Wednesday, September 16, 2020

Crumbling State of Liberal Democracy: Some reflections on the International Democracy Day 2020

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Adnan Abbasi

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Crumbling State of Liberal Democracy: Some reflections on the International Democracy Day 2020

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Global Views 360

Publication Date

September 16, 2020

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Representative image of people raising question

Representative image of people raising question | Source: rawpixel.com via Freepik

The liberal democratic world order which was accepted as a preferred governance model in major parts of the world has been under assault by the increasing authoritarian leaders since the last few years. The monopolization of power by subverting the in-build checks and balances of the democratic institutions is now a new norm in even the large democratic countries like the  United States or India as well. The International Democracy Day, which falls on 15 September, gives us an opportunity to reflect on the present state of liberal democracy in the world.

Monopolization of Democratic Institutions

In recent years democratic institutions across the world have shrunk into the hands of a few.

In the United States, President Trump is interfering in the running of independent democratic institutions. John Torpy—American academic, sociologist, and historian—currently Professor at City University of New York—fears that US democracy under Trump is going under “swamps”. Mentioning about President Trump’s obstruction of the democratic institutions, he writes “As many people have noted, if the president can simply refuse to cooperate with Congressional requests for documents and witness testimony, we live not in a democracy, which requires that officials be accountable for their actions, but in an autocracy, in which the executive can make decisions without the possibility of oversight by others.”

Viktor Orban, the President of Hungary | Source: Elekes Andor via Wikimedia

In Hungary, democracy is on the proverbial deathbed. Hungarian President Viktor Orban—amidst COVID-19 pandemic—passed a bill in parliament granting his government access to emergency powers. This bill—which is now the law of the land in this European Union country—gives the absolute power to the executive without any checks by the parliament. Political commentators like Zoltan Cegledi argue “The government’s will to destroy, limit and exhaust democracy is permanent. Its future victims will be the remnants of autonomy.”

In India, lately the government scrapped the question hour from the parliament citing the spread of COVID-19. Leader of Opposition Ghulam Nabi Azad expressing his concern on the decision said "In a democracy, the government is answerable to people of India through Parliament and the Parliament comprises members of Parliament representing different states, political parties, and regions of this country. People of the country have no access or means to ask the question to the minister inside the Parliament. So, their representatives are the members of the Parliament. These MPs ask questions on behalf of people of India."

This is not the first time the government of India changed the rules for the conduct of those institutions where it may get questioned. The RTI Act gave people of India the right to seek information from the different institutions of the government (excluding the intelligence). In 2019, the Indian parliament passed an amendment to the Right to Information (RTI) Act of 2005, which is being criticized widely.

Prabhash K Dutta mentions in his article published on India Today that this amendment removes the fixture of duration for the five years for chief information commissioners as well as the information commissioners and altered their salaries, for both they will be separately notified by the government. He furthermore mentions “This, in a political sense, means that the government can threaten or lure the chief information commissioner and information commissioners with arbitrary removal or extension and curtailment or increase in salary depending upon their suitability for the ruling dispensation.”

Lady Justice: Allegorical personification of the moral force in judicial systems | Source: Tingey Injury Law Firm via Unsplash

In some countries, the executives are also interfering in the judicial process. President Andrzej Duda of Poland has lately signed a law that gives him power to appoint the judges as well as penalizes the judges of the court to question any appointments done by the President in the judiciary. Malgorzata Gersdorf—the president of Poland's Supreme court—termed it as “Muzzle Law”.

In Hong Kong as well, after the implementation of the New Security Law by the Mainland severely affects the independence of the judiciary and gives China-appointed Chief Executive the power to appoint judges in the “cases of security.”

In Egypt the government under Al Sisi has subverted the judicial system by expanding the scope of military courts. These courts  are directly controlled by the army (not the judiciary) and the defendants can neither access a lawyer nor are brought to a judge after the arrest.

Throttling the flow of information on internet

The assault on democratic discourse has extended to the internet, which has emerged as an important tool for easy and quick access of information. However the authoritarian streak in the ruling establishments do not not want the information to spread so fast.

Anti CAA Protest in Assam, India | Source: Ankur Jyoti Dewri via Wikimedia

An apt example is the widespread shut down of the internet during the time of protest against the Citizenship Amendment Act (CAA) across India. These shutdowns were not only to gag the Anti-CAA protestors but also unconstitutional according to the law of the land.

In Indian province of Kashmir, the internet was totally shut down for almost 5 months from 5th August 2019. The services were later restored but even today, 16th September, 2020 there is no access to the high speed internet in the region.

