Monday, October 31, 2016

What is Crucially Missing in Eritrea is Exchange of Ideas without Fear of Retributions : A Criticism of Eritrean Intellectuals

This article was written by the late Abraham MIT immediately after the final battles of the Eritrean-Ethiopian war in 2000.

What is Crucially Missing in Eritrea is Exchange of Ideas without Fear of Retributions
A Criticism of Eritrean Intellectuals

By Abraham G. Ghiorgis (MIT)
New York, USA
July 17, 2000

The dust has not yet settled. The Eritrean-Ethiopian war is not over yet. We still have to support the Eritrean Government. It does not mean, however, that we should not exchange ideas and sum up our experiences so far. On the contrary, we should vigorously debate and discuss even ideas considered to be "taboo and sacred."
At all times our measuring stick should be the welfare of the Eritrean people, and not the welfare of a political group. It invariably happens, not only in Eritrea but also in other countries of the world including the venerated USA that the welfare of a political group could sometimes be in conflict with the welfare of the overwhelming majority.

What should our support consist of? Financial comes first. The Eritreans in the Diaspora have done an excellent job at that. Eritreans through concrete actions have proved it time and time again that they are extremely generous to their people. Eritreans do not need lectures from anybody on the soundness of their efforts. If anything, other nationals should emulate this very positive Eritrean tradition.

Sadly enough, though, our support has been limited to financial support only. All our education, wisdom and experience are wasted, if we willingly limit our support only to financial aid. What have been crucially missing in Eritrea are the exchange and debate of ideas without fear of retributions.

First and foremost, we have to admit that the leadership of the Eritrean Government, despite the fact that it is composed of incorruptible, disciplined and heroic individuals who are dedicated to Eritrea, has a lot of limitations due to lack of university-level academic training (in particular in the fields of Economics, History, Science and Diplomacy), exposure to the outside world and not having experiences of working to earn a living and for wages in a real competitive marketplace.
This is not something that is unique to Eritrea. It is something that is normal with all nations that went through a bitter armed-struggle to establish their independent statehood, and as such these limitations and constraints will be with us for a long time. Such limitations are okay if the leaders acknowledge their limitations and openly solicit assistance and guidance from Eritreans with knowledge, education and practical real world experience. The problem in Eritrea is that at times some of the leaders act, and arrogantly at that, as if they were "Mr. Know it all" in fields that are completely foreign to them, and the intellectuals either out of politeness or timidity silently accept and support some policies when they fully know that such polices are counter to the interests and rights of the Eritrean people. The result of this is a disaster. This needs to be corrected.

It is my understanding that for the most part the Eritrean intellectuals were blindly parroting certain premises advanced by the Eritrean Government without adding any values. It is to be remembered almost the whole world, including the USA and the Pope, begged us to withdraw from the "contested territories" in order to secure peace and save lives and properties before the battles of Badme and Tserona. All those pleas fell on deaf ears.
No Eritrean intellectual worth his salt openly and publicly advised the Eritrean Government to withdraw from the "contested territories" and pursue the Eritrean-Ethiopian conflict through legal, peaceful and diplomatic means. The Eritrean intellectuals could have effectively alleviated a bad situation from getting worse. These are lost opportunities! Each and every one of us has to search our souls and find the culprit within ourselves. We miserably failed our people. We should be strong enough to admit that we are also culpable. Now, we cannot point-fingers at the leaders and blame them for everything. That will not be fair.

We have to intimately familiarize ourselves with international laws and norms so that we can legally play them to the advantages of the Eritrean people. We should not give the outside world an appearance and an impression that we "violate" international law. First impression is important. Most importantly, a small nation such as Eritrea will always need international law be on its side. Even mighty nations such as the USA always take extra caution and do the laborious leg work of covering all bases of international law and diplomacy before they engage themselves in military activities. They say appearance is deceiving, though in the diplomatic world appearance is reality. Once a false appearance takes a grip it becomes difficult to change it to conform to reality. Because we failed miserably in that diplomatic endeavor it appears we handed Ethiopia in a silver platter an excuse, a flimsy one at that but nevertheless an excuse, to invade sovereign Eritrean territories and create a humanitarian crises unprecedented in Eritrean history. All these crimes were committed under the pretext that Ethiopia was "recovering its territories" taken by force by Eritrea. The world did not even raise a voice. Still, we cannot demand or expect the world to raise its voice on our behalf. If history is a guide the world remained silent during the dark hours of the Jews in Europe, Armenia, Rwanda and in Kosovo until it was too late. The world, in particular Africa, is crowded with savageries and cruelties. In such a brutal world we, Eritreans, are not a special people that deserve extra consideration and attention. We have to digest this hard and pragmatic world reality. Our actions should take into account these world factors. We cannot use the UN, or the USA, or the OAU as scapegoats for our own failures and mistakes. We should always control our destiny and never allow our destiny to be determined by the political and diplomatic wishy-washy world.

Who is responsible for the humanitarian crisis of almost biblical proportions that is looming in Eritrea? Definitely the cruel Ethiopian regime is responsible. There are no questions about that. Assigning the biggest blame on the Ethiopian regime is the easy part. It is necessary to note, however, that only fools expect a humane treatment from an enemy, and the Ethiopian regime has proved it through its actions that it is an avowed and a primary enemy of Eritrea and the Eritrean people. However, it is laughable and sad that when one hears some Eritreans trying to pass the buck solely to the enemy and absolve Eritreans free from any responsibility and blame of this tragedy. Are Eritreans scot-free from any blame? This will not fly.

The question that has to be answered is did the Eritrean leaders manage the Eritrean-Ethiopian conflict properly? We need a summation of that experience, even though technically the war is not over yet and that peace and harmony have not yet been restored between the Eritrean and the Ethiopian peoples. It will be a disservice to our people, if at the minimum we do not do that. Only then will we be able to properly manage the next challenges that may be thrown at us by our enemies. The Eritrean leaders have to learn a valuable lesson. They cannot keep close to their chests issues that significantly affect the lives and properties of Eritreans. They should not keep the Eritrean people in the dark. The most important point is that they have to ask the Eritrean people for advice, guidance and concurrence on issues that are of life and death. In short, the Eritrean people should not be taken for granted.

