COMMISSION ON HUMAN RIGHTS
Sub-Commission on Prevention of Discrimination
and Protection of Minorities
Working Group on Minorities
25-29 May l998
TOWARDS EFFECTIVE POLITICAL PARTICIPATION AND
REPRESENTATION' OF MINORITIES
Working Paper Prepared by Dr Fernand de Varennes
(Director, Asia-Pacific Centre for Human Rights and the Prevention of Ethnic Conflict, Australia and Visiting Professor,
Europaische Akademie/Accademia Europea, Italy)
This paper addresses mainly matters falling under item 3(a) of the agenda of the fourth session of the Working Group on Minorities (Doc. E/CN.4/Sub.2/AC.5/1998/l) entitled "Reviewing the promotion and practical realisation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities". More specifically, it concerns with what could be described as the promotion and practical realisation of Articles 2.2 and 2.3 of the Declaration in the area of the effective participation by members of minorities in public life as well as in decisions at the national and regional levels that concern them.
What I propose to do in this paper is to outline some of the obstacles that have the effect of excluding or severely limiting the effective participation of minorities in the public sphere of political participation and representation, and to identify a variety of mechanisms that might provide constructive ways of avoiding these obstacles in line with the principles laid out in Articles 2.2 and 2.3 of the Declaration.
2. OBSTACLES TO EFFECTIVE PARTICIPATION AM) REPRESENTATION OF MINORITIES IN PUBLIC LIFE
Community of language and culture... does not necessarily give rise to political unity, any more than linguistic and cultural dissimilarity prevents political unity1
a) Exclusion of Minorities from the Political Process through Denial of Citizenship
Historically, some governments have limited political participation and representation to certain categories of individuals by making it more difficult for members of certain minority groups to become citizens.
b) Obstacles to the Exercise of the Right to Vote
Central to concepts of democracy and participation in public life is the right to vote and to choose those who govern.
In the case of restrictions as to the right to vote, these are no longer widespread today since for the most part states tend to conform to the international standard enshrined in the International Covenant on Civil and Political Rights:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
Yet in historical terms, citizens who belong to linguistic, ethnic or religious minorities - and sometimes citizens who belong to majorities who were politically powerless - were not allowed to become voters or to take part in the conduct of public affairs, directly or through freely chosen representatives.
A variety of techniques were used in the past in different parts of the world to disenfranchise members of a linguistic, ethnic or religious minority (and sometimes majority). These could include being able to demonstrate an ability in the official or national language in order to be registered or entitled to vote, a requirement as to land ownership, or even being able to understand the national Constitution to the satisfaction of State officials (who happened to be mainly members of the linguistic, ethnic or religious majority or dominant community).
While Article 25 of the International Covenant on Civil and Political Rights does permit "reasonable restrictions" that are not discriminatory, it should be added that in light of the fundamental importance of a free and democratic political process open to all citizens, the denial of the right to vote and thus to effectively take part in public life would normally be a very rare exception. Thus to impose linguistic or other requirements which have directly or indirectly the effect of excluding many citizens who are persons belonging to a linguistic, ethnic or religious minority (or majority) would appear to be almost automatically unreasonable, going as it does against the very essence of participation in the political and public life of a State.
c) Under-Representation of Minorities in Political and Public Life
A much more difficult problem to address is the tendency for minorities to be under- represented in political and public life. As mentioned earlier, it is undeniable that in most political systems minorities tend to find their votes "diluted". Especially if they are not territorially concentrated, the number of elected officials who are members of a linguistic, ethnic or religious minority tends to be much lower than the actual percentage of the population which a minority constitute.
For the most part this under-representation of persons belonging to minorities is not directly attributable to any actual desire by the State to reduce or eliminate the election of citizens who happen to belong to a minority. It is simply a manifestation of a structural difficulty or flaw in many political systems, including majoritarian democracies: because of their lower numbers, minorities are simply and almost systematically outvoted in terms of their participation and representation in public life. This means that traditionally, minorities can almost never elect the number of representatives that reflects more or less faithfully their actual percentage of the population. Their voices in the world of political representation, even in completely democratic systems, tend to be either weak or barely audible, their presence almost invisible.
