Monday, June 14, 2010

Kyrgyzstan: The road from “Mobocracy”, to Constitutional Reform

by M. Ulric Killion

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Armoured vehicles arrive in Osh, in southern Kyrgyzstan, after rioting in the city. Photograph: Reuters.

In an earlier article entitled Democracy on Trial: From Kyrgyzstan and “Mobocracy”, to China and “Proletariat Democracy” (2010), this author characterized the on-going plight (or violence and rioting) in the Republic of Kyrgyzstan as a challenge to the ideal of democracy. In the context of Kyrgyzstan, the article further explored the issue of whether Kyrgyz politics via “the mob” ultimately constitutes or represents “mobocracy” or “democracy in action.”

The test of Kyrgyz politics via “the mob” apparently still represents an on-going crisis for the citizens of Kyrgyzstan. As news sources are reporting a new round of violence and rioting in Kyrgyzstan, the world may be witnessing the continuing repercussions or even after shock of “mobocracy” and its inherent, inevitable forces of instability. 

On June 11, 2010, news sources were reporting that the government of Kyrgyzstan deployed soldiers and armoured troop carriers on to the streets of Osh, the “second city.” Following clashes that left at least 39 persons dead and more than 600 injured, the deployment of military force was necessary to quell the on-going violence and rioting (Kyrgyzstan declares state of emergency as 45 killed, Guardian, June 6, 2010).

The transitional government now in place declared a state of emergency in four southern regions. This is the same transitional government that took power after ousting then President Kurmanbek Bakiyev in a seemingly popular revolt, or simply, his ousting by “mob rule.”

Apparently, following the ousting of President Bakiyev in April, violence and/or rioting, though on smaller scale than before, continued to plague the Republic of Kyrgyzstan. Media sources (Guardian, 2010; Kyrgyzstan looks to Russia for help in quelling violence, Deutsche Welle, June 12, 2010), however, in terms of the degree of continuing violence and rioting, are characterizing the violence and rioting as the most serious since the institution of the new government by “mob rule.” This is the newly installed government that former diplomat Roza Otunbayeva, as the interim-Kyrgyz leader, continues to lead.

In the interim, and presenting additional challenges to Kyrgyz politics, the newly constituted government by “mob rule’ is also seeking to amend or rewrite the constitution of Kyrgyzstan (See Larry Catá Backer, Form and Function in Constitutionalism--Diverse Perspectives on the Kyrgyzstan Experience. Law at the End of the Day, June 6, 2010; discussing the Decree of the Provisional Government of the Kyrgyz Republic on the Referendum (Nation wide vote) on adoption of the New Constitution of the Kyrgyz Republic and Draft Constitution.).

As mentioned in an earlier article (Democracy on Trial, 2010), “the 1993 constitution of Kyrgyzstan actually defines the form of government as a democratic republic.” Nonetheless, and despite constitutional language prescribing a democratic republic for Kyrgyzstan’s government, as Larry Catá Backer (Form and Function in Constitutionalism, 2010) explained, “Fresh from the overthrow of their former ruler, the people of Kyrgyzstan people have also sought to replace their constitutional framework as well”.
When discussing the proposal to amend or totally replace the 1993 constitution of Kyrgyzstan, Backer (Form and Function in Constitutionalism, 2010) writes:
Americans (and now Europeans) love constitution making.  The formalism of the process and the fact of the elaboration of an institutional apparatus of government--and its embrace of rule of law (process and substance)--has been one of the great missions of the Americans at least since 1945.  See, Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century. Mississippi Law Review, Vol. 27, 2008. The constitutional document has now acquired extraordinary symbolic meaning for Europeans and Americans, evoking everything from the notion of sovereign consent memorialized to the ceremonials of the articulation and vesting of sovereign authority on the representatives of the body corporate the embodies the state. . . .
Backer (Form and Function in Constitutionalism, 2010) also opines, “And this new Kyrgyzstan version, like its predecessors, is likely to represent an excellent version of the standard model third generation constitutionalism.” By so characterizing the potential of constitution reform, Backer also provides us with a more positive and forward-looking approach concerning what is transpiring in Kyrgyzstan. 

Otherwise, observers of Kyrgyz politics, especially recent actions via “the mob,” are seemingly only left with the dilemma of attempting to reconcile “mobocracy” with genuine “democracy in action,” though admittedly a seemingly backward-looking rather than forward-looking approach. In this respect, Backer rightly observes that the potential of constitution reform, especially what he hails a third generation  model of the constitution, could provide an impetus for moving forward and beyond pending crises. 

A problem remains, however, with the environment for reform, especially constitutional reform. This is because those advocating constitution reform do so in a socio-political environment plagued with violence; i.e., from the violent usurpation of power or the ousting President Bakiyev by “the mob”, to the most recent outbreak of violence and rioting. 

This socio-political environment also encompasses serious clashes between two ethnic groups, which were a core source of the spark for a new round of violence and rioting in Osh, the “second city.” There are also the more subtle external influences, such as the geo-political tug of war between the United States and Russia; both of which have military bases in this central Asian country. 

Moreover, one suspects that a greater problem for constitutional reform will be the on-going clashes between ethnic groups. This is because constitutional government erects on the consent of the people, rather than by force or coercion; i.e., the deployment of soldiers and armoured troop carriers. 

Employing the most simplistic terms, one could say that somewhere lying at the core of a democratic constitutional form of government are two key ideas: consensus building and compromise. Both of which are essentially core Western sentiments lying at the heart of ideal democracy.

A potential problem, however, might be clashes between ethnic groups, which generally only serve to exacerbate respective tensions, rather than enhancing consensus building between clashing ethnic groups. In other words, addressing the problems of consensus building and ultimately resolving the crisis of pluralism becomes critical to constitutional reform.
 
For instance, this also serves as reminder of Hugo Grotius’s earlier thesis of “overlapping consensus” of diversity in worldviews based on natural law, in his On the Laws of War and Peace (De jure belli ac pacis libri tres, 1625), though a thesis that also earlier  begins to take form in his De Indis and the Meletius. There is also John Rawls and his more recent thesis of “overlapping consensus,” in his Political Liberalism (1995). Many actually argue that Grotius anticipated Rawls with his earlier thesis of “overlapping consensus.” 