Once the Eritrean Constitution is implemented these issues will be that of the parliament, the courts and other democratic institutions. It is a pity that after nine years of de facto Eritrean independence, Eritrea has a government that still operates without a constitution. At the snail-pace that we are marching on, no one knows for sure when we will have a government that operates based on a constitution. I am not so naïve to believe that the implementation of the Eritrean Constitution will be the panacea of all Eritrean political and economic ills, far from that. Still, we have to take the first step towards creating a liberal democratic society. The constitution is that first step. The Eritreans fought for thirty years not only for independence, but most importantly in order to have a state that is governed by the rule of laws and not by the rule of men. There should be absolute agreement among all Eritreans of all political persuasion on this cardinal truth.

Lastly, one of the scenarios is that the Eritrean-Ethiopian conflict could end up in court for arbitration. We need a contingency plan. We need to hire well-known American or English experts in international law to legally represent Eritrea. These foreign experts could work in collaboration with Eritrean lawyers. I am confident that most of the contested territories will legally fall into Eritrean hands. However, there is a catch. In court it always helps to be represented by the best lawyers money can buy. It is my sincere hope that this will not be bungled. We have to put the fallacious ideology of "self-reliance" aside when it comes to who best will legally represent Eritrea. Our goal is to legally win the case.

While I am at it, it is necessary to highlight that "self-reliance" does not exist in a global market economy. "Self-reliance" was important during the liberation struggle. It has to be noted, however, that during the liberation struggle for all intents and purposes, we were running a household economy, and we had no choice since no country recognized us as an independent state. We are an independent nation recognized by the whole world now.
Thus, we cannot conduct economic policies that were relevant during the armed liberation struggle, at a time when we are a member of the family of independent states. We have to be able to change gears and recognize this fundamental and radical change of realty. In the present world, unless we want our people to perpetually live in subsistence living, and we foolishly want to run an economy that is based not on exchanges, trades and specialization but in household economy, self-reliance has no place. Even mighty nations such as the USA, Canada, Japan, England, Germany and all countries of the Western World do not conduct economies that are based on "self-reliance." These powerful countries are not self-sufficient either in many products. Their economies are based on exchanges, trades, specialization based on their comparative advantages and competitive world marketplace. The defunct ideology of "self-reliance" exists only in failed states such as North Korea, and is usually associated with wretched poverty, malnutrition, diseases, low-life expectancy and political instability. I do not believe any one wants Eritrea to be like North Korea.
"Self-reliance" is dead and buried in the old Soviet Union. Let us not try to revive it in Eritrea.

I hope finally peace and harmony will be restored between the Eritrean and Ethiopian peoples. 

Friday, January 25, 2013

Let us support the Eritrean Messages: Release all prisoners of conscience and implement the ratified constitution

Abraham G. Ghiorgis

What happened on Monday, January 21, 2013,  at the Forto in Asmara, Eritrea is not completely clear. We still are not sure who was behind the demonstration that exposed the absence of the rule of law in Eritrea - arbitrary arrest and incarceration in the dungeons  of Eritreans without due process of law and the lawless nature of the regime in Eritrea, which is ruling Eritrea without the ratified constitution through arbitrary edicts and decrees as if Eritrea were still conducting an armed struggle against an"imagined enemy." In practice to the Eritrean regime the "imagined enemy" happen to be the Eritrean people both inside and outside of Eritrea.

In my opinion for now we should not concern ourselves with who was behind the demonstration - a courageous one at that I might add. Our concerns should be the messages that were relayed by that demonstration to the whole world.

Do we support the messages? What we know for sure is that at least two  fundamental issues that haven been center stage to many of us who are concerned with the violations of civil liberties and human rights in Eritrea at least since 2000, took a center stage.  Our simple messages have now penetrated all the way into the upper echelons of the PFDJ. This is a victory of a sort though it has taken a long time.

What are the two issues again? The implementation of the 1997 ratified constitution, and the release of all prisoners of conscience. These two message easily get the support of the international community. These two messages have the overwhelming support of the majority of the Eritrean people. These are winning strategies. If the majority of Eritreans inside and outside Eritrea unite on these simple but powerful messages, winning will be easy - the international community will be behind us. Moreover, theses two messages will effectively isolate the devil incarnate, Isaias Afwerki. These two message will unite all Eritreans and that include even those who are members of the PFDJ. Again our enemy is Isaias, and not members of the PFDJ irrespective of how high they maybe in the food chain of the power structure.

I strongly believe that we should welcome all who support these two messages. We should forgive and forget for past sins.  We should not be judgmental. We should not be vindictive. 

At the same time we should be cognizant of the fact some in the opposition in particular those who are domiciled in Ethiopia do not support these two powerful messages. They want to reinvent the wheel and write dictatorially a new constitution  for Eritrea; they are ignorant of the fact that Eritreans inside Eritrea who are the prime force for a democratic change see that change through the implementation of the ratified constitution. Also, the  Awate Team has to understand that it is not in the same wavelength with the Eritrean people when it comes to what matters; it is about time that it supports the ratified constitution instead of derailing the democratic change by raising issues that are secondary and issues that are not  in conformity with the sociological factors that make up the Eritrean people.

Abraham G. Ghiorgis
New York

Monday, December 10, 2012

Inventing Democracy

Bill Keller
The New York Times

This is a great vantage point for watching the Arab world struggle to tailor itself a set of new democracies. It is nearly a generation since South Africa assembled its warring peoples and wrote what is certainly the most progressive constitution in Africa, perhaps on the planet. It prescribes all the safeguards of a democratic, humane and inclusive society. Its experience should be a shining model for the aspiring democracies at the other end of the continent as they fabricate basic laws and institutions.

