (2)
The fundamental strategy of those in power to limit and curb the opposition was described by Karl Loewenstein when looking at post-war Europe in 1946:
Elimination of the so-called splinter parties was attempted by legislation prescribing through election deposits and minimum vote requirements for participation in the electoral contest (3)
This can also be seen in Singapore, where the raising of election deposits has been deliberately used as a tactic by the establishment party to disenfranchise the opposition.(4)
In the last 2006 GE, the election deposit for a single candidate was S$13,500 (US$9,910) and $54,000 (US$39,643) for a team of 4 candidates to contest in a GRC. Thus far, only independent candidates or opposition candidates have forfeited deposits. This precedence may discourage qualified opposition candidates to contest in elections and exacerbate the rise in uncontested seats (4A)
And the case of Laos is also an example of how restrictive practices such as (in part at least) election deposits made it harder for particular groups to stand:
In order to run for office, a businessman had to have paid for a trade license for five years. Election deposits were doubled; minimal educational standards were raised, requiring either an elementary school certificate or a maha of the third grade. This last requirement particularly penalized the Pathet Lao, since more than half of its leaders lacked schooling.(5)
And again in Malaysia, deposits were used as a tool to exclude segments of the electorate, because once they are established, they can easily be increased:
In 1974 the election commission announced that election deposits would be increased from M$250 to M$750 for state elections and from M$500 to M$1,500 for parliamentary elections. The commission explained that its original recommendation had been that the new deposits be double the old ones, but that the government had decided to triple the sum instead. (6)
Incidentally, India introduced both deposits and an awareness that not all parties concerned would be able to raise the same level of deposits, which is an adjustment regarding the poorer castes who would otherwise be disenfranchised from standing:
The law also provides for smaller election deposits for candidates from scheduled castes and tribes (7)
The matter of signatures rather than deposits was raised in the UK government, when Mr David Mellor defended the government position:
Mr. Mellor : The Government are consulting the political parties represented in the House on the Home Affairs Select Committee's recommendation that the deposit should be raised to £1,000 and the threshold lowered to 7·5 per cent.
Mr. Wigley : In view of your recent ruling, Mr. Speaker, perhaps I should declare an interest on this question. Will the Minister give an assurance that, in considering the increases in deposits, he will bear in mind the need not to drive away from the legitimate ballot box operation all interest groups which should have an opportunity to stand for Parliament, and that if, regrettably, the amount of deposit does increase, the percentage who keep it will be reduced substantially, possibly even lower than 7·5 per cent?
Mr. Robert Atkins : Does my hon. Friend agree that anyone in this country should have the right to stand for Parliament, representing a particular point of view - whether we agree with it or not-and that it would therefore be wiser to increase the number of signatures required as evidence of some measure of support than to restrict people from standing by increasing the deposit?
Mr. Mellor : As I think I made clear earlier, and with great respect to my hon. Friend, we do not consider that that proposal would be advantageous.
Mr. Canavan : Why not?
Mr. Mellor : In our view, the proposal that a sum of money should be put up by candidates is an eminently proper way to proceed, and it has been the way that we have always proceeded. 'We are consulting about the proposal to increase that amount so that we may determine what it should be.
What is interesting is that Mr Mellor's justification is extremely weak - it is "an eminently proper way to proceed", for which he gives absolutely no justification, and "it has been the way that we have always proceeded", which is one of the most fatuous arguments for maintaining the status quo that I have ever read. I imagine Sir Humphrey Appleby would have been proud of him! Again, Mellor does not seem to think that because something is practiced, or it is widespread and accepted, it might still be wrong.
Yet history shows how the "status quo", be it slavery, the restriction of voting to property owners or men, or countless other widespread and accepted norms have later been to seen as restrictive and oppressive. Jersey does not have to follow the herd in this respect.
What we need above all is not pragmatism, but a return to basic principles of justice, something which is sadly lacking in politics today. Rawls, in his book on "Political Liberalism" notes that:
our exercise of political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational. This is the liberal principle of legitimacy
and he goes on to remark how there were blatant restrictive practices in the American Constitution from the start:
At the Founding there was the blatant contradiction between the idea of equality in the Declaration of Independence and the Constitution and chattel slavery of a subjugated race; there were also property qualifications for voting and women were denied the suffrage altogether.
Bringing in election deposits has been done widely, but that doesn't mean that it is just. It is rather like bringing back qualifications for being elected, and allowing only men to stand for Parliament, except in this case, the restriction is on means. Someone on £40,000 a year has far more spare cash than someone earning £18,000 a year or less, or a pensioner who has to make every penny count.
In 1795, Thomas Paine set out the fundamental arguments regarding the legitimacy of representative government. I would draw your attention to the fact that he not only deals with excluding the poor from the right of voting as illegitimate, but also excluding the poor from the right "of being elected":
The true and only true basis of representative government is equality of rights. Every man has a right to one vote, and no more in the choice of representatives. The rich have no more right to exclude the poor from the right of voting, or of electing and being elected, than the poor have to exclude the rich; and wherever it is attempted, or proposed, on either side, it is a question of force and not of right. Who is he that would exclude another? That other has a right to exclude him
Inequality of rights is created by a combination in one part of the community to exclude another part from its rights. Whenever it be made an article of a constitution, or a law, that the right of voting, or of electing and being elected, shall appertain exclusively to persons possessing a certain quantity of property, be it little or much, it is a combination of the persons possessing that quantity to exclude those who do not possess the same quantity. It is investing themselves with powers as a self-created part of society, to the exclusion of the rest. (9)
(3) Political Reconstruction, Karl Loewenstein, 1946
(5) American Policy toward Laos, Martin E. Goldstein, 1973
(6) Competitive Elections in Developing Countries, Myron Weiner, 1987
(7) The Architecture of Democracy: Constitutional Design, Conflict Management, and Democracy, Andrew Reynolds, 2002
(8) Political Liberalism, John Rawls, 1996
(9) Thomas Paine, Dissertation on the First Principles of Government, 1795
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