JUDE IBEGBU

PREAMBLE

In this article, we wish to discuss the right to democracy in international Law. To this end, we shall first define the term "democracy." Then, we shall discuss the legal status of the right to democracy in contemporary international Law. Finally we shall analyse the right to democracy.

1. MEANING OF "DEMOCRACY"

1.1 PROBLEM OF THE DEFINITION OF "DEMOCRACY"

It is not easy to define exactly what 'democracy' means. The definition of democracy has more and more become an important issue of debate within and among societies. Williams affirmed that "democracy is a very old word but its meanings have always been complex." Continuing he stated: "it came into English in the sixteenth century, from...a translation of demokratia, Greek, from the root words demos - people, kratos-rule....it is at once evident from Greek uses that everything depends on the senses given to people and to rule." Democracy has been and is still understood in different ways.

Arblaster maintained that the meaning of democracy is not fixed but changes. The term 'democracy' has various meanings in different countries. Aristotle, for example, gave

a list of five different forms of democracy. Thus, the problem of the definition of the term 'democracy' also stems from the fact that even totalitarian states profess to be democracies. Messner has noted that all modern totalitarian states "profess to be democracies in a higher sense, finally realising the principle of 'government of the people, by the people, for the people', whereas the formal democracies, it is claimed, have not passed beyond the stage of plutocracies." Tomuschat has also observed the imprecision in the modern use of the term 'democracy'. He stated that "until very recently, democracy was a label that was attached almost at random to systems of government." Continuing he stated: "in particular, socialist doctrine contended that in Eastern Europe a specific form of democracy has materialised, inasmuch as for the first time in history, the people itself had taken power under the guidance of the working class and its élite, the communist party." Consequently, he stated that in the writings on the general theory of the state, it was frequently affirmed that the notion of democracy had almost lost any precise meaning. It could signify genuine democratic structures, where the process of decision-making started at the grass-roots level, but "it could also serve as a cloak to cover the most blatant forms of oligarchic rule." Another author Jacot-Guillarmod has also remarked on the frequent use of the term 'democracy', "to qualify, as it is, to reassure and to legitimise." He stated that in the east as in the west, in the north as in the South, all regimes would like to be called 'democratic'. In fact one has the impression that all States, regimes, parties, politicians and intellectuals consider themselves to be democratic or democrats. Green, therefore, was right when he affirmed that democracy is a contested and ambiguous concept, and that one of the reasons for this is that some totalitarian States also claim to be democratic. Even some military dictators who took over power through revolt call their regime democratic without having been elected by the people.

Another source of the complexity of the notion of ''democracy'' is that some authors have recently maintained that ''democracy'' as a term is no longer limited to political democracy but includes economic and social democracy. Thus, Sartori maintains that there are three notions of democracy, namely political democracy, economic democracy, and social democracy. Dias and Gillies hold that the concept of democracy includes both political and developmental democracy. Although this new development adds to the imprecision in the use of the term "democracy", on the other hand it is a positive development, because this will ensure an integral concept of "democracy" which is no longer restricted to political democracy as it has been done so far. Thus Arblaster has rightly argued that it is not enough for the government to be democratic, it is also necessary for the society as a whole to be democratic. He stated: "One of the paradoxes of contemporary political thinking is that while much conventional theory has tried to restrict the idea of democracy to that of choosing a government from competing elites, it is also widely admitted that the theoretical sovereignty of these 'democratic' governments is not matched by their actual powers over society." "This phenomenon," he continued, "can be observed in the vast conglomerate firms and multi-national companies on whose policies and decisions the employment and livelihood of so many millions now depend." He therefore argued that if so much power is not within the domain or the control of elected governments, it is certainly strange to hold that the requirements of democracy are met when government alone is popularly elected and, in principle, accountable. He stated: "Certainly the reputation of democracy is diminished when its application appears to be so restricted and its outcome so ineffectual. Here we have a further reason why defining democracy simply in terms of government is unsatisfactory." He argued that "if we hold to the idea of democracy as popular power, then clearly the concentration of so much power in non-accountable hands, outside the control of elected bodies, is incompatible with democracy."

I agree with the position of Arblaster that democracy should be extended to include economic democracy on the condition that control of the powerful economic companies by the State does not mean the establishment of a totalitarian Communist State or collectivism which is opposed to pluralism and the principle of subsidiarity which also constitute some of the essential elements of genuine democracy. Respect for the right to private property should be guaranteed and the control should be indirect rather than direct having as its objective the realisation of social justice. For example, an indirect control of the powerful economic companies can be achieved by imposing on them taxes commensurate to their income. The money raised from such taxation should be used to cater for the unemployed, those in pension etc. Nationalisation of private property can only be done when the common good requires it and on the condition that compensation is paid to the owners.

Also recently, some authors have started promoting democracy at the international level which involves democratisation of international organisations and institutions.

Notwithstanding the complexity of the meaning of the term 'democracy' we shall in the next section seek to clarify this term. However, in this work we shall be dealing only with political democracy within States.

1.2 BRIEF HISTORICAL SURVEY

Historically, direct democracy, that is, the form of democracy in which the people rule directly without representatives, was the first type of democracy that was practised in ancient Athens where all the people assembled to discuss the affairs of the government. From classical antiquity up to the seventeenth century, whenever democracy was considered at all, it was notably linked with the gathering of citizens in assemblies and public meeting places. Thus, Arblaster affirmed that originally democracy was understood to mean that the people governed themselves directly, that is, without mediation through chosen representatives, or, if necessary, by rotating the governing offices among the citizens.

However, from the early nineteenth century the idea that it was the right of the citizens to participate in the determination of the collective will through the medium of elected representatives started to emerge. Held stated that the "consolidation of representative democracy... has been a twentieth-century phenomenon; perhaps one should even say a late twentieth-century phenomenon." Thus, Arblaster argued that the word 'Democracy' meant in the past 'popular participation' and that this concept of democracy should be retained. He maintained that it is only in the twentieth century that theorists have attempted to develop a version of democracy where popular participation is treated with suspicion, if not regarded as positively undesirable. This marks a fundamental departure from the customary understanding of what democracy is, or was. He stated: "Whether it was approved or not - and usually it was not- it was understood on all sides that democracy meant, to a lesser or greater degree, popular power, popular sovereignty, popular participation." He affirmed that there is no good reason why the traditional understanding should now be discarded, "however inconvenient it may be to some of those who would otherwise like to shelter under the umbrella of the term 'democracy'."

It follows that in contrast with the modern type of democracy which is representative democracy, ancient democracy was direct democracy.

Because of the fact that the people as a mass ruled directly and not through their representatives, 'democracy' was historically considered to be an inferior type of government. Thus its critics described the assembly at which the people gathered to discuss the political affairs as 'meeting in a mob'.

Because the people ruled directly, democracy was seen as a rule of the multitude or of the mob and therefore was an unfavourable term. In fact, historically, democracy was considered to be a revolutionary type of government because of the fact that the people may act as a mob. Thus, according to Williams, "democracy is said to have been 'extended' stage by stage, where what is meant is clearly the right to vote for representatives rather than the old (and until the early nineteenth century normal English) sense of popular power... for democracy was taken to be 'uncontrolled' popular power under which, among other things, minorities (including especially the minority which held substantial property) would be suppressed or oppressed." In his Reflections on the Revolution in France 1790, Burke stated: "A perfect democracy is therefore the most shameless thing in the world." Continuing he stated that "democracy was still a revolutionary or at least a radical term to the mid-nineteenth century, and the specialised development of representative democracy was at least in part a conscious reaction to this, over and above the practical reasons of extent and continuity."

It is therefore only recently that democracy has been accepted as a positive political system. Representative democracy was therefore a reaction to direct democracy. We shall discuss, later in this work, which of these two types of democracy is the ideal type of democracy. Meanwhile, let us proceed to discuss the etymological meaning of the term 'democracy'.

1.3. ETYMOLOGICAL MEANING OF 'DEMOCRACY'

The word democracy came into English in the sixteenth century, from a translation of demokratia, Greek, which depends on two Greek words demos which means people, and kratos which means rule. This view is also confirmed by Sørensen who stated: "The term democracy comes from the combination of two Greek words: demos (people) and kratos (rule)."

From the above considerations, it is clear that the understanding of the two words: 'people' and 'rule' is essential for an integral comprehension of the word 'democracy'. Thus Allen, while stating that the term 'democracy' comes from the Greek words demos, which means 'people, and kratein, which means 'to rule', and that in its most general sense it may be understood as ''rule by the people', stated that "this definition leaves difficult questions unanswered: Who are the people? What can or should it mean for them to rule?" As we shall see later, for authentic democracy to exist, the people must always rule themselves either directly or indirectly through representatives chosen by them through periodic and genuine election.

The next section deals with the analysis of the various definitions of democracy with a view to defining the term "democracy."

1.4. MEANING OF "PEOPLE" IN DEMOCRACY

From the etymological meaning of the word which we have seen above, it is not surprising that many authors have defined 'democracy' as government by the people. Thus, defining 'democracy' Sørensen stated: "Democracy is a form of government in which the people rule." E. A. Daes maintains that the term 'democracy' means "a form of government in which the people rule and in which the political power is held by many rather than by the one or the few."

Also Webster's Dictionary, defining 'democracy' states that it is "government by the people, exercised either directly or through elected representatives." Also according to Collins Dictionary of Philosophy, the word 'democracy' which comes from the Greek words demos (people) and kratos ( strength) means "a form of government in which power rests with the people, either directly, where numbers are small enough (now a type almost extinct), or through representatives, chosen for a given term either by lot (as in ancient Athens) or by ballot (as universally the case today)." The same concept of democracy as government of the people is contained in the definition given by Black's Law Dictionary which defines 'democracy' as "that form of government in which the sovereign power resides in and is exercised by the whole body of free citizens directly or indirectly through a system of representation, as distinguished from a monarchy, aristocracy, or oligarchy."

Besides affirming that 'democracy' is the government of the people, these last three definitions also bring out another feature of 'democracy': that is, that democracy can either be direct or indirect. We shall discuss this point in detail later when we shall determine which of the two types is the ideal form of democracy.

These definitions of 'democracy' have one element in common: that is, that 'democracy' is the 'government by the people', a concept (of democracy) having a number of difficulties. One of them that concerns us here is the precise meaning of the term "people." Thus, Arblaster maintained that at the root of all definitions of democracy, however refined and complex, there is the notion of popular power, of a situation in which power, and perhaps also authority, remains with the people. Further he stated: "That power or authority is usually thought of as being political, and it often therefore takes the form of an idea of popular sovereignty - the people as the ultimate political authority." He then observed that this core of the conception of 'democracy' "does not indicate who comprise 'the people' - a question which, through much of its history, did not get the one answer which seems obvious and unavoidable today." Nino also noted the ambiguity in the use the word 'people' in the definition of democracy as the government of the people. He observed that the problem with the "justification of democracy on the basis of the sovereignty, that is, autonomy of the people, lies, of course, in the concept of people." "As is obvious," he continued "the word 'people' is extremely ambiguous, since it has at least four different meanings."

Giving the four different meanings of democracy he wrote:

Sartori gave six possible modern interpretations of the word 'people'. He stated that the word 'people' can be understood in the following senses:

We maintain that the word 'people' as used in the definition of democracy refers to the totality of the people who are members of a given political community. Although in reality it is the will of the majority that is followed in accordance with the principle of majority rule, the fact remains that it is the totality of the people that governs. This is because, by the mere fact of choosing democracy, the entire people of a particular community have by implication chosen the principle of majority which is one of the principles of democracy. Therefore, when the will of the majority is done, the minority implicitly accepts this by the fact of having accepted democracy as their political system. Therefore, no injustice is done to the minority when they accept and implement the will of the majority, for they have still participated in the government by helping to identify the will of the majority. Also on another occasion those in minority may help to form the majority.

It follows from the above that what is meant by 'people' in the definition of democracy is the totality of the people within a given political community and not the majority or any other group of the people within the political community.