I wish I could say the lessons from here are easy. But it is becoming clearer by the day that a glorious constitution carries you only so far if its values have not taken root in the culture.

So South Africa has an exquisite balance of powers on paper — but is, in effect, a one-party state, riddled with corruption. It has a serious independent judiciary — but is now contemplating loopholes to let tribal courts practice South Africa’s version of Shariah. This country was years ahead of the United States in recognizing the rights of homosexuals, including same-sex marriage — yet there is no openly gay leader in the ruling African National Congress, and lesbians have been targets of punitive rape and murder. It has a vibrant, diverse press — and a president who keeps trying to muzzle it.

As a witness to its birth, I would not say the thrill of South Africa’s democracy is altogether gone. South Africans are resilient, blessed with tourist-alluring beauty and abundant natural wealth; there is a growing black middle class and a robust civil society. And 18 years is still young. But I imagine that some days the news — if it penetrates the fog that I’m told enshrouds the 94-year-old Nelson Mandela — must break his heart.

In the course of a reporting trip for a forthcoming article, I’ve been asking some of the authors and guardians of South African democracy what advice they would offer to an Egypt, a Libya, a Tunisia and other places that are struggling to emerge from various forms of oppressive rule. Here’s how I’d sum up the best suggestions.

Take your time, talk to everyone and don’t be too proud to borrow.

For South Africa, there were five exhausting years — from the first talks, through statements of principle and interim versions — before its democratic Constitution went into force. The negotiating included 19 parties, factions and tribes, a huge public comment effort and copious study of the experiences of countries around the globe.

“We were shameless,” said Nicholas Haysom, a legal adviser to President Mandela in the ’90s who now works for the United Nations. “We looked at everyone. We took jurisprudence from Canada. We took power-sharing from Germany. We took constitutional principles from Namibia. The true exercise of sovereignty is in how one adapts these institutions to your own country, not in confining one’s imagination to one’s own limited constitutional traditions and experiences.”

Not everyone has that kind of patience. Egypt’s constitution-writing assembly, stampeded by President Morsi’s Islamist majority, has spawned a mess of boycotts, street clashes and confusion where consensus and legitimacy are desperately needed. (Iraq, stampeded by President George W. Bush’s desire to demonstrate the flowering of freedom, had a similar farce when it rushed its version of democracy.)

Peace before justice.

South Africa set out to heal the deep wounds of a ferociously cruel regime by creating a Truth and Reconciliation Commission. Those who tortured and killed for any cause could, by fully disclosing their offenses, win an amnesty. The result was not invariably full truth or full reconciliation, but by and large it worked. Alex Boraine, who ran the commission under the flag of its revered chairman, Archbishop Desmond Tutu, has spent the ensuing years traveling to other countries that want to copy the South African model.

Often, his advice is: not so fast. In some cultures the urge for vengeance is too strong to be curtailed by confession. Efforts to emulate South Africa, he said, have been pretty successful in Peru and Mauritius, but failed in Guatemala and Liberia. He expects that much of the Middle East is too raw for a truth commission. But he advises new democracies that there are other ways to slow the cycle of revenge, build confidence and secure a stable foundation for a new order. For example, should Syria’s opposition succeed, Boraine said, there will be a clamor to take President Bashar al-Assad before an international criminal court. “Another view would be: give him safe passage to Moscow. It’s not fair. it’s not just. But you’ve got to start somewhere, to stop the killing.”

Activist judges are not so bad.

South Africa’s Constitution is in several respects more liberal than South African public opinion. Because the drafters included admirers of Western liberal democracies, and because they emerged from a regime that treated its citizens as essentially chattel, the Constitution is expansive in bestowing rights. It prohibits discrimination based not only on race and gender, but also on “sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.” The Constitutional Court has been similarly expansive in its interpretation of this language. The court outlawed capital punishment in 1995 and ruled in 2005 that gays and lesbians are entitled to marry. Neither of those outcomes would likely survive a popular referendum, even today. (South Africa, white and black, is socially conservative.) If proposed laws expanding government secrecy and empowering tribal justice pass the legislature, the high court will be the last line of defense. In America we disparage “activist judges,” but the willingness of South African courts to be assertive on matters of rights seems to have won the judiciary tremendous respect and moved this fledgling society toward greater tolerance. President Morsi, take note.

... Up to a point.

The relatively high esteem accorded the courts and the increasingly widespread disdain for the other branches of government have made South Africa’s courts the destination for disputes that have no business there: should Johannesburg install electronic tollgates on a stretch of highway? How many days should the Parliament be allowed to wait before voting on a no-confidence motion?

“People use these lawsuits as a substitute for political engagement,” said Steven Friedman, director of the Center for the Study of Democracy here. Politicians will never become good at their jobs if courts take their place.

Make citizens.

The curse of many transitional states is that they have no cohesive sense of nationhood, no common sense of purpose or responsibility. Instead of Iraqis or Syrians or Afghans or Egyptians, you have Sunnis and Shiites and Copts, Alawites and Kurds, Pashtuns and Tajiks. A generation past liberation, South Africa has had inspiring moments of unity, but it still has not fully coalesced. A new survey finds that fewer than 1 in 10 adults — and even fewer young people — identify themselves as “South Africans first,” over language, race or ethnic group. The country’s many peoples are equal under the law, but in some ways as “apart” as under apartheid.

Mamphela Ramphele, a wise and nonpartisan anti-apartheid activist and academic, attributes this in part to the sense of impotence that infected South Africans — and not just blacks — under the bleak tyranny of apartheid. And it is partly due, she says, to the cynicism generated by pervasive corruption under the African National Congress government. She has launched a new movement aimed at awakening a sense of citizenship, including through some institutional reforms, such as having most members of Parliament accountable to specific districts rather than answerable only to the ruling party. Freedom, she would advise the founders of new democracies, has to be won over and over.

