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ABSTRACT
Many critics of President Zuma’s government argued that it was constitutionally and democratically permissible for Members of Parliament to vote secretly in motions of no confidence in the Executive. The Constitutional Court agreed, interpreting the Constitution as empowering the parliamentary Speaker to authorise a secret ballot no-confidence vote and seemingly encouraging her to rule in favour of one. This article argues against secret ballots in parliamentary votes, but on democratic-theoretical rather than constitutional-legal grounds. While a secret ballot is appropriate for voters, elected representatives have no right to conceal their voting choices. The absence of direct election of individual MPs in a given electoral system does not negate the requirement of accountability to voters. Moreover the system of party mandate, whatever its merits, is not democratically indefensible. Representatives ought to account to citizens for their voting choices either directly or indirectly via mandate-bearing parties. Further, a parliamentary secret ballot could be employed against those seeking executive accountability.
Acknowledgements
I would like to thank all of those who debated this issue with me on Facebook and Professor Mike Morris for reading and commenting on a draft.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 The Constitution Schedule 3 Part A.6 and Part 3A passim.
2 The Constitution Section 57.1.
3 The Constitution Section 1d refers to ‘accountability, responsiveness and openness’ as founding values.
4 The Constitution Sections 41.1c, 152.1a, 215.1. Section 41.1c refers to ‘transparent, accountable’ government in all ‘spheres of government and organs of state’; 152.1a requires ‘accountability’ in local government; 215.1 requires ‘transparency’ and ‘accountability’ in national, provincial and municipal budget-making.
5 The Constitution Sections 57.1b, 70.1b, 116.1b. Section 51.1b requires ‘accountability, transparency and public involvement’ in the case of the National Assembly; 70.1b requires the same for the National Council of Provinces; 116.1b of provincial legislatures.
6 United Democratic Movement v Speaker of the National Assembly and Others paragraph 94.
7 United Democratic Movement v Speaker of the National Assembly and Others paragraph 90.
8 United Democratic Movement v Speaker of the National Assembly and Others paragraph 88.
9 Glaser (Citation2017). I began developing my thoughts on this subject in public Facebook posts beginning in August 2016, when I questioned the use of the secret ballot by elected municipal councillors (<https://www.facebook.com/daryl.glaser.3/posts/892927454172606>). The only others I know to have argued against the parliamentary secret ballot are Friedman (Citation2017) and Fakir and Sarakinsky (Citation2017).
10 Thus for example Michael Osborne cites the inclusio unius est exclusio alterius
rule to suggest that the mention of the secret ballot in the one case but not the other constitutes grounds for assuming a specific exclusion of a secret ballot in the latter case (<https://www.facebook.com/daryl.glaser.3/posts/1096525637146119>).
11 Providing timelines is difficult because, as Teorell, Ziblatt, and Lehoucq (Citation2017) explain, the secret ballot was an amalgam of different reforms that did not necessarily happen simultaneously, including the shift from oral voting to paper ballots, the centralised production of uniform ballots and provision of screened-off polling booths. But these various reforms were concentrated in a span commencing with the introduction of the ‘Australian ballot’ in Victoria in 1856 and concluding in 1914.
12 Section 3, Article 21.
13 Bribing mass electorates may appear prohibitively expensive, but one could imagine multiple employers rewarding their own employees for voting the right way, or bribery being targeted at ‘swing’ areas. Buying small or poor electorates need not be prohibitively expensive. The secret ballot has not prevented turnout buying, as in Egypt’s 2018 presidential election.
14 Mansbridge (Citation2003, 516–520) suggests that elected representatives worry more about what they can sell to voters at the next election than about doing what they promised at the last. In that sense representation is ‘anticipatory’ rather than ‘promissory’. This may accurately describe certain practices. But for representation to be legitimate, a given electorate must have reason to think that candidates’ promises count for something and that it can monitor their implementation. If neither condition holds, then representatives are free (post-election) to ignore both past and future electorates. In anticipatory representation’s normatively ideal form, Mansbridge suggests, representatives seek to shape the next electorate through reciprocal or educative interaction with their constituents in advance of the next election. But if this interaction is to be ‘deliberative’ rather than ‘manipulative’, it must happen openly and enable voters to monitor implementation of conclusions arising from deliberations. A secret ballot for parliamentarians does not strike me as according with any attractive version of anticipatory representation.
15 On surrogate representation, see Mansbridge (Citation2003, 522–525).
16 Thus, for Alcoff (Citation1991), representation oppressively constitutes the represented rather than allowing them to constitute themselves.
17 Thus Ankersmit (Citation1996) insists that aesthetic representative’s separateness from the people enables them to be more externally visible, and welcomes this.
18 Alcoff (Citation1991) advises speakers to engage in open dialogue with those they speak for, which presumably requires that the spoken-for should be able to track what representatives say and do.
19 See for example Michael Morris’ and Elias Sideras-Haddad’s comments at <https://www.facebook.com/daryl.glaser.3/posts/1069930323138984>; Jannie Roux’s comments at <https://www.facebook.com/daryl.glaser.3/posts/1096525637146119>; and Devan Pillay’s and Kelwyn Sole’s comments at https://www.facebook.com/daryl.glaser.3/posts/1129588300506519>.
20 Thus the Constitutional Court writes: ‘The requirement that [candidates’] names be submitted to the Electoral Commission before the elections is crucial. The people vote for a particular party knowing in advance which candidates are on that party’s list and whether they can trust them’ (United Democratic Movement v Speaker of the National Assembly and Others paragraph 79).
21 See for example De Vos (Citation2017). See also comments by Maggs Naidu at <https://www.facebook.com/daryl.glaser.3/posts/1096525637146119>; and those of Shireen Hassim, David Bilchitz and Judith February at <https://www.facebook.com/daryl.glaser.3/posts/1129588300506519>.
22 See for example Gauta Komane at https://www.facebook.com/daryl.glaser.3/posts/1069930323138984, accessed on 20 October 2017. He writes: ‘For now, it is expedient to remove Zuma by any means legal’.