Wednesday, January 18, 2012

The OBA and Independence

In its tardily submitted paper to the UK Foreign and Commonwealth Office the One Bermuda Alliance articulated its strategy for deciding the independence question.  Central to their submission is (1) the modality any decision on independence should take and (2) the voting formula for validating a “yes” vote.  Taken together, these two elements represent a cynical manipulation of process, which if adopted, would deny voters the democratic rights so many of us have fought for.

The OBA asserts that a referendum is “the only way of ascertaining the ‘constitutionally expressed wish’ of the people” and that an election cannot achieve this. History is replete with examples of both referenda and, more commonly, general elections as legitimate ways of determining the popular will on such a fundamental question. Neither is inherently better than the other. Moreover, with specific regard to general elections where independence was the central theme, there is no example where that result was questioned anywhere within the British Commonwealth.  

The UK government has conveyed the message circuitously that they too prefer a referendum to decide the independence question. Their preference, however, makes for neither policy nor law as far as Bermuda is concerned. It is solely the responsibility of the government of the day to decide how this matter should be resolved, provided the framework is fair and defensible. It may well be that a referendum is decided upon because, for example, an incumbent government may not want to risk losing an election over the independence question. The point is that government retains the inherent right to make that decision, embodying as they do, the will of the people. 

The real mischief in the OBA submission is revealed when their call for the referendum is juxtaposed to their formula for deciding how many “yes” votes are adequate. First, the OBA argues that a 50% +1 vote is insufficient—they want to see a larger majority. Once you abandon the principle of majority rule, though, you grant a minority more power than the majority; you grant that minority the right to decide the outcome. This cannot be defended on this issue. 

Secondly, the OBA argue that even if the people vote for independence in a referendum that decision should not lead to independence but rather merely “the obligation to enter into negotiations between the relevant parties.” Amazing. In a strained effort to support such an extremist position rejecting the democratic will the OBA refer to the Canadian Clarity Act, which was passed after the 1995 Quebec referendum on independence and in response to the less than 1% margin of defeat for the pro-independence forces.  Quebec and Bermuda are two completely different cases and the legal minds at OBA have to know this: Quebec is a province of Canada and part of a federal government while Bermuda  is a non-self governing territory of the United Kingdom which has yet to achieve self-determination. The Quebec example would apply if, for example, St. David’s voted to be independent from Bermuda. 

A more relevant Canadian example is the consensus building, extensive and inclusive exercise by Prime Minister Pierre Trudeau to “bring home” the Canadian constitution—until 1982 their constitution was like ours in that it could only be amended by the British Parliament. There was no referendum to achieve this.

Under the 1995 independence referendum the UBP included a similar undemocratic provision which runs alongside the OBA position today: that 50% +1 of registered voters had to vote yes, not merely those who voted. There is, no doubt, a common strand here.

The OBA has presented themselves to the public as a modern and forward looking party. Their stance on this issue is neither. I encourage the OBA to rethink their position on the power of the people to decide the fundamentally important question of independence and I encourage them to align it with their publicly stated commitment to a strong democracy rooted in equality.

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