“South Africans liberated themselves,” she told me, “and now they must do it again.”

Bill Keller, an Op-Ed columnist, was The Times’s Johannesburg bureau chief, 1992-95.

Tuesday, December 4, 2012

Majority Rule / Minority Rights in Eritrea

Majority Rule / Minority Rights

Abraham G. Ghiorgis

Pasted below is an article from the “Democracy Web” that succinctly elucidates the principles of majority rule and the respect of minority rights in a liberal democratic society. Considering what is transpiring at the ENCDC meeting, this article may be relevant to the issues of the freedom of expression and the respect of minority rights.

Some in the opposition understand that burning issues in a democracy are decided only through majority vote. This however disregards among other things the respect of the rights of minorities. If that were to be  the case then we will have all kinds of the “tyranny of the majority.”

For example, it is plausible that a demagogue can easily abolish all religions in Eritrea except the Tewahdo and Islam through the simple exercise of a “democratic majority vote.” And he can defend it easily by raising the banner of a “majority vote.” The demagogue does not understand that the right to freedom of religion is not subject to a majority vote. Majority rule is dangerous and dictatorial if it is not coupled by the respect of minority rights and the respect of the rule of law. Remember Hitler came to power through the mechanism of a “democratic majority vote.”

“Majority rule can not be the only expression of ‘supreme power’ in a democracy... If so, … the majority would too easily tyrannize the minority. Thus, while it is clear that democracy must guarantee the expression of the popular will through majority rule, it is equally clear that it must guarantee that the majority will not abuse its power to violate the basic and inalienable rights of the minority.”

“Democracy therefore requires minority rights equally as it does majority rule. Indeed, as democracy is conceived today, the minority's rights must be protected no matter how singular or alienated that minority is from the majority society; otherwise, the majority's rights lose their meaning.”

In real liberal democracies, there are certain rights that are off limits from democratic majority vote. These are generally referred to as negative rights like: the freedom of expression, the freedom of association, the freedom of religion, the respect of property rights, the due process of law and etc.

The majority cannot use its numbers to abolish the right of freedom of expression, that include expressions that may be detestable and abhorrent to the majority. The majority in a society cannot decide whether one is free to express his opinion as he sees fit through a “democratic” majority vote. Otherwise civilization will not advance. The principle of the freedom of expression in its fullest sense does not give a hoot to whether the opinion one holds conforms or not to that hold by the majority in a society. That is the whole essence of the principle of the freedom of expression, and that is also the reason an opinion of a citizen how “foolish” it maybe is not subject to a vote. Rather it becomes a subject to a debate. Only autocrats hate debates. The ENCDC do you hear me.


Majority Rule / Minority Rights

by Democracy Web

"If it be admitted that a man possessing absolute power may misuse that power by wronging his adversaries, why should not a majority be liable to the same reproach? Men do not change their characters by uniting with one another; nor does their patience in the presence of obstacles increase with their strength. For my own part, I cannot believe it; the power to do everything, which I should refuse to one of my equals, I will never grant to any number of them."

Alexis de Tocqueville, "Tyranny of the Majority," Chapter XV, Book 1, Democracy in America

Majority Rule

Democracy is defined in Webster's Encyclopedic Dictionary as:

Government by the people; a form of government in which the supreme power is vested in the people and exercised by them either directly or through their elected agents;... a state of society characterized by nominal equality of rights and privileges.

What is left out of the dictionary definition of democracy is what constitutes "the people." In practice, democracy is governed by its most popularly understood principle: majority rule. Namely, the side with the most votes wins, whether it is an election, a legislative bill, a contract proposal to a union, or a shareholder motion in a corporation. The majority (or in some cases plurality) vote decides. Thus, when it is said that "the people have spoken" or the "people's will should be respected," the people are generally expressed through its majority.

Democracy Requires Minority Rights

Yet majority rule can not be the only expression of "supreme power" in a democracy. If so, as Tocqueville notes above, the majority would too easily tyrannize the minority. Thus, while it is clear that democracy must guarantee the expression of the popular will through majority rule, it is equally clear that it must guarantee that the majority will not abuse its power to violate the basic and inalienable rights of the minority. For one, a defining characteristic of democracy must be the people's right to change the majority through elections. This right is the people's "supreme authority." The minority, therefore, must have the right to seek to become the majority and possess all the rights necessary to compete fairly in elections—speech, assembly, association, petition—since otherwise the majority would make itself permanent and become a dictatorship. For the majority, ensuring the minority's rights becomes a matter of self-interest, since it must utilize the same rights when it is in minority to seek to become a majority again. This holds equally true in a multiparty parliamentary democracy, where no party has a majority, since a government must still be formed in coalition by a majority of parliament members.

The Constant Threat

The American founders—Anti-Federalists and Federalists alike—considered rule by majority a troubling conundrum. In theory, majority rule was necessary for expressing the popular will and the basis for establishing the republic. The alternative—consensus or rule by everyone's agreement—cannot be imposed upon a free people. And minority rule is antithetical to democracy. But the founders worried that the majority could abuse its powers to oppress a minority just as easily as a king. Thomas Jefferson and James Madison both warn in their letters about the dangers of the tyranny of the legislature and of the executive. Madison, alluding to slavery, went further, writing, "It is of great importance in a republic, not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part."

A half century after the United States was established, Alexis de Tocqueville saw the majority's tyranny over political and social minorities as "a constant threat" to American democracy in his pre–Civil War travels. While visiting the state of Pennsylvania, when he asked why no free blacks had come to vote in a local election he was observing, he was told that "while free blacks had the legal right to vote, they feared the consequences of exercising it." Thus, he wrote, "the majority not only makes the laws, but can break them as well."

