Democracy Part XXII--Vox Populi in Pakistan and Substantive Values in Constitutionalism

Democracy has been much in the air lately. People living in developed states and their representative has been talking about direct democracy, usually well managed affairs through which  segments of the masses may be mobilized by well organized groups, to initiate a process of law making that is heavily regulated and constrained by the states within which these efforts are directed, and subject to overall constitutional and normative constraints executed by the governments outside of the processes of which direct democracy is supposed to operate.   Cf. Arthur Lupia and John G. Matsusaka, "Direct Democracy:  New Approaches to Old Questions," Annual Review of Political Science 7: 463-482 (2004); Commission of the European Communities, Green Paper on a European Citizens' Initiative, COM(2009) 622 final (Nov. 11, 2009).

 

  1 million signatures for popular democracy

Others have been acting in the name of this concept to overthrow the governmental apparatus under which they have been ruled. Elaine Ganley, Dictatorship to democracy? Tunisia's risky venture, MSNBC, Jan. 29, 2011. At the start of the second decade of the 21st century, global society is embracing with renewed energy the notion of vox populi, of popular democracy, and of the power of the people, when appropriately massed and successfully engaged, to directly affect the form of governments under which they might consent to be ruled, and the values  which that governmental apparatus must apply.  Egypt and Tunisia show us the potentially transformative face of modern mass democratic movements at its triumphant moment, or perhaps on the verge of that triumphant moment. Everyone applauds. 

  Monique el-Faizy, Obama Disengaged Over Succession in Egypt, Bikyamasr, Oct. 26, 2010 ("With the issue of succession looming over the Egyptian political landscape and the Obama administration seemingly disengaged, a bipartisan group of American academics and former government officials has been diligently working behind the scenes to focus the attention of decision makers here in the U.S.").

Well, perhaps not everyone.  See, Color revolutions will not bring about real democracy, Global Times, Jan. 30, 2011 ("In general, democracy has a strong appeal because of the successful models in the West. But whether the system is applicable in other countries is in question, as more and more unsuccessful examples arise. In the West, democracy is not only a political system, but a way of life. Yet some emerging democracies in Asia and Africa are taking hit after hit from street-level clamor. Democracy is still far away for Tunisia and Egypt. The success of a democracy takes concrete foundations in economy, education and social issues. As a general concept, democracy has been accepted by most people. But when it comes to political systems, the Western model is only one of a few options. It takes time and effort to apply democracy to different countries, and to do so without the turmoil of revolution." Id.).

Sun Shangwu,China, Egypt agree on nuke co-operation, China Daily (Nov. 8, 2006)
President Hu Jintao shakes hands with visiting Eyptian President Hosni Mubarak to the Great Hall of the People yesterday. The two leaders agreed to consolidate political ties, expand economic relations and increase cultural exchanges. [newsphoto]

Whatever the merits of transformational mass democratic mobilization, there is another face to mass democratic movements and the mobilization through which it exercises its sovereign authority.  Pakistan, perhaps, shows us the face of popular democracy triumphant, the "day after."  The recent popular execution of a high government official opposed to the severe application of the blasphemy laws in the Islamic Republic against a Christian peasant woman who was said to have offended the sensibilities of Islam reminds us that popular democracy, and the will of the people, again raises fundamental issues of sovereign will and universal values with respect to which no consensus appears likely.     

Mohammed Hanif, Pakistan viewpoint: Who is to blame for Taseer's death?, BBC News Online, Jan. 6, 2011 (caption: Malik Mumtaz Hussein Qadri is viewed by some as a hero for killing Salman Taseer).

I have written about the underlying facts that make up this saga of Pakistani democratic mobilization before.  See Larry Catá Backer, Ruminations XXXV: Blaspheming Law, Law at the End of the Day, Dec. 4, 2010.  The repercussions have been severe and overtaken by the mass democratic mobilizations that have emerged around both the blasphemy law, and governmental suggestions that it might be softened for infractions against Islam (no one speaks of the effects of blaspheming  or insulting Christianity, Baha'i, Hinduism, Buddhism, Judaism or the like), and popular action against government officials who support this change in the blasphemy laws (or defend the Christian peasant women condemned to death for insulting Islam).   "The blasphemy laws have been in the spotlight since the murder last week of Salmaan Taseer, governor of Punjab province and a critic of the laws, who was shot by a member of his security detail. The shooter, Mumtaz Qadri, later said he killed Mr. Taseer because of the politician's opposition to the laws. Mr. Taseer was a member of the Pakistan People's Party, which runs the governing coalition, and was close to President Asif Ali Zardari."  (From Zahid Hussain, Islamists Rally for Pakistan's Blasphemy Laws, Wall Street Journal Asia, Jan. 10, 2011).

 Agence France-Presse/Getty Images

Fazalur Rehman, leader of radical group Jamiat-e-Ulema-e-Islam, addresses a rally in favor of Pakistan's blasphemy laws in Karachi on Sunday.

The democratic aspects of this conversation about the blasphemy laws, the condemnation of the Christian peasant under its terms and the execution of a political figure opposed to the law that led to that condemnation is well in evidence in Pakistan, following a pattern of popular demonstration widely and positively regarded recently when effected against the governments of Egypt and Tunisia.  

About 40,000 people rallied in Pakistan's eastern city of Lahore on Sunday in the latest protest against proposed reforms of a controversial blasphemy law, police said.
Religious groups have held protests in several Pakistani cities since former Punjab governor Salman Taseer vowed to amend the law, that was recently used to sentence a Christian woman to death
Taseer's stance enraged the country's increasingly conservative religious base and he was assassinated on January 4 by his own security guard, who has said he killed the governor over his support for reform.
Under intense pressure from religious parties, Pakistan's government has since said it had no intentions to amend the law.
Demonstrators from religious parties Jamaat-e-Islami, Jamiat Ulema-e-Pakistan and Jamaat-ud-Dawa, a charity linked with 2008 Mumbai terrorist attacks, held banners in support of Mumtaz Qadri -- the police commando who shot dead Taseer.
Participants chanted slogans including "Free Mumtaz Qadri", "We are ready to sacrifice our lives for the honour of Prophet Mohammad" and "Changes in blasphemy law not accepted."
An AFP reporter saw activists carrying effigies of Pope Benedict XVI and Pakistani minorities affairs minister Shahbaz Bhatti shouting slogans "Allah-o-Akbar." (From Thousands rally in Pakistan over blasphemy law, sifynews.com, Jan. 30, 2011)

The popular mobilizations of sovereign will suggest at least two  issues. The first touches on the nature of constitutional democracy and the role of the popular sovereign.  Westerners, and especially Americans, tend to view popular sovereignty in a peculiar way.  It is that great spark that when roused extinguishes one set of government and imposes on itself another.  Thereafter, and until it acts again, it is constrained by the government it has created, and acts only indirectly--in the election of individuals who represent the popular will.  Sometimes both the popular sovereign and its representatives are constrained by substantive norms that are beyond their power to overcome.  Slavery, for example, could not be re-instituted in the United States, the central value of human dignity could not be overcome in Germany, and socialist values could not be rejected in China, even in the face of popular desire to effect those changes, without destroying the constitutional order itself.  Sometimes either the people, through plebiscite or through their legislature,  could effect any normative change as long as effected lawfully, that is through a process that legitimated the method used to make those changes.  In that case, democratic mass mobilization on the streets, or reflected in pressure on representatives (acting as the proxy for the popular will) could impose whatever substantive regime reflects the current will of the masses.   In that case, the popular will could impose anything from the political disability of inhabitants because of religion (France under the Vichy regime), and their segregation and extermination (Nationalist Socialist Germany) as long as the process was lawful and reflected the majority will.  Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century. Mississippi Law Review, Vol. 27, 2008.