1.5. MEANING OF "RULE" IN DEMOCRACY

PREAMBLE

Just as the meaning of the word "people" in the definition of the term "democracy" is ambiguous, so also is the meaning of the word " rule" or " government" in the concept of democracy. We shall therefore in this section seek to clarify the meaning of the term " to rule." To this end we shall consider the following concepts of "to rule" as used in democracy: (1) "rule" as consent, (2) "rule" as the participation in government through period election, (3) "rule" as observance of human rights and fundamental freedoms,(4) definition of the term "democracy."

Collins Paperback Dictionary and Thesaurus defined "democracy" as " government by the people or their elected representatives...." The question is how do the people govern in democracy? In representative democracy, do the people govern simply by electing their representatives and abandoning the government to them? It can happen that a democratically elected government may turn into a dictatorship or a may become tyrannical. In these cases, the people are no longer governing themselves even though their representatives were democratically elected. They have lost control of the government and therefore it cannot be affirmed that they are really ruling themselves.

Since "democracy" is the political system where the people rule themselves, it follows then that for authentic democracy to exist the people must constantly govern themselves either directly or through elected representatives. This means that the government must always be under their control even when they elect their representatives. They do so by exercising control over their representatives through constitutional means for example through the press, through judicial review of laws enacted by every arm of the government in order to ensure their conformity with the constitution; through effective and healthy political opposition by political parties etc.

It follows that the meaning of "rule" or "government" in democracy cannot simply be reduced to periodic election of representatives by the people. The people must constantly rule themselves even when they have elected their representatives. They do so by controlling the exercise of political power by their representatives through constitutional means as we have stated above.

1.5.2 "DEMOCRACY" AS PEOpLES' CONSENT TO A POLITICAL REGIME

Defining 'democracy' T. M. Frank wrote: " The term 'democracy', as used in international rights parlance, is intended to connote the kind of governance which is legitimated by the consent of the governed."

Frank emphasised that it is through consent that democracy is legitimated. He stated: "The key word in this definition is 'legitimation', which is a continuing - not a static - concept. To be legitimate, the democratic process of consultation must constantly be revalidated by the people being governed: for example (but not exclusively) by their active participation in elections. By this and other indicators people signal whether they endorse the rules and practices by which they are governed.... At the core of the definition, therefore, is the legitimacy not of any particular set of rules but of the process by which the rules are made, applied and revised." It is not enough that the process by which rules are made, applied and revised are legitimate, it is also necessary that the rules themselves are legitimate. Therefore the people should constantly ensure through constitutional means that the rules made by the legislative arm of the government are legitimate.

Arblaster has criticised this notion of democracy as rule by consent. He noted that just as democracy is sometimes equated with majority rule, sometimes it has been identified with government by consent. He stated that there are two problems with this line of argument. The first is that it does not need to be democratic government, or democratic propositions, to which the people give their consent. Continuing he stated that obviously it is possible in principle for genuine popular consent and active support to be given to a dictatorship or to an authoritarian regime, or to specific measures aimed at restricting or even destroying democracy. Further he argued that it is possible that the people can consent to the abolition of democracy. If consent is the essence of democracy, we would have to admit that that could be a democratic act. He stated that "this is the impasse into which the equation of democracy with consent can lead us. It is pointless to deny that a dictatorship can rest on popular support, or that under certain circumstances a majority of people can be persuaded to support or endorse illiberal and anti-democratic policies."He argued that if we now remember that the alternative definition of democracy is popular power, or popular sovereignty, therefore it cannot be a democratic act for the people "to vote away their own power and their own rights, any more than if I freely renounce my freedom I can remain free because the renunciation was a free act." He therefore concluded: "For democracy to exist, power must remain with the people. If they freely abdicate that power, what they consent to may have popular support, but it is not democracy."

1.5.3. "DEMOCRACY" AS GOVERNMENT BASED ON THE WILL OF PEOPLE

Another concept of "democracy" is that it is a political system in which the political power is based on the will of the people. Thus defining "democracy" Boutros Ghali wrote: "Democracy is a system of government which embodies, in a variety of institutions and mechanisms, the ideal of political power based on the will of the people."

Thus, the concept of "rule" here by the people is reduced simply to the political power being based on the will of the people. However, it does not mean that every political power that is based on the will of the people is ipso facto democratic that is that the people really rule themselves. Thus non-democratic regimes can also be based on the will of the people for example monarchy or dictatorship can be accepted by the people as their political system of government. Therefore, it is right to say that political power in these regimes is also based on the will of the people.

The fact that political power is based on the will of the people in these regimes does not mean that either monarchy or dictatorship is democracy simply because it is based on the will of the people because in monarchy or in dictatorship, it is the monarch or the dictator that rules and not the people. The political power which in democracy belongs and resides in the people, is now exercised by an individual, the monarch or the dictator. And this political power resides in them permanently since periodic elections are not held.

Thus, the concept of "rule" in democracy is reduced to a government that is simply based on peoples' consent. As we have seen above people can consent to a government that is non-democratic but it does not follow that the government is democratic simply because it has the consent of the people.

The people therefore have lost their right to govern themselves even though the monarchical government chosen by them is based on their will. It follows that it is wrong if the "rule by the people" contained in the concept of "democracy" is understood simply as any government that is based on the will of the people.

Democracy is a form of political system where the people participate in the government. This participation is expressed mainly by the people freely electing their political leaders who represent them in the administration of the government. Thus article 21 of the UDHR is often cited as a definition of democracy. Paragraph 1 of this article states that among the rights contained in this article are the rights for: (1) every person to participate in the government of his country, either directly or indirectly through representatives who are freely chosen; (2) equal access to public service; (3) the authority of the government shall be based on the will of the people expressed through regular and just elections.

While it is true that the right to participation of the people in the government through fair and regular elections is one of the constitutive elements of democracy, It is not enough that people participate in government simply by electing their representatives at periodic elections. For people to really rule themselves democratically, it is necessary that they always participate in the government. That means that they should continue to participate in government also after the election of their representatives.

Even though the people, by participating in government through periodic election, exercise their political rights, this is not the only criterion for the existence of authentic democracy. As we shall see later, the integral concept of democracy includes the respect for all human rights, including civil rights, and not only political rights.

It is a view held by many authors that a society in which human rights and fundamental freedoms are observed is democratic. Since democracy has to do with the rule of the people, a society in which all the human rights of the people are respected and guaranteed, is said to be democratic, including its government. This is because it is only in such a political society that the people really govern themselves, by exercising freely their human rights and fundamental freedoms, including their political rights. Thus, people really rule themselves when they exercise freely and fully all their human rights and fundamental freedoms. They do so inter alia by participating in the government of their country, by choosing their political representatives freely and periodically who in turn will guarantee both in law and in fact the respect and observance of their human rights and fundamental freedoms. Thus, according to Dias and Gillies, "democracy is best understood in terms of achieving the complete range of human rights." They also affirmed that "progress towards achieving all human rights is democratic development."

Although this notion of democracy defines "democratic society" rather than "democracy as a political system" it has the advantage of being integral.

1.6. MEANING OF " RULE" IN DEMOCRACY

From the above considerations, it is right to affirm that for authentic democracy to exist, the people must constantly rule or govern themselves either directly as in direct democracy or indirectly as in representative democracy.

The people must continue to rule themselves even when they choose their representatives as is the case in representative democracy, They do so by constantly and indirectly exercising control over them. First by periodically electing their representatives. And while they are in the office they control through constitutional means the way they exercise the political power entrusted to them. They must constantly ensure that their representatives exercise the power entrusted to them in accordance with law and justice for example through constructive criticisms of the government by the press, by the political parties in opposition, through judicial review of laws passed by the government etc. It is therefore not enough that the people only give their consent to the government for them to rule or govern themselves in democracy or that they simply elect their representatives periodically. They must constantly govern themselves by participating in the government for them to really rule themselves and they must never lose their political power which must always reside in them even when they periodically entrust it to the representatives chosen by them as is the case with representative democracy.

1.6.1 DEFINITION OF " DEMOCRACY"

From all we have seen, "democracy" can be defined as a political system in which all the people govern themselves either directly or indirectly through representatives chosen by them periodically through free and fair elections, whose primary duty is to guarantee the respect and observance of all human rights and fundamental freedoms of all within their jurisdiction and the people constitutionally oversee the exercise of the political authority they conferred on their representatives.

2. LEGAL STATUS OF THE RIGHT TO IN INTERNATIONAL LAW

In the contemporary international Law of human rights, the right to democracy has become not only a treaty norm but also a customary international Law and a general principle of Law recognised by civilised nations. Democracy has been recognised as a human right by a number of universal and regional human rights instruments. For example, art. 21 of UDHR, art. 25 of ICCPR,, art. 3 of ECHR Protocol No. 1 , art. 23 of ACHR, art. 13of ACHPR. . Article 25 of ICCPR for example states:

Every citizen shall have the right and the opportunity, without any...distinctions...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 electors;

(c) To have access, on general terms of equality, to public service in his country. This article embodies what are traditionally called political rights which constitute the right to democratic governance. Consequently, contemporary international Law imposes the obligation on the State Parties to these Human Rights Instruments to establish for its nationals a democratic system of government.

Also, the right to democracy has become a customary international law. This is evidenced by the existence of a general States' practice confirmed by opinio juris sive necessitatis. Thus most States have granted a democratic system of government to their nationals and many anti-democratic States are undergoing a rapid process of democratisation.

Consequently many totalitarian, dictatorial, and authoritarian regimes have recently been replaced by democratic governments. This fact is confirmed by the former Secretary -General, Boutros Boutros-Ghali in his paper An Agenda for Democratisation when he wrote: "In places from Latin America to Africa, Europe and Asia, numbers of authoritarian regimes have given way to democratic forces, increasingly responsive Governments and increasingly open societies. Many States and their peoples have embarked upon a process of democratisation for the first time. Others have moved to restore their democratic roots. The basic idea of democracy is today gaining adherents across cultural, social and economic lines."

The same view is held by Sørensen who affirmed that both in scholarly circles and in the mass media, it is repeatedly said that democracy has made great progress in the world in recent years. He maintained that the reasons for this statement is that in a short period of time, a large number of countries have begun a process of democratisation. In Eastern Europe, the totalitarian systems are being substituted by democracies. In Africa, "the one-party systems headed by strongmen, personally in charge of the state, are challenged by opposition forces exploiting newly gained political liberties." In Latin America, the military dictatorships started crumbling several years ago. And in many Asian countries, authoritarian systems are proceeding or being forced to proceed towards democracy. He concluded that "in one sense it is true, then, that democracy has made great progress in the world in recent years."The current widespread of democracy seems to mark a victory of democracy over other political systems. Although some authors like Thomas Frank in his article captioned The emerging Right to democratic governance holds that democracy is becoming a global entitlement, it is my position that democracy has become a customary international Law since there exists already a sufficient general practice of democratic governance which is accepted as law.

Moreover, States' practice shows that an overthrow of a democratically elected government constitutes a threat to international peace and security in the region where it occurs which has necessitated the condemnation and intervention of the Security Council. This shows that international community is opposed to a government that comes to power by force. It also shows that the United Nations Organisation is committed to promoting democratisation. The reaction of the international community to two recent cases of overthrow of a democratically elected government in Haiti and in Sierra Leone, confirm this fact. In these two instances, the Security Council intervened under chapter VII of the Charter with resolutions imposing sanctions against the illegitimate governments and called on all the State-members of the United Nations to comply with these measures in order to ensure that the illegitimate government relinquishes power and restores the democratically elected government thereby restoring international peace and security in those regions. In his letter addressed to the President of the Security Council, concerning the overthrow of the democratically elected government of Sierra Leone, the Secretary-General stated: "At stake is a great issue of principle, namely, that the efforts of the international community for democratic governance, grounded in the rule of law and respect for human rights, shall not be thwarted through illegal coups." ; also cf. and consequently restAll these confirm our position that the right to democracy has become a customary International Law.