On the more negative side, there are additionally some countries where the creation of electoral districts can be "gerrymandered", manipulated so that even when a minority represents a fairly large percentage of the population, its members are divided between a number of districts in such a way that their votes are diluted to the point where it is unlikely they will be able to elect even a minimal number of officials who belong to minorities.
Whether this is actually an intentional result or not, this obstacle certainly has occurred and is still occurring in a number of countries. Although citizens who belong to a linguistic, ethnic or religious minority are not denied the right to vote, the delimitation of electoral borders can constitute a serious obstacle to the effective participation of minorities in the political and public life of the state, since it can result in an inability of electing individuals who would be able to represent their interests at the political level to a degree which actually reflects approximately their numbers.
d) Exclusion of Citizens who are Members of Minorities from Holding Public Office
While an inherent difficulty in electing persons who belong to minorities is a very real obstacle in terms of effective participation of minorities in the public life of many countries, there are practices that constitute even more serious obstacles.
A number of countries have requirements and even constitutional provisions which tend to exclude citizens who are persons who belong to minorities from running for public office2 or from being elected. Obviously, this is a very clear obstacle to the effective participation and political representation of minorities. It occurs most often under the form of a language requirement: no citizen, even an individual freely elected by a large majority, is allowed to occupy a position as a member of the legislative government or of local governments if s/he is not sufficiently fluent in the official/national language. That this would seem to be inconsistent with the right "to take part in the conduct of public affairs, directly or through freely chosen representatives" or with "the free expression of the will of the electors" has not prevented some states from even enshrining in their constitutions this rather extreme form of exclusion.
Measures which exclude individuals from being candidates or from holding an elected public position because they do not speak the official language are at first glance unreasonable and unnecessary. They would appear to be discriminatory restrictions contrary to Article 26 of the International Covenant on Civil and Political Rights and Article 2 in conjunction with Article 25 of the Covenant.
3. POSSIBLE MECHANISMS FOR INCREASING EFFECTIVE PARTICIPATION AND REPRESENTATION OF MINORITIES
States cannot generally be absolutely neutral in terms of cultural, linguistic or religious preferences. Some of these preferences will usually tend to favour or be more receptive towards. the interests of individuals belonging to the ethnic, religious or linguistic majority which to a large degree controls disproportionately most areas of public life. This does not mean however that all such preferences are therefore justified in terms of international human rights standards, nor that there may not be mechanisms which increase the opportunities for minorities to have their voices heard and effectively participate in public life.
a) Human Rights and Effective Participation of Minorities
The first and perhaps most basic way to provide more effective participation and representation of persons belonging to minorities in public life is to ensure that certain fundamental human rights are respected. Especially in the case of restrictions affecting the citizenship of individuals, or their right to vote, to run or to be elected for office, there could be a violation of non-discrimination (Article 2 or 26 of the International Covenant on Civil and Political Rights), of the prohibition of statelessness (Articles I and 6 of the Convention on the Reduction of Statelessness) or of the right to vote and to be elected (Article 25, sometimes in combination with Article 2, of the International Covenant on Civil and Political Rights).
Violation of these rights can have the effect of excluding or rendering ineffective the participation and representation of certain minorities in public life. Therefore, any first step in terms of effective minority participation must be based on a state's scrupulous respect for these international standards, and especially the prohibition of discrimination as it relates to language, religion or ethnicity and to citizenship.
b) Structural and other Mechanisms
Respect for fundamental human rights such as non-discrimination may not be sufficient to ensure truly effective participation and representation of persons belonging to minorities in public life. If one maintains a strictly formalistic reading of the right of "one person - one vote", there is the potential danger of perpetuating the "tyranny of the majority" inherent in most political systems. Persons belonging to minorities would still tend to be less visible and less audible in all spheres of public life, with the result that their interests would naturally tend to be ignored or disregarded.
The right to vote and to be elected, and to take part in the conduct of public affairs currently protected under Article 25 of the International Covenant on Civil and Political Rights is arguably not so rigid. Article 2 of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities appears in fact to be a clarification on how this human right should be appropriately interpreted in relation to persons belonging to minorities since it adds that:
2. Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life.
3. Persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation.
Article 2 acknowledges, albeit indirectly, that there may be obstacles which risk rendering the participation of persons belonging to minorities ''ineffective": persons belonging to minorities tend to be consistently outvoted or under-elected because of their lesser numbers, with the consequence that their interests are often neglected in public life. This is why Article 2(2) speaks of the right to participate "effectively", and then proceeds in Article 2(3) with suggestions on how this can be done, "..the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live..."
The type of possible mechanisms for power-sharing and other methods that increase the participation and representation in public life of persons belonging to minorities are probably as diverse as is human nature. Without pretending to be able to identify and explain all of them here, there are a number of mechanisms that can be suggested as providing some of the more useful approaches. It should be added that countries may adopt a combination of mechanisms in order to reflect the complexities of their particular context. India for example has created federal sub- units that permits to the more numerous and territorially concentrated minorities to have actual control over their sub-units government, and a number of guaranteed parliamentary seats for more dispersed minorities such as the Anglo-Indians.
i) Federal Systems
In some federal examples, the territorial concentration of persons belonging to minorities enables them to form a de facto majority in federal sub-units and thereby to exercise the powers belonging to that sub-unit. This enables a large number of persons belonging to minorities to control the levers of government in the federal sub-units, allowing them in effect to occupy a prominent position in the public life of the sub-unit, and thus ensuring that their interests are reflected in the linguistic, religious or cultural preferences of that level of government. Some states have sub-units which are clearly created in order to have a minority exercise control. Federal sub-units in India (states) are for the most part based on that country's linguistic divisions, as are those in Belgium. In Canada, one of the federal sub-units - Quebec - is home to most of that country's French-speaking minority, whereas in Switzerland the cantons ensures that the French- and Italian-speaking minorities are able to elect sub-unit governments that reflect their own interests.
One criticism voiced in relation to this mechanism is that it may encourage ethnic divisions and subsequently pave the way for separatist movements, with former Yugoslavia and even Quebec often given as examples. It should however be pointed out that the explosion of former Yugoslavia found much of its initial momentum because of a movement towards a centralisation of power (starting with the elimination of the autonomy of the Province of Kosovo) which seemed to threaten the previously existing federal modus vivendi that had until then guaranteed to most persons belonging to minorities a high degree of participation, representation and control in the public life of the federal sub-units. In the same way, the separatist feelings in Quebec gained strength as Canada increasingly centralised powers, especially following the adoption of a new Constitution in 1982 which banded over to a central Supreme Court extensive powers to review provincial laws.
ii) Non-Federal Territorial Autonomy Arrangements
States need not adopt a federal structure in order to ensure a more prominent role or a higher level of minority representation in public life. Decentralisation of powers may also have much the same effect in non-federal states. This is perhaps one of most common mechanisms in use around the world due to its great flexibility. Whether called self-government, devoluted powers, autonomous region or special territory, what they all refer to is the creation of a political unit with varying degrees of power.
The creation of these units increases the chances of persons belonging to minorities not only of electing persons belonging to minorities susceptible of reflecting and protecting their interests, but also of exercising some degree of political power which would be unlikely or impossible in a unitary state based on the "tyranny of the majority". This mechanism is mainly appropriate where minorities are territorially concentrated and in sufficiently large numbers. Parts of the world where this has been used include the Autonomous Regions of Spain, Trentino-Alto Adage and Valle d'Aosta in Italy, New Caledonia with France, the Gagauz-Yeri Autonomous Region in Moldova, the Autonomous Republic of Crimea in Ukraine, Northern Ireland in the United Kingdom, Greenland in Denmark, the Aland Islands of Finland.
iii) More Effective Legislative Representation of Minorities
More effective participation and representation of minorities in public life is possible without - or even sometimes in combination with - territorial political autonomy. Once again, there is actually a great diversity of approaches used in different countries. New Zealand, for example, uses a combination of two different approaches that can be helpful by having both a proportional electoral system and guaranteed electoral seats for the Maori minority.
There is however one major flaw with most mechanisms which seek to render more effective the presence of persons belonging to minorities in the legislative branch of government. While any measure that guarantees or makes it more likely that such persons can be elected and thus participate in the public life of the state is commendable and an improvement on simple majoritarian rule, it does not actually guarantee that this will necessarily be an effective way of protecting the interests of persons belonging to minorities. To put it simply, even a minority guaranteed of a few seats in Parliament may not be able to influence or modify greatly the "tyranny of the majority" in areas of concern because they will normally be outvoted. Nevertheless, the increased visibility and voice of persons belonging to minorities do contribute to a more effective participation than a completely majoritarian approach to representative and participative democracy.
