Sunday, November 25, 2007

Democracy Part IV: Managing Popular Expression and the Democratic Impulse in Sudan

Governance elites like to point to happy (unhappy and even indifferent) citizens voting as the essence of democratic organization. Larry Catá Backer, Democracy Part II, LAW AT THE END OF THE DAY, Nov. 16, 2007. And not just citizens of Anglo-European style democratic constitutional states. See Fidel Castro Ruz, Reflexiones del Comandante en Jefe, The Elections, Oct. 19, 2007 (“Having more than 90 per cent of all citizens voting in the elections and school children guarding the ballots is an unheard of experience; it’s hard to believe that this occurs in one of the “dark corners of this world”, a harassed and blockaded country named Cuba. That is how we exercise the vigorous muscles of our political awareness.”) (in the original Spanish as “Las elecciones”.

One of the other critical hallmarks of democratic governance is public expression—public assembly for the expression of the popular will. That expression is meant to pointedly pressure the apparatus of state to more closely align its actions to the will of the people. And this, we are instructed in the West, is good. Why, just recall those glorious days of the orange revolution in the Ukraine, where the courageous citizenry was able to mass and by massing cause an unresponsive government to bend its will to accord with that of the people. Adrian Karatnycky, On Independence Square, 74(2) AMERICAN SCHOLAR 6 (2005). But this sort of expression also has its martyrs. The West continues to lionize the throng that was dispersed by elements of the state apparatus in Tiananmen Square in 1989. See, e.g., Tiananmen Revisited, 1989-2001,, (June 4, 2001). It reserves more space in the hallowed ground of martyrs of democratic expression to those citizens of Eastern Europe who had the courage to assemble in defiance of state conduct not in accordance with their collective wishes—for example in Hungary in 1956 or in what was then Czechoslovakia in 1968. GRZEGORZ EKIERT, THE STATE AGAINST SOCIETY: POLITICAL CRISES AND THEIR AFTERMATH IN EAST CENTRAL EUROPE (Princeton, NJ: Princeton University Press, 1996).

But that sort of public expression need not be asserted in broad, revolutionary, strokes. Protests against any action by any institution created to serve the masses in accordance with their terms ought to be fair game. And the members of these institutions each ought to be sensitive to the expressed will of those they serve. The public has been encouraged to assert their individual rights to expression collectively. And in this way collectively expressed, such expression may be targeted to influence their representatives, or the apparatus of state (whether or not representative). Individuals, thus, vote as a principal expression of their participation in democratic states in which their power is essentially passive. But individuals also may express their will collectively in a most primal manner—by taking to the streets. Of course, individuals may always join together to form political parties to other collectives—civil society. But it is in the raw expression of power that rule of law constitutional states must reconcile the order of their institutional arrangements for the assertion of political power with the expressed reality that such power is permanently lodged in individuals who collectively are the state.

This problem of democratic states is not unanticipated. The West has even produced documents on which such activity might be grounded. For Americans, the recipe for such assembly might be found in the lawyer’s brief that is the American Declaration of Independence, whose revolutionary was then reworked to manageable levels in the guarantees of the Federal Constitution. See Larry Catá Backer, Some Thoughts On The American Declaration Of Independence And Its Irish/European Connections At Century's End, LAW AT THE END OF THE DAY, July 4, 2006. Westerners gauge the aftermath of large popular expressions of will in terms of their fidelity to the original values of the massed poplar expression. See, e.g., Adam Alexi Solomon, Changing Colors: Ukraine's Orange Revolution, 27(4) HARVARD INTERNATIONAL REVIEW 11 (2006).

But most political elites understand that the value of such expression is best managed if it is not to have revolutionary or transformative effect. See Jo Durden-Smith, No More People Power: Fuelled by E-Mails and Western Cash, Ukraine's Orange Revolution Was a New Kind of Upheaval. Other Ex-Soviet States Don't Want It Happening Again. 134 NEW STATESMAN 28 (October 3, 2005). They hope to manage the process of expression rather than permit a more free expression. Thus, most modern constitutions also now preserve a managed space for the staging of acts of popular will for the edification of their representatives. Thus, for example, South Africa defines political rights under its constitution precisely: to make political choices, to free and fair elections and to vote in elections and stand for office. Constitution of South Africa, Ch. 2 art. 19. Assembly is managed within a rule of law normative framework: “Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” Id., at art. 17.