Pakistan suggests this older face of democratic constitutionalism, one in which process merely directs  the mechanics of the expression of mass democratic will without constraint.   Describing the participation of an Islamic group, the Sunni Ittehad Council, in support of the assassin of Mr. Taseer:

Barelvis, who are dominant in Punjab, did not support the holy war against Soviet rule in Afghanistan. As terrorist attacks have surged in Pakistan, several prominent Barelvis have issued decrees condemning suicide bombing and other violence. Islamist insurgents have responded with major bombings at Sufi shrines and mosques.
Over the past two years, the sect has formed an alliance that, leaders say, intends to field candidates for political office to promote peaceful Islam and the authority of the state. The group, the Sunni Ittehad Council, is staunchly anti-American, but also fervently anti-Taliban, on grounds that killing innocents cannot be justified under Islam.
"This is a very basic concept. If you kill an innocent person, it means you are killing all humanity," said Mohammed Ziaul Haq, a council spokesman and author whose new book is titled "WikiLeaks: America's Horrendous Face." "Islam is a religion of peace and love, and it asks its followers to restrain themselves."
But killing in response to blasphemy is another matter, he said, making it "totally different from terrorism.'' The government had done nothing to silence Taseer's criticism of the blasphemy ban, he said, or his support for a Christian woman sentenced to death for the law, which he said had made Taseer an "indirect" blasphemer himself. "Ninety percent of people in Pakistan think Mumtaz Qadri is a hero," Ziaul Haq said. "If it's a democracy, the government should think about that." Karin Brulliard, "For Moderate Majority, A Hard Line" The Washington Post, Jan. 30, 2011, at A-8). 

There is an echo here of the sentiments supporting a greater role for direct popular democratic action in the United States as well, though of course from a vastly different substantive and structural perspective.

Conventional wisdom now holds that Article V is the only way to amend the Constitution. Article V is how the government amends the Constitution, not how the people do it. If the people had to use Article V to amend the Constitution they would need permission from two-thirds of the Congress and three-fourths of the state legislatures. This would mean that the creator of our government, the people, would have to get permission from their elected representatives, the createes of the people, to amend the Constitution. This logic is ludicrous. The constituent power of the people––the source of all political power––cannot be subject to the power of its creation. James Madison had it right when he said that the people could just do it. (From Mike Gravel, The National Initiative for Democracy, A Populist Concept of Democracy; (“Let the People Decide”)).

This approach suggests an older form of constitutionalism, one in which the popular will, manifested either through mass mobilization, the monarch, ruling elite or legislature, is unconstrained in  the scope of power to impose political rules, as long as it is done through a legitimating process.  Substantive values are supplied by the common traditions of the people or from some other source.

Pamela Constable, Mumtaz Qadri pleads guilty to Pakistan slaying of Salman Taseer, Washington Post, Jan.10, 2011 ("Salman Taseer, the razor-tongued governor of Punjab province, was killed Tuesday in Islamabad. Thousands of Pakistanis braved high security to attend his funeral Wednesday.).

Yet it might be possible to suggest an alternative analytical approach.  The second issue that the Pakistani mobilization suggests is not so much mass democratic instincts run riot, but the critical role of the masses in guarding the most fundamental normative structures of the constitutional systems under which it has consented to be governed.  "Speakers at the Karachi rally sought to justify Mr. Taseer's assassination, saying the killer fulfilled his obligation as a Muslim."  (From Zahid Hussain, Islamists Rally for Pakistan's Blasphemy Laws, Wall Street Journal Asia, Jan. 10, 2011).  The people of Pakistan have declared the fundamental Muslim character of the state and its institutions.  That is not merely a incantation fetish but a shorthand for a set of substantive values and approaches to law, governance and relationships among people grounded in the normative rules of Islam.  See, Larry Catá Backer, Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering (July 28, 2008). Indiana Journal of Global Legal Studies, Vol. 16, No. 1, 2008; Islamic Law and Law of the Muslim World Paper No. 08-44. "Establishing Islam as the state ideology was a device aimed at defining a Pakistani identity (PDF) during the country's formative years, wrote Haqqani." Jayshree Bajoria, Pakistan's Fragile Foundations, Council on Foreign Relations, March 12, 2009 (referencing Husain Haqqani, "The Role of Islam in Pakistan's Future", The Washington Quarterly 28(1): 85-96 (2004-05))  It is true that it may be the Islam understood as a true expression of that faith held by believers in Pakistan (and that may vary from views held by believers in other places inside or outside the dar al Islam), but that makes it no less the governing set of substantive values that constrain both state and democratic action. "And we are so frightened of crossing the line that would render us faithless that we are ready to sacrifice anyone and draw blood to feed our faith. What if we do not have the stomach to wield the knife ourselves? We can still goad the butchers on from the fences. For those of us who call ourselves liberal Muslims there is always the option of turning away and holding our noses." (From Mohammed Hanif, Pakistan viewpoint: Who is to blame for Taseer's death?, BBC News Online, Jan. 6, 2011)  If Islam defines the normative parameters of the state, and its social, cultural and political values, then it suggests that popular mobilizations in its defense are both legitimate and necessary for the state to remain true to and subject to its own normative constitutional constraints. To generalize the point, consider the essays in Democratizing Democracy: Beyond the Liberal Democratic Canon (Reinventing Social Emancipation) (Boaventura de Sousa Santos, ed., Verso, 2008).

But it also suggests a wide variation between the  shape of those values--at least in some respects, this one in particular--and the set of normative constitutional values emerging from the organs of international organizations and recognized, to some extent in international law.  But that conflict does not suggest the arbitrariness of the actions so much as the somewhat large abyss separating the normative values of constitutional societies within and outside of Pakistan (or at least some of them).  Looking at the popular mobilizations in this respect, one can see them as a force for the protection of the organizing values on which the state is founded against the efforts to undermine that normative framework by the importation of values and sensibilities that are alien to and may threaten the normative structure of Islamic Pakistan, at least as the masses mobilized understand that. And if popular democracy means anything, it is the importance of the expressions of mass will for defining the belief system of the popular sovereign of a territory.  For westerners and those looking to expand the reach and normative primacy of systems grounded in international consensus of values, the result is disheartening.  The internationalists' masters' tools are being used to dismantle the masters' house and rebuild it in another image.  Alternatively, it suggests the necessity to theorize a limit to the legitimacy of popular and mass mobilizations.  But any movement toward the management and constraining of popular democracy would undermine or redirect the political movement and trajectory of political development now well over two centuries old. 

The greater (or at least more immediate) issue, though, is that a common language divides us.  Larry Catá Backer, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems (September 22, 2008). Penn State Law Review, Vol. 113, No. 3, 2009. Using the terms democracy, democratic values, vox populi, substantive values as a necessary means of managing the excesses of the masses and the like is no longer necessarily an indicator that the speakers either understand or hear each other.  People will be using the same words and mean quite different things.  The West's obsession with the use of the right words--like a catechism to be memorized and recited but not thought about too deeply (that task to be left to the mediating class of judges, lawyers, priests, imams and the like)--will provide it the satisfaction of appearances and the frustrations of the defeat of its ultimate purpose.  As a consequence, Westerners are told to understand the manifestations of popular will in Pakistan as evidence of the weakness of Pakistan's democracy.  See, Ali Dayan Hasan, Opinion: An Assassination in Pakistan,  The New York Times, Jan. 6, 2011 ("In this tense, hate-filled atmosphere, the political courage to stand up for Asia Bibi — and Pakistan’s fragile democracy — is short supply. ").  Ironically, the analysis suggested here might lead one to the opposite conclusion:  it might be just as valid to suggest that the popular mobilizations are a sign of the strength of Pakistan's direct democracy--but that the values represented by that democratic movement may not be compatible with our own in the west.  "The notion of a moderate but silent Pakistani majority has also been undermined by the stance taken by the nation's young black-suited lawyers, who three years ago led massive pro-democracy strikes but this month showered rose petals on Mumtaz Qadri, the killer of Punjab governor Salman Taseer. Civilian and military officials have responded with little more than tepid disapproval to the killing."  Karin Brulliard, "For Moderate Majority, A Hard Line" The Washington Post, Jan. 30, 2011, at A-8). That raises political, moral, religious and other issues that may be more difficult to face.

Is it Possible to Maintain a Democratic, Pluralistic, Multi-Ethnic, Multi-Religious State In Africa?--South Sudan Votes for Independence

In the 21st Century, the global community has been of two quite distinctive minds when it comes to the issue of the construction of multi-ethnic, multi-religious, pluralistic democratic states.  

Larger and more powerful states have been at the forefront of an international movement for the development and implementation of the necessary ideological bases for the construction and maintenance of such states.  Indeed, the coherence of their own territorial and political integrity depends on the privileging of the notion that it is not merely possible but better to construct such states.  This ideal is now increasingly memorialized in global standards of conduct, including respect for minorities, language and indigenous rights, religious freedom and the like.  The idea is that group characteristics that might once have defined a  group as distinct enough to suggest political autonomy ought not to matter in the construction of states.  There are two distinct reasons that may explain this push.  The first is the protection of the territorial and political integrity of multi-ethnic states--everything from the old  states of Europe, to the United States, China, India, Brazil,  and Russia.  The ideology of pluralism and the construction of political unity from ideological bases other than language, ethnicity, religion, race and the like serves the state.  The second, related, reason, is that the construction of global systems of interaction, principally (for the moment) economic globalization, requires free movements of capital, services and goods, that is most efficiently implemented in a world community in which race, ethnicity, religion, language and the like are not impediments.  