Not only has the right to democracy become a treaty norm and customary international Law, but also it has become, in the contemporary international law a general principle of law recognised by civilised nations. Our comparative study of the constitutions of most countries reveals that with few exceptions, all the countries of the world stipulate in their constitution that they accept democracy as their political system of government. This source of international law binds per se and erga omnes.

Since customary international Law and general principles of law recognised by civilised nations bind erga omnes, it is right to affirm that the right to democracy now creates obligation erga omnes. Consequently all States are obliged to establish democratic system of government in order to guarantee to all their nationals the exercise of their right to democracy.

Since the right to democracy has become a norm of international Law, it follows that it is no longer among those matters which are essentially within domestic jurisdiction of States in which the United Nations Organisation is prohibited to intervene in accordance with article 2 paragraph 7 of the Charter of the United Nations. Rather it has become a matter which is essentially within international jurisdiction. It follows that in the event of its breach for example by overthrowing a democratically elected government through coup d'état the United Nations and other democratic States either unilaterally or jointly have the right to intervene without force to restore the democratic government in accordance with the obligation they assumed under articles 55 paragraph cand 56 of the Charter.

Thus, States' practice both on regional and universal levels shows that the international community as a whole now considers an overthrow of a democratically elected government as a serious breach of international Law since it leads to threat to international peace and security. In fact experience has proved that anti-democratic governments constitute a threat not only to international peace and security but also to national peace and security. Thus, it can be rightly said that in the contemporary international Law, the international community considers an overthrow of a democratic government as a crime and consequently when it occurs, not only the nationals of the State are considered to be victims of such crime but the international community as a whole. Condemnations from the International community of any overthrow of a democratically elected government demonstrates that there is a growing affirmation on its part of its legal interest in the respect of the right to democracy by all States. These reactions also constitute a confirmation of a breach of its legal interest and its corresponding right to intervene in order to restore the democratically elected government.

Thus it is not only the United Nations that affirms its legal interest in ensuring the respect of the right to democracy but also individual States. For example following the military coup that ousted the legitimate government in Sierra Leone, the European Union issued a Statement on Sierra Leone on 28 May 1997 condemning the current attempt to overthrow the democratically elected Government of Sierra Leone. The Union stated: "The European Union deplores the current attempt to overthrow the democratically elected Government of Sierra Leone and strongly urges the restoration of democratic civilian government."

Consequently an overthrow of a democratically elected government is increasingly viewed in the contemporary international law as a serious breach of international Law which authorises other democratic states to intervene in order to restore the democratically elected government.

The few non-democratic States that still exist are consistently condemned by many democratic States of breaching the human right of their nationals to democratic governance. They are therefore being pressurised to respect the human right of their nationals by adopting a democratic system of government.

There are various legal philosophical justifications of democracy. Different reasons have been offered for the swift progress of democracy in the modern international community. Some authors have argued that democracy more than any other political system of government guarantees peace. Immanuel Kant, for example, has argued that republican constitution - by which he means a representative democracy - guarantees perpetual peace. Other authors have maintained that more than other political systems, democracy guarantees respect for human rights, fundamental freedoms, economic developmentand the rule of Law. Thus democracy has been identified as "the sole political system which guarantees respect for human rights and the rule of law." Boutros Boutros-Ghali for example stated:"...democracy contributes to preserving peace and security, securing justice and human rights, and promoting economic and social development."

While I accept the above-mentioned reasons for defending democracy, I maintain that the primary argument in favour of democracy is that, among all political systems, it is the one that most guarantees the respect for the freedom of the human person. Freedom is an essential quality of the human person. Man is by nature a free being and respect for his freedom means that he must be the author of his actions and should not be treated as an object. Choice is a natural consequence of his freedom. He who does not choose who governs him is reduced to the status of a slave. Since in non-democratic regimes, the citizens do not choose their leaders, therefore those regimes reduce their citizens to the status of slaves. The choice of political leaders is exercised in democracy in so far as democracy guarantees man the opportunity to choose his leaders through periodic elections. Democracy therefore respects the freedom of man.

Moreover it is a violation of the freedom of man when the will of another is imposed on him through laws that he has not participated in making or which he has not given the lawgiver the authority to make.

Because democracy is founded on freedom, democracy therefore enables man to control his own destiny. It is only democracy that guarantees man the freedom he needs to be able to take his destiny in hand and determine himself in order to achieve self-fulfilment. This means that every human person by mere fact of being a free person has a right to choose who governs him. He has the right to choose whatever action he performs either directly or by choosing those who make laws which determine his actions. Since democracy is a system of government in which every one governs himself, it is therefore the only political system that respects the freedom of man and his dignity as a human person. Similarly, writing on the ultimate purpose of democratic governance, Dias and Gillies stated: "The ultimate purpose of democratic governance is to build a just social order and to maximise human potential through the active participation of citizens in controlling their own destinies." Democracy is therefore the political system that accords with human freedom.

It follows then from the above that anti-democratic political systems like totalitarianism and authoritarianism do not respect man's freedom. Thus Pope John Paul II stated: "In the totalitarian and authoritarian regimes, the principle that force predominates over reason was carried to the extreme. Man was compelled to submit to a conception of reality imposed on him by coercion, and not reached by virtue of his own reason and the exercise of his own freedom. This principle must be overturned and total recognition must be given to the rights of the human conscience, which is bound only to the truth, both natural and revealed. The recognition of these rights represents the primary foundation of every authentically free political order."

We also maintain that among all political systems, democracy is the one that most guarantees respect for the right to equality of all persons before the law .

Also, since the right to democracy has been protected in human rights instruments, as we have seen, coupled with the fact that it has become a general principle of law recognised by civilised nations and therefore possessing obligation erga omnes, it is right to affirm that the right to democracy is no longer a matter essentially within the domestic jurisdiction of States but has become a matter which essentially lies within international jurisdiction. Thus, in the case of its breach by any state, all other States have the right to intervene without force to ensure that the defaulting State complies with its international obligation.

Although there exists in the contemporary international Law, the right of each State to choose its political system as stated by the General Assembly Resolution number 2625 (XXV) Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. According to this resolution:

The International Court Court of Justice in the Nicaragua Case also maintained that each State has the right to choose its political system. It stated:

States are prohibited from intervening in political matters of other States which are exclusively within their domestic jurisdiction. Thus the General Assembly in its Resolution of Friendly Relations stated:

The Charter of the United Nations also requires that States respect the principles of State sovereignty and the non-intervention in the internal affairs of other States as stated in article 2 paragraph 7 of the Charter of the United Nations.

As can be seen above, there are a number of principles which seem to conflict with one another with regard to the right to democracy in the contemporary international law: (1) there seems to be a conflict between the right of each individual to democratic governance and the right of each State to choose its political system; (2) the prohibition of intervention in matters that are essentially within the domestic jurisdiction of States and the right of the United Nations Organisation to intervene to defend the right to democracy ;(3) the prohibition of forcible intervention within the jurisdiction of any sovereign State and the right of the Security Council under chapter VII of the Charter to authorise the member States of the United Nations Organisation to remove with force the Haitian military Government which displaced a democratically elected Government, since such situation constituted a threat to international peace and security.

Although International Law guarantees the right to of every State to choose its political system and also prohibits States from intervening in the internal-affairs of the other States, by the mere fact that some States have ratified the international Covenant on Civil and political Rights which embodies the right to democracy, ipso facto removes the matter of a political system which a State chooses from the matters that are essentially within the domestic jurisdiction from which States are prohibited from intervening. Secondly, customary international Law on the right to democracy has rapidly emerged. Thus States are not only obliged to establish a democratic government but also other democratic States have the right to intervene without force to ensure compliance by a State which violates the right of its nationals to democratic governance through coup d'état. Also there is right to non-forcible intervention when a Government maintains a totalitarian and authoritarian political system contrary to the will of its nationals who have opted for a democratic system of government. There is also right to intervention arising from the customary international law on the right to democracy which has rapidly emerged. Human rights that have attained the status of customary international Law not only requires universal compliance but also grants each State the right to intervene in the case of non-compliance with them. Since the right to democracy has attained the status of customary international Law, therefore all States are obliged to establish a democratic system of Government and if they fail to do so other democratic States have the right to intervene without force to ensure compliance by a State which violates this right either through coup d'Etat by which a democratically elected government is overthrown or totalitarian and authoritarian States which have refused to establish a democratic system of government for their nationals. Therefore it is right to say that contemporary customary international Law has rendered the norms that allow States to choose any type of government they desire including non-democratic system of government and the prohibition of intervention in the event of the breach of the right to democracy anachronistic.

Moreover, when the breach of the right to democracy for example through coup d'état constitutes a threat to international peace and security, the Security Council has the right to intervene under chapter VII of the Charter to restore international peace and security.

Since political system is no longer a matter that is essentially within the domestic jurisdiction of States but now has become one of those matters within the international jurisdiction, it follows that the United Nations and other democratic States have right to intervene without force to ensure that States comply with the obligation towards their nationals to respect their right to democratic governance.

However, the use of force to promote democracy through forcible intervention is prohibited in international Law. Therefore, the protection and promotion of the right to democracy cannot be achieved by the use of force. Thus the ICJ condemning the use of force by the United States to ensure the installation of a democratic Government in Nicaragua in accordance to the promise made to that effect by the Nicaraguan Government, stated: "Moreover, even supposing that the United States were entitled to act in lieu of the Organisation, it could hardly make use for the purpose of methods which the Organisation, could not use itself; in particular, it could not be authorised to use force in that event. Of its nature, a commitment like this is one of a category which, if violated, cannot justify the use of force against a sovereign State."

But when the violation of the right to democracy constitutes a threat to international peace and security, the Security Council can authorise Member States under Chapter VII of the Charter to take measures which includes the use of force in order to restore the democratically elected government and international peace and security within the region. Thus, acting under resolution 940 (1994), the Security Council authorised the use of force to oust the military government of Haiti and to install the democratically elected Government. The Council stated:

This is because of the fact that the overthrow of the democratically elected government of Haiti led to the threat of peace and security in the region. In order to restore international peace and security in that region the Security had to intervene with force under chapter VII of the Charter to restore the democratically elected President of Haiti. Also for the same reason, the Security Council recently imposed embargo against the military junta that seized power in Sierra Leone through coup d'état in order to compel it to return political power to the democratically elected President of Sierra Leone.

However, it is illegitimate to use force to restore democracy under the contemporary international Law for this will constitute a breach of article 2 paragraph 4 of the Charter and the principle of non-intervention. Moreover, force cannot be used to protect democracy because it may lead to violations of right to life which is of a higher value than the right to democracy.

One can see from the above that legitimacy in the acquisition of political power has become the rule in international Law. International law is moving from the law of force to the force of law. Therefore use of force is no longer viewed by the International community as a legitimate means of acquiring political authority. Political authority must be based on the will of the people. For the international community justice in the acquisition of political authority is important.

Since the right to democracy has become a treaty norm, a general principle of law recognised by civilised nations and also a customary international Law, it follows that it is no longer a matter essentially within the internal jurisdiction of the States.

2.1 ANALYSIS OF "RIGHT TO DEMOCRACY"

Article 25 of ICCPR states:

This article embodies what are traditionally called political rights which constitute the right of citizens of all the State Parties to the Covenant to a democratic governance. Commenting on these provisions Farer affirmed that the right to participation in government through elected representatives recognised in human rights instruments is a right to live in a democratic State Consequently, contemporary international Law imposes on State Parties to the Covenant an obligation to establish for its nationals a democratic system of government.

Also the right to democracy has been recognised as a human right by a number of universal and regional human rights instruments. For example, art. 21 of UDHR, art. 3 of ECHR Protocol No. 1 , art. 23 of ACHR, art. 13. of ACHPR.

2.1.1 "EVERY CITIZEN"

"Every citizen" referred to article 21 of the Covenant means all those who are nationals of the country which have ratified the Covenant. Thus, aliens are excluded from exercising the political rights contained in the above article. Therefore the subjects of the democratic rights stated in article 21 of the Covenant are only the nationals to a State Parties to the Covenant . This means that only nationals have the right to exercise all the democratic rights listed in the article, that is, the rights to take part in the conduct of public affairs, to vote and to be elected and to have access to public service in one's country.

