Fareed Zakaria’s article for Foreign Affairs entitled “The Rise of Illiberal Democracy” identifies several developments in modern freely elected governments that he considers “illiberal”. These governments do allow free elections. Once elected these illiberal governments do not respect individual rights. These illiberal governments do not have strong separation of powers in their government branches. These illiberal governments allow the accumulation of power within a strong executive branch. These illiberal governments allow leaders to presume they have a mandate from their election to make policy decisions for their constituency as if it was a unified block, instead of individuals with varied backgrounds, beliefs, interests, and concerns. These lawfully elected governments nationalize property; suspend some independent government institutions (such as legislative or judicial branches of government); and compel individuals by force to comply with executive directives regardless of the directives legality.
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In short, Zakaria states that freely elected illiberal governments exhibit tyrannical properties antithetical to true constitutional republics. The free elections give the illiberal governments international legitimacy but the resulting democracy differs greatly from the capitalistic, limited government, found in the United States or other constitutional republics. These illiberal governments to Zakaria represent a “disturbing phenomenon” (Zakaria 1). Constitutional republics should focus their diplomatic energies to ensure that freely elected democracies develop constitutional institutions to ensure that embryonic democracies do not develop into illiberal democracies. The growth of illiberal democracies will eventually give democracy in general a bad name that will be a hindrance when trying to promote its benefits or at least the benefits of constitutional democracies to emerging governments.
Zakaria uses recent history to demonstrate the emergence of the illiberal democracies. He uses examples from around the globe including Kyrgyzstan, Kazakhstan, Pakistan, Peru, the Palestine Authority, the Philippines, Sierra Leone and Yugoslavia to name just a few. He shows clearly, that although freely elected, leaders such as Alberto Fujimori, and Slobodan Milosevic, committed untold horrific human rights violations, suspended their constitutions, and used their elected offices to consolidate their power at the expense of other government institutions.
Zakaria believes that constitutional democracies encapsulate a less belligerent attitude to its neighbors because the people within them would rather seek the benefits of trade and economic growth than spend money to force adoption of any particular belief system. Zakaria believes it takes time for democracies to develop true constitutional republics, but slow movement to the goal is far better than embracing only the concept of free elections, and then discarding independent judiciaries, independent legislatures, and individual rights.
Zakaria does not ignore the fact that the election of popular leaders and their subsequent suspension of constitutional protocols typically occurs because of threats the populace face seem more dangerous than the consolidation of power within the executive. Peru, under Fujimori faced the attack of the Shining Path Rebels. Milosevic faced the dissolution of Tito’s Yugoslavia. Hitler faced the scourge of hyperinflation. Clearly the will of the people required solutions to these problems, but without constitutional restraints, democracies soon become illiberal ones. Zakaria’s fears that democracies will become synonymous with despotism seem a bit farfetched since no reasonable intellect would call Hitler’s Germany, Fujimori’s Peru, or Milosevic’s Serbia democratic. Zakaria seems to ignore the fact that once free elections have been suspended a democracy ceases to exist. Is the promotion of strong constitutional institutions possible when a populace believes they are barriers to solutions, and not guarantors of their rights?
Zakaria states that the writers or the United States constitution wanted it to forestall democracy, by creating obstacles to a majority opinion wishing to overstep the rights of states or the rights of individuals. The Supreme Court judges are not elected and yet sit on the bench at their own pleasure for as long as they want (unless impeached and convicted). California has the same number of Senators as Alaska or Montana, states with a fraction of California’s population. The cause for such inequality is to prevent any one State from having too much power. Zakaria ignores the Electoral College and its sole existence for being to prevent the unwashed masses from having too much power over the political, land owning, elite. The Constitution, Zakaria believes, removes the possibility that a Hitler or Fujimori would be able to secure increasing power from either the judiciary or the legislative branches because they were designed to prevent just such encroachment. The concept of liberalism, keeping government from interfering with individual economic activity and personal freedoms, does coincide with the US democracy that prevents amalgamation of power. US elections are free and fair, but those elected have powers which offset each other, thereby preventing power from gradually migrating to one office.
