"Today's Authoritarians Are Very Creative At Turning Democratic Institutions To Their advantage" : Interview With Tom Ginsburg

Santosh Paul:Tom, Let me first of all introduce you to the audience. Tom Ginsburg is the Leo Spitz Professor of International Law and Political Science in the University of Chicago, Member of American Academy of Arts and Sciences, former legal advisor to the Iran-US Claims Tribunal, author of several books and the widely acclaimed `The Endurance of National Constitutions' and `How to Save a Constitutional Democracy' and the founder of `Comparative Constitutions Project'.

Tom Ginsburg: Thanks for the kind introduction. It's always a pleasure to speak with you, Santosh.

 SP: Your recent book "How to Save a Constitutional Democracy" has stirred considerable interest in view of the recent disturbing phenomena of 'democratic backsliding' which is taking place in many democracies. How widespread is this phenomena across the globe?

Tom: Unfortunately, very widespread. Political scientists tell us that the number of democracies around the world peaked in 2006, and that the numbers have been declining since then. 'Backsliding' refers to previously established democracies declining in quality, sometimes to the point where we can no longer use the term. Venezuela is a good example, and Poland and Hungary are coming close. To be sure, there are some positive stories, including this year's events in the Maldives and Sri Lanka. But there is significant concern, even in large countries like yours and mine.

SP: Democracy it is believed was born in 507 BC in Athens launched by Cleisthenes,the Alcmaend. Isn't it ironic that after 2500 years we are now witnessing erosion of democracy,instead of evolving more sophisticated forms of democracy with far more stronger institutions? With the technological and scientific advancement we are faced with this situation of 'backsliding of democracy' which is mirroring in many parts of the globe?

Tom: On one level it is a surprise, but on the other hand it may make some sense. Technological and economic change involve significant disruption, and that makes people ripe for simple solutions. A lot of authoritarians tell people simple stories about how an enemy is responsible for all their problems.

Another thing is that technology makes surveillance easier. And it opens up democracies to external manipulation of the media, which can be done instantaneously and invisibly. So perhaps we should expect some difficulties with democracy in our current era.

SP: Your focus in your two books `The Endurance of National Constitutions' and `How to Save a Constitutional Democracy', has been on how and why national charters survive as the dejure law of the land, and not how they should be in projected in real disputes. Do you feel you may be missing an overlap in the that approach?

Tom: Well, I like to think the new book is a little more normative, with implications for real world disputes. We believe that constitutional judges should act in the defense of democracy in the face of these threats. They should not just interpret the legal documents in a pro forma way; they should recognize that democratic constitutions have a purpose, which is enhanced through the preservation of democracy. One of the things our book does is identify the threats, so that activists and judges can act before it is too late.

SP: In your book `How to save a Constitutional Democracy' you have expressed that liberal democracies are at risk today of erosion or as you call it `democractic collapse'. What is the way out?

Tom: One of the things about the strategy of current anti-democrats is that it is slow and incremental. The erosion of democracy takes place through a number of incremental steps, any one of which may be unobjectionable, but when added up they can amount to a serious challenge. The key is to recognize the pattern and not just focus on the individual action in question. But we recognize this is very difficult for judges, who are used to hearing one case at a time, and only empowered to decide discrete questions.

SP: What is your opinion on the recent 5 – 4 decision Husted v. A. Philip Randolph Institute of Supreme Court of the United States striking down a lower Federal Court ruling and enabling Ohio to continue its practice of purging voters who do not vote in consecutive federal elections and failed to respond to a mailer? Do you perceive this as a serious threat to democracy itself?

Tom: Yes I do. A pro-democracy jurisprudence must have the preservation of participation as a high priority. The problem in our country is that too few people vote, not too many. But one party has decided its best strategy is to suppress voters, while claiming that this is necessary to fight fraud. Voter fraud is virtually non-existent, but vote suppression is rampant.

SP: In your book you have assessed two kinds of what you call `democratic collapse', the first being the `gradual degradation of democracy' and the other being speedy and complete collapse of democratic institutions. Which is the predominant phenomena today in South Asia ?

Tom: South Asia is a mixed bag at the moment. As I noted, we have had resistance to erosion in both the Maldives and Sri Lanka. Pakistan's democracy has never been too strong, but we seem to be in a period of stable civilian rule. Nepal's new constitution seems to be off to an acceptable, if messy start. And Bangladesh is on the verge of a critical election.

India is the key country in the region on many levels, including democracy. And there seems to be a troubling trend toward religious fundamentalism, combined with thuggish intimidation of journalists and civil society. I am sure elections will continue in India, and so there is no threat of democratic collapse. But are we witnessing the erosion of India's grand tradition of democracy?