The genius of Grotius lies in what many characterize as his “Grotian liberal consensus,” which, in essence, theorizes a solution to the problem of pluralism. He uniquely theorized the resolution of religious conflict by reducing religion to ethics, while at the same time leaving religious beliefs diverse, and then seeking to show Christians of different sects that it was possible. It is essentially by this means that Grotius allows liberalism to resolve the problem of pluralism, or simply, his localization of theological barriers to a Grotian liberal consensus. 

For Rawls, however, an “overlapping consensus” was critical simply because those holding comprehensive moral views must necessarily seek a common ground for reaching consensus about principles of justice. In terms of the liberalism of Rawls, this meant that the successful localization of liberalism (or liberal constitutionalism) remains contingent on a social unity and concord that requires agreement on a general and comprehensive religious, philosophical or moral doctrine. 

Granted, these are only small samplings of the thoughts of both Grotius and Rawls, and equally small samplings of Western literature addressing the problem of pluralism. Nonetheless, in the context of Kyrgyzstan, these brief introductions to the thoughts of both Grotius and Rawls, more importantly, serve to demonstrate the critical issue of consensus building and the attendant potential problem of clashing ethnic groups. 

Then there is the issue of a new constitution. As constitution-writers draft a potentially new constitution, we should be reminded first and foremost that we are talking about a written document.  This is important to understand, because the meaning and legitimacy of a written constitution derives not from the document (i.e., the written constitution) itself, rather from the sort of consensus on religious, philosophical or moral doctrines that both Grotius and Rawls sought. 

This is also in large part due to Joseph de Maistre’s earlier thesis that, “The fundamental principles of a political constitution and constitutional law “exist before all written law,” as the development of “an unwritten preexisting right” that is “intrinsically constitutional, and truly fundamental,” but “never written, and could not be, without endangering the state”; and “the weakness and fragility of a constitution are actually in direct proportion to the multiplicity of written constitutional articles” (M. Ulric Killion, “Building-Up” China’s Constitution: Culture, Marxism, and the WTO Rules, Loyola of Los Angeles Law Review, Vol. 41, No. 2, 563 (2008); Joseph de Maistre, Essay on the Generative Principle of Political Constitutions and of other Human Institutions, The Works of Joseph de Maistre (1809)).

All of these forces will eventually influence the shape or form of constitutional reform. Kyrgyz politics and the socio-political environment of Kyrgyzstan will especially influence the success or failure of constitutional reform. Additionally, a question that remains is whether Otunbayeva, as the interim-Kyrgyz leader and a former teacher of Marxist-Leninist theory, can truly embrace Western mores, especially Western constitutional mores. 

At the end of the day, whether one is attempting to reconcile “the mob” or “mobocracy” with “democracy in action”, or whether one is anticipating constitutional reforms reflective of Western ideal constitutionalism and democracy, the world is relegated to a game of “wait and see.” In the end, as for what will actually transpire because of the new constitutional reform movement presents a host of other issues that we have yet to explore. 

Again, for now the world will just have to “wait and see” when and how Kyrgyzstan and its unique variety of politics will move beyond now seemingly perennial civil unrest without actually having to resort to violence in quelling violence on the streets. It is for this reason that the interim government of Kyrgyzstan may find itself struggling to shed the stigma of “the mob” or “mobocracy,” notwithstanding successful constitutional reforms moving the country beyond pending crises. All of this also makes the journey from “mobocracy” to constitutional reform an arduous one.

Copyright © Protected - All Rights Reserved M. Ulric Killion, 2010.

Friday, May 7, 2010

Freedom for Darfur – The Lafayette Park Protest

by M. Ulric Killion

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Political Protest at Lafayette Park, in Washington, D.C., April 30, 2010; Photo by M. Ulric  Killion.

During a recent visit to Washington, D.C., a small gathering of people (i.e., about 20 individuals) came to one’s attention when walking along Pennsylvania Avenue on the section of the road separating the entrance to the White House and Lafayette Park, which is a public park that is historically known as a place of political protests. From across the street and in the near vicinity of Lafayette park one could hear speakers with microphone in hand addressing the issue of Darfur and its recent elections. 

The general concern of the speakers was rigged elections (i.e., Sudan ended on Thursday, April 15, its five-day elections), and bringing this issue to the attention of the public, especially the Obama administration. Pausing for only a few minutes to listen, it was difficult to ascertain the names of the speakers. It was, however, obvious that some of the speakers were Darfur citizens or at least former Darfur citizens, as some actually gave testimony of eyewitness accounts of what was happening in Darfur. For instance, one speaker giving testimony of eyewitness accounts couched his plea for U.S. assistance in the language of a denial of democracy. 

There were also in attendance at least one non-governmental entity, and perhaps even more. Having listened to one speaker that was associated with an NGO, it seems reasonable to suspect there were representatives of other NGOs also present. The present memory lapse is due to the fact that this peaceful assembly or protest actually took place on April 30, 2010.
 
However, after witnessing this protest, though a small gathering, one can say it became a self-appointed mission to ascertain what occurred in Darfur, and the significance of the elections. Apparently, the perception by many of rigged elections is having a devastating influence on peace talks and stabilizing the region. 

“Darfur’s main rebel group,” as the Voice of America (Darfur JEM Rebel Group Risks Losing Dominance, May 3, 2010) reported, “may risk losing its dominance in the region, as Chad ends support and rival rebel coalition gains strength.” Further reporting, on May 3, 2010, the “JEM – the Justice and Equality Movement – officially suspended peace talks with the government, following months of stalled negotiations. JEM has also accused the government of attacking its positions in western Darfur.”

As concerns the JEM’s suspension of peace talks, E.J. Hogendoorn, the Horn of Africa director for the International Crisis Group (ICG), said: “My initial reaction is that the JEM has been frustrated by the fact that Khartoum has been talking to other rebel factions; and it is now trying to put pressure on the government to deal more seriously with them.” 

