Monday, November 7, 2016

'Cherry picking' existing laws in democratic states, democrators can hide behind the rule of law and avoid international sanctions, says Princeton University political expert Kim Lane Scheppele

By Peter Boisseau

Donald Trump may be one of a new breed of “democrators” who adopt a facade of democratic ideals to disguise their ambitions for authoritarian rule, says political expert Kim Lane Scheppele, a Princeton University professor of sociology and international affairs who has studied a world-wide movement toward autocracies.

“I’m worried about Trump,” said Scheppele, who delivered the 2016 Cecil A. Wright Memorial Lecture Nov. 2 at the University of Toronto.

“Maybe he just hasn’t realized yet that there may be a constitution he has to pay attention to, but certainly some of the things he’s said and advocated are cause for concern.”

The media, the judiciary and the electoral system have been key targets of the U.S. Republican nominee for president, all of them institutions that authoritarian leaders in other countries have attacked to solidify power and execute their agendas.

“If he gets the Senate, the House and the presidency, we may be in for a wild ride.”

From Russia to Ecuador, other governments have been swept to power by populist movements in free elections, only to pull up the ladder of succession after them by using clever legal and constitutional maneuvering, Scheppele noted.

These "democrators" are “dictators in democrats’ clothing,” who are experts in comparative law, scanning the world’s democracies for worst practices they can borrow and pervert for their own purposes.

She used the example of gerrymandering, the practice of manipulating the boundaries of electoral districts to favor one party. Invented in the U.S., the practice has since been adopted by “democratorships” in places such as Hungary.

But in Hungary, they adopted gerrymandering without American-style limits, and combined it with a German-like system that allows huge differences in the size of electoral districts.

The result? The government won 67 per cent of the seats in parliament with only 45 per cent of the popular vote.

In Russia, Vladimir Putin originally won power in 2000 with a campaign slogan promising “A Dictatorship of Law,” then used his large majorities to enact laws that extended his grip on power and eviscerated the opposition. 

Among the rules he adopted were U.S.-style laws controlling foreign funding for political NGOs and lobbyists the Russian opposition had relied upon.

There are many things legally possible under the constitutions of otherwise “good” democracies, such as in the U.S. and Canada, that people have been fortunate not to experience, either because of good leaders or accepted conventions, Scheppele said.

Like the U.S. system of gerrymandering, the power of Canadian prime ministers to appoint senators is something that could be twisted for darker purposes in the wrong hands.

By cherry picking from these existing laws in democratic states and combining them in ways that were never intended, democrators can hide behind the rule of law and avoid international sanctions.

“It’s using the law against itself,” said Scheppele, adding that the common tactics of these democratorships are used on both the left and the right side of the political spectrum.  

It wasn’t supposed to be this way. After the collapse of the Soviet Union in 1989, the world seemed to be heading toward a consensus favouring democratic constitutional governments. Some observers declared there was no going back.

A quarter of a century later, the number of constitutional democracies is steadily declining.  Between 2000 and 2015, 27 democracies slid back toward authoritarian rule, including Russia, Turkey, Poland and Venezuela.

At the same time, some surveys have suggested that, even in Western Europe and the United States, growing numbers of people are so disillusioned with democracy that many are open to alternatives, Scheppele noted.

The new breed of democrator has also been able to exploit the collapse of the party system everywhere, which has created a new political divide between educated “cosmopolitans” and people focused almost exclusively on narrow local issues.

By attacking the ruling “elites” and promising reforms, the democrator is able to build and channel populist movements.

“Democratic liberal constitutionalism is a cosmopolitan value, and this is where you create an opening for these nationalist or local-based parties to start to attack key institutions,” she said.

“Because the parties are weak, they get overtaken by candidates that don’t reflect the underlying values of the party, but generate the support of the locals against the cosmopolitans.”

U of T Law student Jeremy Greenberg asked Scheppele why such things as widespread anti-Semitism in Hungary do not run afoul of EU human rights’ protections.

But Scheppele noted the government has done just enough to prosecute hate speech, even as it sends mixed signals by giving awards to anti-Semitic writers.

In any case, democrators in Hungary and elsewhere are careful not to do things that would technically violate human rights laws.

“Is there any court in the world where you could bring a case claiming that you have a personal right to a democratic government? Or a personal right to the Rule of Law? That’s not how human rights work,” said Scheppele.

“Human rights language doesn’t really cover what is going on. Democracy is failing in more clever ways. And it’s failing because of the use of law.”

One of the weak spots in any constitutional system is it tends to have both rules and conventions, she added.

“There a lot of things that are not written down that are sort of rules of the game; that everybody understands are part of what it means to be respectful of an opposition, and to behave in a way politically that respects the spirit of the constitution.”

Jennifer Nedelsky, a U of T professor of Political Science and Law, said the central focus of teaching and scholarship has to change. “What makes a constitution function is not some list of rights, but how the thing is organized.”

Scheppele agreed, and also echoed the sentiments of U of T Law Professor David Schneiderman, who said legal experts in democracies like Canada should critique conventional practices in their countries and start spelling out standards.

Laws and constitutions must be seen as more that a set of unrelated rules, Scheppele added.

International agencies that promote constitutional government should not only be considering best practices and options, but thinking about how some well-intentioned laws can be turned against their true intention.

“All around the world, lots of leaders are using their powers to the maximum, and we haven’t developed a really coherent critique about exactly what is wrong with that, and we haven’t trained lawyers to see it coming,” she said.

“One of the things we need to do in legal education is train everybody to see the trouble signals in law before they emerge in practise.”