In a democracy, the process by which laws are effected needs to be transparent and therefore it is paramount that there is agreement on a democratic and transparent process that should guide the debate on divorce. I think that we should go back to first principles to guide us on this process.

In a parliamentary democracy, the will of the people is sovereign. It is expressed either in a parliamentary election, where the people elect representatives to implement their electoral programme, or directly through a referendum. It is important to stress that the people elect representatives on an electoral programme and not individuals who are given free reign to decide how to rule the country for a five-year term. The people are in effect delegating their authority to Parliament to implement the electoral programme of the majority of representatives elected. Since divorce does not feature in either of the electoral programmes of the two parties in Parliament, it then follows that this legislature does not have the mandate or the delegated authority to deal with this issue. They can debate but they cannot legislate.

Quite a few prominent opinionists on both sides of the divorce debate have argued that this issue should not be decided by a referendum but by Parliament. The reasons for this should be investigated.

Some have opined that divorce is about minority rights and therefore it is a matter that should not be decided by the majority of the people. Again it is important to go back to first principles. If the right invoked is a human right, then the issue cannot indeed be decided by a referendum but neither can it be decided by Parliament. It is a matter for the courts. If the right invoked is a civil right, then Parliament can deal with it but only on the basis of the people’s delegated authority which this legislature does not have. Some have argued that members of Parliament would be shirking their duty if they do not deal with the issue and refer it to the people. MPs would be shirking their duty if they do not implement what they promised prior to election and not by implementing matters for which they have no mandate. Others have argued that the man in the street should have no say about how they lead their lives. This is correct but beside the point. Divorce legislation is not about how people lead their lives but about society deciding whether a civil contract, which purports to be lifelong, can be dissolved and if so under what conditions. Surely society, whether through a Parliament that has the mandate or through a referendum, can and should decide such matters. Others have opined that this is a matter of principle and a referendum should not decide matters of principle. But if this is so, why should Parliament decide such matters? With what authority? If Parliament’s authority does not come from the people, then where does it come from? I am sure nobody wants to invoke “divine right”!

I find the argument that invokes protection of minority rights as particularly myopic. If divorce legislation is implemented it is not a minority right. It would be a right which would apply to all persons who are married and surely such persons constitute by far the majority. Whether one makes use of divorce or not is beside the point, the right would exist for all married people.

But perhaps what I find most troubling in the arguments against a referendum is the unspoken assumption that the people cannot be trusted to take this decision and that our representatives in Parliament are better suited to take such decisions for us. This is an elitist and arrogant argument. I would rather trust the wisdom of the majority of the people than the wisdom of the majority of MPs. In a democracy everybody has equal rights and everybody should participate in the decisions, whether directly through a referendum or through a parliamentary election.

In conclusion, it is clear that the only options for ensuring a fair and transparent process is either a referendum or a legislature where the majority of representatives have been elected on an electoral platform which includes divorce.