Minority Rights I: Individual Rights vs. Majority Tyranny

Democracy therefore requires minority rights equally as it does majority rule. Indeed, as democracy is conceived today, the minority's rights must be protected no matter how singular or alienated that minority is from the majority society; otherwise, the majority's rights lose their meaning. In the United States, basic individual liberties are protected through the Bill of Rights, which were drafted by James Madison and adopted in the form of the first 10 amendments to the Constitution. These enumerate the rights that may not be violated by the government, safeguarding—in theory, at least—the rights of any minority against majority tyranny. Today, these rights are considered the essential element of any liberal democracy.

The British political philosopher John Stuart Mill took this principle further. In his essay On Liberty he wrote, "The only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others." Mill's "no harm principle" aims to prevent government from becoming a vehicle for the "tyranny of the majority," which he viewed as not just a political but also a social tyranny that stifled minority voices and imposed a regimentation of thought and values. Mill's views became the basis for much of liberal political philosophy since, whether it is free market or economic liberalism or social liberalism.

How do majority rule and the protection of minority rights function in practice? Clearly, the two can easily collide when the assertion of Madisonian rights and Millian liberalism confront an unmovable democratic majority. In politics, the regularity of elections and the principles of separation of powers and checks and balances (see "Constitutional Limits") are the means for ensuring debate over the people's interests and views.

Minority Rights II: Protecting Minority Groups in Society

Madisonian and Millian principles safeguard individual and political minorities. But the danger of majority tyranny lies not just in the infringements of individual rights or the marginalization of a political minority, but in the oppression of minority groups in society based simply on criteria such as skin color, ethnicity or nationality, religion, or sexual orientation. Judicial checks on majority tyranny were supposed to expand political and civil rights over time; however, the American courts were themselves often a part of majority tyranny, as numerous Supreme Court cases attest. The 19th-century Dred Scott and Plessy v. Ferguson decisions ruled that African Americans were socially inferior and thus not guaranteed equal protection of the laws (see descriptions of these two cases on the African American History web page).

The African American Experience

In the United States, it is the African American experience that most warns of the danger of such majority tyranny. The Constitution, officially implemented in 1789, flatly contradicted the principles of the Declaration of Independence. Its infamous "three-fifths compromise" (which determined that a slave constituted only three-fifths of a person) sanctioned slavery and the terrible mistreatment of millions of Africans brought to America in chains. Even after the Civil War's end, amendments to the Constitution abolishing slavery and guaranteeing equal rights did not prevent the adoption of Jim Crow laws in the Southern states, which collectively maintained a system of institutionalized segregation, or pervasive discrimination against African Americans in the North. In the South, whites disenfranchised black voters through so-called literacy tests, poll taxes, and property qualifications that were never applied to poor and illiterate whites.

To overcome this form of majority tyranny, maintained for nearly 100 years, the African American minority, just over 12 percent of the population in the late 1800s, had to confront the reality that nearly all political avenues were closed to it. In the South the right to vote had effectively been taken away, and in the North it was ineffectual. In the early 20th century, some African American leaders therefore adopted a strategy of nonviolence and civil disobedience that took the fullest advantage of the freedoms contained in the Bill of Rights and challenged American institutions to live up to America's democratic principles. In their strategy, the rational answer to systematic denial of freedom was the exercise of freedom. The answer to systematic denial of inequality was demanding legal equality and justice in the courts. The ultimate success of this strategy—which began in 1905 with the Niagara Movement of W. E. B. Du Bois and demanded equal rights and eventually led to the development of the National Association for the Advancement of Colored People (NAACP)—fulfilled the stated ideals of American democracy and as a result made the African American civil rights movement an enduring international symbol for world freedom. Its nonviolent method has become a much-used model for how an oppressed minority can seek freedom through the peaceful use of democratic rights.

The Persistence of Discrimination

America's experience is unique in scope, but all democracies have witnessed "the tyranny of the majority" applied against different social groups. Nearly all democracies, for example, restricted voting to specific economic groups, most frequently to male property owners, and only slowly expanded the franchise to men generally. Women were systematically denied equal political and social rights. The first state to grant equal suffrage was Wyoming, then still a territory, in 1869; the first country to do so was New Zealand, but only in 1893. British women over the age of 30 were given the vote in 1918, and in 1928 the age limit was lowered to 21. Women in the United States gained suffrage in 1920, while France did not adopt universal suffrage until after liberation from the Nazi occupation in 1944. Despite having the right to vote in most countries today, women still suffer formal discrimination in many places in the world.

In Europe, minority Muslim communities from former colonies in northern Africa, the Middle East, and Southwest Asia have struggled against pervasive discrimination and the denial of equal opportunities in education, jobs, and housing. In India, the "untouchables," or harijan, have only recently gained rights to enter the mainstream of society. Majority indigenous groups in Bolivia and several other Latin American countries have long been treated as "the minority" for most of their countries' constitutional histories. Indeed, the issues of minorities seeking greater freedom, equality, autonomy, and protection against discrimination and unequal treatment are current throughout the world. Usually they are being addressed through nonviolent protests, legislation, the courts, protection of native lands, education, and other efforts granting regional autonomy or specific rights and privileges.

The Ultimate Denial of Minority Rights

The most extreme treatment of minorities has been carried out by 20th- and 21st-century dictatorships. The worst examples are those of totalitarian regimes that carried out genocide to eradicate unwanted groups in society. The Holocaust perpetrated by Nazi Germany murdered six million Jews, one-third of the total world Jewish population, as well as a significant portion of the Roma ("Gypsy") community. Homosexuals were also a targeted minority for extermination. The Soviet Union, under Stalin, carried out mass executions and deportations of dozens of Caucasian and Central Asian ethnic groups; some now face extinction.