Still, since 1945 and the creation of the global informal governance system of the “community of nations,” the West and global political elites (not the least of which among their numbers the lawyers and judges) have sought to naturalize these tropes of manifestations of popular will as central to the construction of legitimate democratic constitutional orders (if only as a sort of managed expression within “rule of law” constraints). Within less democratic regimes, such expression might also serve less restrained as a manifestation of revolutionary will to move the nation to a system of ordered, well managed, democratic constitutional rule of law structures of governance. It is thus for those reasons, that the international community was so eager to stand behind the lawyers and judges who protested (at least) against the arbitrary actions of the President (and until November 2007 General) Musharraf of Pakistan (whose actions they appeared to tolerate better before their own respective oxen were gored). See Lawyers Protest Against Musharraf, BBC News, March 12, 2007. And regional human rights instruments also echo this popular notion. We are thus relieved to note that the exercise of this power of popular expression has been spreading rapidly to other parts of the world.

It was with these thoughts in mind that I read stories of a recent series of events that have been occurring in the Sudan. It seems that a kindly woman, Gillian Gibbons, a citizen of the United Kingdom, took it into her head to travel to the Sudan to do good as she saw it. There she sought to teach children at a Sudanese primary school, appropriately named the Unity High School. It was in the course of that instruction that the events that prompted this reverie on democratic expression took place: “In September, Mrs Gibbons allowed her class of primary school pupils to name the teddy bear Muhammad as part of a study of animals and their habitats. The court heard that she was arrested on Sunday after another member of staff at Unity High School complained to the Ministry of Education.” UK Teacher Jailed Over Teddy Row, BBC News, Nov. 30, 2007. She was ultimately convicted of the generic catch all charge—insulting religion (that is Islam, since it does not appear that the provision extends beyond that construction of the offense in fact if not in law). “It is seen as an insult to Islam to attempt to make an image of the Prophet Muhammad.” Pupil Defends Sudan Row Teacher, BBC News, Nov. 28, 2007.

She was lucky, we are told. She might have been charged and convicted of graver offenses—inciting hatred (of Islam) or showing contempt (of Islam). Justice was swift in accordance with it own internal logic in that place. And it helped that she was able to show the proper humility and deference to her hosts and their interpretation/application of their religion as translated into rules of law. “The BBC's Adam Mynott, in Khartoum, said Mrs Gibbons apologised to the court for any offence she may have caused.” Id. Gratitude for the kindness of the court abounded. “The school's director, Robert Boulos, told the AP news agency: ‘It's a very fair verdict, she could have had six months and lashes and a fine, and she only got 15 days and deportation.’" UK Teacher Jailed Over Teddy Row, BBC News, Nov. 30, 2007.

The English, of course, evidenced the appropriate concern. Their foreign ministry people wrung their hands effectively in public. Id. (“Foreign Secretary David Miliband has expressed "in the strongest terms" the UK's concern at her detention.”) And their foreign office personnel did their duty in private. Id. But more than that, the British facilitated the intermediation of appropriately situated persons on its behalf. And who better than a couple of peers (class privilege) who are Muslim (religious privileging) to deal with their counterparts (the connection of extra-national community based on class and religion) to mediate difficulties in relations among the political communities. See, UK Peers Visit Teddy Row Teacher, BBC News, Dec. 1, 2007. And in this fashion the English have also tolerated the Sudanese President’s own insult to religion, mercifully not a criminal or civil offense in the United Kingdom. “Sources close to Sudanese President Omar al-Bashir believe there will be more chance of securing Mrs Gibbons release through a Muslim-led delegation than through the Foreign Office's diplomacy efforts.” Id.

Indeed, throughout, the proper deference was shown to the sensibilities of the native population, especially by the condemned. We are told that “John Gibbons, 27, from Liverpool, told Associated Press his mother was "holding up quite well" and did not want the situation to spark "resentment" towards Muslims or the Sudanese people.” UK Peers Visit Teddy Row Teacher, BBC News, Dec. 1, 2007. And it appears the UK has little choice but to play to the Sudanese tune. “Sudan's leaders are rather used to the sound of western outrage - and have come to realise that, for them, it rarely amounts to much.” Sudan Leaders Court Western Rage, BBC News, Dec. 1, 2007. An impotent rage it seems.

But no matter. The fate of Ms. Gibbons, and the issue of the use and misuse of efforts to privilege religion through the use of the state apparatus serves merely as a foundation for the more important focus of this essay. For whatever one might think of these goings on outside of Sudan, the Sudanese apparently felt that justice had been done. Fearful that the Sudanese President would overturn the judgment of the courts and grant Ms. Gibbons a pardon, people took to the streets to protest. For good measure they expressed their disapproval of Ms. Gibbons and her insensitivity to their sensitivities. “As witnessed during Friday's protest, there is a minority who are baying for her blood. Some chanted threats against the 54-year-old primary school teacher from Liverpool.A group of men shouted: "She must be killed by the sword." Amber Henshaw, Sudanese Views Differ in Teddy Row, BBC News, Dec. 2, 2007. Newspaper pictures of Mrs Gibbons were burned on a makeshift stage at the heart of Martyrs Square.” Those marching believe themselves at the forefront of the efforts to protect the rule of law in Sudan. One would think that the West would cheer these events. Yet, the mass protests trouble rather than uplift. We are reassured that the Sudanese masses protest on the basis of the same sentiments that perhaps Ukrainians or Americans might take to the streets. Thus, we are told, “this kind of sentiment seems to be coming from a small group of hotheads.” Id.

