Monday, January 31, 2011

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).

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).

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,, 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.

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