Then there is the issue or allegation of rigged elections. “The talks have been stalled in large part,” as Hogendoom explained, “because most of the people were focused on the elections.  And I think that there was some perception that once the elections were completed there would be further movement along the talks.  But that hasn’t happened” (Voice of America).
 
It is also difficult to ascertain whether there were fair or rigged elections. This is because there are many that also alleged rigged elections even before the casting of the first vote. 

On the other hand, the Carter Center opined that the elections in Darfur met neither national nor international standards (Darfur elections do not meet national and international standards, Sudan Tribune, April 18, 2010).
The observations of the Carter Center also correspond with the official position of the White House or the Obama administration. For instance, an excerpt from a White House press release reads: “The United States notes the initial assessment of independent electoral observers that Sudan’s elections did not meet international standards. Political rights and freedoms were circumscribed throughout the electoral process, there were reports of intimidation and threats of violence in South Sudan, ongoing conflict in Darfur did not permit an environment conducive to acceptable elections, and inadequacies in technical preparations for the vote resulted in serious irregularities” (White House, Office of the Press Secretary, Statement by the Press Secretary on Elections in Sudan, April 20, 2010).

All of this only compounds the difficulty of understanding the nature and ultimate goal of the protest at Lafayette Park, especially the action that the protesters would like the Obama administration to pursue. 

Additionally, one does not intend to over simplify the issue of peace talks in Darfur. This is because it is a complex issues involving several political factions and tribes (i.e., the JEM, the Sudan Liberation, and Justice Movement), and even pending arrest warrants issued by the International Criminal Court against President Bashir, which charge him with war crimes and crimes against humanity in Darfur. 

For now and as concerns the significance of the elections, in the interim, as the issue of rigged elections became a dominant issue much-needed peace talks virtually came to a halt. 

Copyright © Protected - All Rights Reserved M. Ulric Killion, 2010.

Saturday, May 1, 2010

Federal Reserve continues low interest rate

by M. Ulric Killion

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Federal Reserve System headquarters, Washington, DC; Photo by M. Ulric Killion. 

In Washington, on April, 28, 2010, the Board of Governors of the Federal Reserve met and while confirming an earlier assessment of the Federal Open Market Committee also reaffirms a commitment to a low interest rate. The Board of Governors, in its April 28, 2010 public statement, announced: “The Committee will maintain the target range for the federal funds rate at 0 to 1/4 percent and continues to anticipate that economic conditions, including low rates of resource utilization, subdued inflation trends, and stable inflation expectations, are likely to warrant exceptionally low levels of the federal funds rate for an extended period. The Committee will continue to monitor the economic outlook and financial developments and will employ its policy tools as necessary to promote economic recovery and price stability” (FOMC Statement, April 28, 2010).

In other words, for the Board of Governors, though admittedly not a unanimous consensus, generally key economic indicators not only substantiated earlier 2010 data, which were the indicators available to the Federal Open Market Committee in March, but also present an optimistic picture for continuing economic recovery.

The actual April 28, 2010 vote on the adopted FOMC monetary policy action would have been unanimous except for the dissenting vote by board member Thomas M. Hoenig. According to the April 28 press release, Hoening voted against the FOMC monetary policy action because he “believed that continuing to express the expectation of exceptionally low levels of the federal funds rate for an extended period was no longer warranted because it could lead to a build-up of future imbalances and increase risks to longer run macroeconomic and financial stability, while limiting the Committee’s flexibility to begin raising rates modestly.”

Hoenig’s reservations or pessimism would not carry the day, however. This is because the other board members, such as Ben S. Bernanke, Chairman; William C. Dudley, Vice Chairman; James Bullard; Elizabeth A. Duke; Donald L. Kohn; Sandra Pianalto; Eric S. Rosengren; Daniel K. Tarullo; and Kevin M. Warsh voted for the FOMC monetary policy.

Additionally, according to the FOMC Statement, and reflecting what these board members perceived as optimistic economic indicators, “the Federal Reserve has closed all but one of the special liquidity facilities that it created to support markets during the crisis. The only remaining such program, the Term Asset-Backed Securities Loan Facility, is scheduled to close on June 30 for loans backed by new-issue commercial mortgage-backed securities; it closed on March 31 for loans backed by all other types of collateral.”

Copyright © Protected - All Rights Reserved M. Ulric Killion, 2010.

Saturday, April 17, 2010

Democracy on Trial: From Kyrgyzstan and “Mobocracy”, to China and “Proletariat Democracy”

by M. Ulric Killion

Deadly anti-government unrest rocked the Central Asian nation of Kyrgyzstan, a former Soviet republic, April 7, 2010. Thousands of protesters stormed the main government building, set fire to the prosecutor’s office and took over state television. Police responded by opening fire on demonstrators, killing dozens. Here a protester kicks an injured police officer captured by demo.nstrators in the capital, Bishkek. (Ivan Sekretarev/AP Photo).

1. Introduction
 
The recent events in the Kyrgyz Republic (“Kyrgyzstan”) are disconcerting, especially for what hails as ideal Western democracy. What occurred in Kyrgyzstan or in Kyrgyz politics via “the mob” serves as a reminder that the road to democracy is sometimes an arduous journey. Moreover, the well-intended on the road to democracy will often make a wrong turn. It is not that the “other world” is perfect, as equally true of democracy as a model of governance; it is just that what transpired presented a shocking picture to the world of a regime change in government via “the mob.” 

The question of democracy and what it means are critical issues of our times. This is because the democratic ideal has taken on many shapes and forms by various polities throughout the world. In terms of modern society, or even post-modernity, the historiography of democracy now witnesses many shapes and forms of what hails as democracy. These are now many new translations of the democratic ideal that extend far beyond the historical origins of democracy, or its Western origins in Ancient Greece or Athens. 