And so a series of ironies play out here that are worth noting. First, it appears that Ms. Gibbons might serve a symbolic role. She is a vehicle through which Sudanese society becomes more accustomed to individual political expression leading to the development of democratic engagement with the state. There is very little that separates this sort of mass mobilization for the rule of law with that in European states or the United States for the same purpose. Not cowed, the people of Sudan are an integral part of its development as a theocratic rule of law state, in which Muslims are privileged and all others are tolerated to the extent they conform to majority norms. For the American analogue, there is Justice Scalia’s reminder of one version of the nature of American democracy in Employment Division v. Smith, 494 U.S. 872 (1990).

Second, this expression of political will is grounded on an expression of a rule of law system. Of course, the system appears, in its elaboration and application, substantially inconsistent with that of rule of law systems based on a normative framework other than Islam (at least the form of Islam understood in Sudan, applied by its courts and on that basis authoritative there as both religion and law). A higher law might suggest that this expression of law in Sudan is not legitimate on a number of grounds. But that notion might be viewed as anti democratic (imposing different normative systems on the Sudanese).

Third, as a political matter, the treatment (fair) of Ms. Gibbons, ought not to be subject to the intermeddling of foreign powers, especially of one whose history of direct intermeddling in Sudanese affairs is still somewhat notorious. Thus, the spectacle of the UK’s interference in the rule of law system in Sudan might appear to be the product of a colonial reflex. But worse, it might appear to return us to those days when it was accepted by the civilized nations of the world that in the absence of the acceptance of the world ordering norms of Anglo-American European ideals, systems were neither authentic nor legitimate nor subject to deference. And so it comes as no surprise that expressions of Sudanese political will, of democratic values and the defense of the rule of law in its judicial proceedings, should spill out to the streets.

Fourth, the Gibbons affair makes clear to anyone willing to look that there is a managerialism inherent in the deployment of popular expression, even in its transnational context. Just as constitutions tend to contain and manage the internal expression of popular will, so transnational “etiquette” tends to contain and manage the effectiveness of national popular expression. People are managed. Democratic expression is managed. The vote is managed. Everyone must behave. And thus, the great source of discomfort as democracy plays itself out between systems of management that play by incompatible rules (internally). From this emerges transnational constitutionalism—a means of imposing some level of compatibility in the norm systems of internal governance. But what is also deepened is also language of normative discourse on a global scale that permits a discourse between the Sudan and the UK, rather than a discussion at the point of a gun. For this, democratic expression is tamed; its holders cede authority upward to small groups invested with authority to stand in for the ultimate power holders, and global groups of political managers develop systems for regularizing their intercourse. This is a curious rule of law—the rule of law for a global nomenclatura, constructed in the name of peace.

And so the essence of democracy in Sudan. On the one hand, the West ought to cheer the expression of the power of people, spilling out into the street to express their solidarity with rule of law notions naturalized in their political community. Here is the sort of democratic expression that the West has encouraged, especially where it might deepen the popular participation in politics and engagement in governance. On the other hand, the rule of law system within which Ms. Gibbons found herself enmeshed is not necessarily compatible with core notions of fair play, justice, fairness and the like as developed. From her perspective, there is no rule of law, and what for the Sudanese is popular expression of democratic values, to her might appear to be mob rule, of the sort common in the Roman Republic in the days of Clodius and contributing in its own way to the managerialism of Roman Imperial rule. See Larry Catá Backer, Race, “The Race,” and the Republic: Reconceiving Judicial Authority After Bush v. Gore, 51 CATHOLIC UNIVERSITY LAW REVIEW 1057 (2002).

Thus popular participation assumes the function and characteristics of the parks and forests of Rimbaud’s Cities (II): “The parks represent primitive nature cultivated with supreme art.” Yet, “The suburb, as elegant as a beautiful street of Paris, is favoured with air like light, the democratic element counts some hundred souls. There, too, the houses are detached; the suburb loses itself queerly in the country, the “Country,” that fills the eternal West with forests and prodigious plantations where gentlemen savages hunt their news items by light that has been invented.” Arthur Rimbaud, Cities (II), in New Directions (Louise Varèse, trans.) (from Prose Poems) reprinted in BAUDELAIRE, RIMBAUD, VERLAINE: SELECTED VERSE AND PROSE POEMS 214 (Joseph M. Bernstein, ed., Secaucus, NJ: Citadel Press, 1947).

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