2.1.2 " RIGHT...TO TAKE PART IN THE CONDUCT OF PUBLIC AFFAIRS"

Since "government" is one aspect of the conduct of public affairs, therefore to take part in the conduct of public affairs means that every citizen of any State which is a party to the Covenant has the right to participate inter alia in the government of his or her country. If citizens have a right to participate in the government of their country, it means that they have a right to a democracy since democracy is a political system in which people govern by participating in the government themselves either directly or indirectly through their elected representatives.

2.1.3. "DIRECTLY OR THROUGH FREELY CHOSEN
PRESENTATIVES" : DIRECT OR REPRESENTATIVE DEMOCRACY.

The participation of the citizens in the conduct of public affairs can be done either directly or through freely chosen representatives. This means that the citizens of every State Party to the Covenant have the right to choose which type of democracy they want to adopt. That is, they are free either to adopt direct democracy or a representative democracy. In the modern democratic States both types of democracy are sometimes adopted in practice. However, representative government is now almost universally accepted as the normal rule by most democratic States and direct democracy as practised during referendum or plebiscite is an exception. In modern democracy, people mainly govern indirectly, that is through representatives periodically chosen by them. This means that in the modern time, indirect democracy is the rule while direct democracy exercised by referendum is an exception. Thus Messner stated that one of the features of modern democracy is representation. This means that "the people exerts its will in the government not directly but through the representatives it elects." He further stated that the representatives, "however, do not represent their constituency alone but the people as a whole." "Hence," he continued, "in their parliamentary activity, they are not exclusively committed to a special mandate from their constituencies and to the representation of quite definite limited interests, but are primarily bound by their conscience in what they think to be in the interest of the common good."

As can be seen from the provisions of article 25 of the International Covenant on Civil and Political Rights cited above, every citizen has the right to "take part in the conduct of public affairs, directly or through freely chosen representatives." Thus, there are two major types of democracy, namely direct democracy and indirect or representative democracy. The question then arises: which of these two types of democracy is the best type of democracy ? Which between the two is the ideal type of democracy? The Covenant grants the State parties the freedom to choose the type of democracy they wish to adopt that is either direct democracy or representative democracy.

However, this possibility of choice has given rise to some questions The first is that since the essence of democracy is that people should rule, and since rule by the people can mean either direct democracy or indirect democracy, which of the two types of democracy guarantees better the rule by the people? Thus according to Allen, "a more difficult question is what it can or should mean for the people to rule. Some have interpreted it to imply direct democracy, where all the people enter directly into decisions about public policy." He maintained that "only in relatively small communities, however, is this method feasible (cf. the assembly of a small Greek city-state or the New England town meeting). Otherwise the only practicable implication is representative democracy, where decisions about policies are made by a few persons designated to speak on behalf of the people."

Held observed that lack of definite meaning of democracy has led to the creation of three models of democracy: direct, indirect and one party model of democracy. He stated: "Within the history of democratic theory lies a deeply rooted conflict about whether democracy should mean some kind of popular power (a form of politics in which citizens are engaged in self-government and self-regulation) or an aid to decision-making (a means of conferring authority on those periodically voted into office). This conflict has given rise to three basic variants or models of democracy. First, there is direct or participatory democracy, a system of decision-making about public affairs in which citizens are directly involved. This was the 'original' type of democracy found in ancient Athens, among other places. Secondly, there is the liberal or representative democracy, a system of rule embracing elected officers who undertake to 'represent' the interests or views of citizens within delimited territories while upholding the 'rule of law.' Thirdly, there is a variant of democracy based on a one-party model (although some may doubt whether this is a form of democracy at all). Until recently, the Soviet Union, East European societies and many developing countries were committed to this conception." There are two types of democracy, namely direct democracy or indirect democracy commonly, known as representative government. While some authors have argued for direct democracy as the ideal form of democracy others have argued for representative democracy and the third group represented by Kant has argued for republicanism.

The second question is which of the two types of democracy guarantees better the respect and observance of human rights? Since we have established above that the democracy means a system of government in which all human rights of the people are respected, therefore, it is also necessary to consider which of the two types of democracy guarantees better the respect for human rights and fundamental freedoms. Therefore, another criterion for deciding the issue of the ‘best’ form of democracy is the principle of respect for human rights and fundamental freedoms. This means that the ‘best’ form of democracy besides being the one that guarantees that the people both in law and in fact really rule themselves by fully exercising their political democratic rights, it should also be the one that better guarantees the respect for all the other human rights and fundamental freedoms of every citizen.

We shall therefore in this section examine the two major forms of democracy in order to determine which of them guarantees better the respect for human rights including political rights and fundamental freedoms of the citizens.

To this end we shall discuss the following: (1) direct democracy, (2) indirect or representative democracy.

2.2 CASE FOR DIRECT DEMOCRACY

The protagonist of direct democracy as the ideal type of democracy is Rousseau. He argued that "sovereignty cannot be represented, for the same reason that it cannot be transferred; it consists essentially in the general will, and the will cannot be represented; it is itself or it is something else; there is no other possibility." Continuing he stated that "the people's deputies are not its representatives, therefore, nor can they be but only its agents; they cannot make definitive decisions." "Any law," he stated, "that the people in person has not ratified is void; it is not a law." Rousseau affirmed that "the idea of representation is modern: it came from feudalism, that unjust and absurd form of government which degrades the human race, and under which the name of man was dishonourable." He affirmed that 'in the ancient republics, and even monarchies, the people never had representatives: the word itself was unknown." He stated: "Be that as it may, the moment that a people provides itself with representatives, it is no longer free; it no longer exists."

Gould has argued for participatory democracy. He stated that "the equal right to participate in social decisions concerning both the activity and the means...also has implications for the form and nature of the democratic process. Specifically, it implies that where feasible, the form of democratic decision-making should be participatory. For where such participation is feasible and an individual is excluded from such participation, then others are making decisions for that individual and violating the equal right which he or she has to codetermine these decisions. Furthermore, a participatory rather than a representative process is the most direct and surest way of taking into account each individual's choices." Continuing, he stated that "In addition, participation serves to develop the range of choices which an individual has, as well as the individual's capacities to deal with diverse situations. In this sense, also, it is a means for the fuller development of an individual's freedom. The realisation of equal rights in social decision making thus requires the extension and development of participatory processes."

However, he affirmed that direct participation cannot be established in all contexts and therefore sometimes representation may be required. He stated: "However, such processes of direct participation clearly cannot be instituted in all contexts, as for example in large-scale and centralised policy-making in government, industry, and cultural affairs. Here, what is required is an adequate system of representation founded on participation at the lower levels. Such participation and representation would not only characterise the political sphere but would also apply to decisions in economic, social, and cultural life as well. In these various spheres, each would have an equal right to be represented and to serve as a representative. Furthermore, the representatives or delegates would be held accountable to those whom they represent by regular elections and regular consultations with those whom they represent, as well as by being subject to recall."

Another opponent to direct democracy is Kochler. He argued that "a reconsideration of the anthropological basis of human rights will demonstrate that 'democracy', as we find it in the form of the parliamentary-representative system, may not only violate human rights in its practice, but, in view of the systematic organisation of the common will, is principally incompatible with the normative status of the citizen as a subject, that is to say with human rights." Continuing he stated: "It will thus become evident that dogmatic formulations such as the statement of the American Commission on Human Rights that 'human rights' and representative 'democracy' are inseparably linked are lacking a philosophical foundation." He affirmed that "it is necessary to de-ideologise this tradition of thinking as propagated in the Western world particularly by John Stuart Mill ('that the ideally best form of Government is Representative Government') because of its questionable foundations." Further, he stated that "only rarely is the apologetic character of this position as clearly disclosed as in the following statement published in the U.S.A.: 'Only representative democracy sponsors the magnification of humanity.' It will have to be demonstrated that - in a basic philosophical sense - exactly the opposite is the case, even though the citizen concerned may at first not even see through the fact that he is disposed of." He then affirmed that "the 'myth of democracy achieved,' as it has been introduced to us by the theorists of democracy in the 'democratic make-believe,' needs to be overcome by a political philosophy that investigates the normative consequences of the status of the human being as a subject." "With this background," he stated, "a new approach to the search for a democratic system that concurs with human rights will have to be found, whereby the main problems will be raised by the question of whether there is a system different from the representative one that will do justice to the normative status of the subject." Later he affirmed that "the dignity of every individual as an active (not merely passive) subject...allows for a more precise formulation of the idea of human rights as a basis for a genuine democratic system... democracy in the sense of direct (that is to say, unmediated) participation of the individual in the decision-making process in a community is the only form of political organisation concurring with human rights. "

Defending further the thesis that direct democracy respects human rights he stated: "The autonomy of man requires, as we have seen, the acceptance of the free expression of will without restriction." "Because of his consciousness," he argued , "man is a subject, and must never be reduced to an object. Therefore, it is only possible to consider a political system to be in concurrence with human rights if it does justice to the autonomy and the resulting dignity of man." He then stated: "Every subjection of the individual to another authority that disposes of him means alienation, that is, negation of his will. Thus...every form of the representation of will is contradictory to human rights and must therefore be rejected." "Rousseau," he stated, "has already shown that in the strictest sense, that the will cannot be transferred. This becomes immediately evident from the fact that the will, as an expression of the autonomy of an intelligible being, ceases to exist when he is disposed of." Further he affirmed: "If the citizen (as a subject) is treated as an object, his normative status as an end in himself is being negated. This is exactly what happens in the act of representation, when the citizen assigns his decision-making power to someone else (a 'delegate') in the course of elections."

He also affirmed that "what the representative mechanism of the decision-making process actually reveals, in the strict sense, is a relationship of domination (and not the only organisational possibility of maintaining a certain scope of freedom for the individual within the complexity of social reality) which is also demonstrated by comments of those who propagate the representative model as the only possible form of democratic organisation."

He affirmed that "in the sense of the anthropology ...every democratic system, if it is meant to concur with human rights, must take into consideration the inalienability of the will and must take precautions that decisions are being taken by way of free, equal and direct participation of the citizens." Continuing he stated: "This excludes all forms of representation in the ...ontological-idealistic sense, since representation in this sense means the renunciation of the individual will and thus the negation of the status of the individual as a subject." "This," he continued, " of course, holds also true for a 'voluntary' transference of one's decision-making power (in favour of delegates who during their term of office act on their own authority), to which the citizen of parliamentary systems grows accustomed in the form of elections."

Further he stated that "according to the understanding of human rights ...this means that every system that provides for the delegation of the political will in the sense of authorisation, not of an imperative mandate, contradicts the concept of man that is based on the classical anthropology of freedom and human dignity." "If politics" he stated, "in a democratic system is to be comprehended 'solely on the basis of autonomy' , then only a system of direct democracy fully concurs with human rights since this is the only system that does not allow for a delegation (and thus negation) of the political will."

He affirmed that "the 'ethos' of human rights (in a critical, revolutionary, and emancipatory respect), which is often used as an argument, takes effect only in a system of direct democracy." He further affirmed that "what counts is not that a majority 'overrules' the opinion of the minority, but that both the majority and the minority are disposed of along the lines of representation." He maintained that "it is a matter only of the election of the group (the representatives) that may finally negate the will of the individual citizen;" and that "one who is in the majority in such an electoral procedure must therefore not indulge in the illusion that he was able to put through his will in a direct manner; he was only able to co-determine who is going to dispose of him." "In a direct democracy, however (for instance in the case of a referendum)," he argued , "I do not hand over my will; the majority does not dispose of me as does the representative, for I vote directly and as an equal (and may at one time be part of the minority and some other time part of the majority)." Further he stated that "the principle of majority in the sphere of direct democracy is merely a rule of the game, which is based upon the principle of mutuality among the autonomous subjects and which makes it possible for me to put through my will in an (unmediated) manner." Further he stated: "When I loose in a referendum, this does not mean that I have been negated in my will. In this respect, the principle of majority in a system of direct democracy is 'neutral' in regard to human rights."