For instance, the cases of Kyrgyzstan (i.e., “mobocracy”) and the People’s Republic of China (“China”) (i.e., “proletariat democracy”), though a small sampling, illustrate the variety of democracies that exists throughout the world. The examples are many. One could even arguably add the United States and its use of military force (i.e., Iraq invasion) as an example of the variety of democracies, and perhaps even as an example of what a democracy ought not to do. The U.S. model, however, still fares well when measured against other models, such Kyrgyzstan and China. Nonetheless, and more importantly, the variety of democracies in both Kyrgyzstan and China are in stark contrast to Western ideal democracy, thus, presenting exemplar examples.

2. Kyrgyzstan and “mob rule”

In the case of Kyrgyzstan, on April 7, 2010, there is the recent political crisis of the government of Kyrgyzstan. After large-scale protests (by deadly force) that appeared to have overthrown the government of Kyrgyzstan, the following day a transitional government declared that it was now in charge, though Kyrgyzstan president Kurmanbek Bakiyev still maintains (via Moscow radio interview) that he enjoys widespread support among the Kyrgyz people even after fleeing the country.

In the interim, or perhaps even pending further crises, Roza Otunbayeva, a former diplomat and former teacher of Marxist-Leninist theory before supposedly embracing Western mores, is serving as the interim-Kyrgyz leader. On April 8, 2010, during a news conference in Bishkek, Otunbayeva notably declared: “You can call this a revolution. You can call this a people’s revolt,” she said. “Either way, it is our way of saying that we want justice and democracy” (Clifford J. Levy, Opposition in Kyrgyzstan Says It Now Holds Power, New York Time, Apr. 8, 2010).

Additionally, as concerns Kyrgyz politics, the 1993 constitution of Kyrgyzstan actually defines the form of government as a democratic republic. As for this variety of so-called democracy, Joshua Keating (It’s Not a Revolution, Foreign Policy, Apr. 7, 2010) rightly observed, “Whatever just went down in Kyrgyzstan, one thing is clear: this isn’t how it was supposed to happen.” For these reasons, on this day in history, Kyrgyz politics via “the mob”, actually, begs the question of whether this is “mob rule” or democracy in action.

3. China and “proletariat democracy”

Then there is the case of China and its proletariat variety of democracy, or simply, its “proletariat democracy”. Before the founding of the People’s Republic of China in 1949, during an earlier period, between 1940 and 1949, the Chinese communists, now the Chinese Communist Party (CCP), demanded democracy. This was a practical consideration, however, because a grassroots democracy would help the communists struggle through military campaigns, while also enabling them to politically pursue legitimacy. In 1946, Mao Zedong actually offered democracy as the means to stop the historic cycle of dynastic change.

After 1949 and the founding of modern China, however, China’s polity, the CCP, embraced and remains steadfast to the misnomer of socialist democracy. In other words, and more particularly, it is a proletarian democracy that is “guaranteed by the people’s democratic dictatorship” rather than Western-style democracy. A distinguishing and much-criticized characteristic of China’s one-party model of democracy, socialist democracy or “proletariat democracy” is that neither national leaders (i.e., president, vice-president, etc), nor members of the National People’s Congress (“NPC”) are subject to election to office by an electorate (i.e., the casting of votes by ordinary citizens).

Moreover, the ongoing trial of democracy in Hong Kong may eventually serve as the test of the potential for “full” democracy and universal suffrage in China. This is because, since China resumed sovereignty over Hong Kong in 1997, there are many, such as Hong Kong’s two pro-democracy parties and frustrated pro-democracy politicians, still awaiting an earlier promise of universal suffrage.

Hong Kong’s struggle for “full” democracy and universal suffrage may also serve as a litmus test for others, such as Tibet, Macau, and Taiwan, notwithstanding the image that China intends to project in the international community. It is also notable that Taiwan, like Hong Kong before 1997, presently enjoys a “full’ democracy and universal suffrage. For this reason, there are many that also perceive the test of democracy as ultimately the test of China’s “One country, two systems” principle.

4. From “mobocracy” to “proletariat democracy”

The concept of democracy is, admittedly, a Western ideal with an etymology that has origins in Western culture. For instance, the original lexicon for democracy dates to two words from the Ancient Greek language: First demarchy, then democracy. When constructing a lexicon representative of the ideal of government by the people, ancient Greece culture would have to conjoin the word demos (for the people) with one of two verbs for power, which are Kratos (or the verb kratein) and archein. While the verb archein is already in usage by compound words such as monarchy, oligarchy and anarchy, the verb kratein is also problematic because it was thought to denote brute force rather than government by rule (U. Killion, Modern Chinese Rules of Order, 2007; F. A. Hayek, Law, Legislation and Liberty, Vol. III, 1973-79).

Additionally, in ancient Greece, the root or verb archein and the resulting noun of demarch (or demarchy) as a means to express rule by the people could not be used, at least in Athens, because the term demarch was already used to describe the office of the head of a local group (or district), the deme (Killion, 2007; F. A. Hayek, 1973-79). The lexicon of democracy rather than demarchy, eventually came to represent government by the people.

During a modern era, democracy further evolved into the distinction between direct and indirect democracy or a republican form of government. Democracy also further evolved into models contra distinguishable from its historical origins; such as the widely ranging examples from a modern  “mobocracy”, to a modern “proletariat democracy.”

a. “Mob rule” or democracy in action?

The case of Kyrgyz politics via “the mob” presents issue of whether there can be positive relationship between Western ideal democracy and “the mob.” Generally speaking, it is difficult to justify “mob rule” as a tool (or means) to promote democracy. Mob rule is problematic for obvious reasons. This is because the concept of “the mob” is contra distinguishable to the ideal of democracy. In modern times, “mob rule” represents the decline rather than fostering of democracy.

The concept of “the mob”, as Jerzy Chlopecki (The Decline of the Democracy. The Mob and its leaders, Thought, Aug. 24, 2009) explained, “was introduced into the social science by Hannah Arendt. It was exactly the mob that constituted the social basis for fascism.”

