The real threat to democracy in Brazil

Earlier this week, Ricardo Lewandowski, a judge in Brazil’s Supreme Federal Court, was in a commercial flight. The passenger sitting next to him turned to the judge and said: “I am ashamed of Brazil’s Supreme Federal Court”. Lewandowski’s reaction was to threaten the passenger with jail. He turned to him and said, “tell me, do you want to go to jail?”  The passenger was indeed stopped by the police at the destination, but released right after. The video of the exchange is easily found on Youtube.

Lewandowski came to the Supreme Court appointed by former president Lula da Silva, today serving time in jail for corruption and still indicted for several crimes. He has been criticized several times for favoring Lula and his party.

I wonder if the press, that complains so much about Jair Bolsonaro being a threat to democracy in Brazil, will have the same treatment for Lewandowski. When you cannot criticize in public a public server or a public institution without being stopped by the police, democracy is no longer in place.

Since the 19th-century Brazilian judges and magistrates believe they are above the law. It is just a sad fact in Brazilian history. The challenge for Brazil is to show people like Lewandowski that they are just humans, open to criticism, like everybody else.

Legal Immigration Into the United States (Part 19): How to Go About It

Admitting immigrants legally for the benefit of American society need not be bureaucratically demanding. The existing H-1B visa program could fairly easily be turned into a merit system. It would require only minor tweaking. The main tweak would be to forbid or, at least, to restrict severely employers’ reliance on labor contractors through which most of the abuses occur, I believe. (See, for example, the infamous Disney case, described below.) Let each employer applying for such visas be squarely on record as vouching for the individual beneficiaries’ quality.

Following the example of Canada, some degree of priority could be assigned to obvious contributions to successful adaptation to American society, beginning with knowledge of English. (This might actually require a new law making English the official language of the US.) I listed above other examples of immigrants features that might be scored positively. Note again that avoiding the drawbacks of a completely relative-based system does not necessarily imply the rejection of the simple idea that having relatives in the country often facilitates adjustment. Within the framework of a H-1B-type point system, some degree of preference could be assigned to the fact that the beneficiary has relatives in the US close to where he will first settle. This would not be family re-unification under a different guise because family relations would be subordinate to work capabilities and other features facilitating adaptation.

The next necessary tweak has to do with the fact that the H-1B program has a bad reputation among the unemployed and  the uncertainly employed. So, in 2016, the Walt Disney company was sued, famously for having American workers train their F-1B visa replacements before they were laid off. The suit was dismissed by reason of what I think was a big loophole in the protective measures in favor of American workers in connection with the H-1B program. No one denied that Disney had done what it was accused to have done. Many believe furiously that the program actively discriminates against American workers and keeps their wages low. To make it more acceptable, the existing H-1B safeguards against noxious practices undermining the employment of the American-born and of legal resident immigrants would have to be widely publicized and remedies against abuses would have to be made judicially more accessible than they are now.

The American public would also have to be ready for the predictable consequences of merit policies in terms of culture and in terms of politics. The merit-based program I envisage would result quickly in a large increase in Indian immigration. Although Indians have been very good immigrants by most counts, there might be objections because nearly all of them seem to suck some form of leftism or other with their mother’s milk. In addition, and although India is often celebrated as the “world largest democracy,” there is some question about educated Indians’ attachment to the constituent forms of historically Western democracy, specifically. (I am a small-time expert on this because I read items in and through the Indian press and because I have Indian relatives. They are a tiny biased sample, of course but also an informational gateway of sorts. See also India-born commentator Jayant Bhandari in the October 5 2017 issue of Acting Man: “Canada: Risks of a Parliamentary Democracy.”)

This problem and others like it could be mitigated by placing a numerical ceiling on the total number of immigrants from any one country. I predict informally that this particular problem would turn out to be limited because, once the gates of legal immigration opened for real, there would be a sharp increase in applications from European countries with democratic systems similar to ours. This too would have consequences: As I have pointed out, by and large Europeans are not shy about using any form of welfare, broadly defined, including unemployment benefits. I note shyly that placing a ceiling on the contribution of any one nation-state to US immigration would seem “fair” to liberal opinion, making the whole project more acceptable than would otherwise be the case.