Concluding he affirmed that "it becomes obvious, then, that the normative nature of man as a subject, as an end in himself, is incompatible with a disposal of his will, which is implied in the representative system. This also leads to the understanding that democracy in the original sense of the word is not possible as 'representative democracy,' but only as direct democracy." He maintained that "the human rights - in their order of priority mainly 'individual rights' - are not compatible with the ontological reification of the subject as a collective entity that absorbs any kind of individuality." "The fiction of representation," he affirmed "in its affinity with oligarchy and the principle of authoritarian rule...must be overcome by a theory of direct democracy as it has been anticipated, in principle, by Rousseau." He affirmed that the "often mentioned danger of totalitarianism lurking in direct democracy is much more acute in a system that puts the exercise of power under a taboo (namely that of the fiction of representation) than in a society of free citizens who directly vote on the central issues of the community (and thus particularly on the guidelines of foreign and defence policy.)"

Dias and Gillies argued for both representative and direct democracy. According to them "democracy is best understood in terms of achieving the complete range of human rights. It is a political system in which the 'will of the people shall be the basis of the authority of government." They affirmed that "article 21 of the Universal Declaration of Human Rights goes on to affirm that 'everyone has the right to take part in the government' of his or her country 'directly or through freely chosen representatives'." They then affirmed that "international human rights instruments thus envisage not only representative democracy in political institutions, but participatory democracy in civil society as well."

Concerning direct democracy, they argued that "popular participation is key to realising the right to development and in promoting democracy." Continuing they stated: "As an aspect of political action, participation is the organised effort of powerless groups, communities and movements to win more control of material resources and access to policy-making structures." They also affirmed that "participation is valuable as an end in itself and as a means to make development aid more effective. Projects are more likely to be sustainable when the beneficiaries are involved in their design and implementation because participation creates a sense of ownership." If "democracy" means the rule of the people, it is logical that the people should in fact rule and not their representatives. Moreover, as we have argued, freedom is an essential element of democracy; it implies that it is when people govern themselves through direct democracy that they are really exercising their freedom and they can really claim to be free. Also from the moral point of view, people are positing moral acts when the laws emanating from the decisions they make after deliberations proceed from them directly and not through their representatives. In view of these reasons, it can be concluded that direct democracy is the ideal type of democracy.

But from the practical point of view, direct democracy is not convenient since it means that all the people will have to gather each time to discuss political affairs. Also, direct democracy does not ensure efficiency since experts are not given the opportunity to use their knowledge for the benefit of the people. When people are left to decide certain matters which need specialised knowledge, there is a possibility that they may err in their decision unless they are well educated, which in practice is not always possible. Thus, there is a need for specialists to be elected to represent the people in matters that require technical knowledge. Moreover, it is easier for a handful of representatives elected by the people to arrive at a better decision after discussing an issue than a multitude. Commenting on Rousseau's views on representation Sørensen wrote: "Rousseau's ideas about the role of participation in democracy have often been rejected because they are seen as irrelevant for modern, large scale society." Green has this to say: "Rousseau's homage to direct democracy is a notable example of the irony of history, for it came to us precisely at the moment when, in retrospect, the conditions for its realisation seemed to vanish from the historical stage. Rousseau's is essentially a vision for small, pre-modern city-states, or even towns, which were about to lose any vestigial independence they might have retained to the sway of the modern imperial nation-state."

2.3 CASE FOR INDIRECT OR REPRESENTATIVE DEMOCRACY

The first type of democracy is that form of political system where the people participate in the government through their representatives. This participation is expressed mainly by the people by freely electing their political leaders who represent them in the administration of the government. Thus article 21 of the UDHR is often cited as the definition of democracy. Paragraph 1 of this article states that among the rights contained in this article are the rights for: every person to participate in the government of his country, either directly or indirectly through representatives who are freely chosen; (2) equal access to public service; (3) the authority of the government shall be based on the will of the people expressed through regular and just elections.

This is known as 'indirect' democracy while the democratic system in which the whole people participate in decision-making is known as 'direct' democracy. According to Arblaster "virtually everywhere today, democracy is taken to be synonymous with some kind of representative system. Hence the addition of the term 'direct' to what, until about 150 years ago, was everywhere known simply as 'democracy'. " Continuing he stated: "Today the unqualified term has been appropriated for a form of democracy which is, at best, indirect."

One of the early protagonists of the indirect democracy is Stuart Mill. While affirming that democracy in which the whole people participate in the government is the best form of government, he nevertheless stated: "But since all cannot, in a community exceeding a single small town, participate personally in any but some very minor portions of the public business, it follows that the ideal type of a perfect government must be representative."

While it is true that the right to participation of the people in the government through fair and regular elections is one of the constitutive elements of democracy, it is not the only element of democracy. The people can elect their representatives democratically but the latter may later decide a political issue without any reference to the people, or where they do so, it happens through referendum. Such reference to the people is according to Arblaster very often only consultative and not binding on the government which implements its own will rather than that of the people. The question then is: how really representative is a representation by the elected Government? Moreover, there have been cases where the sovereignty is said to reside no longer with the people but with the parliament. In such situation, the people only exercise their democracy when they elect their parliamentarians who then govern according to their own will and not according to that of the people whom they represent. Such a situation is created where the State, that is the government, is democratic in the sense that it is democratically elected and operates democratically in its decision making procedures but not only are the people completely excluded from participating in the decision making process but also they have lost control of their representatives. The main reason for representation is that it is the only practical way of implementing democracy since it is not possible to gather the whole people together to debate an issue and to take a decision. This argument has been challenged by Arblaster on the ground that the difficulty involved in gathering a large number of people together to decide an issue can be overcome by modern technology.

"Republicanism" is the form of democracy advocated by Immanuel Kant in his work Perpetual Peace and other Essays. He maintained that "the sole established constitution that follows from the idea (Idee) of an original contract, the one on which all of a nation's just (rechtliche) legislation must be based, is republican. For, first, it accords with the principles of the freedom of the members of a society (as men), second, it accords with the principles of the dependence of everyone on a single, common (source of) legislation (as subjects), and third, it accords with the law of the equality of them all (as citizens). Thus, so far as (the matter of) right is concerned, republicanism is the original foundation of all forms of civil constitution."

"Republicanism", for which Kant has advocated is not identical with democracy, rather it is one form of democracy. Thus, while republican government is a democratic government, not every democratic government is a republican government.

A democratic government is sometimes called a republican government. Thus, according to Webster's Dictionary, "Republic" means "(1) any political order that is not a monarchy. (2) A constitutional form of government, esp. a democratic one." Similarly Black's Law Dictionary, states that 'Republic' means "a commonwealth; that form of government in which the administration of affairs is open to all the citizens. In another sense it signifies the State independently of its form of government." Defining "Republican Government" it states: "A government in the republican form; a government by representatives chosen by the people."

For Kant, therefore, not every democratic government is ipso facto a republican government. Thus he stated: "The following comments are necessary to prevent confusing (as so often happens) the republican form of constitution with a democratic one. The forms of a nation (civitas) can be analysed either on the basis of the persons who possess the highest political authority or on the basis of the way the people are governed by their ruler, whoever he may be." "The first" he maintained "is called the form of sovereignty ...(forma imperii), of which only three kinds are possible, specifically, where either one, or several in association, or all those together who make up civil society possess the sovereign power (Autocracy, Aristocracy and Democracy, the power of a monarch, the power of nobility, the power of a people). "

The second is the form of government (forma regiminis) and concerns the way in which a nation, based on its constitution (the act of the general will whereby a group becomes a people), exercises its authority. In this regard, government is either republican or despotic." Explaining the meaning of Republicanism he stated: "Republicanism is that political principle whereby executive power (the government) is separated from legislative power." Further he stated that "in despotism the ruler independently executes laws that he has itself made; here rulers have taken hold of the public will and treated it as their own private will."

He then affirmed that "among the three forms of government, democracy, in the proper sense of the term, is necessarily a despotism, because it sets up an executive power in which all citizens make decisions about and, if need be, against one (who therefore does not agree); consequently, all, who are not quite all, decide, so that the general will contradicts both itself and freedom."

Not only, in Kant's ideal type of government, should there be separation of powers, but it should also be representative. Thus, he rejected every form of government that is not representative on the basis that one cannot at the same time be both legislator and the executor of his own will. He stated: "Every form of government that is not representative is properly speaking without form, because one and the same person can no more be at one and the same time the legislator and executor of his will (than the universal proposition can serve as the major premise in a syllogism and at the same time be the subsumption of the particular under it in the minor premise)."

He maintained that "although the other two forms of political constitution are defective inasmuch as they always leave room for a democratic form of government, it is nonetheless possible that they assume a form of government that accords with the spirit of a representative system...." "The democratic system," he argued "makes this impossible, for everyone wants to rule." He therefore concluded: "One can therefore say, the smaller the number of persons who exercise the power of the nation (the number of rulers), the more they represent and the closer the political constitution approximates the possibility of republicanism, and thus, the constitution can hope through gradual reforms finally to become republican." "For this reason," he maintained, "attaining this state that embodies a completely just constitution is more difficult in an aristocracy than in a monarchy, and, except by violent revolution, there is no possibility of attaining it in a democracy."

Finally he affirmed that the only rightful form of government which is not despotic and brutish is one that is representative and this can only be realised in a republican form of government. He stated: "But if the form of government is to cohere with the concept of right, it must include the representative system, which is possible only in a republican form of government and without which (no matter what the constitution may be) government is despotic and brutish."

If a "representative" according to Black's Law Dictionary inter alia means a "person chosen by the people to represent their several interests in a legislative body," to what extent can such representatives who no longer represent the interests of those who chose them, really be said to be representing them? Arblaster maintained that "...even if we concluded that a representative democracy was the best that could be achieved under modern circumstances, the idea or principle of representation is far from being fully or effectively embodied in existing political arrangements." Concluding he stated: "...in fact, direct democracy could be a great deal more widely practised than it actually is, and some modern technological developments have made it easier to implement than it might have been a century ago."

I wouldn't go so far as to generalise but I would rather maintain that the concept of democracy as the government by the people is not realised when the Government elected by the people to represent them does no longer carries out the right will of the people but rather their arbitrary will.

On the other hand, rulers should not just be mere instruments or rubber stamps through which the people express their will irrespective of its moral content but should always act in the best interest of the people, helping them to realise the genuine good which they seek in the deepest of their hearts. This, because of lack of well-formed conscience and therefore ignorance of the precepts of natural law, people may fail to recognise. This means that the rulers in a democracy should try to educate the people in order to enable them to choose the good.

St. Thomas affirmed that the knowledge of natural law is not the same in all people and therefore this confirms the need to educate the people before a good decision is taken on any issue on which the government wants to legislate before enacting the law. According to St. Thomas: "Accordingly then, in the speculative matters truth is the same in all men, both as to principles and as to conclusions: although the truth is not known to all as regards the conclusions, but only as regards the principles which are called common notions. But in matters of action, truth or practical rectitude is not the same for all, as to matters of detail, but only as to the general principles: and where there is the same rectitude in matters of detail, it is not equally known to all."

Continuing he stated: "It is therefore evident that, as regards the general principles whether of speculative or of practical reason, truth or rectitude is the same for all, and is equally known by all. As to the proper conclusions of the speculative reason, the truth is the same for all, but is not equally known to all: thus it is true for all that the three angles of a triangle are together equal to two right angles, although it is not known to all. But as to the proper conclusion of the practical reason, neither is the truth or rectitude the same for all, nor, where it is the same, is it equally known by all. "

Illustrating his position with an example he stated: "Thus it is right and true for all to act according to reason: and from this principle it follows as a proper conclusion, that goods entrusted to another should be restored to their owner. Now this is true for the majority of cases: but it may happen in a particular case that it would be injurious, and therefore unreasonable, to restore goods held in trust; for instance if they are claimed for the purpose of fighting against one's country....Consequently we must say that the natural law, as to general principles, is the same for all, both as to rectitude and as to knowledge. But as to certain matters of detail, which are conclusions, as it were, of those general principles, it is the same for all in the majority of cases, both as to rectitude and as to knowledge; and yet in some few cases it may fail, both as to rectitude, by reason of certain obstacles ...and as to knowledge, since in some the reason is perverted by passion, or evil habit, or an evil disposition of nature; thus formerly, theft, although it is expressly contrary to the natural law, was not considered wrong among the Germans as Julius Caesar relates (De Bello Gall. vi)."

