Reading this article by Noah Feldman, "Democracy Loses in Egypt and Beyond", I was struck by the tone. Mr. Feldman suggested that the greatest fear of the founding fathers of the United States was the disintegration of this new-old form of government, democracy, into "mob rule". Such as seems to exist in Egypt. Mob rule in a nascent democracy that is being carefully analyzed and picked apart by pundits and watchers in long established, western democracies.
There is amongst all this discussion a central theme, that democracy is largely about the rule of law shepharding in a peaceful transfer of power through the ballot box, representing "the voice of the people". The founding fathers, fearing the possible and continued instability post revolution, recalling their own frustrations with the monarchist British government, put in place a system of government that was supposed to be "responsive" and "representative". That, yes, the people could change through specific processes, from the ballot box through judicial proceedings, including and up to the removal of the leader, the president, through impeachment.
In essence, the founders of the United States recognized that government, even government "of, for and by the people", could create much frustration amongst "the mob". They designed a system of "legal" processes to vent steam and relieve pressure from the polity in order to prevent the nation from imploding into anarchy and insure the government remained "responsive" to the people. A wise decision that helped weather many storms, but did not prevent civil war or the many spasms that came after. Because, of course, some issues became too overwhelming for this ventilation system and had the pot boiling over a time or two.
The problems with all this discussion of the "rule of law" and "democracy" vis-a-vis Egypt and it's aborted government are many. More so when such writers as Mr. Feldman try to frame it within the context of United States democracy while brushing over important aspects of that system and it's history in order to make his point.
The first of which is that "democracy" and "the rule of law" are not only about elections. The rule of law includes these other important mechanisms for addressing the acts of government and leadership after those elections. It's the "in between" procedures that give it strength, not the movement from ballot box to ballot box.
Ideas such as "representative government" that includes elections to bi-carmel houses, elected from the people, who are the direct voices "of the people". Representatives that, by law and procedure, are supposed to provide a "check" and "balance" against the potential abuse of the executive power. All of it established by law in the constitution. The constitution spelling out the limits of goverment, not limits on the people.
Therein lay the problem in Egypt. Yes, Mr. Morsi was elected as president, but the new Egyptian constitution put more checks on the people in Egypt than the government. The elected parliament was dissolved and instead of calling for new elections so the people would have their voices heard, Mr. Morsi and his cabinet seemed determined to rule without it. In fact, having made one of those mistakes Mr. Feldman brushes over: making a constitutional declaration giving himself the powers of parliament. Allegedly until a new parliament was seated under new electoral laws.
These electoral laws were being delayed by the judiciary, but that was entirely due to Mr. Morsi's administration and his political allies who were attempting to gerrymander the system to ensure their electoral domination. The people, represented by the judicial branch dissolving parliament, objected to this gerrymandering.
In a long established democracy like the United States, we are familiar with "gerrymandering" districts for seats in congress. Due to our electoral and long established legal processes, these attempts are largely mitigated year over year between the two dominant parties. None can truly dominate the government for long or drag the rest of the country, kicking and screaming, too far in any one direction. One of those pesky "rules of law" that keeps the majority rule in check.
While this "gerrymandering" attempt is a normal behavior of parties in a long established government with a derivative check from opponents, such behavior in a newly minted, democratic government, post revolution, is hardly "democracy and the rule of law". It is, as many Egyptians saw it, the use of law to subvert democracy and institute a government by only part of the people who would then easily write laws and develop government on their ideas alone, without real opposition, checks or a care in the world what the other half of Egypt wanted from government.
Mr. Morsi and the Muslim Brotherhood used these same tactics to stack the constitutional committee with their own people or allies, not equal representatives from across the political spectrum as the founders of the United States experienced. Then they proceeded to write a constitution that, as noted even by Mr. Feldman, was a twisted and tortured horror of mangled laws that, as noted above, did more to put checks on the people and their agencies than on the government. A government dominated by the Muslim Brotherhood and it's "Islamic Project". A government without any real representation for the rest of the people, with a process for objecting to the laws that was only paper without seated representatives.
A government in Egypt without that last, final check we so cherish, though rarely use: the ability to remove the executive for abuse of power or breaking the law without waiting for the next election. A check Mr. Morsi had removed by fiat of a "constitutional declaration", declaring himself unremovable until the next election together with giving himself the power of the parliament to pass laws. An election the Muslim Brotherhood had every intention of dominating through both the "rule of law" (gerrymandering) and the ballot box.
There were many other instances where Mr. Morsi and his cohorts attempted to use the rule of law, not to bolster a truly representative democracy, but to do as they had learned from the preceding regime: to dominate the government, disenfranchise their opposition and further entrench their hold on government through increasingly stringent "rules of law". An act that we in the United States would rightly identify as a threat to our democracy and refuse it.