On the other hand, smaller and less powerful states have been more likely to be torn and politically destabilized, by ethnic, religious, racial, linguistic, and cultural distinctions among its theoretically unitary polity.  For every China there is a Yugoslavia.  These states are weakened by the strength of older ideologies, ideologies that caused no end of violence in Europe in the 19th century,  that understood the foundation of political union in racial, religious, ethnic, linguistic or other similar organizing characteristics.  Political union merely reflected the "natural" union inherent in the characteristics that unified a community along distinctive lines.  That these lines were mutable or immutable made no difference to this ideology, it merely suggested the hierarchy of organization, by which political union was a consequential recognition of higher order unions. While larger states and the movement of the international move toward the adoption of a system in which the protection of territorial integrity combines  with national obligations to protect minority communities, large territorially unified minority communities, especially those in smaller states continue to participate in the equally important international norms for self-determination and separation. 

University of Leicester, Appearance before the International Court of Justice in key case by University of Leicester Professor, News and Events ("Professor Malcolm Shaw QC, the Sir Robert Jennings Professor of International Law at the University of Leicester. . . who is Counsel for Serbia, declared before the Court that many states around the world were watching the proceedings with apprehension. Should the Court, he noted, accept the declaration of independence as lawful under international law, it could encourage secessionist movements around the world and lead to an increase in instability in the international community.")

The tensions and contradictions of these two positions remains an element of international law, the latest uncomfortable manifestation of which was apparent in the recent advisory opinion of the International Court of Justice, Accordance With International Law of the Unilateral Declaration of Independence With Respect to Kosovo, 22 July 2010..

The Court first notes that during the eighteenth, nineteenth and early twentieth centuries, there were numerous instances of declarations of independence, often strenuously opposed by the State from which independence was being declared. Sometimes a declaration resulted in the creation of a new State, at others it did not. In no case, however, does the practice of States as a whole suggest that the act of promulgating the declaration was regarded as contrary to international law. On the contrary, State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence. During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation. A great many new States have come into existence as a result of the exercise of this right. There were, however, also instances of declarations of independence outside this context. The practice of States in these latter cases does not point to the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases.
The Court then recalls that the principle of territorial integrity is “an important part of the international legal order and is enshrined in the Charter of the United Nations, in particular in Article 2, paragraph 4, which provides that:

‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.’”

. . . .The Court considers that it is not necessary, in the present case, to resolve the question whether, outside the context of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation, the international law of self-determination confers upon part of the population of an existing State a right to separate from that State, or whether international law provides for a right of “remedial secession” and, if so, in what circumstances. 

. . . . For the reasons already given, the Court considers that general international law contains no applicable prohibition of declarations of independence. Accordingly, it concludes that the declaration of independence of 17 February 2008 did not violate general international law. (From International Court of Justice, Accordance with international law of the unilateral declaration of independence in respect of Kosovo, Summary of the Advisory Opinion, Summary 2010/2, 22 July 2010, at 7-8.)

The usual solution to these sorts of tensions in smaller states,and sometimes in larger ones, is some form or other of ethnic federalism.  The idea is that national aspirations can be acknowledged but subordinated to a superior political unit of which these semi-states, autonomous regions, and the like, will be subordinate.  

 Ethiopian Regions

Ethnic federalism  remains popular in the West but is less popular in places where it would tend to be most usefully applied.  See, e.g., Selassie, Alemante G., "Ethnic Federalism: Its Promise and Pitfalls for Africa," 28 Yale Journal of International Law 51 (2003);  Ethnic Federalism: The Ethiopian Experience in Comparative Perspective (David Turton, ed.,  2007).  The effectiveness of this limited structural effort to meet and to contain the drive toward political independence grounded in ethnic, religious,linguistic and similar characteristics has also had its critics in the development of the Indian variant.  See, e.g., S.D. Muni, "Ethnic COnflict, Federalism, And Democracy in India," in Ethnicity and Power in the Contemporary World (Kumar

These tensions have to some extent driven events in Sudan. See, Written Testimony of Susan D. Page, NDI Regional Director  For Southern and East Africa as Prepared for the Senate Foreign Relations Committee Hearing  “Toward a Comprehensive Strategy for Sudan,” July 30, 2009.

From South Sudan referendum: 99% vote for independence, BBC NewsOnline, Jan. 30, 2011

Some 99% of South Sudanese voted to secede from the north, according to the first complete results of the region's independence referendum.

A total of 99.57 percent of those polled voted for independence, according to the referendum commission.
Early counting had put the outcome of the ballot beyond doubt, indicating Southern Sudan had secured a mandate to become the world's newest nation.
The poll was agreed as part of a 2005 peace deal to end two decades of war.
Final results from the 9-15 January vote, which Sudanese President Omar al-Bashir has said he will accept, are expected early next month.
If the result is confirmed, the new country is set to formally declare its independence on 9 July.
. . . .
North and south Sudan have suffered decades of conflict driven by religious and ethnic divides.
Southern Sudan is one of the least developed areas in the world and many of its people have have long complained of mistreatment at the hands of the Khartoum government. (From South Sudan referendum: 99% vote for independence, BBC NewsOnline, Jan. 30, 2011).

From the perspective of large states and the international order, Sudan should have been made to work.  But Sudan appeared to follow the pattern of smaller states--like Yugoslavia, rather than larger states, like India and even Nigeria. Jan Tullberg and Birgitta S. Tullberg, "Separation or Unity:  A Model for Solving Ethnic Conflicts," Politics and the Life Sciences 16(2):237-248; Cf. Michael Mann, The Dark Side of Democracy:  Explaining Ethnic Cleansing (Cambridge University Press, 2004). It was unable to contain the conflation of nationalism with the characteristics of the ethnic, religious, racial and linguistic communities that privileged difference, and invested that difference with political significance.   As in Yugoslavia, the conduct of the majority population both sharpened political divisions based on ethnic, religious and linguistic lines, but also made pluralism impossible by the sustained level and extent of violence grounded in those differences.    In the case of Kosovo, independence was a tolerable alternative, even for the larger states, because Kosovo would go from a dependency of a multi-ethnic Serbian state, to a dependency of a multi-ethnic European Union,within which its national aspirations would be affirmed in form and constrained in fact.  2008/213/EC: Council Decision of 18 February 2008 on the principles, priorities and conditions contained in the European Partnership with Serbia including Kosovo as defined by United Nations Security Council Resolution 1244 of 10 June 1999 and repealing Decision 2006/56/EC.  Even so, several of the larger European voiced either opposition or concern, especially those that feared that its own ethnically organized sub national communities would seek to emulate Kosovo.  See EU splits on Kosovo recognition, BBC News Online, Feb. 18, 2008.

But such a solution was not possible in Sudan, where there was no supra state substitute for the ethnically based political division contemplated. The Sudanese break up puts in stark relief the contradictions in the global normative structure that will tolerate the break up of states to avoid ethnic, religious linguistic and similar violence, but which also privileges within the edifice of international law the territorial integrity of states, even of states in which minorities  are treated like foreigners within the body politic.   Perhaps the Turks expressed the tensions inherent in the South Sudan independence vote best when they explained:

 “We are pursuing two principles in regards to our relations with Sudan. First, we want the continuity of Sudan’s territorial integrity and unity. Our desire is in this direction,” a Foreign Ministry official told the Hürriyet Daily News & Economic Review on Tuesday.
“Secondly, we want the referendum result to serve peace and stability in the country regardless of the outcome,” the official said, while noting that it is too early to comment on the independence vote since the results have not been finalized.
Turkey would pursue good relations with Southern Sudan if it splits off from the north, another Turkish diplomat who wished to remain anonymous told the Daily News. Ankara says the oil extracted in the south and carried through the north via pipelines should not become a source of friction between the two sides, but rather a shared resource that links them. Seventy percent of Sudan’s oil is in the south. (From Turkey Backs Sudan Unity, Vows Support for Plebiscite, Turkish Weekly, Jan. 12, 2011)

The lack of alternative makes Sudan more dangerous for the territorial integrity of small states.  Certainly, Turkey, with its Kurdish independence problem, like Spain, views secession with alarm, even one mediated by large pluralist states and the international.  It also makes South Sudan more likely to require some connection with a more well organized state to survive.