Arendt’s definition or understanding of concept of “the mob” clearly challenges the idea of a modern “mob” (i.e., “the mob”) being capable of actually promoting democracy. When discussing the problems of “the mob”, especially its eventual and inevitable promotion of a problematic demagogue (i.e., “an actor who first of all manipulates the feelings of others and plays his part on the scene-rally” such as Hitler and Stalin, though “dramatically opposed types of demagogic leadership”), Chlopecki also wrote:
If this mob was actually a group – as put it Arendt – it means that there must have existed a kind of link that would unite its members. Otherwise, we would observe a loose collectivity. But what could unite those “outcasts of all classes”? This binder was not composed of common values or even of awareness of common interest. It was nothing rational, what could be discussed, reconciled or compromised on. The binder was constituted by the mixture of negative emotions: frustration, xenophobia, irrational expectations, low instincts and feelings of helplessness. But above all it was constituted by hatred as it is next to fear one of the strongest emotions. Thus hatred and fear unite the mob in a group that can speak collectively. The mob gathered under the banner of negative emotions that by definition cannot be “agreed on”.
. . . .
The acceptance of democratic norms depends on the level of personal confidence and sophistication. The less one is sophisticated and level-headed, the more probable that he will opt for simplified political vision. He will either understand the essentials of tolerance towards people who he disagrees with and he will have difficulties in understanding or tolerating the gradual political changes” (S. M. Lipset 1995: 121).
. . . .
The mob needs an enemy to hate somebody. The mob rejects also an acknowledged and legitimate authority clearing the ground for a demagogue to appear.
For these reasons and other reasons set forth in his short writing, Chlopecki, after first characterizing “mob rule” as “mobocracy”, contends, “The mobocracy does not derive from democracy itself, but from its decline.” In addition, just as the examples of Hitler and Stalin presented “dramatically opposed types of demagogic leadership”, the examples of Kyrgyzstan and “mob rule” and China and its “proletariat democracy” also present contrasting forms of democracy, which are also in stark contrast to Western ideal democracy.

b. “Proletariat democracy” or democracy in action?

Since the 1949 founding of modern China, the polity has denied universal suffrage in the election of national offices (i.e., president, vice-president, etc) and the national legislative body. As a direct consequence, neither Mao Zedong, nor Deng Xiaoping, or subsequent leaders have tried real democracy such as a democratically-elected legislature or National People’s Congress (“NPC”).

One could mince words and proclaim there is suffrage at local levels for local elections, but this is not the same as citizens enjoying “full” universal suffrage or the “right to vote.” In other words, political participation, though only a diffuse mass loyalty or mass democracy, as Jürgen Habermas, in his Legitimation Crisis (1975), earlier explained, with citizens enjoying the right to withhold acclamation.

China’s polity or its “proletariat democracy” has yet to allow universal suffrage (i.e., the political franchise), as the world well knows. The justifications are many, as politicians continue to mince their words. So what are the justifications for continuing one-party rule by the Chinese Communist Party (CCP)?

During a September 2000 interview, then China president Jiang Zemin, when explaining why there was not universal suffrage, said, “The quality of our people is too low.” On February 27, 2007, China’s premier Wen Jiabao, in a written response to reform debates appearing in the People’s Daily, cautioned impatient reformers who were urging that political reforms will enhance transition to a market economy, that political liberalization and democracy are a “distant goal” (Killion, 2007).

Wen Jiabao, and quoting Deng Xiaoping, also wrote that the essence of socialism is to “emancipate and develop productive forces, eliminate exploitation and polarization and eventually realize common prosperity.” Wen further announced, “China is and will remain in the primary stage of socialism for a long time,” which is an underdeveloped stage characterized by underdeveloped productive forces and a socialist system that is not yet perfect or mature.

Additionally, Wen wrote, “We are still far away from advancing out of the primary stages of socialism,” and suggest sticking with development guidelines of the primary stage for another 100 years. Wen also added, “The socialist system is not contradictory to democracy,” because “a highly developed democracy and a complete legal system are inherent requirements of the socialist system and an important benchmark of a mature socialist system” (Killion, 2007).

As of 2010, the Chinese citizenry still does not enjoy universal suffrage  (i.e., the “right to vote” for national office holders and the national legislative body or NPC).

China’s “proletariat democracy” presents an interesting parallel, paradox and even contradiction for the CCP and its one-party rule mechanism. This is because the mincing of words by party officials, though a small sampling of the justifications for denying “full” universal suffrage, seems, though implicitly, to acknowledge the need for democracy, especially “full” universal suffrage. Otherwise, the CCP would simply announce to the world that there will not be “full” universal suffrage in China.

In illustration, and as earlier mentioned, since China resumed sovereignty over Hong Kong in 1997, there are many in Hong Kong, such as Hong Kong’s two pro-democracy parties and frustrated pro-democracy politicians, that perceive Beijing as implicitly and/or explicitly denying them “full” democracy and universal suffrage.  

This also serves as reminder of the plight of the famous dissident and scholar Liu Xiaobo, who is currently serving a prison sentence in China. His crime was violating the notoriously, vague and broad-reaching “inciting subversion of state power” law. On December 25, 2009, at the Beijing No. 1 Intermediate People's Court, Liu was sentenced to 11 years 
in prison; thus, signaling that the CCP will continue to stifle domestic political critics, especially those who dare to organize their fellow Chinese.

In addition, the severity of Liu’s sentence was perceived as evidence “that political modernization might not go hand in hand with China’s economic modernization, contrary to past predictions by Chinese dissidents, U.S. business executives, political theorists and proselytizers of the Internet age.” (Steven Mufson, Chinese dissident Liu Xiaobo sentenced to 11 years on ‘subversion’ charges, Washington Post, Dec. 25, 2009).

According to Li Fan (Washington Post, 2009), director of the World and China Institute in Beijing, “You can think democracy, you can talk democracy, but you can’t do democracy.” For instance, Liu Xiaobo appears to have violated the “inciting subversion of state power”  law by trying to promote democracy through a series of articles and his participation with Charter 08. In the later, Charter 08, Liu was essentially calling for greater freedom of expression, human rights, and free elections.