SP: Do you perceive that constitutional democracies like United States and India would be undermined by their own popularly elected leaders?

Tom: Yes, it is certainly possible for a popularly elected leader to undermine democracy, especially if they are a populist. Populism has a good side, which is as a call for accountability. But sometimes populist leaders seek to take over the whole system and undermine democracy itself.

 SP: The Indian Supreme Court had held in the celebrated decision of`Keshavananda Bharti'held that Parliament could not amend the basic structure of the Constitution viz.(1) The supremacy of the Constitution; (2) Republican and Democratic form of Government; (3) Secular character of the Constitution; and (4) separation of powers between the legislature, executives and the judiciary. Do you think that the `basic structure doctrine' would be a sufficient safeguard against erosion of Constitutional democracy which we are witnessing?

Tom: It is certainly a useful element. It allows judges to take the wider view of the structures that sustain constitutional democracy, and we have a number of examples of courts around the world using this doctrine to stop backsliding. But I would not say that it is sufficient. Its efficacy depends on judges having a stock of reputational capital so that their decisions can be obeyed. In many countries, judges do not have the respect necessary to wield this doctrine effectively.

SP: In your book `The Endurance of Constitutions' you have stated that the 30 democratic regimes that have persisted uninterrupted for more than 30 years have replaced their constitutions, on average, once every 42 years. The only exception being Finland, Sweden and Switzerland and the United States, (which you did not include in the list). Why does this happen?

Tom: Countries replace their constitutions for many different reasons. Sometimes it is a political or institutional crisis, sometimes for a more technical desire to clean up the text after a bunch of smaller amendments, and sometimes it is a political project of a particular leader. One of the things I have learned in this research is that not every country is like India or the United States. In our countries, the constitution stands for a particular founding movement, and thus has a lot of respect from elites; but in many other countries, people don't think much about the constitution or care about it.

SP: We have two conflicting views of founding fathers of the American Constitution. We have James Madison who advocated constitutions deserved a longer lease of life and we have Thomas Jefferson who took a view that Constitutions should be `euthanized' every generation or so. What is your take on these two conflicting views?

Tom: Well, I tend to think that constitutions should last a good deal of time. But there is also an age after which the constitution is not doing much service. One of the arguments in 'How to Save a Constitutional Democracy' is that the American constitution is showing its age. Its structure does not address modern problems, and some of the decisions that the drafters took actually can facilitate democratic erosion. So some process of regular review of constitutional texts is perhaps advisable.

SP: Would you agree that younger nations ought to have more enduring constitutions so as to enable the healthy growth of democracy and also allow its institutions gradually and organically to imbibe democratic culture?

Tom: I think an enduring constitution is a good thing, but of course its also the case that there will be inevitable mistakes in constitutional drafting, and this is especially true in a young nation. Therefore, in my opinion, it is healthy to have a relatively low threshold for constitutional amendment, so that errors can be updated, and the constitution as a whole need not be replaced. I think India does better in this regard than does the United States.

SP: In this sub-continent we have witnessed constitutions being torn to shreds several times over. Pakistan's Constitution which was approved in 1956 was abrogated in 1958, and then came its 1962 Constitution suspended in 1969 and abrogated in 1972. The 1973 Constitution ended with a military coup in 1973. The story repeats itself in Sri Lanka, Bangladesh, Nepal and many other post colonial regimes. Do you think in contrast India's constitution has fared well?

Tom: Definitely. India's democratic experiment is really remarkable, and the fact that the Constitution held even during the Emergency of the 1970s shows how robust it has been. Of course, one should not simply fetishize constitutional endurance. We would not want Nepal to remain an absolute monarchy, or Bangladesh a military regime. But if a constitution is democratically adopted, and can endure for a generation or two, it can acquire a good deal of respect and help the country to survive challenges to its democracy.

SP: If we look at the experiments in democracy by post-colonial countries, there is an overwhelming tendency to discard democracy in favour of some totalitarian form of government. What according to you are the reasons for this?

Tom: One aspect is that the tools of colonial rule are often re-purposed by the new leaders. We saw that a lot in post-colonial Africa and in places like Malaysia, where colonial era statutes were used to justify repression of political opponents. I am of the view that the way that colonialism ended is crucial. In India, it was the result of a mass movement, and so there is a democratic movement to look back to as a founding event. But in places like Malaysia or some countries in Africa, the British and French simply left. Those peoples did not seize democracy on their own; and this meant that they were vulnerable to elite manipulation that ended democratic experiments quickly.