More recently, the Russian Federation has waged a brutal war against its own republic of Chechnya, killing tens of thousands of civilians and displacing more than half the population. Other examples of mass killings of a minority by a dictatorship include the Nigerian campaign against Biafrans (see "Freedom of Religion"), the Hutu genocide of Tutsi in Rwanda, Saddam Hussein's mass killing of Kurds and Shiites in Iraq, and the Sudanese government's sponsorship of mass killing, raping, and deportation in Darfur (see Sudan Country Study. The project for an "ethnically pure" Greater Serbia undertaken by Slobodan Milosevic resulted in the murder of 200,000 Bosnian Muslims and 10,000 Albanian Muslims in Kosovo by a killing machine that was stopped only by military campaigns carried out by NATO.

International Protection of Minority Rights

This history has made the protection of minorities from abuse by majorities one of the highest obligations of international law. The Convention on the Prevention and Punishment of the Crime of Genocide, adopted after World War II in 1948, is the most widely recognized international treaty governing the practice of nation-states. The UN's International Covenant on Civil and Political Rights, adopted in 1966, defines not just individual rights but also minimum protections for minorities. Article 27 asserts:

[P]ersons belonging to [ethnic, religious, or linguistic] minorities shall not be denied the right in community with the other members of their group to enjoy their own culture, to profess and practice their own religion, or to use their own language.

The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992, and the Indigenous and Tribal Peoples Convention of 1989 further define protections for ethnic, religious, and cultural minorities to preserve their culture, languages, and beliefs and to protect themselves from discrimination. While these treaties establish clear international moral standards, their actual observance has often been found wanting, as the dramatic recent cases of Iraq, Rwanda, Sudan, former Yugoslavia, and the Russian Federation show. These treaties have no binding legal effect, although the states that ratify them are legally answerable. Occasionally, however, that does not offer enough deterrent.

Nor do these conventions address a difficult political issue posed by democracy: assimilation versus separation. While assimilation of a minority into the broader society offers a minority greater opportunities and political influence, it does so often at the expense of minority cultures, beliefs, and practices. On the other hand, preserving cultures, beliefs, and practices by insulating the minority reduces its influence within the majority political culture. It is not an easy balance.


On a practical level, the application of majority rule and minority rights relies on a set of rules agreed to by everyone in a political community. How are majorities determined? What are the limits of debate and speech? How can members in a community propose a motion or law? Should a minority be allowed to prevent the majority's will by abusing its rights? There is no one answer to these questions, and many democracies have answered them differently. But for those countries that follow an Anglo-Saxon tradition, one of the basic guides for democracy is Robert's Rules of Order. Its beginning offers a concise statement of the democratic ideal:

American Parliamentary Law is built upon the principle that rights must be respected: the rights of the majority, of the minority, of individuals, of absentees, and rights of all of these together.


Wednesday, November 21, 2012

Constitutional Limits on Government

Constitutional Limits on Government
Abraham G. Ghiorgis

Pasted below is an article from Democracy Web that succinctly summarizes the essential points, history and principles of a constitutional government.

“Constitutional limits are based on the idea that the power of the law—the rules laid down by the people's representatives—is superior to the power of any individual or group.... In absolute monarchies, the king is the law, while in free self-governing communities, the law is king. The separation of powers by means of a constitution ensures that no individual is able to dominate the government and create his or her own law. The constitution and the laws that grow out of it are a framework that cannot be broken and applies to all citizens....The rule of law, not men ... is the basis for the preservation of self-governance against the arrogation of power by a dictatorial leader." 


Constitutional Limits on Government
By Democracy Web

(I) Essential Principles

"In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men."
Massachusetts Constitution, Part the First, Article XXX, 1780

(I) A. Limiting the Power of the State

The original purpose of constitutional limits on government was to check the arbitrary actions of hereditary monarchs who abused their power, imposed unwanted taxes, or launched unpopular wars. Using agreements like the Magna Carta (see History), nobles with substantial property forced the principle of restraint on European monarchs, although mainly through consultative institutions. Over centuries, through popular revolutions or the evolution of representative institutions like parliaments, there developed greater checks on power and a greater separation of government into independent branches. Under unwritten and written constitutions, rulers could no longer act unilaterally against the will of the people and instead had to gain approval from parliaments and obey established law. This gradual development of constitutional limits on state power sometimes occurred in societies on other continents, but generally the major states of Asia, Africa, and the Americas did not impose such explicit, institutional curbs on their rulers.

(I) B. Self-Governance and Constitutional Limits

The modern experiment of popular self-governance, which began to expand rapidly in the late 18th century, aimed to limit state power through the people's will rather than the interests of the nobility and gentry. The people, formerly subjects of the crown with few rights, became citizens with full and equal rights, regardless of class. And the government became the instrument for carrying out the people's will as expressed through their elected representatives. Mindful of the experience of tyrannical monarchy, newly self-governing societies adopted constitutional limits that defined the specific authority of the state, forbade its agents from violating basic rights, and divided government into distinct branches that would check and balance one another, preventing any single branch from amassing too much power and abusing its authority. Although in the United States this idea of self-government originally applied only to white males with sufficient property, and coexisted with the heinous practice of slavery, over time the concept was expanded to the current universal understanding that government should be of, by, and for all the people.

(I) C. Direct and Representative Democracy

Some political philosophers have argued that direct democracy—in which all citizens vote directly on the laws and policies of a political community—is the ideal form of government. Direct democracy, however, has generally proven impractical, and there are few examples of it in history. Even ancient Athens, ruled by a democratic assembly of all its male citizens, relied on elected officials to some extent, and it ultimately failed to maintain its independence in a hostile region. Town hall meetings, where basic policies of small municipalities are set, also serve as mechanisms for the election of representative officials. Similarly, within local associations and trade unions, members elect officers and committees to carry out their decisions. Indeed, while some decisions may or even should be made by referendum (all citizens voting on a particular issue), few sizable groups of citizens have been able to conduct their affairs solely on the basis of direct democracy.