Maggi Fick, South Sudan welcomes outside help as it begins building a nation, Christian science Monitor, Jan. 28, 2011.

"Juba is indeed already booming with new “friends.” Investors touch down daily at the international airport that is badly in need of a remodel. The new business they bring, however, seems unlikely to make a difference in the lives of the majority of the southern population – rural subsistence farmers who lack access to safe drinking water, primary education, and basic health care. In the capital, Chinese and Eritrean owned hotels keep springing up to serve the newly arrived consultants and diplomats who don’t yet have office space or long-term accommodation." Maggi Fick, South Sudan welcomes outside help as it begins building a nation, Christian science Monitor, Jan. 28, 2011.

Juba from the air

But the independence of South Sudan is not the end of the story,  Still within the warm embrace of what remains of Sudan is Darfur.  "South Sudan shares a border with the remote north Sudanese territory of Darfur, the scene of a separate seven-year conflict between government forces and rebels. Ibrahim Gambari, the head of Darfur's joint U.N./African Union UNAMID peacekeeping force, told reporters there was concern about a "spill-over effect" from north-south tensions." Andrew Heavens, North-south tensions threaten Sudan's Darfur - U.N., The Star Online, Nov. 15, 2010.

 

Taking Anonymous Seriously: The State Strikes Back

I have written about the emergence  of new and potentially significant governance collectives that have arisen out of a century of mass democratic politics and the ideology that supports it, especially in the West.  Larry Catá Backer,  "Anonymous": Organizing Collective Action and Coercive Power Beyond the State, Law at the End of the Day,  January 4, 2011.  Anonymous, I have suggested, at least tentatively, stands at the forefront of an emerging wave of functional internationalism that combines "transformative power of globalization when combined with the political culture of mass democracy and the politics of mass mobilization framed around ideology."  Id. 

 From Pirate Parties Use Influence To Halt Anonymous’ Operation Payback, Torrent Freak, Nov. 20, 2010

I have been told that  this approach might tend towards analytic hysteria, that Anonymous either does not exist, is hardly coherent enough to merit serious attention, or is just another anarchist group with no connection to governance.  Others suggest that unlike the state, Anonymous is an abstraction with no center and no institutional base, both necessary for the construction of a governance unit.  Thus reduced, they can be consigned to the dustbin category--vigilante group--and thus categorized, marginalized.  Ryan Singel,Vigilantes Take Offensive in WikiLeaks Censorship Battle, Threat Level, Privacy, Crime and Security Online, Wired, Dec. 8, 2010 ("Internet vigilantes stepped up attacks in support of WikiLeaks on Wednesday, downing Visa’s web site in a widening protest against a handful of companies that banned the secret-spilling site after it began publishing hundreds of secret U.S. diplomatic cables. The outages, organized by the group Anonymous under the banner “Operation Payback,” have taken the battle between WikiLeaks supporters and opponents over web censorship to the streets, so to speak, sparking a series of tit-for-tat retaliations that appeared to be growing at the time this article was posted").

 From Ryan Singel, U.K. Police Arrest Five Men in Wikileaks/Anonymous Payback Attacks, Threat Level Privacy, Crime and Security Online, Wired, Jan. 27, 2011.

Whatever the merits of these reactions, I note that while academics and analysts might dismiss Anonymous, the state has not.    

U.K. police arrested five men in dawn raids Thursday morning, alleging they were part of the Anonymous attacks on the websites of Visa, Mastercard and Paypal, which were conducted to show displeasure with the financial services companies that cut off donations to Wikileaks, according to the BBC.

Three of those arrested were minors, while two men aged 20 and 26, were also arrested. There’s no indication at present that those arrested were ringleaders in the loosely organized attacks in December. Previously, Dutch police arrested two teens for their role in the attacks.

In the attacks on the financial service companies, thousands downloaded a tool called LOIC — or Low Orbit Ion Cannon — that joined their computer to the group attack on the target of the moment. However, the tool did nothing to hide a user’s IP address, making it possible for the target website to hand it’s server logs over to the authorities to track users down via their IP addresses.  Ryan Singel, U.K. Police Arrest Five Men in Wikileaks/Anonymous Payback Attacks, Threat LevelPrivacy, Crime and Security Online, Wired, Jan. 27, 2011.

But this action was not merely a routine police action against "vigilantes" undertaken in the ordinary course of a state's operations against what it characterizes as it criminal element.

Today's arrests were coordinated by the Metropolitan police working in conjunction with other UK forces and international agencies.

"They are part of an ongoing [Metropolitan police] investigation into Anonymous which began last year following criminal allegations of DDoS [distributed denial of service] attacks by the group against several companies," Scotland Yard said.

"This investigation is being carried out in conjunction with international law enforcement agencies in Europe and the US."  Josh Halliday, Police arrest five over Anonymous WikiLeaks attacks, Guardian U.K., Jan. 27, 2011. 

What is emerging is a sense of both urgency and threat, a sense emerging from the security organs of states and focused on what they appear to increasingly view as a collective that is well organized and well disciplined enough to target opponents at will, not by direct action, but by mobilizing mass action of like-minded individuals who join together for collective action.  Even worse, the mobilization of the Anonymous collective appears most effective among the demographic group that state's expend the greatest effort to manage and control.  Many of those subject to police action were minors. "Three teenagers, aged 15, 16 and 19, were arrested in a series of coordinated raids at 7am along with two men aged 20 and 26. All five are being held in custody at local police stations."  Id.  This is a crucial demographic for mobilization with potential political effect.  That was made clear not in Europe, but in the mass mobilization for what might be revolutionary action in Egypt.  See, Jeffrey Fleishman, Young Egyptians mount unusual challenge to Mubarak, Los Angeles Times, Jan. 27, 2011 ("A Facebook-fueled youth movement has called for more protest, challenging a government that says it won't tolerate it. Security forces have blocked activists' Twitter accounts but not their anger. . . . "There is a generational gap in Egypt," Maher said, watching waiters and the twentysomething men and women likely to join him in the protests. "The opposition is looking to preserve themselves and their parties. They've become too hesitant. But young activists are fired up, and they have no allegiances to anything but change."").

From Jeffrey Fleishman, Young Egyptians mount unusual challenge to Mubarak, Los Angeles Times, Jan. 27, 2011.

This is more ambiguously evidenced in the connection between Anonymous and the current mass mobilization efforts in Tunisia, Yemen,  and Egypt.  "In recent weeks the group has turned its attention to targets in Tunisia and Egypt, attacking official sites in both countries in support of anti-government protests."  Five arrested over 'Anonymous' web attacks, BBC News Online, Jan. 27, 2011.

When it comes to Anonymous’ actions against the Tunisian government there have been a few interesting developments. Operation: Tunisia is still growing, as the number of people taking part has nearly doubled since our last update.

The Distributed Denial of Service (DDoS) attacks continue, but they hit a bit of a snag when the Tunisian government null-routed foreign Internet traffic to their primary TLD, .gov.tn. In response to the traffic blocks, Anonymous shifted to other targets including TunisiaOnline.com.

When it was discovered that the Tunisian Internet Agency (ATI) was injecting JavaScript into web forms, using it to harvest usernames and passwords, Anonymous reacted by releasing a browser add-on that strips the added JavaScript code. The Greasemonkey script allows Tunisian surfers to access Blogger, Facebook, Gmail, Yahoo, and Twitter without exposing their login details. Our coverage on ATI’s actions is here.

While the JavaScript filter is a step in the right direction, there are other ways that ATI can track Internet users. Due to this, Anonymous has added to their bag of tricks. While the DDoS attacks and website defacements are still the choice for some of those participating in Operation: Tunisia, others are championing the cause of protection.

In an effort to support a restriction-free Internet in Tunisia, members of Anonymous have gathered to promote links to what they’re calling a care package for Tunisian protestors. In it, they have included how-to guides for a number of things including homemade gas masks. In addition, they are circulating information on TOR usage, links to Tunisian proxies, instructions for LiveCD usage, and a book titled Bypassing Internet Censorship. (From Steve Ragan, Anonymous offers support to Tunisian protestors (Update 2), Security, Jan. 10,2011).

From Tunisia Cyber-Special: "Anonymous" Takes Down the Government,  EA Worldview, J an. 6, 2011.

