Shashank Tripathi & Shreya Jain*
The authors critically analyze the nexus between constitutional referendums, Amartya Sen’s capabilities approach, and international law, focusing on Australia’s recent Indigenous rights referendum. While referendums aim to enhance democratic decision-making, the study contends that Sen’s approach underscores the necessity of meaningful representation beyond formal voting access. The denial of representation to First Nations people in Australia exemplifies how referendums can compromise self-determination, potentially imposing majority will while undermining minority aspirations. Examining historical injustices faced by Indigenous communities, the article argues that referendums, despite promoting direct democracy, fall short of fostering the capability creation crucial for genuine self-determination. The analysis extends to the international law perspective, particularly the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and emphasizes the failure of referendums to align with UNDRIP’s objectives, missing an opportunity to address historical injustices and uphold the right to self-determination.
Introduction
National aspirations must be respected, people may now be dominated and governed only by their consent. Self-determination is not a mere phrase, it is an imperative principle of action, which statesmen will henceforth ignore at their peril.
Woodrow Wilson
Referendums constitute a part of the representative democratic process wherein they bring people in a direct capacity to act, influence, and decide the questions of constitutional law within a polity. The object is to gauge the decision of the citizens concerning a proposed change in the constitution and effectuate it through the use of sovereign power. The provision of the referendum in the Australian Constitution reflects the same award of power to the people to change, modernize, and update the Constitution devoid of interference by political players. While the constitutional referendums seemingly add another layer of representation to democratic decision-making, in light of Nobel laureate Amartya Sen’s capability approach or Nyay, equal representation ought not to be measured merely by guaranteed formal access to voting power, but by the ability of citizens to equally meaningfully actualize their will.
The recent denial to award a voice of representation to First Nations people in the Australian parliament nonetheless exhibits that constitutional referendum can intervene in the most fundamental acts of self-determination and can lead to the imposition of popular will while marring the political aspirations of minorities within the polity and constitutional framework. While provision for a referendum to promote direct democracy furthers procedural fairness or Niti as Amartya Sen describes it, it fails to actualize the voice of the indigenous people and establishes the superiority of majoritarian will within the legal framework and retains the status quo thus compromising on his idea of Nyay or Justice. The authors through this article shall attempt to first locate the viability of referendums in representative systems in effectuating equitable outcomes for the indigenous community through the lens of Sen’s capabilities approach and shall analyze how observance of constitutional law principles must entail allegiance to Niti and Nyaay. Secondly, they analyze this referendum in light of international law principles enunciated in the UNDRIP to further reaffirm the relevance of Sen’s capabilities approach in achieving the goal of the convention.
Background
Australia recently conducted a referendum that sought to alter the Constitution in order to recognize and include the First Peoples of Australia by establishing an advisory body for the Aboriginal and Torres Strait Islander people. The Referendum was in furtherance of the demands made in 2017 ‘Uluru Statement from the Heart’, an invitation from the First Nations people, who constitute 4% of the Australian population, to non-Indigenous Australians, asking for substantive reforms to advance the rights of the indigenous people. The Uluru Statement was the outcome of the Indigenous population’s attempt to expose the full extent of colonial injustices experienced by Aboriginal and Torres Strait Islander people and to enable a shared understanding of Australia’s colonial history and its impacts. The referendum to award them with Constitutional recognition was voted against with 60.8% votes. Several scholars consider this to be violative of principle of ‘cultural humility’ which attempts to instill institutional accountability to reciprocate the trust-based relationship with indigenous people and counter systematic racism through policy measures.
Locating Sen’s “Justice” In Constitutional Referendums
The role of referendums may be understood as envisaging a means by which representation is supplanted, returning direct power to the people of will formation and expression. However, in his critique of the transcendental approach to justice, Sen argues that the mere institution of frameworks to attain Nyay may not necessarily lead to awarding “capability to achieve” the “functionality” that the framework originally aspired. Therefore, governments must allocate resources to cultivate ableness where the disability is caused due to social and political deprivation.
The Indigenous Communities, having been the subject of historical injustice, including their legally sanctioned massacre in the early 19th and 20th Century, required an award of legal competence to play their role in representative government. The trail of their sufferings and systematic discrimination prevailed during the mid-1800s to the 1970s when Aboriginal children on their way to school were captured by the police and sent to foster homes where they were raised by non-indigenous communities and were sexually abused. Their desperate situation was sidelined during the deliberations of constitutional conventions in Australia which eventually led to the establishment of a paternalistic legal regime for the Aboriginals within the Constitution wherein their individual and social agency is corroded by the Government’s interference.
While the introduction of referendums within the Australian Constitutional Framework aimed on the one hand to enable communities to have a participative voice in decision-making, on the other hand, runs counter to the “realization-focussed approach” which rests on the idea of capability creation in a manner that rights are truly realized in a democracy. Moreover, the ongoing systematic racism in the form of increased incarceration rates and continued denial in decision-making posits the introduction of referendums within the Australian Constitution as a classic example of what Sen conceptualized to be “transcendental” and “parochial” justice providing no “real options” to the Aboriginals to exercise their choice. The same is testified in the present case wherein they could not exercise their true will or capability to vote themselves into the Constitutional framework owing to their marginal population. Thus, their ability to provide themselves with legal protection and voice was contingent upon the seemingly fair option of expressing their decision through voting which is inherently majoritarian.
