DEATH BY A THOU­SAND CUTS

India Today - - UPFRONT - By Gilles Verniers Gilles Verniers is as­sis­tant pro­fes­sor of po­lit­i­cal sci­ence and co-di­rec­tor, Trivedi Cen­tre for Po­lit­i­cal Data

How do lib­eral democ­ra­cies die? Slowly, grad­u­ally and piece­meal, ac­cord­ing to Tom Gins­burg and Aziz Z. Huq, co-au­thors of How to Save a Con­sti­tu­tional Democ­racy. Both pro­fes­sors at the Univer­sity of Chicago Law School, they ex­am­ine the pro­cesses through which lib­eral democ­racy erodes across the world and re­flect on the role in­sti­tu­tions and law play in both the de­cline and the sav­ing of our democ­ra­cies.

They dis­tin­guish be­tween demo­cratic col­lapse, a fast mode of demo­cratic fail­ure in which demo­cratic regimes are un­seated and trans­formed by au­thor­i­tar­ian ac­tors (mil­i­tary coups); and demo­cratic ero­sion, a process of ‘in­cre­men­tal, but ul­ti­mately sub­stan­tial de­cay in the three ba­sic pred­i­cates of democ­racy— com­pet­i­tive elec­tions, lib­eral rights and as­so­ci­a­tions and the rule of law’.

Though demo­cratic col­lapse has be­come rare, demo­cratic ero­sion has be­come more per­va­sive, af­fect­ing coun­tries like Poland, Is­rael, Tur­key, and even the US, which The Econ­o­mist In­tel­li­gence Unit down­graded in 2016 to the sta­tus of ‘flawed democ­racy’, due to weak­nesses in how they con­duct elec­tions.

Ac­cord­ing to the au­thors, ero­sion takes place when the three ele­ments of a lib­eral democ­racy are si­mul­ta­ne­ously harmed through curbs on me­dia, at­tacks on NGOs and mea­sures that con­cen­trate pow­ers and cir­cum­vent in­sti­tu­tions that should play a role as checks and bal­ances. Ero­sion can also take place through tech­ni­cal or ad­min­is­tra­tive mea­sures that pre­vent in­sti­tu­tions from play­ing their reg­u­la­tory role vis-à-vis the ex­ec­u­tive. Other mech­a­nisms in­clude the cen­tral­i­sa­tion and politi­ci­sa­tion of ex­ec­u­tive power as ex­er­cised through the bu­reau­cracy, the shrink­ing of shared pub­lic spheres in which lib­eral rights of speech and as­so­ci­a­tion can be en­joyed and the dele­git­imi­sa­tion of ef­fec­tive par­ti­san po­lit­i­cal com­pe­ti­tion.

Many of these acts may seem in­nocu­ous on their own and may even be le­gal, such as con­sti­tu­tional amend­ments, but they erode a demo­cratic sys­tem’s ca­pac­ity to de­fend it­self against it­self. Democ­ra­cies die by a thou­sand cuts.

Chap­ter 4 ex­am­ines the mech­a­nisms of the ero­sion, as well as the cir­cum­stances in which it is more likely to take place. The au­thors con­sider two in­stances—the rise of charis­matic pop­ulism and par­ti­san degra­da­tion. The for­mer in­volves a sin­gle leader whose be­liefs ‘li­cense her to speak di­rectly for the peo­ple, to de­monise as alien and il­licit all po­lit­i­cal foes, and to in­su­late her­self from both le­gal and elec­toral ac­count­abil­ity’. Par­ti­san degra­da­tion emerges when one party wins a ma­jor­ity that en­ables it to neuter the op­po­si­tion and un­der­mine the in­sti­tu­tional foun­da­tions of democ­racy.

The au­thors ar­gue that demo­cratic ero­sion is less likely to trans­form flail­ing democ­ra­cies into full-fledged au­thor­i­tar­ian regimes and more likely to cre­ate hy­brid regimes in which in­sti­tu­tions are com­pro­mised, po­lit­i­cal com­pe­ti­tion is re­stricted and ba­sic lib­er­ties are traded for na­tional, po­lit­i­cal ob­jec­tives, such as in­ter­nal and ex­ter­nal se­cu­rity, and the self-preser­va­tion of the regime in place.

The sec­ond half of the book con­cen­trates on the US and how cer­tain changes in con­sti­tu­tional de­sign can lead to bet­ter pro­tec­tion of its democ­racy: re­in­forc­ing the op­po­si­tion, im­prov­ing elec­toral in­tegrity, es­tab­lish­ing time­bound ten­ure for Supreme Court jus­tices, im­prov­ing bu­reau­cratic au­ton­omy, im­pos­ing greater checks on the pres­i­dency. The au­thors don’t claim that le­gal tweaks are a panacea for fix­ing our ail­ing democ­ra­cies, but that we should seek to adapt rules to the times we live in.

While In­dia does not fig­ure promi­nently in the book, its an­a­lyt­i­cal grid can be used to take stock of In­dia’s own record of re­spect for demo­cratic norms and pro­ce­dures. The book leads one to re­flect on the cur­rent state of the ju­di­ciary’s au­ton­omy, the in­ef­fec­tive sep­a­ra­tion of pow­ers, the in­abil­ity of Par­lia­ment to ex­ert any kind of check on the ex­ec­u­tive, the shrink­ing pub­lic space—in­creas­ingly dom­i­nated by par­ti­san news and trolls— and, ar­guably, the vi­o­lent con­se­quences of the na­tion­al­is­tic rhetoric em­ployed by the cur­rent regime. ■

DEMO­CRATIC ERO­SION IS LIKELY TO CRE­ATE REGIMES IN WHICH IN­STI­TU­TIONS AND BA­SIC LIB­ER­TIES ARE COM­PRO­MISED

HOW TO SAVE A CON­STI­TU­TIONAL DEMOC­RACY by Tom Gins­burg & Aziz Z. Huq OX­FORD UNIVER­SITY PRESS ` 1,595; 308 pages

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