The same point was made by Maritain when he wrote: "Natural law is not a written law. Men know it with greater or less difficulty, and in different degrees, running the risk of error here as elsewhere. The only practical knowledge all men have naturally and infallibly in common as a self-evident principle, intellectually perceived by virtue of the concepts involved, is that we must do good and avoid evil. This is the preamble and the principle of natural law; it is not the law itself. Natural law is the ensemble of things to do and not to do which follow therefrom in necessary fashion. That every sort of error and deviation is possible in the determination of these things merely proves that our sight is weak, our nature coarse, and the innumerable accidents can corrupt our judgement. Montaigne maliciously remarked that, among certain peoples, incest and thievery were considered virtuous acts. Pascal was scandalised by this. All this proves nothing against natural law, any more than a mistake in addition proves anything against arithmetic, or the mistakes of certain primitive peoples, for whom the stars were holes in the tent which covered the world, prove anything against astronomy."

Continuing he stated that "natural law is an unwritten law. Man's knowledge of it has increased little by little as man's moral conscience has developed....The knowledge which our own moral conscience has of this law is doubtless still imperfect, and very likely it will continue to develop and to become more refined as long as humanity exists. Only when the Gospel has penetrated to the very depth of human substance will natural law appear in its flower and its perfection. So the law and the knowledge of the law are two different things. Yet the law has the force of law only when it is promulgated. It is only insofar as it is known and expressed in assertions of practical reason that natural law has force of law."

The same point was made by Aristotle when in his Ethics he stated: "Of political justice part is natural, part legal, - natural, that which everywhere has the same force and does not exist by people's thinking this or that; legal, that which is originally indifferent, but when it has been laid down is not indifferent, e.g. that a prisoner's ransom shall be a mina, or that a goat and not two sheep shall be sacrificed, and again all the laws that are passed for particular cases, e.g. that sacrifice shall be made in honour of Brasidas, and the provisions of decrees. Now some think that all justice is of this sort, because that which is by nature is unchangeable and has everywhere the same force (as fire burns both here and in Persia), while they see change in the things recognised as just. This, however, is not true in this unqualified way, but is true in a sense; or rather, with the gods it is perhaps not true at all, while with us there is something that is just even by nature, yet all of it is changeable; but still more is by nature, some not by nature. It is evident which sort of thing, among things capable of being otherwise, is by nature, and which is not but is legal and conventional, assuming that both are equally changeable....The things which are just by virtue of convention and expediency are like measures; for wine and corn measures are not everywhere equal, but larger in wholesale and smaller in retail markets. Similarly, the things which are just not by nature but by human enactment are not everywhere the same, since constitutions also are not the same, though there is but one which is everywhere by nature the best."

Green has argued that both representative government and direct democracy are linked and complementary. He states: "...in fact, the most interesting aspect of direct democracy is that far from its being the antinomy of representative government, the two are profoundly linked..." Further he affirmed that "participation and representation are not antithetical; on the contrary, they demand and strengthen each other."

Also in direct democracy, each citizen participates directly in making laws which he obeys. Although the freedom of the will of the individual is not perfectly respected in direct democracy due to the principle of majority rule where the minority has agreed to accept the will of the majority, yet the fact that every individual participates in the voting system makes this objection less serious. In indirect democracy not only the freedom of the will is not respected due to the adoption of the principle of majority rule, but also the citizen is represented by those who have been elected in the government, therefore it cannot be logically argued that he exercises his freedom of will, except by the initial act by which he voted for the representatives. The importance of this point lies in that it may happen, as it often does happen in different organs of the representative democratic government, that the representatives, for example in parliament, enact laws which are contrary to the will of some citizens who elected them. A good example is the law that is enacted in many modern States by the parliaments legalising abortion on some grounds - for example for economic reasons, rape or deformity of the unborn child - which some citizens do not accept on moral grounds. If the majority in parliament, after voting, accepts that abortion should be liberalised on these grounds, can it be rightly said that the freedom of the will of the citizens who are opposed to liberalisation of abortion on these or on any ground at all has been respected? Are they morally responsible for the abortions committed due to such law when it is eventually passed by the parliament and it enters into force? I would maintain that they are not morally responsible. This demonstrates the limitation of the political system of democracy. The situation would be worse with other non-democratic political systems like dictatorship, autocracy, totalitarianism etc. This notwithstanding, for the reasons we stated above, direct democracy is preferable to indirect democracy.

Since freedom of the will and consent are necessary for positing moral actions, I maintain that, as much as possible, the representatives should involve the people in the decision making process. This means that people should be made to participate as much as possible in the government. There should be constant dialogue between the representatives and the governed in order to arrive at justice. Moreover, this ensures that the freedom of the will required for positing moral actions is guaranteed and democracy, which is a political system in which people govern themselves, is actually realised in practice.

Concluding, I maintain that except for the inconvenience involved in implementing direct democracy, as we have noted above, in the light of all the reasons which are in favour of direct democracy, we maintain that direct democracy is better than representative democracy. Since direct democracy is not practically possible, there is a need for combining the two systems in order to ensure a just political system.

2.4 "GENUINE PERIODIC ELECTION"

The election as prescribed by the Covenant should be periodic. This is meant to ensure that the people are able to remove those in office in whom they have lost the confidence. Periodic election is also a method by which the people participate effectively in the government by exercising control over their representatives.

Moreover, since democracy is a political system which is based on the will of the people manifested through free and fair elections, it is necessary that the people manifest their will through elections held periodically. It follows that for authentic democracy to exist, the people should at intervals freely and fairly, choose their political leaders. Thus Santa Cruz rightly affirmed: "If the will of the people of a country is truly to be the basis of the authority of its Government, that will must manifest itself from time to time. Elections and other public consultations, if held often enough, enable the voters to exercise effective control over the policies of their Government and those who implement them." Since democracy is based on free and fair elections and includes the rights of all citizens to participate in government, periodic election as a system of choosing political leaders is therefore one of the essential elements of authentic democracy. Therefore in genuine democracy, political leaders should be elected periodically and freely by the people. Leadership is constituted by the people for a specified period through election after a political campaign.

Also genuine periodic election shows that the right to political power belongs to the people. Thus, it is right to say that the people have the right to the exercise of sovereignty and they exercise this right by choosing their political leaders periodically through elections. For example article 3 of the Constitution of Gabon states: "National Sovereignty shall belong to the people who shall exercise it directly, by referendum or by election, according to the principle of multiparty democracy, and indirectly by constitutional institutions. No faction of the people, no group, no individual shall attribute to itself the exercise of national sovereignty." Also article 2 of the Constitution of the Republic of Moldova states:

"(1) National sovereignty resides with the people of the Republic of Moldova, who shall exercise it directly and through its representatives bodies in the ways provided for by Constitution.

(2) No private individual, national segment of population, social grouping, political party or public organisation may exercise State power in their own behalf. The usurpation of State power constitutes the gravest crime against the people."

Periodic election also shows that the people really do govern themselves. They exercise this self governance by periodically choosing those on whom they want to entrust the political authority to enable them govern themselves for a specified period of time. People really rule themselves when periodically they freely choose those who represent them in the government. In fact we may say that this right of the people to periodic fair and free election is the acid test of the existence of genuine democracy.

However as it can be deduced from the Covenant, it is not enough that the elections be periodic but it is also necessary that they be genuine. For the elections to be genuine, the will of the people must be truthfully and accurately reflected. In order to achieve this result, it is necessary that voting procedures must be honest, fair and free.

Also "genuine and periodic elections" means that they must be based on justice. First, this means that the people should choose as their representatives only those persons whom they consider to be most worthy candidates not only from the moral point of view but also from the point of view of competence. Since they are choosing those who will decide for them on issues that are very vital to their life including their salvation, it is necessary that they choose those who in accordance with their conscience are best qualified to direct the affairs of the government. It follows that the election of political candidates is in fact another way of exercising freedom of conscience. Therefore, the people should ensure that they vote for candidates who are most qualified to govern them according to the judgement of their conscience. Thus, it is wrong for the political candidates to influence the choice of the people through bribery.

Also the people should exercise their right to democratic governance not arbitrarily but in accordance with justice. This means that they cannot arbitrarily reject those chosen by them at any stage during their tenure of office. They should allow them to stay in government for the period stipulated in the constitution. If they are found to be corrupt or incompetent, the people should prosecute them and if they are found guilty they should be dismissed from office and made to return what they have expropriated from the people. This means that the judiciary should be independent and just, in order to ensure the maintenance of the democratic institution. The military should not overthrow the government since this is a violation of the people's right to democratic governance.

Where the leadership is self constituted and without limitation of period for the exercise of political power, there is no democracy but autocracy. Therefore, periodic free and fair election is one of the essential criteria of the existence of real democracy.

2.5 "UNIVERSAL AND EQUAL SUFFRAGE"

Article 25 of the International Covenant on Civil and Political Rights further stipulates that elections shall be by "universal and equal suffrage." "Suffrage" means "the right to vote in public elections." Universal and equal suffrage therefore means that the right to vote must be universal and equal.

Principle of universality of suffrage means that the right to vote should be guaranteed to all nationals without any discrimination who satisfy the requirements of age and other prescribed conditions which are demanded by law .The use of the term "universal suffrage" is a reaffirmation of the principle that everyone has the right to take part in the government of his country, as well as the idea that this participation should be guaranteed in all elections of general interest. However, since certain basic essential conditions for the exercise of political rights are accepted almost everywhere as being non-discriminatory, neither the term 'universal suffrage' nor the word 'everyone' can be understood literally in this context. Among these are that only those having the nationality of the country and soundness of mind are qualified to vote. Moreover, only persons who have attained a certain age, which is usually specified by law, are allowed to exercise political rights.

"Equal suffrage" means that all voters should take part in all elections and other public consultations on the same conditions, and that each vote should have the same weight. Equality of the suffrage means that every citizen has one vote. According to Santa Cruz "generally speaking, its connotation may be summed up in the phrase , 'one man, one vote.'"

2.6 SECRECY OF BALLOT

Article 25 of the International Covenant on Civil and Political Rights further stipulates that the genuine periodic elections should be held by " secret ballot guaranteeing the free expression of the will of the electors." The objective of the secrecy of ballot as stated by the Covenant that is to guarantee the free expression of the will of the electors. In other words the secrecy of the ballot it is meant to ensure that the electors vote freely without any fear coercion or intimidation. Thus Santa Cruz stated: "Secrecy of the vote - which implies the use of a ballot which does not identify the voter - is considered to be primarily an essential guarantee against coercion and intimidation." Secrecy of votes is meant to avoid intimidation of electors by public officials,

2.7 EQUAL ACCESS TO PUBLIC SERVICE

Article 25 further stated that every citizen shall "have access, on general terms of equality, to public service in his country." "Access to public service" obviously refers to election, appointment, or assignment to public office or to the performance of public functions. According to Santa Cruz, "The right of everyone to equal access to public service in his country involves access to elective public office as well as access to appointive public office. While clearly a political right, it is often closely linked to the right to work, set out in article 23 of the Universal Declaration of Human Rights, since public service constitutes what may be broadly termed 'public employment.'"

This right of access to public service has to be on equal terms which means that there should be no discrimination in election, appointment or assignment to public office or to performance of public functions. However, special measures undertaken to help oppressed group of the population is not discriminatory.

3. other ESSENTIAL FEATURES OF DEMOCRACY

3.1 SOVEREIGNTY OF THE PEOPLE

The first feature of modern democracy is that it is a political system in which the people are subjects of the right to sovereignty. This means that in democracy sovereignty, that is: the supreme political power, is exercised by the people. The first proponent of the sovereignty of the people is John Locke. In his Two Treatises of Government he affirmed that supreme power belongs to the community.