What is troubling about Liu Xiaobo’s conviction is that the language he employed in his quest for democracy and universal suffrage parallels the mincing of words by party officials. This is because party officials never appear to explicitly deny that China will ever embrace “full” democracy and universal suffrage. They actually seem to recognize the need to assure citizens that “full” democracy and its attendant universal suffrage is forthcoming, but in the future, though not near future.

The language that Liu employed in his quest for “full” democracy and universal suffrage, actually, bears a striking resemblance to the rhetoric that party officials routinely employ. For Liu, however, usage of a similar rhetoric has presented problems.

For instance, there are many, including the party apparatus, who would later criticize Liu Xiaobo for saying, during a 1998 interview (Hong Kong’s Liberation Monthly, now Open Magazine), “(It would take) 300 years of colonialism. In 100 years of colonialism, Hong Kong has changed to what we see today. With China being so big, of course it would take 300 years of colonialism for it to be able to change to how Hong Kong is today. I have my doubts as to whether 300 years would be enough.”

This quote would haunt Liu for years to come, and even later resurfaces as evidence against him ((Liu Xiaobo, My 19 Years of Ties with “Open Magazine”), Open Magazine, Dec. 19, 2006”).

Liu’s words seem hardly distinguishable from party officials implicitly recognizing the need for “full” democracy and universal suffrage, though at a much later date. How are we to distinguish between Liu saying it will take 300 years for change, and party officials also saying it will take years to change? As earlier mentioned, while Jiang Zemin earlier said, “The quality of our people is too low”, Wen Jiabao wrote “that political liberalization and democracy are a ‘distant goal.’”

As for what Mr. Wen meant by a “distant goal,” Wen wrote, “We are still far away from advancing out of the primary stages of socialism,” and then suggested sticking with development guidelines of the primary stage for another 100 years. Wen also added, “The socialist system is not contradictory to democracy,” because “a highly developed democracy and a complete legal system are inherent requirements of the socialist system and an important benchmark of a mature socialist system” (Killion, 2007).

It seems reasonable to understand that Mr. Wen is suggesting that in about 100 years China will embrace “a highly developed democracy.”

Is it conceivable that Liu Xiaobo would now be a free man if he had said that China will change in 100 years? I don’t think so. Is it plausible that Mr. Wen would have been charged under the infamous “inciting subversion of state power” law if he had said China will change in 300 years? Again, I don’t think so.

Additionally, is there something that rhetorically distinguishes Liu Xiaobo’s call for greater freedom of expression, human rights, and free elections, from Wen’s promise of a “highly developed democracy”? In terms of pure language or rhetoric, there is no real distinction. This is because Liu, like many Chinese leaders (i.e., from Mao, to Wen), prognosticated democracy in the future.

The only rhetorical distinction, if any, lies in the fact that Chinese leaders routinely assure citizens that eventually democracy is forthcoming, though not in the near future, but, and borrowing from Mr. Wen’s words, a “distant future.”

For these reasons, at the end of the day, the case of Liu Xiaobo is troubling, mostly due to what the case says about the plight of democracy in China, especially the lack of genuine democracy in action. This is because Liu’s case demonstrates that the greater issues are power (i.e., coercion), politics (i.e., one-party rule), feigned legitimacy, and a feigned representation of the people or citizenry (i.e., the lack of genuine political participation by the people).

The earlier mentioned example of the test of democracy in Hong Kong clearly demonstrates this socio-political reality. In Hong Kong, the crisis for democracy presents critical issues, as Robert Keatley (Universal Suffrage Remains the Goal—But not yet in sight, Hong  Kong Journal, Apr. 2010) explained, which are “how to adopt electoral reforms that could move it closer to a Beijing-promised ‘ultimate’ goal of universal suffrage—or whether the reform process will stop, perhaps permanently.”

The present crisis presents, and borrowing from the words of Keatley, “a system nobody loves.” The current politic issue, Keatley (2010) writes, “concerns how to change the rules governing scheduled 2012 elections to fill all seats in the Legislative Council (Legco) and select a new chief executive; Donald Tsang, the current government head, cannot run again. The central government has said that winners of subsequent elections—for chief executive in 2017 and all Legco seats in 2020—might be decided by universal suffrage, but only if the rules for 2012 are revised first to expand the electoral base modestly.”

A problem for pro-democracy forces is that, “Without such interim changes, Beijing won't promise when (if ever) the one person, one vote goal will be reached, only that there will be delays. The short-term goal, it appears, is to strike a deal that gives the impression that political reform is continuing, but without risking the possibility that Hong Kong might elect a government willing to question Chinese policies. (There will, in fact, be an earlier legislative election in 2016 but presumably any 2012 rule changes would apply.)” (Keatley, 2010).

In the interim, “Hong Kong’s frustrated pro-democracy politicians want a firm Beijing pledge that it will introduce universal suffrage for 2017 and 2020 before they agree to any interim reforms. They also want a promise to abolish “functional constituency” elections—voting by special interest groups—which select half the legislators, and who generally vote the pro-government line. (By one estimate, this system allows 1 percent of the voters to fill half the Legco seats.).”

As for Beijing’s perspective, China “won't promise anything until it sees how the 2012 negotiations are concluded, and adds that the Hong Kong government isn’t authorized to strike any deal on its own.” All of this resulted in an impasse. From Beijing’s perspective, the demands of pro-democracy politicians are excessive.

According to Keatley (2010), “Beijing’s fundamental objections aren’t about negotiating tactics; instead, they reflect deep distrust of Hong Kong’s pro-democracy politicians, whom officials say lack the “patriotism” and “loyalty” needed for high office and whom they sometimes suggest are working for foreigners against China’s national interests. Basically, Communist Party cadres seem to fear that open voting might elect office-holders difficult for them to control.”

Then there is the inherent contradiction of China’s “proletariat democracy.” Karl Marx and Frederick Engels, as Karl Kautsky (an editor of the fourth volume of Das Kapital) explained, found neither a democratic republic nor democratic parliamentary republic as objectionable. Engels, actually, had in mind a democratic parliamentary republic when writing A Critique of the Draft Social-Democratic Program of 1891 (Zur Kritik des sozial-demokratischen Programmentwurfes 1891).