Sen’s ideation of “capability/realization” based Nyay seeks to enable people’s exercise of legal and human rights in a democratic system acting in the development of capabilities and not the mere establishment of institutions. He pinpoints the institutional limitations saying that while institutions have importance in modern democratic societies, they do not by themselves ensure a concrete response to remedy injustices in the society. For instance, fasting and starvation are differentiated by the exercise of choice or the absence thereof similar to how the existence of an institution is irrelevant so far as it does not cause distributive effects by offering capability/choice to the individual for the fulfillment of its object. Testamentary to this analogy is the referendum to enable reforms and recognition for the indigenous communities, which although sets up an institution/mechanism to incorporate Aboriginals within representative democracy, falls short of capacitating them in actualizing self-determination and keeping them constitutionally starved. This leads us to the question of whether voting or “majority rule” provides a reasonable procedure in the case of making social welfare decisions. Especially in cases where the subjects of social welfare are numeric and racial minorities, Sen argues, such an institutional setup does not yield outcomes in practice as it inadvertently leads to the perpetuation of discriminatory “social choice”. Thus, the provision of referendum inherently deters the Aboriginals from claiming sovereignty over themselves and contravenes Sen’s concept of “Nyaya” or justice by leaving them devoid of real choices and capabilities.
Constitutional Capability To Observe International Law Principles
The Sen’s capability argument against Australian referendums is not limited to the absence of capacity building by the Australian government but it needs to be viewed as an inherently flawed institution failing to realize the International Law principles and obligations enshrined in the UNDRIP concerning the rights of the indigenous communities. The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), adopted by the UNGA in 2007 and formally endorsed by Australia in 2009, enshrines minimum standards for the recognition, protection, and promotion of indigenous rights. As part of the resolution, the UNGA acknowledgedthe historical injustice meted out to indigenous peoples as a result of “their colonization and dispossession of their lands, territories, and resources”, thus preventing them from exercising, in particular, their right to development per their own needs and interests and identified the paramount importance of the right of self-determination for the indigenous communities as also affirmed by the ICCPR.
The Uluru Statement from the Heart with its object to enable a Voice to Parliament in Australia was an attempt to realize the international law principles enshrined in the UNDRIP. However, the rejection of the Voice by the referendum exemplifies a missed opportunity for meaningful adoption of these principles and runs counter to the Aboriginals’ inherent right to ‘freely determine their political status and freely pursue their economic, social and cultural development’ identified by the ICCPR and UNDRIP. This may be seen as imposing an obligation upon Australia, in the light of developing state practice of adopting UNDRIP principles, to award the right of self-determination to the indigenous population as provided by the ICCPR under Article-1 that has customary status.[1]
The positive international obligation upon the states, including Australia, to provide an effective mechanism to prevent and redress for actions that deprive the Aboriginals of their culture, and at the same time involve them in decision-making through their representatives, needs “accomplishment-based” understanding of justice wherein institutionalization of their participation needs to stem from a progressive award of individual rights. With the increase in risk of mistakes in matters of grave constitutional consequences such as the award of constitutional recognition to Aboriginals, referendums need to be criticized for their inability to surpass the majoritarian traditionalist decisions. Traditionalist constitutionalism has been objected to by Republican constitutionalists for its conservative bent wherein the “ancestors” dictate the political and legal outcomes while failing to distinguish demos or ‘people’ as a heterogeneous group with distinct requirements and capabilities. Therefore, the true observance of international law obligations would lie in the award of such constitutional authority that acknowledges such diversity and leads to an increased degree of choice and capability for Aboriginals to determine their political and social outcome.
Conclusion
The observance of international law obligations within municipal laws concerning indigenous communities shall require the acknowledgment of their kaleidoscopic composition and needs. David Miller’s conceptualization that the purpose of a democratic nation is to build civic resources and create mutual obligations can only be achieved in Sen’s ‘just’ society with equal access to capabilities for people of different social groups. Referendums as a process of constitutional decision-making shall fail on the scale of justice as long as the formation of will is not complemented by a sense of community and common obligation among those who participate in it. Australian referendum, on the contrary, was not just to form a will but to define the identity of certain communities and its outcome is not merely a neglect of Aboriginals’ political rights but an imposition of a constitutional stance upon their own idea of self, or their own ‘choice’ leading to disruption of the sense of common identity. Thus, the recourse of referendum itself reflects a pre-tailored inevitable outcome that was effectuated through racially popular voting behavior.
In contrast to the recourse to referendums, which banks on a majoritarian will to understand the perspectives and the human suffering of the indigenous community, Niti or ‘organizational propriety’ is to be supplemented with a Nyaya or capabilityapproach which encapsulates a ‘comprehensive concept of realized justice’. Nyaya is not merely a consequentialist approach to justice, but it also takes into account processes and procedures as is epitomized by Arjuna’s conversation in the Bhagavad Gita, as discussed by Sen in ‘The Theory of Justice’. Sen’s award of importance to paying “particular attention to comprehensive outcomes that include inter alia actions, processes, agencies, and outcomes” is the apt approach that needs to be adopted by Australia to redress the racial-constitutional inequity. The purpose of referendums would be achieved only when the very identity of Aboriginal and Torres Strait Islander people, or the ‘demos’ is encapsulated in the Constitution; only then would Sen’s justice be manifested and international obligations be abided by.
[1] Schabas, William A., ‘Fundamental freedoms’, The Customary International Law of Human Rights (Oxford, 2021; online edn, Oxford Academic, 19 Aug. 2021), https://doi.org/10.1093/oso/9780192845696.003.0007, accessed 30 Nov. 2023
*Shashank Tripathi (shashanktripathi21094@rgnul.ac.in) is a third-year law undergraduate at the Rajiv Gandhi National University of Law, Punjab. He has a keen interest in International Law, Criminal Law, and IPR.
Shreya Jain (shreyajain21058@rgnul.ac.in) is a third-year law undergraduate at the Rajiv Gandhi National University of Law, Punjab and is passionate about international law, investment law, and criminal law.
Categories: Human Rights, International Law, Politics