Incidentally, a reasonable merit-based system, aimed as it would at foreigners of some competence, might produce additional revenue to help defray both the cost of better enforcement of immigration laws, and the cost of caring for people admitted on altruistic grounds.

[Editor’s note: in case you missed it, here is Part 18]

Conservative Parties and the Birth of Democracy

Understanding how political parties function is an area where recent research in political science has contributed major insights. Political parties are a fairly recent phenomenon. Prior to the 19th century, there were factions and loose groupings – the Optimates and Populares in Republican Rome, Tories and Whigs in late 17th century England, and Girondins and Jacobins in the French Revolution – but not organized parties. They were looser groupings that centered around dominant individuals – a Marius or Sulla, a Lord Shaftsbury, or a Brissot or Robespierre; but not parties with structured platforms and a deep well of local support.

I recently reviewed Daniel Ziblatt‘s recent book Conservative Parties and the Birth of Democracy for the Journal of Economic History (gated and ungated). Ziblatt provides new insights into the key role played by conservative parties in the formation and stabilization of democracy in Western Europe. Ziblatt’s thesis is that where conservative parties were able to become entrenched and organized political forces, the prospects for liberal democracy were fairly good. But where conservative parties remained weak, democracy was likely to remain poorly institutionalized. Under these circumstances, elites simply had too much to lose from acquiescing in universal suffrage.

Ziblatt contrasts the fate of England where a popular conservative party did take on solid roots in the late 19th century with that of Germany. As I write in my review:

“The central insight Ziblatt emphasizes throughout is game theoretic: the absence of a party to organize around meant that economic elites lacked the ability to strategically defend their interests and hence became willing to ally with any forces that might help them protect their property. While in Britain, the well-institutionalized Parliamentary Conservative party moderated and sidelined the more reactionary and xenophobic elements in British life, the absence of such a strong party meant that in Germany, the right tended towards antisemitism and other forms of extremism . . . “

“. .  . Stable and lasting democratization required “buy-in” from old regime elites and this buy-in can only occur if there are institutional mechanisms in place that are capable of assuaging their fears and moderating the influence of extremists. In late 19th and early 20th century Europe, strong professional conservative parties served this purpose. In the absence of such a party the transition to democracy will likely be temporary and unstable.”

Do read the full review.

Liberalism, Democracy, and Polarization

Is polarization a threat to democracy and what is the liberal position on this?

As I pointed out in Degrees of Freedom, most liberals have a preference for democracy. Modern-day democracy – with universal suffrage, a representative parliament, and elected officials – has been developed over the course of the twentieth century. The idea has its roots in antiquity, the Italian city states of the Renaissance, and several forms for shared political decision-making in Scandinavia, Switzerland, the Netherlands, and England. Democracy is not a liberal “invention,” but the term ‘liberal democracy’ has taken firm root. This is true because modern democracy is based on liberal ideas, such as the principle of “one man, one vote,” protection of the classical rights of man, peaceful change of political leadership, and other rules that characterize the constitutional state.

Remarkably, the majority of liberals embraced the idea of democracy only late in the nineteenth century. They also saw dangers of majority decision making to individual liberty, as Alexis de Tocqueville famously pointed out in Democracy in America. Still, to liberals democracy is better than alternatives, such as autocracy or absolute monarchy. This is not unlike Sir Winston Churchill’s quip “it has been said that democracy is the worst form of government, except all the others that have been tried.” Yet there is a bit more to it for liberals. It is has proven to be a method that provides a decent, if imperfect, guarantee for the protection of individual freedom and the peaceful change of government.

Of course there is ample room for discussion inside and beyond academia about numerous different issues, such as the proper rules of democracy, different forms of democracy, the role of constitutions in democracy, whether referenda are a threat or a useful addition to representative democratic government, the roles of parties, party systems, and political leaders, et cetera. These are not the topic here.