The American founders were deeply skeptical of direct popular rule. Representative democracy, they argued, was far superior because the buffer it created between the people and state policy allowed for reflection, reasoned debate among differing positions, and compromise between opposing interests. Direct democracy to them meant the potential of tyranny of the majority over the minority, or worse, mob rule, without any restraint on popular impulses or abuses of power. Today, democracy is generally understood as a system of freely elected representative institutions with constitutional limits. (See also "Consent of the Governed," and "Majority Rule, Minority Rights."

(I) D. Parliamentary Democracy

This understanding applies both to the parliamentary system, in which an executive prime minister and cabinet are chosen by the majority party or coalition in the legislature, and to presidential and mixed presidential-parliamentary systems of government, in which the separately elected president holds substantial executive powers. The parliamentary system is the most common form among the world's electoral democracies. While it has fewer constitutional checks and balances among the branches than presidential or mixed systems, the basic principle of limited government is upheld and abuse of power restrained with the help of tradition, evolving law, independent news media and judges, and in some cases a constitutional monarchy. Such monarchs are typically limited to symbolic functions, but they can play a stabilizing or mediating role in times of political crisis and protect against abuse of power.

(I) E. The Rule of Law, Not Men

Constitutional limits are based on the idea that the power of the law—the rules laid down by the people's representatives—is superior to the power of any individual or group. In his influential pamphlet Common Sense, Thomas Paine noted that in absolute monarchies, the king is the law, while in free self-governing communities, the law is king. The separation of powers by means of a constitution ensures that no individual is able to dominate the government and create his or her own law. The constitution and the laws that grow out of it are a framework that cannot be broken and applies to all citizens.

Of course, in a number of instances in U.S. history, the supremacy of law has been invoked for wrongful or immoral purposes that contradict the meaning and intent of the Constitution or of freedom itself. The Dred Scott (1857) and Plessy v. Ferguson (1896) decisions, in which the U.S. Supreme Court upheld slavery and racial segregation, respectively, are notorious examples of the rule of law gone terribly wrong. Ultimately it is the people who must overcome such contradictions through legislative action, electoral changes, public protests, or, as a last resort, revolution. Still, while all democracies have examples of individuals who must challenge existing law to achieve a higher moral purpose, the basic precept that John Adams built into the Massachusetts constitution — "a government of laws and not of men" — holds an important place in the mechanism of democracy. It is the basis for the preservation of self-governance against the arrogation of power by a dictatorial leader.

(I) F. Dictatorship

The modern antithesis of popular self-governance and the rule of law is dictatorship, in which an authoritarian ruler, junta, or oligarchy rules by decree, exercising powers similar to those of the historical monarchs described above. A dictatorship may have a constitution, but in practice it serves to expand rather than limit the powers of the state and grants most if not all authority to the leader or dominant group. Under such regimes, the constitution can often be changed with little or no real input from the people. The result is extensive abuse of power (the terrible consequences of which can be found in the Country Studies in the Not Free category). Occasionally, dictatorships adopt liberal constitutional provisions for appearance's sake or to placate international opinion, offering citizens some possibilities for organizing change (see, for example, the South Africa Country Study, or the Chile Country Study). Some constitutions pledge full adherence to basic principles of human rights or self-governance, but also include language that allows some higher authority—a leader or ruling party—to override those principles in the name of national security or a major ideological priority.

(II) Constitutional Limits on Government: History

Modern constitutional limits on government are commonly traced back to the Magna Carta, signed in England in 1215. It is considered one of the most important foundation stones in the history of democracy. The agreement, which followed King John's failed attempts to take advantage of feudal landowners and to impose his authority by force, established that even monarchs claiming the divine right to rule had to uphold existing laws and customs and respect the privileges and property rights of their subjects. The most important restriction stemming from the Magna Carta was the king's obligation to seek the consent of the nobility, the clergy, the gentry, and townsmen before imposing taxes on the country. An early incarnation of the modern Parliament met for this purpose under Edward I in 1295; it included major noblemen, Church leaders, and representatives of the counties and towns. The assembly was later divided into an upper House of Lords (including high clergy) and a lower House of Commons. Notably, each district could set its own rules for election to the Commons, and some adopted general suffrage for adult males. Eventually, the country settled on freehold ownership of property worth 40 shillings as the basic requirement for the right to vote. This rule remained in place well into the modern era, and even some U.S. states maintained similar property requirements until the mid–19th century.

(II) A. The British Model

No formal constitution was ever adopted in England, and the United Kingdom is still governed according to an accumulation of parliamentary law, tradition, and practice. Over the centuries, the House of Commons came to dominate the "upper" House of Lords due to its more representative nature. Today, the House of Commons is the true focal point of political power, while the monarch remains the ceremonial head of state. The House of Lords now consists largely of members appointed for life by the monarch on the recommendation of the prime minister, although some high-ranking clergy and hereditary peers remain. The House of Lords can no longer block legislation, but it retains oversight and persuasive powers. A select group of members known as the Law Lords serve as the country's court of highest appeal, although efforts are currently under way to create a separate Supreme Court to take on this function.

(II) B. European Models

While many European countries passed through periods of absolute monarchy before building the institutions of democracy, some maintained considerable checks on their rulers. In the case of the Polish-Lithuanian Commonwealth (1569–1795), a quasi-democratic system was instituted through a covenant called the Henrician Articles. These reserved great powers for the nobility, who made up the Sejm, or parliament. The monarchy became a nonhereditary position elected by the Sejm, and the king could not raise taxes or declare war without the nobles' consent. Weakened by internal division, foreign interference, and warfare, the Commonwealth in 1791 adopted a constitution aimed at extending political rights beyond the nobility and forming a stable parliamentary monarchy, but the reformed state was crushed by its autocratic neighbors. Today, most European countries have some type of parliamentary system, though unlike Great Britain they have written constitutions with clear limits on power and definitions of lawful authority. The other major European model is that of France, which since 1958 has been a mixed presidential-parliamentary system. The president acts as head of state and plays a leading role in setting national policies, particularly foreign policy. He appoints a prime minister and cabinet, who are responsible to the bicameral Parliament, to run the daily affairs of government. Parliament is able to bring down the prime minister and cabinet with a vote of no confidence, as well as block government budgets and legislation.