A similar set of tactics has been suggested in aid of Egyptian street protests designed to bring about the fall of its current government.  "The online group of hactivists known as "Anonymous" expressed their support for protesters in Egypt Wednesday by calling for cyber attacks on websites run by the Egyptian government." David Edwards, ‘Anonymous’ calls for attacks on Egyptian government websites, The Raw Story, Jan. 26, 2011.  One does not hear condemnation of these actions, nor is there likely the sort of police investigation that was used to protect the operations of large Western multinationals that were the targets of the Wikileaks counterstrike.  This is the case even in the face of Western ambivalence about democracy movements in Muslim majority states, a concern that is not altogether irrational given the recent history of mass movements in the region.  See Marc Lynch, Where are the democracy promoters on Tunisia?, Foreign Policy, Jan. 27, 2011.  Vikash Yadav connected the protest movements, mass mobilization and Anonymous quite well noting:  "But what we are seeing is that outside actors are increasingly willing to try to help counterstrike when authoritarian states crackdown on Internet based networking technologies. In addition, Twitter, Facebook, Google, and the US government are not the only players in the game. Non-corporate/non-state networks like "Anonymous" may also become relevant actors willing to "backstop" social networking technologies (through mirror sites) and challenge the ability of repressive states to use the Internet in future dramas of global politics."  Vikash Yadav, Anonymous attacks Tunisian Government Websites, The Duck of Minerva, Jan. 10, 2011.

Moreover, Anonymous is not without its allies, organs constituted and operating within the network of organizations recognized within the transnational  state dominated sphere.   One is the Pirate Party ( a loose confederation of parties organized by state).  "The Pirate Party UK is a political organisation registered with the electoral commission. It campaigns for significant reform to copyright and patent law, protection for personal privacy and government transparency, and greater freedoms of speech and communication."  It issued a statement reacting to the arrests.

In a statement released today, the Pirateers voiced their concerns over the role the companies had played in attempting to silence WikiLeaks' attempt to unmask the US government's diplomatic duplicity:
"Many believe that the revelations made by WikiLeaks unveil the questionable behaviour of elected representatives and therefore that it is in the public interest for this information to be revealed," the swashbuckling file sharers stated, adding: "Actions by certain companies to block services for or donations to WikiLeaks are seen as forms of censorship that, while not directly caused by national governments are seen to be supported or encouraged by them."
"In the face of governmental and corporate attacks against WikiLeaks," the pirates continued, "individuals around the world have tried to fight back in the only way they feel available to them under the label 'Anonymous'."
Offering a muted defence of Anonymous' direct action, the Pirate Party's statement continued:
"While the Party will never condone any illegal actions, it can understand the frustration felt by many who feel powerless in the face of multinational corporations and Governments unwilling to step in. (From   Pirate Party slams police over Anonymous arrests Warns of WikiLeaks war, Thinq.co.uk. Jan. 27, 2011; see also Pirate Party Statement Concerning "Anonymous" Arrests, Jan. 27, 2011).

 Pirate Party slams police over Anonymous arrests Warns of WikiLeaks war, Thinq.co.uk. Jan. 27, 2011.

Elements of this organization had attempted to position themselves as a mediating organ of sorts in the initial action that eventually resulted in the Anonymous arrests in the U.K.  See Trent Nouveau, Pirate Party asks Anonymous to halt DDoS attacks, TG Daily, Nov. 21, 2010.  But the Pirate Party also condemned state attacks on the Wikileaks organization.  "In a joint declaration with other Pirate Parties, today the Pirate Party of the United Kingdom strongly condemns any attacks on Wikileaks infrastructure and more so any attacks on Wikileaks staff." Pirate Parties Condemn Violence Against Wikileaks' Staff, Pirate Party UK, Dec. 30, 2010 (including the Piratenpartei Österreichs, Parti Pirate français, Piratenpartei Deutschland,  Partito Pirata Italiano, Piratepartei Lëtzebuerg, Pirate Party of Switzerland, Pirate Party of the United Kingdom, and the Pirate Party of Russia).  The Party also serves as a conventional mouthpiece for political action.  See, e.g., Pirate Parties condemn Tunisia's unjust arrest of Pirate Party Members and Free Speech Activists, Pirate Party UK, Jan. 7, 2011.

From Detained Tunisian Pirate Party Member Beaten by Police, Pirate Party UK, Jan. 11, 2011

And the Pirate Party serves as a voice for Anonymous interests in the context of political mass democratic mobilization with which Anonymous is sometimes associated.   Yet it is important to remember that, when it suits them, states also find its useful to tolerate Anonymous, mostly by ignoring them and supporting the fruits of their activity.   See, e.g., UPDATE 2-U.S. worried by Tunisia riots, Internet freedoms, Reuters, Jan. 7, 2011 ("Another U.S. official, also speaking on background, said both the government and activists appeared to be targeting the Internet. "We've received some information from Facebook that helped us understand what was happening. This is a case of hacking into private accounts, stealing passwords and being able effectively to curb individuals' access to social media," the official said. "In a variety of ways there's activities on a number of sides, but clearly the government has taken some specific actions that are of concern to us."").  In the context of the Egyptian demonstrations, American White House Presidential Spokesman Robert Gibbs stated:  "The security personnel in Egypt need to refrain from violence, the government needs to turn the Internet and social networking sites back on," Joby Warrick and Perry Bacon Jr.,  Obama urges Egypt to heed protests, pursue reforms,  The Washington Post, Jan. 28, 2011.

And thus, the question reduces itself to two related issues.  The first is dominance and control.  States are content enough to permit the use of technologically centered mass mobilizations if it furthers either own policy.  The template was set in Iran in 2009.  Evgeny Morozov, Iran Elections:  A Twitter Revolution?, The Washington Post, June 17, 2009 ("The State Department asked social-networking site Twitter to delay scheduled maintenance earlier this week to avoid disrupting communications among tech-savvy Iranian citizens as they took to the streets to protest Friday's reelection of President Mahmoud Ahmadinejad.").  But states will move decisively against entities or movements that threaten their own resources or economic entities on which their economies are dependent.  States prefer to manage mass mobilization, and they prefer to contain democratic mass politics within the frameworks of their political parties.  Anonymous represents a threat by its autonomy by organizing mass movements in the absence of the state. 

While the outcome of the unrest in Egypt could have enormous implications for regional security, longtime Middle Eastern analysts said there was little the administration can do to directly affect events.
"What strikes me is how irrelevant we have become," said Robert Grenier, a retired CIA officer who served in the region for 27 years and now is chairman of ERG Partners, a financial and strategic advisory firm. "The people behind the current protests in Tunisia and Egypt certainly don't look to the United States for any kind of support, moral or otherwise." (From Joby Warrick and Perry Bacon Jr.,  Obama urges Egypt to heed protests, pursue reforms,  The Washington Post, Jan. 28, 2011.)

Unless it can be subordinated to the framework of the state-law system, it remains a threat, even if it does not aspire to assert the same authority as that traditionally exercised by the state. Anonymous is demonstrating that its ability to avoid dominance can overcome even blockages of the technologies that helped bring it to life.  "But with most of the Internet down in Egypt, the folks at Anonymous are apparently resorting to a positively prehistoric technology: fax machines.Members of the group are organizing to fax copies of the Egypt-related cables that WikiLeaks released today to schools in Egypt. The hope apparently is that if they can get the faxes into the hands of students, students will distribute them to other protesters. "  E.B. Boyd, Anonymous Goes Old-School, Attacks Egypt With Faxes, Fast Company, Jan. 28, 2011.

The second is control of ideological triggers.  As a traditional source of secular normative values, the law-state assumes the role of controller of the ideological framework within which political judgments are made.   An important function of the state apparatus is the protection of the ideology that serves as the foundation of the political system that sustains it.  That is as true in Egypt as in the United States and China.  Anonymous and related organizations threaten the control and management of ideological triggers by the state.  The increased difficulty of states in the control and management of ideology as the basis for mass mobilization has become apparent in the recent Egyptian popular unrest.

There have been signs for years that ideology is less effective in recruiting and mobilizing citizens. This is because party and non-party forces using ideological rhetoric have failed to realize socioeconomic change and true political reform. Also, this week’s protests were organized by youth movements and organizations who were able to recruit in the virtual world.   Amr Hamzawy, EGYPT: Day of anger suggests a new protest scene driven by youth, free of ideology, Los Angeles Times, Jan. 28, 2011.

