Volume 1 Number 31
7 August 2011
Democracy under siege part 2 – Mayor John Close’s Tyranny-of-the-Majority
Our form of government is democracy. Many wrongly believe that democracy means “majority rule”. In fact it doesn’t. Democracy means effective participation by the people.
We have a system in which the majority (or more accurately a majority of elected representatives) decides the laws, by vote in a legislature, or in parliament, or in a local council chamber.
If there were no checks and balances on the majority-decide-the-laws system, then we could have a situation where the majority could just make laws and policies that allowed them to take from the minority and give to themselves. We would have a system where the majority of representatives could make policy not in the public interest but rather in their own interest, at the expense of the public interest.
Political scientists call this abuse of the majority-decide system a tyranny-of-the-majority. Tyranny-of-the-majority turns our system from a rule-of-law system to a rule-of-majority system and to a rule-of-man system.
To prevent our majority-decide system from becoming a tyranny-of-the-majority system we have many checks and safeguards on our majority-decide system. Because these checks and safeguards take precedence over the preference of the majority of representatives, it is incorrect to call our system a majority-rule system. Our system is rule-of-law, or more accurately rule-of-duly-developed-law. Our system is not rule-of-majority.
The checks and safeguards include the constitution acts, (and especially the charter of freedoms and rights including freedom of speech), the mandate and role of the Senate, the requirement in law that discussions of law and policy be completely open to the public (with a few exceptions), the ability of the courts to declare laws unconstitutional, and many parts of Acts of parliament and provincial legislatures.
We also have role of Ombudsman in making sure that theOntariogovernment is not abusing its powers. The Ombudsman also has a role in preventing municipal abuse by investigating closed council meeting conduct.
Another safeguard is a requirement for declaration of pecuniary interest and exclusion from debate and vote where there is a pecuniary interest.
The Municipal Act is a safeguard as it provides limits on council powers regardless of any majority wishes. Safeguards of particular interest are section 106 and 107. Section 106 prohibits local municipal councils from giving money (called “bonusing” in the Act) to commercial enterprises, regardless of how strong a majority supports the “bonusing”. Section 107 prohibits grants unless council considers them in the interest of the municipality.
Another safeguard against tyranny-of-the-majority is rule A14.6 of the TSBP policy manual. The rule is:
“After the first and second reading of a by-law, any member may ask to debate the by-law, and that by-law shall be referred to Committee of the Whole under “Items referred from Council or Committee of the Whole” for further debate, or with the consent of the majority of members present may be debated at the current meeting.”
In the 2011 June 28 council meeting, after the first and second reading of by-law 83-2011, three councilors were minuted indicating (requiring) that they wanted by-law 83 sent to COW for debate. These were Councilors, Standen, Thomas, and Bowman. CouncilorJacksonalso asked that the by-law be sent to COW for debate, but this was not captured in the minutes.
According to the procedural by-law section A14.6, which indicates that the by-law shall go to COW upon request of any member, the by-law should have gone to COW.
But instead of sending the by-law to COW as required by rule A14.6 , whether to send it to COW was inappropriately put to a vote, (which was defeated).
By allowing debate on whether by-law 83-2011should go to COW for debate, and by allowing a vote on whether by-law 83-2011should go for debate (which was defeated), council breached policy manual by-law 56 – 2011 section A14.6), and also flouted the parliamentary system.
Rule A14.6 is absolutely clear. There is no ambiguity or uncertainty.
When challenged on the breach of rule A14.6, Mayor Close and Clerk Cathrae, clucking their “majority-rules” mantra, insisted that rule A14.6 meant that:
“After the first and second reading of a by-law, any member may ask to debate the by-law, and with the consent of the majority of members present that by-law shall be referred to Committee of the Whole under “Items referred from Council or Committee of the Whole” for further debate.”
The Close/ Cathrae interpretation is a ridiculous and deliberate misreading of rule A14.6. The misreading is based only on the mistaken notion that we have a majority-rule system and that the rule of the majority takes precedence over the safeguards against tyranny-of -the majority.
The ridiculous misreading is based on the mistaken notion that if one councillor wants to have fulsome informed debate of a by-law and the majority of council does not want fulsome informed public debate then the will of the majority takes precedence over the rule of law that requires that the by-law “shall … go to COW for debate” if any (one) councillor so requires.
In the August 2nd meeting, Councillor Kirkland indicated that he supported the misreading of A14.6 because he felt that A14.6 taken literally would allow one councillor to repeatedly send a by-law back to COW for more debate, effectively holding that by-law up forever and preventing council from moving forward. Counillor Kirkland indicated that this would be very bad.
Conucillor Kirkland’s fears are unfounded. Rule A14.6, taken literally, provides that a single councillor can send a by-law to COW for debate only after first and second reading, meaning it can be sent back to COW under rule A14.6 only once. Councillor Kirkland’s endless-debate scenario is a preposterous red herring.
In the August 2nd COW, members decided to modify rule A14.9 so that it will read that while a member may ask that a by-law go to COW for debate, the decision of whether the by-law goes to COW for debate will be put to a vote.
In my view, Mayor Close and Clerk Cathrae, with support from councillors Turner andKirkland, are making a ridiculous interpretation of rule A14.6 for the express purpose of shutting both councillors and the public out of the public policy debate, and out of the public’s business.
The irony is that on August 2nd, in a classic case of tyranny-of-the-majority, some council members, using their majority-rule tyranny, voted to remove a safeguard against tyranny-of-the majority, thereby strengthening their tyranny-of-the-majority.
(The audio of the August 2nd discussion of rule 14.6 is quite entertaining. It will soon be on the saublesewer website.)
It is clear that the vote was made to shut out informed debate, and to shut out the public, (because informed debate might interfere with the agenda of the tyrants). And the agenda of the tyrants is not the agenda of the people.
The tyrants of the 2006 – 2010 Council frequently abused the majority-decide system by simply using the majority-decide system to suspend or modify any procedural rule that got in the way of their tyrannical agenda. The public suffered.
Now certain members of the current council are doing the same, with full support from the misguided clerk (who inappropriately participated in the policy discussion – see the link to the audio record above).
Fortunately the August 2nd decision is only a recommendation to council, and council has an opportunity in the August 9th Council meeting to reject the tyrannical recommendation.
Council should do the right thing.
When the schedule “A” item 5 recommendation (to change the Procedural By-Law section A14.6) comes before council on August 9, I can only hope that the honest members of council will: vote in the public interest; oppose the siege on democracy; stand up to the tyrants; and defeat the schedule “A” item 5 recommendation.