Locke maintained that although in a constituted commonwealth the supreme power belongs to the legislative organ of the government, however, the supreme power ultimately resides in the community. He stated: "Though in a constituted commonwealth, standing on its basis and acting according to its own nature - that is, acting for the preservation of the community -, there can be but one supreme power, which is the legislative, to which all the rest are and must be subordinate, yet the legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative when they find the legislative act contrary to the trust reposed in them."

However, as we shall argue later in detail, it is our position that only natural law is sovereign, while the right to its actual exercise of sovereignty belongs to the people. That is, the people are the subject of sovereignty and exercise it either directly in referendum or indirectly through representatives periodically elected by them. This is due to the fact that 'democracy' is a political system where the people govern themselves. For example, some modern constitutions stipulate that sovereignty belongs to the people. Thus, Article 2 of the Constitution of the Republic of Guinea-Bissau states: "The national sovereignty of the Republic of Guinea-Bissau lies in the people."Article 2 of the Constitution of the Republic of Lithuania, states: "Sovereignty shall be vested in the people."

The people exercise their sovereignty either indirectly through elected representatives. or directly through referendum. This feature of democracy as the sovereignty of people is expressed in the constitutions of modern democratic states when they assert that 'sovereignty' resides in the people and that the people exercise it either indirectly or directly. Few examples illustrate this point: Article 6 of the Constitution of Madagascar states: "Sovereignty shall belong to the people, who shall exercise it through their representatives elected by direct or indirect universal suffrage or through a referendum. No faction or individual may usurp the exercise of sovereignty."

Some constitutions affirm that the people shall be the source of political power. By this they intend to affirm that sovereignty belongs to the people. For example, article 2 of the Constitution of the Islamic Republic of Mauritania, states: "The people shall be the source of all power. The national sovereignty belongs to the people which exercises it through its elected representatives and through referendum...."

Article 26 of the Constitution of Mali states: "National sovereignty shall belong to the people as a whole who shall exercise it by their representatives or by means of referendum."

Some modern constitutions go as far as to emphasise that sovereignty belongs to the people. They do this not only by stipulating it, but they also state that no faction of the people, or any group or any individual shall arrogate to itself the exercise of the national sovereignty. For example article 3 of the Constitution of Gabon states: "National Sovereignty shall belong to the people who shall exercise it directly, by referendum or by election, according to the principle of multiparty democracy, and indirectly by constitutional institutions. No faction of the people, no group, no individual shall attribute to itself the exercise of national sovereignty."

Also article 2 of the Constitution of the Republic of Moldova states:

"(1) National sovereignty resides with the people of the Republic of Moldova, who shall exercise it directly and through its representatives bodies in the ways provided for by Constitution.

(2) No private individual, national segment of population, social grouping, political party or public organisation may exercise State power in their own behalf. The usurpation of State power constitutes the gravest crime against the people."

3.2 PARLIAMENT AS THE SUPREME LAWGIVER

Another feature of modern democracy is that parliament is the sovereign law giver. The parliament frequently takes the form of a two-chamber system. According to Messner, "decisions are made by means of a simple majority of the members or, in matters of great import, with a qualified (usually two-thirds) majority."

3.3 CONTROL OVER THE EXERCISE OF POLITICAL AUTHORITY

A further feature of modern democracy is control over the exercise of political authority.Messner affirmed that "provision against the abuse of political power by the government is made the most important element in the constitution and in the rights of parliament." Control against the abuse of power is effected in various ways which include: separation of political powers, multi-party system, judicial review of the constitutionality of laws enacted by various arms of the government, supremacy of constitution and inviolability of human rights and fundamental freedoms. We shall discuss these in detail in the following section.

3.4 POLITICAL PLURALISM OR MULTI-PARTY SYSTEM

Political pluralism or the multi-party system is one of the essential features of modern democracy. Political pluralism means "... splitting up of the community into groups with opposing interests ...." Allen maintains that the "appropriate tests for presence of democracy are primarily procedural. Competition among candidates for people's votes and multiparty system as the most important test for presence of democracy."

Further he affirmed that "neither the content of government decisions nor the people's approval is an adequate test for the extent to which democracy is present." He stated that where competition for the vote is discouraged, election does not constitute a sign of democracy. The claims of countries to be democracies where only one party is legal would seem to be ridiculous.

Although the right to form political parties is not expressly recognised in international instruments yet that right exists. However, many modern democratic States have provisions stipulating that there should be political parties. On international level for example, the representatives of the participating States of the Conference on Security and Co-operation in Europe (CSCE) in number 3 of their document stated: "They recognise the importance of pluralism with regard to political organisations."In number 7.6 of the document they stated that the participating States agreed to "respect the right of individuals and groups to establish, in full freedom, their own political parties or other political organisations and provide such political parties and organisations with the necessary legal guarantees to enable them to compete with each other on a basis of equal treatment before the law and by the authorities."

On national level, some constitutions have provisions requiring the existence of political parties. Thus, article 21 of the Basic Law of the Federal Republic of Germany states: "The political parties shall participate in the forming of the political will of the people. They may be freely established. Their internal organisation must conform to democratic principles. They must publicly account for the sources of their funds."

Article 5 of the Constitution of Moldova, states: "(1) Democracy in the Republic of Moldova is exercised under conditions of political pluralism, which is incompatible with dictatorship or totalitarianism. (2) No ideology may be pronounced as an official ideology of the State."

Article 6 paragraph 2 of the Constitution of Togo states: "Political parties and alliances of political parties may be freely created and may conduct activities within the framework of laws and regulations."

Tomuschat has argued that political opposition is an expression of the right to freedom of expression. He maintained that there is a link between freedom of expression and the right to form political parties in order to be able to replace a government.He also affirmed that political parties should be democratic Although there should be freedom to form political parties in order to guarantee political opposition which is necessary for authentic democracy however political parties should not advocate for the overthrow of government by force or violence.

3.5 SUPREMACY OF THE CONSTITUTION IN DEMOCRACY

In an authentic democracy the Constitution should be the supreme law on the condition that its provisions are in accordance with natural law. This means that no other law enacted by any other organ of the government can be contrary to the constitution. Modern democratic States affirm that the Constitution is the supreme law of their country and any other law that is inconsistent with it is ipso facto null and void. For example paragraph 3 of the Basic Law of the Federal Republic of Germany states: "Legislation shall be subject to the constitutional order; the executive and the judiciary shall be bound by law and justice." In the American legal system the constitution is superior to ordinary laws and the latter are subjected to the former with the result that any law in inferior grade that is incompatible with the constitution has no juridical efficacy; rather, it is said to be unconstitutional. Thus according to the famous "Supremacy clause" of article V1: "The constitution, and the laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the Land; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding."

Other Countries with similar provisions are: South Africa,

Solomon Island, Republic of Trinidad and Tobago, Tavulu, Republic of Uzbekistan, Zambia.

Therefore in the event of any conflict between the constitution and any ordinary inferior law, the constitution prevails and the judge in any tribunal in the United States handling a case in which such unconstitutionality of the inferior law is verified is obliged to declare the latter unconstitutional, affirming the supremacy of the constitution.

The supremacy of the Constitution also means that, no individual or group of persons or the State should claim to be above the constitution in authentic democracy.

In conclusion, it is right to say that one of the characteristics of modern democracy is that the Constitution is the supreme law of the country. However, we maintain that for the constitution to be the supreme law of the country its provisions must be in conformity with natural law.

3.5 PRINCIPLE OF SEPARATION OF POWER

Another characteristic of modern democracy is the principle of separation of power. This principle holds that the three arms of the government, the executive, the legislative and the judiciary, shall all be separated. Thus article 1 section 1 of the Constitution of United States states: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives." And section 8 of the same article enumerates the powers of the Congress.

The Executive power is invested in a president. Thus article 2 section 1 states: "The executive power shall be invested in a president of the United Sates of America." Finally the judicial power is invested in the Supreme Courts and inferior Courts: "The judicial power of the United States, shall be vested in one supreme court, and in such inferior Courts as the Constitution may from time to time ordain and establish." The reason for the separation of power is to ensure checks and balances and the verification of constitutionality of law which may be issued by both the executive and the legislative.

On the importance of separation of powers the Second Vatican Council stated: "If the citizens' co-operation and their sense of responsibility are to produce the favourable results expected of them in the normal course of public life, a system of positive law is required providing for a suitable division of the functions and organs of public authority and an effective and independent protection of citizen's rights." Messner maintained that separation of powers is regarded as indispensable for the control over the exercise of political authority. Underlying the principle of the separation of powers is the proposition that political liberties are guaranteed only if the legislative and executive functions are carried out by different persons or organs acting as a check on one another and keeping one another within their legal bounds.

3.6 PRINCIPLE OF MAJORITARIAN RULE

Democracies usually adopt the principle of majority rule, both in elections and in votes within the body of representatives. Messner affirmed that "the real crux of the democratic machinery for the expression of the will of the community is the majority principle." Allen stated that "often, however, decisions about changing the constitution or about other crucial issues require more than a majority." "On the other hand" he stated, "sometimes a plurality rather than a majority suffices to elect."

Democracy is that political system in which the people as a whole govern But if there is no unity of the wills, the only alternative is to make decisions according to the majoritarian principle.

It may be argued then, that democracy is no longer the rule of the people as a whole but the rule of the majority. We have argued above that the mere fact that the entire people accept the democratic political system, they also implicitly accept the majoritarian principle which is one of the essential elements of democracy. Since it is the people as a whole who govern, when there is division of opinion among them and if they do not accept the principle of majority, it will be practically impossible for them to govern. This applies both with regard to exercise of direct democracy for example in referendum and also in representative democracy where the representatives chosen by the people must take a decision on what to do when there is no unanimity.

We maintain that the will of the majority should be adopted in democracy on the condition that it is in conformity with justice. Therefore when the will of the majority is opposed to justice and the will of the minority is in conformity with justice, the majority should be educated to change its will and adopt the will of the minority.

3.7 PROTECTION OF HUMAN RIGHTS AS SUPERIOR NORMS IN DEMOCRACY

Human rights should constitute the superior constitutional norms in democracy which every government is obliged to protect. Their preservation is the purpose of every political society. Pope John XXIII stated that every society if it is to be well ordered must lay down as foundation the principle that every human being is a person with rights and duties following from his nature, which are universal and inviolable. He further maintained that "the human person is also entitled to a juridical protection of his rights, a protection that should be efficacious, impartial, and inspired by true norms of justice." He affirmed that the common good requires that public authorities protect human rights. Continuing he stated: "This means that, if any government does not acknowledge the rights of man or violates them, it not only fails in its duty, but its orders completely lack juridical force."

The second Vatican Council stated that it is necessary to protect the rights of individuals in the political society."

It follows from the above considerations that Charter of Human Rights should be incorporated in the constitution of every democratic state. In fact most modern constitutions of democratic countries have a section containing provisions on the respect for fundamental rights and freedoms of their citizens which are more or less the same as the human rights contained in the UDHR. These Human Rights should constitute the superior norms of the constitution and therefore no law can infringe them.

The issue we wish to discuss in this section is whether the protection of the right to life of the unborn child and his other human rights should be subjected to the democratic principle of majoritarian rule, that is that the will of the majority, whatever it may be, should be the criterion for deciding whether the rights of the unborn child should be protected or not.

This will of the majority is determined in different ways in a democratic system. Sometimes it is determined through referendum by which the people are allowed to decide whether abortion should be legalised or not. In a representative democracy, it is determined by the different organs of the government often through the voting system and this will becomes the law.

Also the principle of the prevalence of the will of the majority obtains in the judiciary. Some authors have criticised this system because it does not adequately protect the right to life of the unborn child

In some democratic countries, it is the legislative branch of the government, that is, the parliament that enacts abortion laws through the voting system. Sometimes, a change of government occurs, it happens that the new parliament which may be composed mostly of legislators who are pro choice and therefore pro abortion, through a majority vote, enacts a new law which liberalises abortion.