If an organization other than the state can control mobilization of large parts of a population it can affect not only the issue that is the subject of the mobilization but can assume a role as an important political player in other areas.  That makes them potentially a threat to the state and its elites. And in Tunisia and Egypt also a threat to that other great source of political ideology--organized religion. Consider a recent Anonymous Release on that point, OPERATION EGYPT - ANONYMOUS PRESS RELEASE - 26/01/2011. That is a lesson from out of the mobilizations in Egypt and Tunisia--not about the power of Anonymous to manage political change in states but of the power of Anonymous to invoke ideology to contribute to a mass mobilization that then takes on a life of its own and can threaten the state apparatus. And mass mobilization is a toll that can be invoked by anyone--even very young people. That is possibly the most unnerving lesson for states.  Their educational systems, and their adherence to ideologies of mass movements and democratic activism  can now be detached from the state and sometimes invoked against it or other non-state actors, by people or groups acting independently.  The arrests thus remind us that while most people do not yet Anonymous seriously, states do.  And they are now expending substantial resources to attempt to manage Anonymous.

On the Relationship of Models of State and Corporate Governance: Democratic Centralism in Chinese State and Corporate Governance

Many academics, and those who hide behind academic theory for political and cultural choices, sometimes build substantial and popular theories grounded in adherence to two distinct and fundamental assumptions about the relationship of state and corporate governance.  

From CORPORATE GOVERNANCE & INFOSYS, by Harshal, My Tax Form Info, 2009.

The first is that the normative framework of corporate governance is distinct from that of state governance.  There is an intuitive appeal to this argument, especially if one is also interested in strengthening the notions of dependence (corporations are creatures of the states that "create" them and thus fundamentally distinct from states) and of state exceptionalism (that states are unique bodies corporate). States and corporations are governed differently, they are different, one is a creature of the other.  As a consequence, corporate governance issues are different from  issues of state governance both as a matter of form and function.  But Cf., Larry Catá Backer, The Drama of Corporate Law: Narrator between Citizen, State and Corporation (Winter 2009). Michigan State Law Review, Vol. 2009, No. 4. p. 1111, Winter 2009. 

Of course, there has been an important exception to this academic line.  Both Marxist and free market academic theorists have sometimes argued the connection between state and corporate governance, though they come at this from two distinct angles.  Marxists acknowledge the connection.  Some have viewed the corporation with suspicion, as a potential competitor to the democratic dictatorship of the Party exerted through the state apparatus, unless the entity was controlled as an extension of the state.  That marked the Soviet and Cuban approaches.  Others viewed the corporation as useful, but only when the corporation was structured  like the state and peopled by individuals whose loyalty to the state was clear. This now marks the Chinese approach. But it also suggests a variation on the principal assumption--of corporate subordination to the state.  Free market theorists acknowledging the connection suggested that governance values and approaches that were fundamental to the organization of a democratic state, for example like that of the United States, would inevitably find expression in the organization of entities peopled by Americans and organized in the United States.  Moreover,   as a governance organization dependent on the state, some suggest that state regulation of corporate governance will tend to favor regulation that reproduces its own governance norms.  Recent controversies over shareholder democracy and the control of board elections tend to reinforce this view.  But these controversies suggest a variation on the principal assumption--of corporate subordination to the state. 

"Corporate American Flag" offered for sale

The first assumption, and especially its exception, thus point to a second assumption, one that will form the basis of the remainder of these remarks is this: that of the existence of a single optimal form of corporate governance.  If corporations are both dependent on and subordinate to states, they represent an object of regulation in the management and production of national wealth. If that is the case then it might be possible to theorize optimal management and organization of this organization for the production of wealth. With economic globalization producing a powerful unitary system for commercial activity, it is possible to suggest that the optional form of corporate organization can be globalized as well. Harmonization and convergence, within the parameters of the current system of economic globalization, is sometimes understood as evidence of this phenomenon.  Moreover, movement toward a harmonization of political frameworks suggests the plausibility of movement toward an analogous harmonization of corporate governance frameworks. Global corporate social responsibility movements also tend to be grounded on this presumption of global harmonization of corporate governance norms.  The OECD projects of corporate governance suggests another expression of regulatory efforts grounded in this assumption.  Impediments to that convergence are ascribed to path dependence, to historical and cultural accidents, usually the products of cultural distinctions grounded in isolation that can be overcome by the harmonizing imperatives of a single globalized economic order, or to deliberate policies of resistance to global harmonization.  Of course, there are exceptions to this academic line as well.  One important line is based on the assumption that local cultural ideology will trump incentives toward harmonization.  Even within free market systems, differences in notions of the fundamental ordering framework of economic organization will have a profound effect on approaches to corporate governance.  See, e.g., Katsuhito Iwai, "The Nature of the Business Corporation: Its Legal Structure and Economic Functions," The Japanese Economic Review, 53(3):243-273 (2002), .discussed in Larry Catá Backer, Corporate Institutionalism and Fiduciary Duty: On Professor Katsuhito Iwai's Nominalistic and Realistic Corporations Mode, Law at the End of the Day, July 10, 2006. 

Recent developments in China remind us of the danger of two strong a reliance on either assumption.  More importantly, these developments point to the continued importance of national political ideology in the construction of corporate governance norms and practices.    It seems that just as American corporate governance principles reflect the American emphasis on democratic and representational theory  that serve as the foundation of the American political order, so the modern Chinese corporation appears to have taken on the fundamental political ordering characteristics of the Chinese state ordering system. That certainly appears to be the case with respect to the incorporation of the political concept of democratic centralism into corporate governance culture.

The concept of democratic centralism is central to the political organization of the Chinese state.  Article 3 of the Chinese Constitution incorporates the concept.  ("The state organs of the People's Republic of China apply the principle of democratic centralism."  Chinese Constitution ) It is particularly importantly at the intersection of state organization under the leadership of the Chinese Communist Party. 

 In its practice of ruling the country over the past five decades and more, the CPC has developed a series of important theories on, and established an institutional system of, democratic rule, and is actively exploring new ways and new methods of democratic rule. The sense of democracy among the CPC members has been continuously enhanced, and notable progress has been made to improve the democratic work style of Party officials at all levels. Democratic rule means that the CPC sticks to the principle of ruling the country for the people and relying on the people in its rule, guarantees that the people are the masters of the state, upholds and improves the people's democratic dictatorship and the democratic centralism of the Party and the state, and promotes people's democracy by enhancing inner-Party democracy. (From Information Office of the State Council of the People's Republic of China, Building of Political Democracy in China,  October 2005, Beijing, Chapter 8)

Democratic centralism is a part of a Chinese conceptualization of democratic state organization structured on Marxist principles.  "Because situations differ from one country to another, the paths the people of different countries take to win and develop democracy are different. Based on the specific conditions of China, the CPC and the Chinese people first engaged in a New Democratic Revolution, and after New China was founded in 1949, and proceeding from the actual situation of the primary stage of socialism, began to practice socialist democracy with its own characteristics."  (From Information Office of the State Council of the People's Republic of China, Building of Political Democracy in China,  October 2005, Beijing, Preface).   It is also central to the organization of the Chinese Communist Party itself:

Article 10. The Party is an integral body organized under its program and Constitution and on the basis of democratic centralism. The Party's basic principles of democratic centralism are as follows:

1) Individual Party members are subordinate to the Party organization, the minority is subordinate to the majority, the lower Party organizations are subordinate to the higher Party organizations, and all the constituent organizations and members of the Party are subordinate to the National Congress and the Central Committee of the Party.

2) The Party's leading bodies at all levels are elected except for the representative organs dispatched by them and the leading Party members' groups in non-Party organizations.

3) The highest leading body of the Party is the National Congress and the Central Committee elected by it. The leading bodies of local Party organizations are the Party congresses at their respective levels and the Party committees elected by them. Party committees are responsible, and report their work, to the Party congresses at their respective levels.

4) Higher Party organizations shall pay constant attention to the views of lower organizations and the rank-and-file Party members, and solve in good time the problems they raise. Lower Party organizations shall report on their work to, and request instructions from, higher Party organizations; at the same time, they shall handle, independently and in a responsible manner, matters within their jurisdiction. Higher and lower Party organizations should exchange information and support and oversee each other. Party organizations at all levels should increase transparency in Party affairs in accordance with regulations to keep Party members better informed of these affairs and to provide them with more opportunities to participate in them.