In some other countries like Belarus and Ethiopia, as well, the government resorted to shutting down the internet during the public protests.

Similarly the popular social media platforms like facebook, twitter, reddit, and many others which are used to freely share information, are restricted or banned in many countries.

This all happened in 2019-20 despite the United Nations General Assembly (UNGA) resolution stating that cutting access to the internet violates  article 19, paragraph 3, of the International Covenant on Civil and Political Rights back in 2011.

Suppressing the dissidents

Anti Al-Sisi protests in London | Source: Alisdare Hickson via Flickr

In Egypt, the government is resorting to Military Court trials, and ditching the normal judicial system. The detainees are put under inhumane conditions (people tried here are mostly the dissidents against the government). Vanshita Banuana from Global Views 360 writes “There have been multiple reports of torture, sexual assault while placed in detention. In prison too, detainees face inhumane conditions, not being allowed to see family, exercise or get sunshine and fresh air. Thousands of student protestors, journalists and political dissidents have been tried in these military courts, and hundreds more have been killed extrajudicially. At the same time, citizens’ tools to criticise these steps are undermined, such as by limiting the domain of NGOs, censoring news and social media, and blocking around 600 websites.”

In India the government uses many draconian laws to suppress activists working for the marginalised communities. The Unlawful Activities Act (UAPA) is the most controversial and draconian law which is being used frequently by the government to curb the dissenting voices.

Indian government, as a part of its ambitious smart city project, is installing CCTV camera systems in the major towns across India. The footage from these cameras along with the AI based facial recognition technology is a deadly combination for curbing dissidence. Privacy experts like Arun Mohan Sukumar fear “If you don’t have adequate checks and balances, there’s a high chance the government will be tempted to use the data for highly dubious purposes.”

A ray of hope

As Victor Hugo said “When Dictatorship Is A Fact, Revolution Becomes A Right.” The people across the world have started speaking up against the assault on democratic values and institutions. They face hardship, vilification, and incarnation but remain committed to fight for the protection of liberal democracy. This gives us hope that the liberal democracy will ultimately prevail as it is what Abraham Lincoln described, “The government of the people, by the people, and for the people.”

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March 4, 2021 4:43 PM

Does giving the Lieutenant Governor more authoritative power have an impact on India's Federal structure?

On 3rd of February 2021, the NCT bill cleared by cabinet along with 20 other bills proposed to be introduced in the parliamentary session. The amendment was passed on 9th of February in the Rajya Sabha.

“The Bill proposed to amend the Government of National Capital Territory of Delhi Act, 1991, in the context of judgment dated 14.02.2019 of Hon’ble Supreme Court (Division bench) in Civil Appeal No 2357 of 2017 and other connected matters.”

The article explains the timeline and the practical implications of the NCT Amendment Act 2021 on the federal structure.

The Centre's amendments to the NCT of Delhi Act, gives more powers to the Lieutenant Governor and Delhi’s Kejriwal government were totally against the amendment as due to their bitter experience with the previous and current LG.

The Arvind Kejriwal government described the NCT Bill, as a murder of constitutional democracy and accused BJP of secretively drafting the amendments so as to govern Delhi in an unconstitutional manner using the LG's office.

The new amendment is expected to now clearly define the powers and functions of the Lieutenant Governor and the Delhi Government based on the 2019 judgement. The amendments add a category of bills, which fall outside the ambit of Delhi legislative assembly and which the Lieutenant Governor must reserve for consideration of the President. This category is supposedly added for the sake of “better governance” and to reduce potential conflicts. The amendments also specify that the elected government needs to send legislative proposals to Lieutenant-Governor (LG) at least 14 days in advance to seek his opinion and avoid any delays.

The tussle between the Delhi government and the Centre reached the Supreme Court 2017. The honourable Supreme court defined the role of the LG in Delhi and ruled that the LG cannot interfere in every decision of the Delhi Government. The tussle between the Union and Delhi government has that Article 239 AA of the Constitution at its core. The Article 239 AA gives Delhi the special recognition of a Union Territory with a Legislative Assembly that has a lieutenant governor as its administrative head.

In July 2018, a five-judge Constitution bench of the Supreme Court led by Chief Justice Dipak Misra stated that the lieutenant governor’s powers in the National Capital were only limited to land, police and public order.