Among possible mechanisms to increase the effective participation and representation of persons belonging to minorities are the following examples which are intended to be illustrative rather than
iv. Guaranteed Minority Seats
States may reserve a minimum number of seats for representatives of certain minorities. For example, in Romania seats are reserved for small minorities which do not obtain at least one Deputy or Senate mandate in parliamentary elections, as long as they had obtained, in the whole country, a number of votes which equalled at least 5% of the average number of validly cast votes in the election of one Deputy in the whole country.
New Zealand presently has five reserved Maori seats in Parliament, and this will increase to six at the 1999 general election because the number of Maori electorate seats rises or falls depending on the number of Maori who choose to be registered on the Maori electoral roll.
In India, the Constitution puts a limit on the size of the Lok Sabha (Parliament) of 550 elected members, with two reserved seats for members who can be nominated by the President to represent the Anglo-Indian community. There are also provisions to ensure the representation of scheduled castes and scheduled tribes, with reserved constituencies where only candidates from these communities can stand for election.
In Ethiopia, the Yefedereshn Mekir Bet (Council of the Federation) has 117 members, one each from the 22 minority nationalities and one from each professional sector of its remaining nationalities, designated by the regional councils which may elect them directly or provide their direct elections.
v) Proportional Representation
Proportional representation elections are used in many countries. At least for larger minorities, such elections seem to offer a better chance of gaining some representation. Proportional representation can operate on the basis of large, multi-member districts in which the seats are allocated according to the percentage of the vote cast. The advantage of proportional representation elections, and one of the reasons they are so popular in other countries, is that they suggest at least the possibility of fairer representation of both minorities and majorities. In Israel, the system of proportional representation does ensure that persons belonging to the Arab minority are able to elect a number of members to the Knesset which is fairly representative of the size of the minority.
However, this does not always occur. Most proportional electoral systems operate with some type of party list from which a "proportional" number of elected members can be extracted: in its simplest form, a party which gets under such a system 50% of the votes will have the first 50% of the individuals on its list elected. Of course, persons belonging to minorities may also find themselves relegated to a minority position in the lists of political parties. They may therefore still find themselves to be seriously outvoted and excluded in a proportional system.
A somewhat hybrid approach to address this lacuna seems to have been rather successfully implemented in Singapore. A Group Representation Constituencies scheme was introduced there in 1988 to allow Members of Parliament to contest elections as a team which would, it was felt, ensure a more effective participation and representation of persons belonging to minorities in Parliament. Essentially, the scheme requires that all political parties contesting certain constituencies must present a slate of three candidates, one of whom must come from a minority community.
vi) Reduced Vote Threshold
Some states promote representation of minorities in the legislature by lowering the number of votes needed for election in the case of candidates belonging to specific minorities (Danish minority in Germany, national and ethnic minorities in Hungary).
vii) Minority Legislative Veto or Reserved Powers
To ensure that the interests of persons belonging to minorities are safeguarded effectively in matters that are of particular significance to them, especially if it is related to the safeguarding of their identity or interests, the constitution of some countries may require a special majority in the legislature for the passage of certain types of laws or providing a special procedure that enables the minority to suspend the adoption of a bill under certain conditions. This mechanism has been successfully used in Belgium, and appears to be the approach being adopted for Northern Ireland. In the latter case, the 1997 Northern Ireland Peace Agreement contains a number of safeguards to ensure that the Catholic minority is protected and not outvoted on issues in the new Parliament, including arrangements to ensure key decisions are taken on a cross-community basis. This last concept of cross-community decisions in the Parliament refers to a form of "double veto" based on one of two formulas:
either parallel consent, i.e. a majority of those members present and voting, including a majority of the unionist and nationalist designations present and voting;
or a weighted majority (60%) of members present and voting, including at least 40% of each of the nationalist and unionist designations present and voting.
In effect, this mechanism gives a greater and more effective public role to persons belonging to minorities in sensitive areas, ensuring that they will not be outvoted by the majority where their key interests are involved.
viii) Administrative bodies
There are a number of countries which have sometimes, in addition to some of the previous mechanisms, also opted for the creation of a minority administrative body. As an administrative entity, this body may have responsibilities in the administration of specific government programmes aimed at persons belonging to minorities. In some cases, this body may also serve an advisory function.