5) Party committees at all levels function on the principle of combining collective leadership with individual responsibility based on division of work. All major issues shall be decided upon by the Party committees after discussion in accordance with the principle of collective leadership, democratic centralism, individual consultations and decision by meetings. The members of the Party committees should earnestly exercise their functions and powers in accordance with the collective decisions taken and division of work.

6) The Party forbids all forms of personality cult. It is necessary to ensure that the activities of the Party leaders are subject to oversight by the Party and the people, and at the same time to uphold the prestige of all the leaders who represent the interests of the Party and the people. (Constitution of the Communist Party of China, Ch. II, Art.10).

Americans became acquainted with the concept of democratic centralism at the time of the establishment of the People's Republic of China.  

After a quarter-century of conspiracy and struggle, the great day came at last for China's Red conquerors. In Peiping's crumbling Imperial Palace, under the golden tiles of bygone Mings and Chings, the Communists last week proclaimed their new dynasty. . . .  
In the pillared hall, 636 delegates of the "Chinese People's Political Consultative Conference" cheered deliriously. A 49-piece brass band blared Red songs.
China's new people's republic would be strictly Soviet style. According to the principle of "democratic centralism," party rule would be exerted downward through a tightly knit administration. The "people's" conference was not elected by anyone, but appointed by the Communist bosses. Neither Mao Tse-tung nor any of his comrades had a "mandate" from the people. Mao described the new regime as a "people's democratic dictatorship." (From China: Democratic Dictatorship, Time, Oct. 3, 1949).

But, of course, the Americans did not quite understand, or chose to disingenuously describe, the concept.  For a more recent and sympathetic reading, see, e.g., Stephen C. Angle, "Decent Democratic Centralism,"  Political Theory August 2005 vol. 33 no. 4 518-546, but contra see, e.g., Dennis Tourish, Ideological intransigence, democratic centralism and cultism: a case study from the political left).

Beyond political line (in both China and the United States), the concept of democratic centralism  is subject to some interpretation.  Leon Trotsky explained the concept as contextual, emphasizing either the democratic or the centralism part depending on whether the object was development of position or its application.

Democracy and centralism do not at all find themselves in an invariable ratio to one another. Everything depends on the concrete circumstances, on the political situation in the country, on the strength of the party and its experience, on the general level of its members, on the authority the leadership has succeeded in winning. Before a conference, when the problem is one of formulating a political line for the next period, democracy triumphs over centralism.

When the problem is political action, centralism subordinates democracy to itself. Democracy again asserts its rights when the party feels the need to examine critically its own actions. The equilibrium between democracy and centralism establishes itself in the actual struggle, at moments it is violated and then again re-established. The maturity of each member of the party expresses itself particularly in the fact that he does not demand from the party regime more than it can give. The person who defines his attitude to the party by the individual fillips that he gets on the nose is a poor revolutionist. (From Leon Trotsky, On Democratic Centralism and the Regime (1937))

But whatever its  specific form, the concept remains central to the organization of the Chinese state apparatus. 

It appears also to have become part of the culture of corporate governance in China as well.  Consider a recent speech by the general manager of China United Engineering Corporation, the relevant part of which included the following:

Risks are always accompanied with opportunities. Facing the increasingly rigorous competition, we will rely on the solid strength of China National Machinery Industry Corporation, give full play of the comprehensive advantages of “United Engineering”, and strive to create development platform for "China United Engineering Corporation." We advocate the management culture of "seeking truth from facts, democratic centralism, people-oriented and harmonious development", always try our best to create an inner "equal, fair and harmonious” environment and follow the development conception of "development for the staff, by the staff and to the benefit of the staff”. While continually doing better in designing and consulting business, we will improve our ability on general engineering contracting and project management, explore capital operation carefully, develop new business steadily, and participate in international competition actively. We are dedicated to becoming the first-class international engineering company in design, procurement, and general engineering contracting. (From General Manager Speech, China United Engineering Corporation).

Here we have an approach to corporate governance that closely parallels the approach of political governance.  That approach, and the conflation of political and corproate governance is more clearly stated in the  writings of the Guangxi Golden Throat Group.  

The Guangxi Golden Thtoat Co.,Ltd has a united and enterprising leading body,headed by President Jiang Peizhen .The board's members make decisions in a scientific and democratic way;they support each other and coordinate with each other.They emphasize studying,taking political stands and moral spirit ,and they have a new mindset and determination carry out reforms.They are incorruptible and self-disciplined,and they insist on democratic management and decisions based on scientific reasoning.Holding on to the principles of democratic centralism,they make decisions on important problems after discussions by the Board of Directors,the Party Committee,employee representatives' conferences and shareholder representatives' conferences.
Adhering to Deng Xiaoping's theories and the essence of Jiang Zeming's "Three Represents,"the corporation's leaders often trust and rely on the employees.The corporation's leaders also put a lot of emphasis on developing an enterprise culture,which strengthens the corporation's cohesiveness. (From Guangxi Golden Throat Group About US).

Democratic centralism is viewed as contrary to American political and corporate governance. Cf.  Joel Kotkin, Obama Still Can Save His Presidency, Forbes.com, Nov. 10, 2009. This sense of both the importance of political differences on state and corporate organization was nicely highlighted in an interview of  Tarun Khanna by William Holstein.  William J. Holstein,  Corporate Governance in China and India, Bloomberg/Business Week March 2008:

Much as their societies and political systems are different, are Indian and Chinese companies complete opposites when it comes to corporate governance?

Absolutely. Indian companies are so much better governed. India is sort of a noisier version of the U.S. system, which is that you have to be accountable to shareholders and all the other stakeholders. The principles are the same, but the information acquisition is a little bit more problematic in India compared to the U.S. It's not so easy to figure out everything you need to. But there's a very vibrant, credible business media. No opinion is forbidden to be expressed. Information is noisy and unbiased—no one is willfully distorting the truth.

China is the opposite—it's noise-free but biased. You get a clean story but the story isn't always right. There are views that cannot be expressed. . . . That said, most of the boards are still answering to the Communist Party.

But Khanna also suggests another reason for the continuing strength of the connection between political and national governance, one that has a more universal appeal:  "The reason the Chinese feel less pressured to do something about it is not because they don't know how to do it—far from it, they have the best technical help from Hong Kong and other places. It's because they make a reasoned judgment that it's not worth their while. "  (Id.).  Where the state believes that it is economically advantageous, for internal or external reasons, then corporate governance becomes more likely to seek to harmonize its norms. See Donald C. Clarke, Corporate Governance in China:An Overview, China Economic Review 14:494-507 (2003) (on the problems and contradictions of state sector corporate governance reform). Clarke concludes: "Any discussion of corporate governance in China must take seriously the implications of the state’s policy of continuing and significant involvement in enterprise ownership. . . .  But getting the model right is not enough. Policymakers must also think clearly about the capacity of the institutions—not just legal, but social and economic—that are needed to make the model function as expected." (Id., at  505). What the discussion of the incorporation of the notion of democratic centralism within corporate governance culture in China suggests is that it will be as difficult to separate core political from corporate governance in China as it is in the United States.  The result might require  a recognition that for some time to come the differences in the governance cultures of Chinese and American companies may significantly affect their ability to effectively work together.  It also suggests that efforts to internationalize corporate governance norms will have to continue to be sensitive to the differences in political culture within which corporations operate. 

Still, is it possible to argue that democratic centralism, and capitalist authoritarianism retain a place in American corporate governance in a way that is not alien to the language of Chinese political culture, and that itself provides an alternative basis for harmonization? Let's turn the usual analytical framework upside for a moment and consider the consider the ramifications of an analysis of American corporate governance principles from the starting point of democratic centralism as a basic organizing principle of corporate governance.  Almost a decade ago the anti-democratic element of American corporate governance was not unknown, nor well hidden.  That was a sense that commentators, for example, suggested from the well publicized share offering of Google in 2004.    

Google thus thumbs its nose at one of the major pieties of our day: shareholder democracy. This has been the high-minded response to Enron and the other corporate-looting scandals: Shareholders should have more say -- or, more precisely, some say, since now they basically have none -- about the management of their companies. That way, management couldn't so easily overpay itself or loot the company in more dramatic ways. The Securities and Exchange Commission is considering rules to make it easier for large institutional investors, at least, to challenge management nominees for boards of directors.
It's democracy. Who could be against it? Yet just this week, despite Enron, WorldCom and all, investors kicked and clawed to put money into a company that, in democratic terms, might as well be the old Soviet Union. Apparently they don't care. They want to be serfs. Are they nuts? Financial masochists?
Well, they think they're going to get rich, don't they? And, like the citizens of Singapore, they would rather be rich than free, at least in this narrow context. They cling to this view despite studies waved around by shareholder democracy enthusiasts showing that companies with some fundamental democratic reforms do better than companies without.
More important, and unlike the old Soviet Union, Google will let you leave anytime you want. You just sell your stock. (From Michael Kinsley, Voting 'No' on Shareholder Democracy, Washington Post, Aug. 22, 2004).