“The lieutenant governor must work harmoniously with the elected government. The LG is the administrative head but can’t act as an obstructionist”, the bench stated. The supreme court also stressed upon the fact that the power and status of the LG was different from the state governors. They mentioned that the Lieutenant Governor must not be an obstructionist and must work harmoniously with the Delhi government. “There is no room for absolutism and no room for anarchy,” the bench stated. The verdict is not complete yet as the issue of services divided the bench that delivered the order and the matter is now addressed by a three-judge bench on the Supreme Court which has not concluded the hearing yet.

So far, the AAP has argued that former LG Najeeb Jung and the current LG Anil Baijal are undermining the federal structure of the Republic of India by objecting the decisions made by the Delhi government and overruling their authority in bureaucratic matters.

Former LG of Delhi with Prime Minister Modi | Source: Wikimedia

In July 2013, Najeeb Jung took charge as the LG of Delhi and Arvind Kejriwal swore in as the Chief Minister (CM) of Delhi in December 2013. After 49 days of governance, Arvind Kejriwal stepped down as his minority government was unable to pass the anti-corruption legislation due to lack of support provided by other political parties. In February 2015, the Aam Aadmi Party came back to power by a staggering majority of 67 out of 70 seats. However, the party faced a higher veto obstruction while making several decisions. In May 2015, LG Jung annulled all the bureaucratic postings by Delhi government and stated that power to appoint and transfer rests with him.

In June 2015, five officers of Bihar Police joined Delhi Government’s Anti-Corruption Branch (ACB). Jung rejected their employment at the ACB claiming that he was the person in charge even before the new amendment. In the same month, the Delhi government replaced the Home Secretary Dharam Pal and Jung obstructed the decision by vetoing the order. When the AAP government decided to hike circle rates in Delhi for agricultural land, the former LG Jung objected to the decision although the State government has the complete authority to take such decisions. In another instance in 2016, Jung set up a panel to probe over 400 files related to decisions taken by Delhi government. The CM of Delhi deemed it to be illegal.

Kejriwal and the AAP government blamed the former LG and Prime Minister Narendra Modi for the CBI raids of his office, FIRs filed by ACB against Arvind Kejriwal and former Delhi CM Late Sheila Dikshit in water tanker scam, restriction of control on appointing state bureaucrats and general obstruction of decisions.

Anil Baijal, the now LG of Delhi with Defence Minister Rajnath Singh | Source: Wikimedia

On 31st December 2016, Anil Baijal swore in as the Lieutenant Governor of Delhi. While the tussle between AAP and the LG continued, the alleged assault of Chief Secretary Anshu Prakash by AAP leaders at CM Arvind Kejriwal’s residence in February 2018 gave a new momentum to the tug of war.

Following the incident, the IAS association reportedly skipped routine meetings with ministers as a mark of protest but claimed that they have not suspended work. Before that, on December 2017, the turf war between Kejriwal and Baijal reached Parliament, with a Rajya Sabha member claiming that the CM was being treated like a “peon”.

In 2018, the AAP government demanded LG’s approval for the proposal for doorstep delivery of rations and also demanded grant of complete statehood for Delhi and installation of CCTVs. Baijal did not approve both the demands directly and further complicated the process. Kejriwal stated that the LG rejected the demands over “petty-politics”.

In June 2018, Delhi CM Arvind Kejriwal sat in a nine-day long hunger strike at the Lieutenant Governor’s office against the “strike” by IAS officers and Kejriwal wrote to Prime Minister Narendra Modi, requesting him, “with folded hands”, to intervene and end the agitation of the IAS officers.

The Aam Aadmi Party argues that the BJP is hell bent on ruining efficient governance of Delhi through the LG. Critics believe that the tussle has failed the federal system of our Democracy.

Chief Justice Dipak Misra, Justice Sikri and Justice Khanwilkar, in their written opinion devoted a significant portion to explain the understanding of federalism, and its fusion with democracy to achieve an “egalitarian social order”. According to our Constitutional scheme neither the States isolated islands, with their distinct vision, nor the Union government can make decisions that are meant to affect the interests of the States. The Chief Justice highlighted that there should be a sincere effort to avoid conflict and not encroach on each other spheres in a collaborative framework of federalism. To exercise authority, “there should be perception of mature statesmanship so that the constitutionally bestowed responsibilities are shared by them.” To attain the ideal balance in a federal structure, the Chief Justice suggested the Union and the States to have “mutual respect and deference to actualise the workability of a constitutional provision.”

Collaborative federalism involves healthy negotiation and coordination between the Union and State governments to ensure that the governance works within the circumference of the Constitution and in harmony.

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