Basil Fernando, Executive Director, Asian Human Rights Commission
These days, it is common to find governments that use the trappings of democracy to conceal an authoritarian character. For example, regimes are elected to power at one time or another and maintain the facade of being re-elected by elections conducted on their own terms. Despite this democratic exterior, the new regimes engage in certain activities that make them unmistakably authoritarian.
Creating confusion about the role of the judiciary and judicial process
The new authoritarian regimes keep the façade of judicial organisation established in an earlier era intact, but so deeply interfere with the actual functioning of the judiciary that it all but ceases to operate as originally intended, particularly in relation to disputes between citizens and the state. Many strategies are used. Initially, there may be threats and intimidation directed towards the judiciary as a whole, or towards individual judges not willing to comply with orders. Attachment to liberal ideas may be discouraged. Uncooperative judges may be dismissed or transferred to unimportant roles, thus passing the message that such behavior will no longer be tolerated. This may go on for some time until, by and large, the message sinks in.
After the judiciary is brought to heel, more blatant steps are taken. Persons who will comply with the regime’s demands are put into positions of authority. At this stage, conflicts are likely to occur within the judiciary itself, although they may be unknown to outsiders. Sometimes the conflicts may spread throughout the whole legal profession, with a few persons trying to continue as before, while others try to adjust to the new situation. The result can be traumatic for the majority of lawyers otherwise unwilling to get involved in political conflicts or other disputes relating to their professional engagements. However, by this time there is no longer any neutral space. Those deeply committed to maintaining professional integrity may choose to withdraw, rather than be corrupted. Complete or partial withdrawal of such persons may happen on a large scale, allowing for more cynical attitudes to emerge within the profession as a whole, poisoning the relationship between the judiciary and lawyers. This new situation suits the executive, which wants to weaken judicial process so that the judiciary will not monitor or disrupt its activities.
Finally, the executive may try to show the society that the judiciary is basically under its control. By giving this impression it gains a great deal of power over the ordinary citizens, who are virtually told that they have no legal means through which they can challenge the government’s actions. The lack of legitimate space to canvass for whatever citizens think is right or wrong creates a social paralysis, particularly among the more educated segments. While a few may think of extralegal measures with which to challenge the executive, the average citizen thinks only of the possibilities that exist within the law. When the executive is able to convince the citizens that no such space exists, it has secured for itself a situation of near absolute power while not completely wiping out the judicial institutions. As far as the outside world is concerned, courts, judges and lawyers exist: some kind of activity goes on, and it may even appear similar to what went on before the executive displaced judicial power, but in fact nothing remains besides.
Creating confusion about the place of law
New authoritarian regimes do not necessarily abolish all the existing laws, or even declare martial law or emergency regulations. The executive gains such control over the legal process that it can have near absolute power without needing such laws. Even if they are introduced, emergency regulations may be retracted after a short period, but meanwhile the new power of the executive has become part of the normal situation. How is this achieved? Over time, the executive claims a mandate for itself that does not require the making of new laws to do this or that. Parliament is maintained, but the executive goes about its business without reference to the legislature. By various means, the legislature is relegated to an unimportant position. Over time it loses its habit of operating as a check against the executive. Only if an opposition party at some stage gains such a huge majority that it becomes determined to challenge the government is the situation likely to be altered. But such situations rarely occur and for the most part opposition parties enter into compromises to avoid conflicts with the regime. The executive can also threaten to dissolve the legislature if it becomes too much of an obstruction. Thus members of parliament enter into tacit agreements not to challenge each other or worry very much about the role of the executive. The executive in turn provides various facilities and amenities to the members of the legislature, as a reward for their non-interference.
Making law enforcement agencies dysfunctional
A properly functioning law enforcement agency is a threat to an authoritarian regime. The executive needs to be sure that it will not be subjected to criminal investigations. However, it is not possible to achieve this simply by giving orders to law enforcement officials not to investigate this or that matter. What the executive does instead is to create conditions in which law enforcement officers become lethargic. This can be achieved in many ways. One common method is to appoint key officials who understand the requirements of the executive and set about complying by destroying the internal workings of their agency. These persons can create sufficient conflict among the higher ranks that the agency loses its capacity to act with a common vision and purpose. Avenues for corruption are then encouraged, and these spread quite fast to the lower ranks. Police become engaged in making money rather than conducting criminal investigations. The executive and law enforcement heads connive to ensure that internal discipline decays, and perhaps completely collapses. Hardly anyone gets punished for anything. Mutual reprimands among culprit officers become a substitute for effective disciplinary action. Officers are assured that whatever happens, they are safe from retribution. This psychology spreads and creates a sense of total impunity. Under these circumstances, crimes increase and more public complaints follow. The executive makes public gestures, and may talk of introducing the death sentence or performing some dramatic acts to stop crime and to ensure the rights of the victims. However, these promises will be mere rhetoric. The efficiency of the police cannot be increased, because they would threaten the persons that the executive wishes to protect. Thus, the policy of self-protection overrides concerns for public security and social stability.
Using the very poor as political slaves
Sometimes governments are provided foreign donors’ money for poverty alleviation, which may include direct contributions to people below the poverty line. On the face of it, such actions are harmless, and perhaps laudable. However, there is a strong link between the electoral programmes of new authoritarian regimes and the politics of poverty alleviation. Leaders of an authoritarian government will help “their poor”: those who have demonstrated political allegiance. In each locality, the regime’s representatives become channels for aid to the poor, and as a result they increase their own power. They become capable of mobilizing large masses for whatever political activity they dictate, which may include spying on and silencing “the other’s poor”, often though violence and intimidation. Political manipulations are made to appear as mindless mob actions. In this way, deep divisions grow among the poor themselves. The “other’s poor” wait for their chance to get revenge if or when political power changes hands.
Local political leaders with large numbers of supporters behind them also impose their will on law enforcement officers. Police are compelled to side with “their people” and stay silent about criminal acts committed by supporters. The officers’ sense of loyalty to their agency is weakened, and in its place grows a sense of loyalty towards local political leaders. Higher-ranking officers are unable to impose discipline. Police stations develop their own ways of doing things, knowing that they are politically protected. Often, localised corruption becomes associated with torture and killing, as police use their powers to enrich themselves and help their friends.
For a foreign donor agency entering this situation, it is very difficult to understand the ways that local political leaders may use foreign assistance to strengthen anti-democratic forces. Only if the donor agencies take the time to develop sufficiently deep links and understand local realities can they mitigate the negative effects likely to arise out of their contributions. But the issue should not be about how to avoid doing harm locally, but rather about how to avoid the greater harm that may be done to those working for democratization and human rights at the national level. Ultimately, if poverty alleviation programmes help new authoritarian regimes build an army of political slaves among the poor, then their results will be very harmful indeed, despite intentions to the contrary.
This article appears as chapter eight in The right to speak loudly: Essays on law and human rights, by Basil Fernando (Asian Legal Resource Centre, Hong Kong, March 2004).