In the context of the election of President Trump, but also before that, both inside and outside the US, there is a wide debate on the alleged polarization in society. By this is meant the hardening of standpoints of (often) two large opposing groups in society, who do not want to cooperate to solve the issues of the day, but instead do everything they can to oppose the other side. Consensus seeking is a swear word for those polarized groups, and a sign of weakness.

There appears less consensus on a number of issues now than in the past. Yet this is a questionable assumption. In the US it has been going on for a long time now, certainly in the ethical and immaterial area, think about abortion, the role of the church in society, or freedom of speech of radical groups. Yet most (Western) societies have been polarized in the past along other lines, like the socialist-liberal divide, the liberalization of societies in the 1960s and 1970s, or more recent debates about Islam and integration. Current commentators claim something radically different is going on today. But I doubt it, it seems just a lack of historical awareness on their side. I can’t wait for some decent academic research into this, including historical comparisons.

As a side note: a different but far more problematic example of polarization is gerrymandering (changing the borders of legislative districts to favour a certain party). This has been going on for decades and can be seen as using legal procedures to rob people not of their actual voting rights, but of their meaningful voting rights. Curiously, this does not figure prominently in the current debates…

The (classical) liberal position on polarization is simple. Fighting for, or opposing a certain viewpoint, is just a matter of individual right to free speech. This also includes using law and legislation, existing procedures, et cetera. The most important thing is that in the act of polarizing there cannot be a threat to another person’s individual liberty, including the classical rights to life, free speech, and free association, among others. Of course, not all is black and white, but on the whole, if these rules are respected I fail to see how polarization is threat to democracy, or why polarization cannot be aligned with liberalism.

Nightcap

  1. Soccer, communists, fascists, and Yugoslavia Richard Mills (interview), Jacobin
  2. Over- and under-reactions in politics Chris Dillow, Stumbling & Mumbling
  3. How a controversial non-violent movement has transformed the Israeli-Palestinian debate Nathan Thrall, Guardian
  4. Sovereignty, confusion, and the international order Nick Danforth, War on the Rocks

Courts as Modern Civic Churches?

India is in the middle of an anachronistic power tussle. Watching The Tudors right when the Indian Supreme Court is hearing submissions in the Sabrimala case placed before me an interesting hypothesis – the King v Church tug of war is replicating itself, albeit democratically, in the controversy surrounding the Essential Practices Test.

First introduced in the Shirur Mutt case (1954 AIR 282), the doctrine provides for a test that would make state interference justified under a Constitution that gives to her citizens (Article 25), the freedom to practice and profess their religion, and to religious denominations (Article 26), the right to manage affairs and administer properties, both being subject to restrictions on public order, morality, and health. Essentially, the test gives the Court the power to determine what constitutes “essential to the practice of the religion” and holds that everything non-essential is subject to legislative action by the State.

A number of scholars (Gautam Bhatia, Shreya Atrey) have commented on the un/desirability of the consequences of such a test. The clearest of them all comes from Jacobsohn who characterizes the test as an attempt to internally reform the religion by allowing the judges to “re-characterize the religion in a more progressive light”.

What has given these objections much weight is the support Justice Chandrachud has lent to the skepticism of judicial discretion bestowed by the doctrine. He questions the ecclesiastical function of the court and proposes to use constitutional morality as the one stop test for determining the constitutionality of a religious practice, instead of going the long way of finding the non-essential elements that may be subjected to progressive restraints. This adherence to the constitutional word is consistent with the treatment of the constitution as the new-age charter of a civic religion, a notion oft repeated and celebrated in India.

King Henry VIII’s ostensible zeal for reform came out of his hatred for papal supremacy. Divine rights of the Kings placed the King directly under God, and God alone. He would then become the supreme mortal in terms of matters relating to governance and spirituality. The Indian courts do not wish to claim any such supremacy over spiritual matters (yet). What they seek to do is social reform – a venerable objective behind the framing of the Indian constitution. In that, they seek to be not just interpreters and guardians of the constitution, but active participants of change in realizing the aims of the constitution.