The executive arm of the government has sometimes used the issue of abortion in political campaigns. It has often happened that during such campaigns political candidates have capitalised on the issue of abortion to win the vote of the majority. Thus, if the old executive is pro life, his opponent, in order to win election, takes the opposite position of pro choice. In this way some political candidates have succeeded in winning elections. As it has been verified, on assuming political power, the new candidate, if he is pro choice has taken measures to implement his promise by liberalising abortion.

The result is that in a democratic system, where there is a separation of power, neither the executive, nor the judiciary, nor the legislative are bound to protect the right to life of the unborn child by the mere fact that this right, being a natural right, is inherent and therefore not granted by the State. But rather, each State has the duty to protect it.

Fundamental human rights and freedoms limit the exercise of democratic freedom. Although democracy is in principle a political system that respects the freedom of the human person and his dignity, however, it can happen that in its actual exercise - here we refer to the principle of the majoritarian rule where what is accepted by the majority becomes the law for all - there is therefore a tendency to subject the protection of the human rights to the consent of the majority, where, through the vote of the majority of the representatives in the parliament or that of the majority of the people in a direct democracy as with referendum, abortion is being legalised. Thus Pope John Paul II in his Encyclical Evangelium Vitae stated: "When a parliamentary or social majority decrees that it is legal, at least under certain conditions, to kill an unborn human life, is it not really making a 'tyrannical' decision with regard to the weakest and most defenceless of human beings? Everyone's conscience rightly rejects those crimes against humanity of which our century has had such sad experience. But would these crimes cease to be crimes if, instead of being committed by unscrupulous tyrants, they were legitimated by popular consensus?" Continuing the Pontiff stated: "Democracy cannot be idolised to the point of making it a substitute for morality or a panacea for immorality. Fundamentally, democracy is a 'system' and as such is a means and not an end. Its 'moral' value is not automatic, but depends on conformity to the moral law to which it, like every other form of human behaviour, must be subject: in other words, its morality depends on the morality of the needs which it pursues and of the means which it employs."

It follows then that the will of the majority cannot always be right in a democratic system. The will of the majority in democracy cannot always be identified with truth and justice. When the will of the majority expressed as law is contrary to justice and the natural rights of man, democracy degenerates into tyranny of the majority.

It follows then that respect for fundamental human values like human rights and fundamental freedoms of every person cannot be subjected to the principle of majority rule. The basis for these rights is not the will of the majority but natural law. Thus the Pontiff stated: "But the value of democracy stands or falls with the values which it embodies and promotes. Of course, values such as the dignity of every human person, respect for inviolable and inalienable human rights, and the adoption of the 'common good' as the end and criterion regulating political life are certainly fundamental and not to be ignored." Further the Pope affirmed: "The basis of these values cannot be provisional and changeable 'majority' opinions, but only the acknowledgement of an objective moral law which, as the 'natural law' written in the human heart, is the obligatory point of reference for civil law itself." Finally the Pontiff stated that "if, as a result of a tragic obscuring of the collective conscience, an attitude of scepticism were to succeed in bringing into question even the fundamental principles of the moral law, the democratic system itself would be shaken in its foundations, and would be reduced to a mere mechanism for regulating different and opposing interests on a purely empirical basis."

We maintain that the basic human rights and freedoms of every person, including the right to life of the unborn child must be guaranteed in the constitution of every State that is really democratic as constitutional superior norms that cannot be violated. These rights, therefore, should not be made object of vote but should be binding on all citizens and non-citizens in every democratic State.

3.8 MODERN DEMOCRACY IS BASED ON THE RULE OF LAW

Democracy has as its foundation the respect for the rule of law. One of the characteristics of authentic democracy is that it advocates for the supremacy of law. The rule of law is an essential element of democracy. Thus Pope John Paul II stated: "Authentic democracy is possible only in a State ruled by law...."

According to Concise Dictionary of law, "rule of law" means the "supremacy of law". The second meaning of 'rule of law' according to this dictionary is "a feature attributed to the UK constitution by Professor Dicey.... It embodies three concepts: the absolute predominance of regular law so that the government has no arbitrary authority over the citizen; the equal subjection of all (including officials) to the ordinary law administered by the ordinary courts, and the fact that the citizen's personal freedoms are formulated and protected by the ordinary law rather than by abstract constitutional declarations."

Thus one of the characteristics of rule of Law is that no one is above the law. The Heads of State or Government of the State who participated at the Conference on Security and Co-operation in Europe, 1990 stated: "Democracy, with its representative and pluralist character, entails accountability to the electorate, the obligation of public authorities to comply with the law and justice administered impartially. No one will be above the law." A. Dieng maintains that the 'rule of law' aims at ensuring the freedom of the individual and his protection against any arbitrary use of power by the public authorities. Its purpose is to ensure that the administration is subject to the law.

Rule of law should not be understood as mere legality but is essentially respect for justice. The representatives of the participating States of the Conference on Security and Co-operation in Europe (CSCE) in number 3 of their Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE stated: "They reaffirm that democracy is an inherent element of the rule of law" and in number 2 they stated: "They consider that the rule of law does not mean merely a formal legality which assures regularity and consistency in the achievement and enforcement of democratic order, but justice based on the recognition and full acceptance of the supreme value of the human personality and guaranteed by institutions providing a framework for its fullest expression."

According to Black's Law Dictionary, the 'rule of Law' sometimes called 'the supremacy of law', inter alia means that decisions should be made by the application of known principles or laws without the intervention of discretion in their application."

Tenekides maintains that "a State based on the rule of law is a State whose political system unreservedly complies with the requirements not only of domestic law...but also of international law arising from its diplomatic commitments (and from customary rules)."

The requirement of the existence of the rule of law in the society, is one of the restrictions on the powers of States in limiting human rights and fundamental freedoms. It should govern every limitation of the exercise of human rights and freedoms.

Certain basic conditions and principles are indispensable for maintaining the rule of law. These are: (1) the separation of powers with regard to the legislative, the executive, and the judiciary and also in other areas where there may be the possibility of concentration of power; (2) the independence of judges from the public authorities and any other influence except that of law; (3) any power emanating from the collective authority, especially the legislative and the executive, must respect the fundamental rights and freedoms of the individual; (4) every administrative action must be legal; (5) administration and legislation should be controlled by independent judges; (6) finally there should be a bar maintaining its independence from the authorities and dedicated to safeguarding the rule of law. He further explained that the notion of the rule of law is particularly aimed at subjecting the administration to the respect of the law.

3.9 JUDICIAL REVIEW

The term 'judicial review' has been described by Einaudi as the protection of the constitution or of those fundamental laws expressing the permanent will of the people, vis-à-vis the normal laws which express instead the transient and momentary will. Thus judicial review can be said to be a judicial act aimed at protecting the basic laws of a people - which are conceived as manifestations of their permanent will - by verifying the conformity of any other transient law with them.

I do not subscribe to the description of judicial review given by Cappelletti as "a juridical verification on the constitutional legitimity of laws." According to Cappelletti, he did not wish it to treat what he called 'giustizia costituzionale', which in the English Language would mean 'constitutional Justice'. This gives the impression that Cappelletti seems to limit the concept of judicial review to what I describe as a mere 'legality review', which tends towards legal positivism. For a law can be legal, that is: constitutional, because it conforms to an unjust law in the constitution, but in fact it may be unjust and therefore illegitimate because it is contrary to natural justice. Arena defined judicial review as "the verification of conformity of the law, of the norm to apply to the concrete case, with the constitution, with the fundamental law of the State." And according to Lucifredi: "judicial review means the power of judges (but especially of the supreme court) to interpret the constitution and to refuse to apply those norms that to their opinion are incompatible with the constitution itself." Moreover, it can happen that a constitutional law formally accepted as constitutional in the sense of being in conformity with justice at one time, may later be found to be unconstitutional. So that the concept of judicial review should embrace not only the verification of conformity of ordinary law with the constitution, but also the verification of conformity of the norms of constitution with the natural principles of justice on which the constitutional norms are founded.

Black's Law Dictionary defines 'judicial review' as the "power of courts to review decisions of another department or level of government." Further it states that 'judicial review' is a "form of appeal from an administrative body to the courts for review of either the findings of fact, or of law, or of both. It may also refer to appellate court review of decisions of trial court or of an intermediate appellate court."

These definitions, though generally accepted, seem to reflect a juridical positivism because they do not take into consideration the principles of natural law which should be the foundation of positive norms contained in the constitution.

In the light of the foregoing discussion I would define 'judicial review' as a judicial process whereby the judges who have the jurisdiction, verify the conformity of an ordinary law issued by any arm of the Government, with the positive norms of the constitution which are founded on natural law.

Judicial review is one of the essential characteristics of democracy. The principle of judicial review of laws is founded on the principle of hierarchy of the juridical norm which affirms that in case of conflict between a superior law and an inferior law, the superior law should be preferred. Through it, the citizens have the possibility of petitioning against laws enacted by organs of the government that violate their fundamental rights.

4. civil RIGHTS CONnected with THE RIGHT TO DEMOCRACY

Preamble

For authentic democracy to exist, respect for certain basic human rights which are connected with the full exercise of the right to democracy is indispensable. On the hand the full exercise of these rights require the existence of democratic political system. Therefore they cannot be fully exercised in a undemocratic regime like military dictatorship. These rights inter alia include the following: (1) the right to peaceful assembly, (2) the right to freedom of association, (3) and the right to freedom of expression. We shall in this section discuss these rights.

41 RIGHT TO PEACEFUL ASSEMBLY

The right to peaceful assembly is essential for the exercise of the right to democracy because it allows the people to exercise other democratic rights, like the right to religion, as seen in collective religious worship. Also, it enables the political parties assemble in order to exercise their right to form political parties, to undertake political campaigns in view of elections and to participate in forming the political will of the people.

4.2 RIGHT TO FREEDOM OF ASSOCIATION

Right to freedom of Association is necessary for the exercise of democracy because it enables people to form political parties which guarantees political pluralism. Since formation of political associations is essential for guaranteeing multi-party systems which ensures political pluralism - an indispensable element of authentic democracy - it follows that the State should ensure that the right of every person within its jurisdiction to association, is guaranteed both in law and in fact.

4.3. RIGHT TO FREEDOM OF EXPRESSION

There is a relationship between right to freedom of expression and the full exercise of right to democracy. Article 19 paragraph 2 of the ICCPR states: "Everyone shall have the right to freedom of expression: this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice." It follows that the right to freedom of expression can only be exercised in a genuine democracy. Authentic democracy therefore cannot exist without freedom of expression.

Freedom of the press which is an aspect of the freedom of expression is a an essential element of democracy because it enables the press to criticise the government. This in turn makes the government to be responsible and accountable to the people.

Right to freedom of expression is also enables the political candidates to criticise the government in power and to campaign effectively before elections. Freedom of expression also enables the opposition political parties to criticise the government in power.

Freedom of expression therefore helps the press and political parties to mould the political views of the people during political campaigns in order to enable them to vote for the right candidates. Thus Cruz stated: "The right to freedom of opinion and expression, always of great importance, acquires added significance at the time of election campaigns, when it is essential for the prospective voter to form his own opinion and to express it freely, and for the candidates to put forward their views without fear of retaliation."

The right to freedom of expression therefore helps to inform the people on how the government exercises the political power entrusted to it and allows the people to express their political views and make political decisions without fear or intimidation. It also enables the people to decide whether they will continue to entrust the political power to the representatives chosen by them who form the government or to withdraw it and entrust it to other new candidates through election.

Also freedom of the press enhances democraticisation. Boutros Ghali rightly stated: "...a free press is a vehicle for democratisation; democratisation promotes the open society in which a free press can flourish." It follows from the above that without the existence of freedom of expression, it cannot be said that there exists authentic democracy.

BIBLIOGRAPHY

A. SOURCES

1. INTERNATIONAL DOCUMENTS

2. CONSTITUTIONS

C. ARTICLES

D. ENCYCLOPEDIAE AND DICTIONARIES