In fact, we object to this kind of psuedo-democracy frequently and fervently, rightly pointing out such regimes in China, Iran and Russia. Governments who have a democratic facade of elections, where government is not "for, of and by the people", but is government by "Rule of Law". Wherein, by "rule of law", individuals or a small cadre of chosen elite seem to rule in perpetuity because they are the only game in town on election day or because they use the "rule of law" to de-legitimize their opponents. By "rule of law".
This is the problem with the fetishizing of "the rule of law" in a democracy as opposed to emphasizing the important aspect of democracy: demo - the people. The "rule of law" means nothing if it is not supported by the people, responsive to the needs of the people or protects them from the abuses of power inherent in any centralized system of government regardless of who sits at the helm or how they arrived there.
While Mr. Feldman points out all this love for the rule of law and fear of "mob rule" by the founding fathers of the United States, he also misses another extremely important aspect. The reason these same gentlemen are referred to as "the founding fathers" is because they rebelled. Not against anarchy or the lack of laws, but expressly against "the rule of law" as it existed in 1776. The rule of law that afforded them no representation, diminished their rights as citizens and saw them hunted and imprisoned for voicing their objections. Reasons for this rebellion can be found here and it begins with:
"We hold these truths to be self-evident...endowed by their creator with certain unalienable rights..."
And includes such validations as:
"That to secure these rights, government is instituted among Men, deriving their just powers by consent of the governed..."
But, then, a warning to those who would govern, that having established government and "the rule of law", it does not insulate them from the rule of the people:
"That, whenever Any Form of government becomes destructive to these ends, it is the Right of the People to alter or to abolish it..."
Please note the words "Any Form", capitalized and emphasized. A warning even to themselves as they flirted with establishing democracy. Meaning, not even the government they sought to establish, or one they had held long allegiance to, was safe from the people. Apparently, an idea that Mr. Feldman et al have missed in their rush to defend the Egyptian, democratically elected president, Mr. Morsi.
Now the warning, to both the people (the mob rule Mr. Feldman suggested was a terrible fear of the founders) and, again, to those seeking to hold the reins of power:
"Prudence, indeed, suggests that governments long established should not be changed for light and transient causes; ...that Mankind are more disposed to suffer while evils are sufferable, than right themselves by abolishing the forms to which they are accustomed. But when a long line of usurpations and abuses pursuing invariably the same Objective evinces a design to reduce them under absolute Despotism, it is their Right and their Duty to throw off such government and provide New Guards for their future security."
Thereafter, the founders saw fit to list out the "rules of law" which they felt had been particularly oppressive and abused. Mr. Feldman and the others emphasizing "the rule of law" in democracy, always seem to skip over this important part of the founding of this democracy. That, prior to the "rule of law" and democracy established by the constitution was this Declaration of Independence. Rebellion. rejection of the existing "rule of law". Mob rule. The fear of which did not cause the the founders to establish a "rule of law" to contain "the mob", but to insure they had adequate recourse to change their government without constantly resorting to rebellion.
An idea that apparently did not wind it's way across the ocean in Egypt or sink in to the Brother's minds during all those hours of electoral study at American universities and civil society NGOs. An idea that was clearly missing and had Mr. Morsi, following Mr. Feldman's train of thought on democracy and the rule of law, repeating over and over again:
Legitimacy! Legitimacy! Legitimacy!
There is no "legitimacy", no "rule of law" in any government, not even a democracy, unless a majority of the people believe it, support it and it is responsive to their will. That is the truth about democracy. As one of my Egyptian acquaintances assured me while we were discussing the question of "What comes next in Egypt?", it doesn't matter. The people of Egypt have spoken and the next government will know to fear the people. I wished him, sincerely, luck and the hand of Providence in that endeavor, but on further reflection believe he may be right.
Some as Mr. Feldman repeat this idea about the "rule of law" and "democracy" because they fear continuing chaos in the Middle East may spread to other parts of the world and greatly harm the stability that allows for the great commerce and relative peace between other nations globally. Still, as many of these same people work within the United States' government or make their living by and under it's aegis of "rule of law", there is something subconscious afoot. Having stared into the abyss that is Egypt post it's first "democratic election", they must experience a little fear of their own. That there, but for the grace of God, go I.
This is a reminder to all those who seek power in a democracy. It isn't the rule of law that makes democracy work, it's the consent of the people.
As I write this, it is July 4th in the United States, Independence Day. Thinking of that tiny fear that must shake our own representatives as they look upon Egypt brings one word to mind: Good.
No comments:
Post a Comment