As Engels observed, “If one thing is certain it is that our party and the working class can only come to power under the form of a democratic republic. This is even the specific form for the dictatorship of the proletariat, as the Great French Revolution has already shown” (Killion, 2007).

Indeed, Engels had a democratic parliamentary republic in mind, when he added that under all circumstances the program must include “the demand for the concentration of all political power in the hands of a representative assembly of the people” (Killion, 2007). In other words, the practices of China’s polity, especially the denial of both a genuinely democratic republic or democratic parliamentary republic and “full” universal suffrage, stands in denial of its own foundational beginnings or ideologies.

This also begs the question of what does the denial of “full” democracy and its attendant universal suffrage have to do with Marxism, notwithstanding a mincing of words by party officials that address what many deem a discredited Marxist theory of history (Robert Skidelsky, What’s Left of Marxism, New York Times, Nov. 16, 2000, Book review: 
“Karl Marx” by Francis Wheen).

When earlier describing, and borrowing from the title of his article, What’s Left of Marxism?, Robert Skedelsky wrote:
First to be discredited, at least in the developed world, was the prediction that capitalism would implode; with that went the collapse of the revolutionary political project. Capitalism has had periods of crisis but has failed to produce mass pauperization; it could be reformed without self-contradiction. Apart from this, the appeal of communism was dimmed by the economic inefficiency and terroristic methods of the actual Communist regimes established in Russia and China. The dynamism of capitalism and decrepitude of the USSR finally put paid to Marx’s theory of history: there was no dialectic in capitalism which leads to its supercession by socialism.
Alternatively, and more to the point, in an article also titled, What’s left of Marx?, Ronald Suny (University of Michigan) succinctly observed that:
. . . At its best moments, from its origins to its present dismal state, the struggle for socialism has been fundamentally about a struggle for democracy - the extension of empowerment to the greatest number of people. The commitment to democracy, however, was repeatedly compromised by political expediencies, the imperatives of gaining and holding state power, and the usurpation of socialism’s aspirations by self-serving politicians (Office hours: Professor’s column, What’s left of Marx?, by Ronald Suny, Michigan Daily, Sept. 2007).
Granted, party officials when mincing their words may speak of the Sinicization of Marxism, but, and problematic for the CCP, the party can only Sinicize Marxism to a limited degree, lest the party might find itself totally astray of its foundational beginnings or ideologies. The latter would only inevitably present yet another challenge to the legitimacy of the CCP’s one-party rule mechanism.

In the interim, China’s polity continues to deny “full” democracy (i.e., a democratic republic or democratic parliamentary republic) and the “right to vote” (i.e., universal suffrage) for national office holders and members of the NPC. To-date, one-party rule by the CCP continues.

5. Conclusion

The aforementioned reasons demonstrate that Western ideal democracy and its attendant universal suffrage (i.e., the “right to vote”) has taken on many shapes and forms by various polities throughout the world. Problematic are those shapes and forms that veer so far from the ideal model that they represent neither democracy nor universal suffrage. This is also true in the cases of the earlier discussed exemplars of contrasting models, which are Kyrgyzstan and its “mobocracy”, and China and its “proletariat democracy.”

Lying at the heart of the problem is that in the post-Cold War era (i.e., after 1991), concept misinformation became an increasing phenomenon. In other words, there are now many non-Western and developing countries demonstrating a proclivity to employ Western notions of democracy and constitutionalism in description of a diverse range of social and political phenomena, including different theoretical approaches and models (M. U. Killion, “Building up” China’s constitution, Loyola of Los Angeles L. Rev, Vol. 41: 563, 2008).

As a result, the world is witnessing China’s polity remaining steadfast to one-party rule, while denying “full” universal suffrage, and Kyrgyz politics via “the mob,” or simply, “mob rule” or “mobocracy.” All of this ultimately demonstrates a crisis for democracy throughout the world, and host of related problems ensuing from the denial of genuine democracy; such as the legitimacy of governments, the potential for greater oppression in the world by non-democratic governments, and the struggle for human rights of individuals that non-democratic governments would deny. In the end, neither Kyrgyzstan and its “mobocracy”, nor China and its “proletariat democracy” represent genuine democracy in action.

Copyright © Protected - All Rights Reserved M. Ulric Killion, 2010.

Monday, March 22, 2010

Angel Gurria, OECD Secretary-General, revives forgotten idea of free trade – The Multilateral Investment Treaty

by M. Ulric Killion  

On March 10, 2010, in Washington, D.C., Angel Gurría, Organisation for Economic Co-operation and Development (OECD) Secretary-General, presented a speech at “The United States Council for International Business (USCIB) Conference.” His speech may revive a seemingly forgotten idea of free and fair trade. This is because Gurria’s speech addressed the issue of a Multilateral Investment Treaty (Angel Gurria, The global economy and the global investment agenda - an OECD perspective, March 10, 2010). 

During the fifth ministerial conference of the World Trade Organization (WTO) in Cancun, on September 10-14, 2003, the earlier beginnings of what could have been a Multilateral Investment Treaty seems to have suffered a certain death. The earlier Cancun-ministerial conference stands out for most WTO observers as the collapse of much-needed trade negotiations, and a conference that ends without a consensus. Many earlier perceived the Bretton Woods Institutions and there attendant development polices for developing countries and economies as one of several causes nearly bringing a collapse to progress on the Doha Development Agenda, though an agenda still struggling toward fruition (M. Ulric Killion, China and Neo-liberal Constitutionalism, Global Jurist Frontiers, Vol. 3 [2003], No. 2, Article 3).

During this period, or during the Cancun-ministerial conference, then Chairperson Luis Ernesto Derbez attributed the lack of consensus to members remaining entrenched on several trade-related issues. Derbez observed this to be especially true on what are described as the “Singapore issues,” which are issues addressing trade and investment, trade and competition policy, trade facilitation, and transparency of government procurement.