This type of mechanism is often applied where a minority is too small or too dispersed to have any significant presence in the legislature. This may be argued to be a "strict minimum" to ensure that the interests of persons belonging to minorities are still represented to some degree within the administration. An example of such a mechanism can be found in the Aboriginal and Torres Strait Islander Commission of Australia.
It should be added that such a body may not necessarily respond to many of the demands of minorities (and this is particularly true in the case of Aborigines and Torres Strait Islanders who have long standing self-determination demands as indigenous peoples and not minorities), especially if the minority is relatively large or happens to also constitute an indigenous people. Nevertheless, it does add some level of involvement and participation of persons belonging to minorities which might otherwise not be possible in public life.
ix) Advisory bodies
Another approach which is most often used in combination with some of the other mechanisms mentioned earlier is the creation outside of the administration of independent advisory bodies which may advise the government (Austrian Ethnic Advisory Councils) or the legislature (Sami Assembly in Norway, Sami parliaments in Finland and Sweden).
In some cases, a government may even have the legal obligation to consult such a body in matters that affect the interests of persons belonging to the relevant minority. It is possible for members to be either appointed or composed of elected representatives of minorities. Once again, this type of mechanism tends to be used at the more minimal level of effective minority participation and representation, since such bodies seem more appropriate for non- territorial representation of minorities or for smaller minorities.
Only on the basis of respect of one group for another can what binds us be sought, a kind of common world-wide minimum whose binding nature make it possible for mankind to co-exist on a single planet. It could only work if the commitment grew out of a climate of equality and a common quest. It is no longer possible for one group to force it upon others.
(Vaclav Havel, New Delhi, February l9943)
Participation and representation in public life is important to create links of loyalty to the state and the society of which persons belonging to minorities form a part. It must also be effective to ensure that the interests of persons belonging to minorities can be heard, recognised and respected as far as possible in a tolerant and inclusive environment.
There are undeniably many obstacles to the participation and presence of persons belonging to minorities in many aspects of public life, such as their under-representation and even non-representation in most political systems which tend to focus on majoritarian rule, and consequently on majority interests. This is a fundamental issue, since contrary to what is often assumed, a modern state can never be completely neutral in terms of preferences which may directly or indirectly affect linguistic, religious or cultural matters.
As shown in this working paper, there are in various parts of the world many positive examples of measures helping to ensure the effective participation of persons belonging to minorities in public life and in decisions at various levels affecting them.
At the most basic level, respect of fundamental human rights such as non-discrimination, the right to vote and to be elected, as well as those surrounding citizenship can contribute to the participation and representation of persons belonging to minorities where they are scrupulously respected.
Additionally, a truly effective presence and role for persons belonging to minorities may require some other mechanism in order to compensate for the "democratic deficit". In democracies, persons belonging to minorities generally tend to be either not elected, and therefore often invisible and inaudible, or simply outvoted in many areas of public life.
There are in fact a vast array of mechanisms in many countries which have been shown to be appropriate and well adapted practices to widely different situations. These can include among others mechanisms such as federalism or some form of territorial autonomy, proportional electoral systems, special veto powers, guaranteed minority seats or advisory boards.
While none of these are by definition perfect models for every conceivable context persons belonging to minorities find themselves, they do offer a number of methods that are positive examples of moving towards more effective participation and representation of people, consistent with the ideals of democracy and fundamental human rights.
(1)Arend Lijphart "Self-Determination versus Pre-Determination of Ethnic Minorities in Power-Sharing Systems" in the Rights of Minority Cultures, edited by Will Kymlicka. Oxford University Press, London. 1995. at p. 277.
(2)See for example the Local Government Council Electoral Law of Estonia adopted by Parliament on 17 April 1996. This electoral law contains a provision whereby candidates standing for local government could be required to pass a formal language exam, as a pre-condition for presenting their candidacy.
(3)Quoted in Joan F. Perea "Demography and Distrust: an Essay on American Languages. Cultural Pluralism and Official English", 77 Minnesota Law Review (1992), pp. 269-373, at p. 355.