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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Who should attend a Global Democracy Summit?
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Monday, April 05, 2021
Who should attend a Global Democracy Summit?
Guest Blogger
Tarunabh Khaitan For the first time since 2001, there are more
autocracies in the world than
democracies. In 2019, 54% of the world’s population lived in a full-blown
autocracy; 35% lived in democracies that were moving in the autocratic
direction. This latter category included countries like Brazil, India, Poland,
Ukraine, the Philippines, Turkey, and the United States. In just another year,
by 2000, 68% of the world was living under authoritarianism, with V-Dem downgrading
India—the world’s second most populous country—to an
‘electoral autocracy’. Arresting the domestic as well as the global decline of democracy
appears to be high on the Biden administration’s agenda. Biden has promised to host a Global Summit for Democracy in his first year in
office. The declared agenda focusses on fighting corruption, resisting
authoritarianism, and advancing human rights. Civil society groups that defend
democracy will be offered a seat at the table, and technology companies will be
rebuked for enabling authoritarian leaders. American governments have a history
of outwardly preaching democracy while covertly propping dictators, so a jaded
observer might expect little of substance to emerge from this conference. The
difference, however, is that its host—along with the rest of the world—has just
spent four years watching his predecessor fiendishly stress-test the mechanisms
of constitutional democracy. Globally televised scenes of a mob ransacking the
Capitol removed any doubt that American exceptionalism to democratic fragility
is dead. The official tasked with sending out the invites to the Democracy
Summit will have quite the dilemma on her hands: does she invite leaders like
Bolsonaro, Erdogan, or Duterte? On the one hand, the fate of democracy in their
populous nations is too critical to leave them out of a Global Democracy
Summit. Then again, these elected autocrats cannot be expected to sincerely
debate a problem for which they are largely responsible. Opening up the
invitation to non-state actors battling to save democracy is a good idea, but I
would push the envelope further: any state attending the Summit must prove its
democratic credentials by including its head of government and the
leader of its largest opposition party in its official delegation. Either both
of them (or their representatives) attend as the state’s official delegation,
or neither does. If one of the two refuses to attend, the other may still attend
as a representative of their political party, but not as that of the state. The
idea is less crazy that it might seem at first. Adam Przeworski, a professor of political science at NYU, aptly
described a democracy as ‘a system in which parties lose elections.’ The ruling
party in an authoritarian regime remains in power as long as the regime lasts.
But in a democracy, the ruling dispensation must change frequently to reflect
the contemporary will of the people. If its government becomes irreplaceable, a
state is no longer democratic. Democracy has grown brittle in countries like
India precisely because the ruling party has been entrenching
itself in government, making it harder to vote it
out of office. To qualify as a democracy, a state therefore must have at least
two key centres of political power: a government of the day, and a
government-in-waiting (embodied in the political opposition). Its moral demand
that the current wielders of political power peacefully and voluntarily hand it
over to their successors is the main reason why democracies are fragile, and
need constant protection. It is time that international law and politics
bolstered this unique and defining feature of democracies by allowing the
domestic political opposition a seat and an independent voice at the diplomatic
table, even if voting rights are reserved for the government of the day. There
could not be a more apt forum to begin this recognition than a Global Democracy
Summit. Twentieth-century autocrats attacked democracy openly, shuttering
newspapers and ordering tanks onto the streets of the capital. In our own time
the assault has mostly been subtle and incremental. The goal appears to be a
diminished and controlled political opposition that can continue to legitimize
the regime as ‘democratic’, but with no genuine prospects of winning power. As
its main targets, opposition leaders are best placed to explain the authoritarian
playbook to the rest of the world. As distinctions between the ruling party,
the government, and the state are blurred, opposition to the ruling party and
the government is characterised as opposition to the state itself. Political
difference and dissent are misdescribed as treason and sedition. Donald Trump,
for example, accused Democratic
Party members of treason for failing to
applaud his State of the Union address. Similarly, India’s ruling party today
openly boasts of its goal of an “India free of the
Congress Party”, its main political rival.
It is hard to believe that a generation ago, Prime Minister Narasimha Rao
tasked the then Leader of Opposition (and future Prime Minister) Atal
Bihari Vajpayee to lead
India’s official delegation to the 1994 session
of the UN Commission on Human Rights. Both Rao and Vajpayee understood the import of what British
constitutional practice calls ‘Her Majesty’s Loyal Opposition’. This quaint oxymoronic phrase recognises that while political
parties currently out of government constitute an opposition to
ministers, their loyalty to the democratic state (embodied, in
the UK, by the monarch) must be presumed. The Leader of the Opposition in each
House of the Indian Parliament has the statutory right to sit on the committee that appoints its Human Rights
Commissioners. The British Leader of Opposition receives security briefings
directly from its intelligence agencies. Many constitutional democracies are moving away from a
winner-takes-all model of electoral politics by vesting opposition
parties in the legislature with a significant share in state power. After all, opposition members in a legislature are not ‘losers’, but elected representatives. In a democracy, the runner-up
usually represents a significant portion of the people. Democracies are increasingly
recognising that that should mean something. Exercise of foreign policy, where other states are especially in
need of assurances that a particular commitment is being undertaken by the state
and not just its government of the day, is particularly apt for
accommodating the democratic runner-up. The philosopher John Locke had
characterised the power to determine a state’s international relations as the
‘federative’ function of the state, distinct from its three domestic functions
(of execution, legislation, and adjudication). It is time to recognise that, at
least for democracies, the federative function is best vested in a team of the
winner and the runner-up of a democratic election. Their powers need not
be equal—the need for coherence demands that any voting power may still be
exercised by the winner alone. But there is no reason to deny at least a voice
to the runner-up in international forums. If anything, this should make
international negotiations more efficient—for, state parties to a negotiation
will be better-off knowing if the future government of a given state may renege
on a promise being made by the current government. Opening up a Democracy Summit to a team comprising heads of
government and their main opposition rivals is not just the right thing to do.
It also resolves the pragmatic dilemma mentioned earlier. By inviting a
bipartisan deputation from every democracy, the dilemma is shifted to the
neo-autocrats: either they must refuse the joint invitation—and thereby
acknowledge that their regime is no longer a proper democracy—or accede and
implicitly recognize their main political rival as the loyal opposition.
International politics needs to recognise what constitutional democrats
have learnt the hard way: a democracy knows no permanent winners, nor any
permanent losers. On the global stage, it is best represented not only by those
who rule today, but also by those who are likely to rule tomorrow. International
relations needs to learn—from British constitutionalism—and recognise the
indispensability of the loyal opposition for any democratic state. Tarunabh Khaitan is the Vice Dean and the Professor of Public Law & Legal Theory at the Law Faculty, Oxford and Professor in Law at Melbourne Law School. You can reach him by e-mail at t.khaitan at unimelb.edu.au
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