The namesake “Singapore issues’ stems from the fact that the first time these critical trade issues were set on a WTO agenda is doing the 1996 Singapore ministerial conference, which was also the first WTO ministerial meeting. The most vocal proponent of these issues has always been the European Union (EU) (Killion, 2003).

Before 1996, the European Commission (EC) strongly lobbied to introduce a foreign investment treaty or Multilateral Investment Agreement (MIA) into the WTO regime. Their lobbying efforts were strongly supported by Canada and some Northern countries. During the 1996-Singapore ministerial conference, the EC was seeking approval or at least a concerted interest in a WTO working group on the principle of a MIA. All of which was intended to promote their hope of fostering the first step toward actually negotiating an agreement or a MIA (Martin Khor, The WTO and the Proposed Multilateral Investment Agreement: Implications for Developing Countries and Proposed Position, 1996).

The EC initially envisioned a MIA granting rights to foreign companies to establish themselves with 100 percent equity across all sectors in any WTO-member state, without restrictions, and while enjoying national treatment (i.e., treatment equal to local firms). The only exception would be security sectors (Khor, 1996).

Earlier lobbying efforts and hopes of the EC and others, however, seem to have lost momentum immediately following the 1996-Singapore ministerial conference. As earlier mentioned, during this ministerial conference, this is when the new or Singapore issues first entered the WTO agenda and arguably suffered a demise, especially the issue of a MIA (Killion, 2003).

The Singapore issues did not die during the 1996-ministerial conference, however. This is because the EU continued to lobby for a MIA. For instance, in 2001, the agenda of the Doha round of trade talks include the Singapore issues, including a MIA, though only after tense negotiations between the EU and India. While the EU lobbied to include a MIA in the WTO regime, India presented itself as the leading vocal opponent against any expanding role of the WTO (Killion, 2003).

What actually occurred in 2001 is a compromise, which pushed a final decision to the Cancun-WTO conference. As reported in the Doha ministerial declaration, though the subject of differing legal interpretation, “negotiations will take place after the Fifth Session of the Ministerial Conference on the basis of a decision to be taken, by explicit consensus, at that Session on modalities of negotiations” (C. Rammanohar Reddy, Decision time on Singapore issues at WTO, The Hindu, July 28, 2003). Today, the then new or Singapore issues seem relegated to a forgotten past or history of the WTO conferences, while the WTO regime remains without a MIA.

Then there is Gurria’s speech, which, as earlier mentioned, serves as a reminder of the need for a multilateral investment treaty in the WTO regime. Gurria’s speech, admittedly, is not directly addressing the need for a MIA in the WTO. This is because, Gurria, as the OECD Secretary-General, and as previously mentioned, delivered his speech at a USCIB Conference. 

Nonetheless, by mentioning the G20, some G20 counties, and that the OECD just delivered, with the WTO and UNCTAD, the second report to the G20 leaders on Trade and Investment Measures, Gurria was arguably, though indirectly, addressing the need for a MIA in the WTO. For instance, during his speech, Gurria said: “The OECD is becoming more inclusive in order to reflect these changes of the world economy. Twelve emerging countries, including Brazil, have now adhered to the OECD investment instruments. Accession discussions with Russia are underway. Chile signed the accession agreement with the OECD early this year. The OECD also engages with G20 emerging economies like China, India and Indonesia through investment policy peer reviews.”

Some may disagree and argue that Gerria was advocating a Multilateral Investment Treaty for OECD-members rather than WTO members. This is because, in 1998, there was a lack of consensus by OECD-members on a Multilateral Agreement on Investment (MAI), which was mostly due to critical public opinion and public protests (i.e., threat to national sovereignty, democracy, race-to-bottom, etc) (Sol Picciotto, Linkages in International Investment Regulation: The Antinomies of the Draft Multilateral Agreement on Investment, University of Pennsylvania Journal of International Economic Law, 19(3) 731-768 (1998); “The main part of the paper focuses on the proposed Multilateral Agreement on Investment (MAI), negotiations for which were formally initiated in 1995 by the OECD Council of Ministers, but had still failed to produce a final draft by May 1998.”).

Despite this earlier failure of OECD-members, however, Gurria’s speech presents new hope for a Multilateral Investment Treaty in the WTO regime and/or the OECD. As Gurria observed, “As emerging countries integrate into the world economy and increasingly invest in other countries, the time is right to improve international rules for investment protection.”

Gurria, more importantly, in his speech shows us the road to improving the international rules for investment protection, while also reviving the idea of a Multilateral Investment Treaty in the WTO and/or the OECD. The path and means to achieving these goals, as Gurria explained:
In practical terms, the OECD is considering the feasibility of a non-binding “Model Investment Treaty”, building on converging understandings in OECD and partner countries and invites other organisations to join these reflections. Such a “Model Investment Treaty” could reduce drafting and negotiation costs for negotiating parties, reduce transaction costs imposed on foreign investors and create the enabling conditions for equal competition among foreign investors. It could be used by governments to foster more consistency and predictability in their bilateral and regional treaties while allowing for flexibility in reflecting countries’ positions and adequate consideration of competing policy priorities.
A non-binding Model Investment Treaty would reflect consensus on core provisions for inclusion in an investment agreement. It would provide interpretations and options with regard to the wording of specific clauses. It would record countries’ positions vis-à-vis the model’s provisions if necessary. A model treaty serves as a common reference point for the negotiating parties, which accelerates their discussions, facilitates a final agreement and increases mutual certainty about interpretations. This has been the positive experience with the OECD Model Tax Convention which serves as the basis for the more than 3000 bilateral tax treaties in force today around the globe.
There are, of course, other aspects of Gurria’s speech, such as the financial crisis, the state of the global economy, protectionism, and other issues. Although his speech or address was entitled, “The global economy and the global investment agenda - an OECD perspective,” his speech is especially compelling on the issue of the global investment agenda. This is because Gurria revived the hope, though implicitly, of a much-needed Multilateral Investment Treaty in the WTO, which is long over due as a means to improve international rules for investment protection.

Copyright © Protected - All Rights Reserved M. Ulric Killion, 2010.