But one must question this insistence that in religion, like with the legislation, there is an umbra and a penumbra and that the latter is so hierarchy placed that it may be interfered upon, whereas the umbra is so essential that it may not be touched. What is religion but not faith? And what is faith but not a collection of beliefs organically coalesced to create charters that may look different for each generation? Is it not possible that a religion undergo change so as to value a tenet A over B within a span of decades? Is it also not possible that A and B exist simultaneously without harming the essentiality of each other, howsoever inconsistent they might seem to an educated rational mind? Since when has religion been the epitome of moral consistency?

Much can be said on the justifiability of this aspiration. Much more can be said of the legitimacy of the court’s position on such matters. Democratically speaking, ridding a society of its ills is more likely to give positive results if it comes from a joined political action rather than from a bench of judges who, in all their wisdom, are not privy to a large section of the society. Of course, the Indian supreme court has “grounded itself” (a phrased used by Dr. Rajeev Dhavan) and has acquired the kind of legitimacy that demands respectful obedience from its supporters. And this has been primarily because of the non-traditional use of judicial description for activism against a falling parliament often mired in political games to care much about the legal and policy lacunae deserving attention.

Sabrimala is an especially thorny issue, not just because the judges must conclusively decide the path the judiciary wishes to take with respect to social reform but also because they can either be the ecclesiastical court and inform the citizens of the immorality (grounded in the constitution, no doubt but then looking at the vastness of the Indian constitution, it can probably accommodate all moral philosophers barring Peter Singer) of their actions or they can let arguably unethical practices live, giving individual liberty the space that separation of church and state demands.

Turkey at the start of one-man rule

1. Yesterday (Monday) Recep Tayyıp Erdoğan took office under the system of executive presidency, which gives him arbitrary personalised powers, based on the claim that a system of such extreme powers for one person is the most democratic system if that person is elected. The changes came about as the result of a referendum last year, which gave a narrow victory for the constitutional changes. It seems to me, and many others, that rigging allowed victory in the election. For the first time in Turkey, all ballot papers unstamped by an electoral officer were counted, allowing unlimited fraud. There are other issues about intimidation and irregularities, but this is not the moment to go into further detail, but I will just point out that radical changes to the constitution were ‘legitimised’ by pseudo-democratic fraud.

2. The constitutional changes enable the President to: legislate by decree, appoint most Constitutional court judges, appoint the army chiefs, appoint police chiefs, appoint all higher level members of the bureaucracy, appoint government ministers and vice-presidents without reference to the National Assembly. There is no Prime Minister. The President, Vice-Presidents, and Ministers are not obliged to answer questions in the National Assembly. In principle the National Assembly can reverse decrees as laws, but to allow the President to legislate in such an unaccountable way in the first place undermines all understanding of what a national assembly is for and what the limits on the head of government or head of state (now the same person) should be in a state which is constitutional and democratic.

3. Ministerial appointments have most notably included the elevation of Erdoğan’s son-in-law, Berat Albayrak, to the Ministry of Treasury and Finance. Albayrak is a major businessman whose rise in business and then politics have taken place since Erdoğan became the most powerful man in Turkey in 2002.

4. Other appointments have given business people ministerial posts for areas of the economy in which they have a dominant market position. Erdoğan’s own family doctor who owns a medical business is health minister. The education minister owns a private college.

5. The appointments of business people and a son-in-law show carelessness about propriety in the separation of the administration of public affairs from private and family interests, to put it in the mildest way possible. It also suggests that Erdoğan thinks he is too big for the party which brought him to power, AKP. It has been clear for some time that the most powerful people in the AKP are this son-in-law and one of the sons. That is, the AKP exists as a vehicle of one family, and its businesses associates. In this case, it is hardly a properly functioning democratic party.

