How can it be anti-democratic to give a democratically elected parliament more power or to free an elected government from the constraints of an unelected judiciary?
The idea that giving powers to elected parliaments and governments cannot be anti-democratic is commonly advanced by governments whose wills have too often been frustrated by judges or by minority groups in parliament.
The fundamental fallacy in this is that it fails to understand that the demonstrations by people whose rights are respected in a parliamentary democracy are not restricted to those people who formed the majority at the last election.
If an incumbent majority in an elected legislature that forms the government has absolute power to make any changes to the law it wants, including changes designed to entrench its position, it becomes a parliamentary dictatorship.
History shows that having achieved this, an all-powerful government may choose to preserve parliament as a pretense to mask its authoritarianism or it may use its new powers to cast parliament aside as an irrelevance; but in either case, the state has ceased to be a parliamentary democracy in any meaningful sense.
The importance of parliamentary democracy and dangers of a parliamentary dictatorship
Parliamentary democracy is about protecting the rights of minorities: the rights of all those people with whom the majority disagree. The majority will often impose restrictions on the actions of the whole country, contrary to minority opinions, in the public interest and in accordance with a due legislative or some other process.
But minority rights will be respected where there is no repugnance to the majority. And interference with the rights of minorities will always preserve the possibility of the tides of policy reversing when the will of the electorate changes.
To avoid democracy being gradually corrupted into a dictatorship requires a range of constitutional checks and balances to ensure that the power of the elected majority is not and cannot become undiluted. Those safeguards include protection for the opposition parties’ voices and influence in parliament and an independent judiciary independently appointed by the government.
Parliamentary democracy is a pendulum that must be allowed to swing from one side of the political debate to the other at the will of the electorate. The system works provided the party in government never succumbs to the temptation to use its temporary parliamentary majority to alter the electoral systems, judicial powers or other fundamental constitutional arrangements in such a way as to ensure that it will never lose an election again.
If it does that, parliamentary democracy will have given way to a parliamentary dictatorship. If that happens in any country, the losers will be the demonstrators and part of the entire people whose holistic interests a Parliamentary democracy is designed to protect.
The writer is a UK barrister specializing in legislation.