Illegal State
By Hakim Joe
When we vote for a specific candidate in an election, we are tacitly giving away a certain part of our rights to this person so that he or she may act on our behalf. In an ideal world, this consensus will be the same thus creating a condition in which there does not exist any contradictory events.
Sadly, we do not exist within a utopian environment and henceforth we place our blind trust on the person of our choice to “do the right thing” by protecting the fundamental rights and interests of the people who voted him or her into office. It can be called “serving the constituency”.
The French Declaration of the Rights of Man and of Citizen asserts: “Le but de toute association politique est la conservation des droits naturels et imprescriptibles de l’homme. Ces droits sont la liberté, la propriété, la sûreté et la résistance à l’oppression.” The end of any political association is the conservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.
Such forceful words with such simple aims. However, to “secure these rights”, governments must therefore be instituted amongst men, not elevated above men and that the very purpose of the State is therefore to protect our fundamental rights. A representative or a government that fails to respect these rights fails to be legitimate no matter how well it generally enforces or otherwise secures our rights. Blur? What it means is that a government that secures our fundamental rights by preventing others from violating these rights must first accord us the rights and ensure that it becomes fundamentally a necessity of humans and not a deserved compensation of sorts.
The government henceforth must learn to recognise the fact that they derive their powers from the consent of the populace. In the absence of this mitigating consent, states fail to be legitimate whatever their success in securing certain ends might be. Additionally, giving the right to vote to a person does not represent as obtaining both explicit and implicit consent from that particular person. Neither can it be accepted that the people, when voting, exclusively surrender all basic rights to the person that they voted for.
It must be acknowledged that the right to vote constitutes part of the democratic process. However, by exercising this right to vote, it does not imply specifically that full consent is given. Blur lagi? Well, consent can be distinguished by actual consensus or general agreement. It works both ways as well. By voting, the populace is giving the victor the informed right to govern with a general agreement that the candidate will look after their welfare and interests impartially after winning. When the elected candidate fails to do so, the social contract is therefore null and void. The agreement therefore is deemed to be in limbo by the very fact that he or she has failed to live up to his or her part of the agreement.
It can also be recognized that the State claims legitimacy through popular vote and not through the wishes of the elected representative. As mentioned, consent by vote is not a warranted carte blanche permitting the representative unlimited authority to do as he or she pleases. Defecting to the enemy camp is definitely an aspect that can be construed as an act that violates the agreement between the voter and the voted. It therefore becomes an infringement against the people who voted for a particular person when the latter changes stripes. Eventhough the Law accepts and legalizes this frog-like behavior, it does not make it morally correct. Arguably, neither can it be legitimate since the voters’ mandate is no longer practiced. Liberal consent has been granted but subjected to the requirements and expectations of the voters. When the representative no longer subscribe to these ideals, it can be granted that he or she has willfully violated the agreement between the two parties and thence invalidating the agreement.
To ascertain that this agreement is obeyed by the voters and the voted in a democratic environment, the Judiciary is established to convey an impartial view that is enforced through Law to act as the arbiter in the event that one of these parties in found to be in violation of the agreement. That is part of what the separation of powers entail. However, when the Judiciary and the Executive knowingly act in a manner detrimental to the principles of democracy, the legitimacy of the State is therefore in question. Worse, the powers granted the Judiciary is now undermined and as it ceases to be effective, it becomes merely an extension of the government’s will.
For a political party to be legitimate, it must possess a status that is endorsed by the populace. This can be relevant to the Judiciary as well. Just as State claims legitimacy through status (of being the government voted it by the majority), the Judiciary can only lay claim to its legitimate status by being impartial and to act in accordance to the Law. Furthermore, being appointed to the bench is not an automatic qualification for legitimacy. However, when the Jurists fail to act in a manner as becoming a Judge, not only do the Courts lose their legitimacy, these arbiters of law lost the respect and belief of the people.
When the Judiciary and the Executive loses legitimacy, the State is therefore illegal. Are we thence obligated to conform to the regulations imposed by an Illegal State?