(II) C. The U.S. Model

As noted above, the framers of the U.S. Constitution were concerned with the dangers of arbitrary government and an overbearing executive. Drawing their ideas in part from republican Rome, the writings of John Locke, and the Baron de Montesquieu's The Spirit of Laws, they crafted a model in which government is divided into executive, legislative, and judicial branches, with specific functions defined in such a way that no one branch, and especially not the executive, can dominate the others.

The executive branch is headed by a president who, aside from the vice president, holds the only nationally elected office and is thus the representative of all the people. However, the president's chief responsibility is carrying out the laws passed by the bicameral Congress. While the president has the power to veto legislation, this veto may be overridden by a two-thirds majority of each house of Congress, ensuring that the president's check on legislative power cannot itself be abused. The president is the commander in chief of the armed forces, but only Congress may declare or authorize war. The president appoints executive officers and federal judges, but the Senate must approve them by a majority vote.

The legislature is purposely divided. The House of Representatives is elected by popular vote in districts allotted to the states according to population; the Senate is made up of two members from each state regardless of population. Wyoming, the smallest state by population, is thus equal in the Senate to California, the largest. The House, elected every two years, is the "people's voice," while the Senate—whose members are elected to six-year terms, with a third coming up for election every two years—is designed to temper the vicissitudes of popular will and act as a bulwark against dominance by larger states. All revenue legislation must originate in the House; the Senate holds the principal power of advice and consent with respect to federal appointments and international treaties. The federal judiciary is protected from both of the elected branches of government through lifetime appointment, so that judges can decide cases based on the law and not political considerations. The U.S. Supreme Court is the final court of appeal, and its interpretation of laws and the Constitution must be respected by the other branches.

Limited government has been reinforced over time through amendments to the Constitution, especially the first 10, known as the Bill of Rights, and the post–Civil War 13th, 14th, and 15th Amendments. (The latter three additions abolished slavery, ensured that the states upheld federally protected rights, and conferred citizenship and voting rights on former slaves.) In addition, states are granted all governmental powers not enumerated for the federal government in the Constitution, meaning they have autonomy with respect to education, police, and other community services. States have their own constitutions that are generally organized under the same principles as the federal charter. The country's multilayered system of constitutional government is often blamed for a lack of decisive action on important matters. This was most notably the case on the issue of slavery, as Southern states, despite being a minority in population, long retained the power to block antislavery initiatives. Still, the system is generally considered to be the key reason for America's success as a democracy, and its relative complexity has generally been a source of resilience rather than a cause of paralysis.

(II) D. The Persistence of Dictatorship

The 19th-century historian Lord Acton once wrote, "Power tends to corrupt; absolute power corrupts absolutely." Such was the case for much of the 20th century, when democracy's progress was challenged by the rise of new types of dictatorship. The abuse of power by Fascist and Communist regimes was so complete as to make most historical examples of autocracy appear liberal by comparison. The death toll was without precedent in history. Adolf Hitler's Nazi regime in Germany caused the deaths of tens of millions of people through war, deprivation, and mass execution, including the genocide of six million Jews, some two-thirds of Europe's prewar Jewish population. There is considerable debate about the number of people killed under Communist regimes, but the higher estimates approach 100 million. Most of these deaths occurred in the Soviet Union and the People's Republic of China, and include fatalities from executions, forced labor, and massive famine stemming from state policies.1 In both Fascist and Communist regimes, even the smallest liberties were taken away, and any expression of dissent could result in arrest or worse. Both types of regimes claimed legitimacy in part through constitutions. Communist variants included lengthy assertions of "people's rights," but in practice there were no actual protections against state power. Absolute authority was granted to the ruling party.

The 20th century also saw the rise of other types of authoritarian regimes: apartheid in South Africa, theocracy, military juntas, and nationalist or populist dictatorships. However, by the end of the century, democracy had supplanted many of these governments. Even Germany and Japan, the militaristic instigators of World War II, became thriving democracies under the postwar guidance of the United States and its allies. Other new democracies flourished after the collapse of the Soviet Union in 1991, with notable exceptions like Russia, Belarus, and Uzbekistan. But the enduring examples of such authoritarian systems, and the dictatorships that remain in the 21st century, make it clear that the preservation of human rights and individual liberty requires not just democratic elections but also effective constitutional limits on government authority.

(II) F. Conclusion

Restraints on those exercising power may be elaborated in a written constitution, as in the United States, or operate as an accumulated body of law, as in Great Britain. In either case, the enforcement of such limits depends heavily on the understanding and vigilance of the people themselves (see also "Consent of the Governed"). However, even a perfectly implemented charter will not ensure citizens' rights if its basic structure permits the accumulation of absolute power by any group or individual. A Polish democratic theorist, Jakub Karpinski, described the operating principle of Communist constitutions:

Ornamental institutions functioned as screens for other institutions in which real decisions were made. The parliament and the "collective head of state," under the name of the Council of State, were screens for the Political Bureau and other agencies of the Central Committee of the Communist Party or even other less formal groups of party functionaries who made real decisions. Decisions in the ruling communist parties were usually made without restraint.

Today, the most widely used constitutional models in the world are those of Great Britain and the United States. This is due in part to the legacy of Britain's extensive former empire and its loose association of democratic successor states, the Commonwealth. The United States similarly gained prominence as it took on a larger political and military role in the world, but its constitutional system inspired others much earlier, particularly the Latin American republics that emerged from Spanish rule in the early 19th century. Many countries also follow the example of France or other models.

While the Communist ideal of the "dictatorship of the proletariat" competed internationally with democracy during the 20th century, it remains the governing principle in only a handful of countries today, such as China, Cuba, and North Korea.