At the birth of the US, liberalism was more present than any pretense of democracy. Only free white men had the right to vote. Votes could be bought and sold for a beer. Gradually the liberal economy led to perceived injustices which started a political pendulum swinging between the opposite poles of democratic response and Government excesses. Whiskey and other taxes in 1786 led to Shay’s rebellion. Shay’s rebellion leads to cries for stronger Federal Government. Stronger Government led to Madison’s imprisonment of Marbury, which led to the increased power of judicial review. The fifteenth, seventeenth, nineteenth, increased democratic participation while the twenty-second limited it. The concentration of power at the executive level led to a “police action”, in Vietnam, which in turn led to the unrest of the 1960s.
Zakaria expresses fears that democracies will become illiberal if the executive branch transfers power from other branches to itself or usurps the rights of individuals or institutions. With that in mind there are several amendments from the US Constitution that would benefit the Iraqi Constitution.
The concept of illegal search and seizure, warrants, and probable cause, embodied in the Fourth Amendment to the US constitution seems to be missing. Without guarantees citizens face arbitrary invasion of their property although the Iraqi constitution forbids arbitrary seizure of property. A prosecutor (part of Iraqi judiciary, not the executive) then could theoretically issue search or arrest warrants on the slightest pretense of suspected illegality and terrorize political opponents.
The concept of a Grand Jury embodied in the Fifth Amendment to the US Constitution and its guarantee of the rights of due process and the prevention of self incrimination seem not to present in the Iraqi Constitution. The Iraqi Constitution does forbid physical coercion of self-incriminating testimony, however stops short of preventing it altogether. Without the obstacle of a grand jury to prevent mass arrests of perceived Government enemies, an Iraqi Fujimori could conduct a “dirty war” against the populace. Grand Juries provide a written record of their proceedings which are an anathema to a prime minister (or a prosecutor) needing to carry out policies in secret.
The rights to a speedy trial and to confront witnesses, embodied in the sixth amendment to the US Constitution have no equivalent in the Iraqi Constitution. Iraqi citizens may be arrested, thrown in prison, and left to rot, without any protections what-so-ever. This anti-liberal concept is just the type of activity that Zakaria states accompanies modern illiberal democracies.
The Iraqi Constitution does not state an age of majority for Federal elections as defined by the US 26th amendment. The Government seems to have the power to restrict citizen voting rights because no declaration of what traits a voter must have for the Federal Government exists. A useful amendment may be something to the effect that all Iraqi citizens reaching the age of majority, regardless of sex, age, religion, income, or personal preferences should not be denied the right to vote. Such a statement would prevent legislation denying arbitrary restriction to voting in Federal elections, thereby usurping the economic and political power of their constituency.
Limiting federal government powers in Iraq may prove to be important to its ultimate evolution, but may be a cause of its failure in its current nascent stage. Allowing liberalism to truly flourish now may only aid the multitude of domestic enemies fueled by religious and tribal animosities present in the current Iraqi State, without any benefits to its friends. Of course, that is exactly the opposite of what Zakaria would argue. Though the Iraqi Constitution gives its populations many of the rights US citizens enjoy, freedom of the press, freedom of assembly, freedom of religion, habeas corpus, et cetera; there are large loopholes as discussed above that directly affect the liberty of the people. Zakaria believes these liberties must be present for the prevention of an illiberal democracy, and that illiberal democracies will be in direct or indirect conflict with liberal ones. Zakaria does not comment on the survivability of illiberal democracies only that they run counter to the principles of liberal ones. As Machiavelli observed a government can be strong by either being ruthless or flexible, but rarely survives by being both at the same time. With that concept in mind, and seeing that Iraqi Constitution now really tries to be both now, it cannot survive. Adding the liberties to allow its citizens protections from an arbitrary judiciary whether in direct control of the executive branch or not, should help it survive in the future.
Fareed Zakaria. “The Rise of Illiberal Democracy”. Foreign Affairs. November, 1997: Vol. 76, Number 6
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