SP: You have illustrated that in 1980 General Pinochet commissioned the Constitution for Chile institutionalising an authoritarian regime. If a constitution like that of Chile's endures, we have a situation that an anti-democratic regime will have a dreaded long lease of life. So would you agree that longevity is not a good situation in all cases?

Tom: Absolutely. But sometimes, as in the case of Chile, it can be modified slowly, in a kind of Burkean way. And this may be better than lots of sudden shifts back and forth among constitutional models.

ON APPOINTING OF JUDGES:

SP: Several jurisdictions have eliminated the predominance of the executive government from the appointments process of judges like the Judicial Appointments Commissions of the United Kingdom, South Africa and Canada, Poland through the Committee of Jurists and also India through the Collegium System. Would you agree with the elimination of the political component in judicial appointments is a desirable situation? Or do you feel that elimination of the elected executive from the judicial appointments process would make it undemocratic?

Tom: I think it is okay if there is some political involvement, but if it is exclusively political, then the process becomes inevitably politicized. The key is that there should be more than one actor involved in the process, and the technical quality of the judges must be evaluated properly. It will not do to just appoint friends of the President onto the court—that would undermine the quality of the court, as well as the legitimacy.

SP: The noted Prof JAG Griffith in his book 'The Politics of Judiciary" remarked, "judges are part of the machinery of authority within the state and as such cannot avoid making political decisions". He then went on to remark, "what is important to know the bases on which these decisions are made". Do you believe that judging can be divorced from the politics of the judges?

Tom: Much depends on your definition of political. I do think the vast majority of decisions that judges make are not political in any narrow sense. They simply are applying the procedures laid out in advance, and explaining why they do so. But there are always a few "hard cases" in which the legal materials run out, and there can be no pre-existing determinant answer. Here is where judges' view—about judging, and about policy can make a difference. I am not sure it is possible to get rid of that narrow political factor. I agree with Griffith that the key thing is to be transparent, which is a major source of discipline for the judges.

SP: Would you agree that the American appointments system is dictated by the executive thereby making the Supreme Court of United States far more susceptible to political partisanship?

We are now in the disastrous situation where Presidential elections are fought over judicial appointments. This is a disaster for the Court and the country, in my opinion. The Court now looks like just another political body; and we are not using the electoral campaigns to discuss the main issues that can be resolved by the political branches. Instead, much is made over basic moral issues that are not really resolvable: abortion is one example. It distorts our democracy away from the real issues.

SP: Which according to you is a preferable form of appointments of judges, the politically slanted executive driven appointments of the United States or a politically neutral judge assessed system which is in vogue since 1993 in India?

Tom: I think each has its problems. As you know the Collegium system in India has been criticized as leading to the self-replication of the Supreme Court, which is the opposite vice of the United States. Our system is perhaps too politicized and yours perhaps too little. As long as judicial decisions have a major effect on people's lives and the politics of the country (and there is no reason to think this trend is going to end soon) there will be a need for some judicial accountability.

I am partial to systems in which a super-majority of the legislature is required, as in appointments to the German Constitutional Court, and the system we formally had in the United States. This is because it pushes nominators toward candidates that can appeal to a broad range of the political spectrum. In a separation of powers system like ours, the idea of having the President or legislature give the other a shortlist of candidates to choose from may work well. In some American states, a mixed non-partisan commission nominates the judges, who then must be approved by the political authorities. There is, of course, no perfect system, as my co-author Nuno Garoupa and I wrote in our 2015 book Judicial Reputation. But trying to identify whether the major problem in a given country is lack of independence or lack of accountability can help guide reforms.

ON ATTACKS WORLD WIDE ON THE INDEPENDENCE OF JUDGES

SP: Are you concerned about the dangers of the executive intimidating the judiciary which is happening ever more frequently. We have witnessed in Pakistan and now witnessing it in Poland and in Turkey. For instance in Turkey nearly a quarter of all Turkish judges have been detained or dismissed including 2 judges of its Constitutional Court being incarcerated?

Tom: One of the interesting things about some authoritarian countries, like Pakistan and Egypt, is that the judges were historically a powerful interest group within the state, able to acquire a lot of power. But in our new populist era, leaders do not trust any institution at all. Thus, we are now witnessing attacks on the judiciary in many countries, as well as other key institutions of democracy like journalists and civil society. It is not surprising that the growth of judicial power has led authoritarians to try to control it; what is terrible is the openness of their attacks.