And indeed, academic work tend to suggest that shareholders may not know what is good for them.  See, e.g., Lisa M. Fairfax, Shareholder Democracy on Trial: International Perspective on the Effectiveness of Increased Shareholder Power (2008). Virginia Law & Business Review, Vol. 1, No. 1, pp. 1-33, Spring 2008.  But the culture of corporate governance, especially in its construction of shareholder-director relations suggests otherwise.  And that creates tension with American political governance.  See, e.g., Larry Ribstein, Shareholder Democracy v. Democracy, Forbes, Oct. 25, 2010.

But perhaps focusing on shareholder democracy misses the mark, at least in states organized like the United States.  A more relevant measure, one that is controversial within both corporate and political governance circles, is that of enhancing the power of putting forward shareholder resolutions, a method of participation that comes as close as corporate governance dares to the referendum legislation mechanics popular in states like California.  This, too, is sometimes known in the popular pres as "shareholder democracy."

Shareholder proposals are nothing new. According to Securities and Exchange Commission (SEC) rules, any shareholder of a publicly traded company that has held $2,000 worth of that corporation's stock for at least a year can send in a proposal to be voted on at the firm's annual meeting. The proposals have to be about general business practices and not day-to-day operations, which are considered to be at management's discretion. Companies include the proposals, along with management's recommendations on how shareholders should vote, on the proxy statements they send out to all shareholders once a year. Typically, most proposals that don't get management approval are voted down.
But a number of changes may make proxy proposals more contested this year than usual. Last year, the SEC ruled that brokers are no longer allowed to vote on behalf of clients who had declined or forgot to send in their proxy statements. Corporate critics claimed this was a form of ballot stuffing because brokerage firms routinely voted with management. And a number of websites like Moxy Vote have popped up that make it easier for individual investors to see shareholder proposals and vote. Lastly, in the past year, the SEC, which has final say on what proposals can be put up for vote, has been giving shareholders more leeway in what can be included in proxies. (From Stephen Gandel, Nuns vs. Bankers: The Shareholder Proxy Wars, Time, April 21, 2010)

Consider this issue from the perspective of democratic centralism, and the issue assumes a somewhat different perspective.  Large corporations tend to be wary of them and they reflect a substantial change in the way in which corporate governance  operated in the United States, precisely because it tilts the balance toward democracy and away from centralism.  And this tilting is being effectuated not in matters of policy but in matters of corporate activity, reducing the power of the central organs of hte corporation from acting decisively.   See, e.g., Erik Stein, Control Freak Apple Fights Shareholder Proposals It Made Necessary, BNet Commentary Jan 11, 2011.

 From Erik Stein, Control Freak Apple Fights Shareholder Proposals It Made Necessary

And the effect of such activity remains unclear.  See, e.g.,  Doron Levit and Nadya Malenko, Non-Binding Voting for Shareholder Proposals, Harvard Journal on Finance (2010) ("Our analysis demonstrates that the presence of an activist investor enhances the advisory role of non-binding proposals, but only if there is substantial conflict of interest between the activist and shareholders. If the activist’s interests are closely aligned with those of shareholders, non-binding voting still fails to convey shareholder expectations." Non-binding Voting for Shareholder Proposals (Jan., 2010); Cotter, James F. and Thomas, Randall S., Shareholder Proposals in the New Millennium: Shareholder Support, Board Response, and Market Reaction. Journal of Corporate Finance, Forthcoming; Vanderbilt Law and Economics Research Paper No. 05-30.

But perhaps democratic centralism as an ordering principle of American corporate governance are most relevant in the analysis of the relationship between a Board of Directors and corporate officers.  One might consider the board of directors in the position of a party in power (serving in the interests of and subject to the ultimate sufferance of the people--in the corporate case, its shareholder/stakeholders) whose democratic dictatorship extends to the apparatus of government of the corporate enterprise.  That enterprise is operated through the organs of everyday governance headed by corporate officers, roughly the national people's congresses of the enterprise.  In this context, the core corporate governance notion of the relationship between a board of directors ("The business and affairs of every corporation organized under this chapter shall be managed by or under the direction of a board of directors" Delaware Corp. Code, Section 141(a)) and its officers suggests the compatibility of democratic centralism principles and American corporate governance.

But the reality of corporate governance suggests a more complicated relationship.  On example will homew this point.  Consider the Bank of America's description of that relationship:

The basic responsibility of the Board is to oversee the Company’s businesses and affairs, and to exercise reasonable business judgment on behalf of the Company. In discharging this obligation, the Board relies on the honesty, integrity, business acumen and experience of the Company’s management, its outside advisors and the Company’s independent registered public accounting firm. (BANK OF AMERICA CORPORATION Corporate Governance Guidelines, As of December 14, 2010, Sec. 7)

It is one thing to participate in the development of the governance lines of the enterprise.  It is quite another thing when it comes to action. The Board of directors speaks through its majority (e.g., Delaware Corp. Code, Section 141(a)), and the minority is bound to comply with decisions taken by the majority.   "It is important for the Company to speak to associates and outside constituencies with a unified voice. As a general matter, the Board believes that senior management should serve as the primary spokesperson for the Company. If comments from directors are appropriate or necessary, they should, in most circumstances, come from the Chairman of the Board, and be made at the request of the Board or senior management." (BANK OF AMERICA CORPORATION Corporate Governance Guidelines, As of December 14, 2010, Sec. 6). One might argue that Bank of America follows principles of democratic centralism in the organization of its governance culture, which is in part made necessary by the requirements of law.  Certainly Leon Trotsky might find  something familiar in a system in which debate is fostered in the creation of policy but action is determined by a majority fo the ruling clique and then  this determination  binds the minority.  In this context what of fiduciary principles?  One might re conceive them as the equivalent of the core ideological lines on which the corporation is founded.  All directors have a first obligation to remain true to the fundamental theory of corporate politics expressed through law.  Where such violations are egregious, individual directors have a duty to upload the party line over  its breaches by others.  In a sense, then, it is possible to understand  the Bank of America as operating under principles of democratic centralism, principles which form the core of corporate governance and democracy in the United States.  And the consequence?  shareholder democracy  as a concept is likely to be substantially more controlled, shareholder proposals  viewed more suspiciously and the need for loyalty to board determinations and sanctioned actions more acute. This is not mere theoretical speculation--it suggests some of the corporate governance culture issues that may be faced by American corporations that will be acquired by Chinese enterprises. 

What result?  The idea that corporate governance reflects the fundamental political orientation of the state from out of which corporate governance is drawn remains a powerful insight.  More interesting, even though differences in national political culture tends to be reflected in corporate governance cultures, corporations tend to behave in ways that suggest a functional convergence.  However, the meaning and thrust of that convergence, can be understood quite differently depending on the political cultural values used in the assessment.  Americans should be wary of assuming that their political orientation unquestioningly serves as the basis for understanding or assessing corporate governance and its character.  That assumption might have been easier to defend in the days of unchallenged preeminence of American companies.  But that is not the case now.  And some states, particularly China, are rapidly trying to change the framework within which discussion of functional convergence is undertaken.  See Larry Catá Backer, Fracture, Translation or Substitution in Knowledge Production: 19th Century European Ethnic Nationalism With 21th Century Chinese Characteristics, Law at the End of the Day, Dec. 9, 2011.  This essay has suggested the danger of assuming that corporate and state governance are invariably (or usually) distinct and that such distinct spheres of governance can be  understood to converge on the basis of some sort of set of universal understandings of "best" or "ideal" presumptions or norms.  However, convergence is some sort is likely, as a functional reality, not because of the convergence of national governance frameworks, but because of the deepening of the normative frameworks around which economic globalization is organized.  The understanding of that functional convergence, ironically, will be a function of the normative assumptions of the political governance framework of the analysts. Americans  assume that this political framework will invariably be one grounded in American political principles at their peril.  Other states, powerful states, have already begun, quite deliberately, to put forward their own frameworks as an organizing basis for such converging trends.  That these alternatives can serve as a rational basis for  policy deliberations about corporate governance is readily apparent.