6. The appointments were preceded by a presidential decree on the appointment of the governor and vice-governors of the central bank, which reduces its autonomy and makes it more vulnerable to Presidential pressure. Erdoğan has clearly been struggling to live with central bank decisions to raise interest rates in response to inflation and the falling value of the Turkish Lira. Anyway, the currency lost 20% of its value and inflation is at nearly 16% though the central bank’s target is 5%.

7. Market confidence in Turkey, even of a very minimal kind, was resting on one man, Mehmet Şimşek, who has western training in economics and is the last remnant of the days when the AKP appeared to many to be a centre-right reformist party, and did manage to behave in part like such a party. Şimşek appears to have been increasingly unhappy with his situation, putting a rational face on polices he knows are going in the wrong direction, occasionally winning battles to raise interest rates. One of Erdoğan’s main obsessions is that interest creates inflation. He has found it necessary to curtail that belief on occasions. Şimşek apparently wanted to resign from government recently, but no one ‘betrays’ Erdoğan in that way. Şimşek was bullied into staying and has now been sacked. His replacement is Erdoğan’s son-in- law. The markets have been spooked and the lira fell very sharply yesterday evening.

8. The Erdoğanists do have a solution to lack of international market confidence in Turkey. It is to create a Turkish ratings authority which will rate Turkish government credit as the government wishes! This absurd proposal, which will only reduce the credibility of the lira and government debt, shows the depths to which economic policy run on political paranoia has sunk in Turkey. Political paranoia because low credit ratings are due to foreign conspiracies!

9. Going back to last month’s election, about 2% of ballots cast have been declared invalid by the Supreme Electoral Council. HDP (Kurdish rights and leftist party) has pointed out that most ‘invalid’ ballots are from polling stations where it did not have observers. The HDP is defined as ‘terrorist’ by the followers of Erdoğan and its presidential candidate is in prison on ‘terrorism’ charges. This is all based not on credible evidence of co-operation with the PKK, which does have common roots with HDP, but on absurdly broad definitions of terrorism which take in people who do not oppose the PKK enough or which offer any criticism of state policy towards the PKK.

10. Based on point 9, it looks very much like 2% of votes cast were spoiled to take votes from the HDP. It hardly seems likely that would be the limit of fraud. As mentioned in point 1, all ballots were counted which did not have the basic security guarantee of a stamp from an electoral official on the ballot itself or the envelope containing the ballot. It is inherently difficult to arrive at accurate figures in this matter, but it looks very much like at least 4% of the ballot was fixed (that would merely double the most obvious form of rigging, which I do not think is an extravagant assumption, after all most rigging will take place in very hidden ways). If I am correct then the pro-Erdoğan electoral list for the National Assembly did not get a majority of votes and Erdoğan did not get a majority of votes in the presidential election.

11. The government-state machine extends claims that the HDP is terrorist to the main opposition party, CHP, on the grounds that the CHP has offered some criticisms of the detention of the HDP presidential candidate, and that some CHP supporters voted HDP to help it overcome fraud and reach the 10% of votes necessary to enter the National Assembly. CHP provincial leaders have been banned from attending the funerals of soldiers killed by the PKK, soldiers who in some cases will be CHP supporters, showing the kind of spite, vengefulness, and abuse of state power driving the AKP.

12. The Istanbul municipal government has announced that public transport will be ‘only’ half price during next month’s Kurban Bayram (Sacrifice Festival; religious festival and public holiday) instead of free as has been normal for a long time. This shows the strains that public finances are under in Turkey. The AKP are specialists in providing ‘free’ benefits to electors, along with favours for individuals and families, building up a base in local government in this way before they came to power nationally. The Istanbul news is a small thing in itself, but is suggestive of a decline in the capacity of the AKP to use public money to buy votes.

13. Given increasing personal indebtedness, rising inflation, the falling value of the currency, the decline of foreign investment and the credibility of government debt instruments, we could see some very difficult economic times in Turkey. It is clear that this process was important in holding the recent election 18 months early. The loyalty of the AKP and Erdoğanist base is intense, but was formed at a time of economic growth and expanding public services. We see going to see what happens to loyalty in less happy circumstances.