SP: We have seen very different public responses when the judiciary is intimidated by the executive. In Turkey both the international media and its own population have not seriously challenged the detention of judges by the government. But last year, in Poland, we saw mass protests in 70 different cities when the government brought in a sweeping legislation to usurp the power of judicial appointments from the Committee of Jurists and to undermine the independence of their courts. Are you concerned that the independence of judiciary the world over is not an issue which would whip up the public sentiment to effect as a deterrent ?

Tom: We have long known that judicial independence depends on the support of other actors in civil society. Particularly important is the bar, which has played a critical role in many countries in South Asia. The bar can help to mobilize public support when the judiciary is attacked.

Much will depend on the approach taken by the anti-democrats. I think that the attack on the judiciary was very central to the erosion of democracy in Poland, and so the public could see what was happening. In addition, the European institutions, which had not done a particularly good job preventing the takeover of the Hungarian judiciary, made a number of public statements about Poland that helped to mobilize public support. In the case of Turkey, the AKP has attacked virtually every institution at once: civil society, the prosecutors, the civil service, the universities, the media. The judiciary is just one among many; how can the public figure out which institution to mobilize around? Further, the regime has also abused anti-terrorism laws to attack its opponents. I think Turkey has gone much further than Poland, but it was never much of a democracy in the first place.

SP: If you look historically we see two distinct situations. The first being democratic order is overthrown and then attempts are made to subjugate the judiciary like in Pakistan in 1958 and 1978. The second is independence of the judiciary is undermined and thereafter paving way for eroding the democratic institutions like Turkey, 2017, Poland 2017, Srilanka 2018. Do you have any comments?

Tom: I think the second route will be more common now. Judicial power is so important, that it is a target for takeover. And once under control, it can be used to attack other institutions, while appearing to follow the "rule of law''. Today's authoritarians are very creative at turning democratic institutions to their advantage.

SP: Do you believe that an independent judiciary can be one of the main bulwarks against `democratic backsliding'?

Absolutely. We've just seen a dramatic decision of the Supreme Court of Sri Lanka in Rajavarothiam v. Hon. Attorney General (2018) that prevented the President from succeeding in a severe constitutional violation. Had the judiciary gone the other way, Sri Lankan democracy would be in severe danger. Instead it is what we call a "near miss", in which democracy has survived against two successive attempts at erosion.

ON THE NECESSITY OF A INTERNATIONAL TREATY TO PROTECT INDEPENDENT JUDICIARY

 SP: We have examples in the United States itself, President Nixon went gunning for Justice Abe Fortas and Justice William Douglas with impeachment. I recollect Douglas wrote in his autobiography very poignantly, "It is easy to make a charge against a public official and put him to the test of defending himself. But when the accuser is the federal government itself with all its resources behind it, the person attacked is at a tremendous disadvantage". Do you think the time has come, given the recent developments across the globe, to bring in an international treaty to preserve and protect the independence of the judiciary and in protecting the members of the judiciary and free them from political interference and intimidation?

Tom: I think soft law may be the better way to go. After all, the attacks on the judiciary come in various forms, and it is hard to spell out in advance what is a fair attempt at accountability versus an attempt at intimidation. We have to also remember that sometimes judges need to be removed and disciplined. Judges should themselves take the lead on this process, but it must also be transparent and effective.

COMPARING SCI AND SCOTUS

SP: Given the widely differing approaches by the SCOTUS in entertaining only a limited number of cases versus the Indian Supreme Court's system of entertaining scores of petitions. Would you agree that the Indian Supreme Court is a far more accessible court than US Supreme Court?Which according to you would be the preferred role model for a Supreme Court of a constitutional democracy?

Tom: Both our courts are policy-making courts, but the contexts are very different. I think a major difference is the quality of other institutions. A well-known federal judge in the United States, Jeffrey Sutton, has just written a wonderful book called 51 Imperfect Solutions, which focuses on the role of State Supreme Courts in protecting rights, showing that in many cases they do a better job than does the U.S. Supreme Court. We have a very strong federal system, and states are the primary governments that people interact with. Bureaucracies are generally pretty good, despite rhetoric to the contrary. Furthermore, the Supreme Court has become very politicized: I, for one, do not want them making many more decisions than they are now.

In India, I get the sense that the Supreme Court is one of the most functional institutions in the country, and so it has a great weight on its shoulders as it steps into the void left by others. In the Indian context, I suppose that makes it necessary to hear many more petitions, but it would be better if many could be resolved by the High Courts, and other institutions so the Supreme Court of India can handle only the most important. I'm not sure how to get there, though. The Chief Justices serve too short a time to focus on the institutional reforms that would be needed to make the system more effective. 

Advocate Santhosh Paul Is A Lawyer Practicing At Supreme Court of India