Archive for January, 2013

Decree-o-matic: The periphery’s permanent state of exception

decree-o-matic chopper 4

The Greek Frankenstein’s monster of a coalition government – stitched together from the torso of the wounded conservative New Democracy and the decomposing, undead remains of centre-left Pasok and ex-eurocommunist Dimar – passed legislation last week raising taxes on ordinary Greeks and corporations and then this week approved another package of moves restructuring state assets for privatisation and expanding the powers of the finance ministry

I’ll not go into details of the problems with the legislation, termed ‘prior actions’, which was demanded by international lenders in return for the latest round of financing due this month. The imposition of suicidal and unjust economic policies in the European periphery is very much more ‘dog bites man’ these days than ‘man bites dog’. I’ll leave it to others to point out the errors.

Instead, what I find significant is that the different pieces of legislation have not been presented as proper bills, but as edicts in order to prevent debate, which would slow down the approval process.

The coalition felt it didn’t have time for the legislation to go through normal procedure as it wanted the bills to be already in the bag before finance minister Yannis Stournaras headed to the Eurogroup meeting (of finance ministers from the eurozone) on Monday, 21 January, where the first of three bail-out tranches worth €18 billion was to be considered and possibly approved.

Opposition parties, both the socialist Syriza party and the Independent Greeks – the anti-memorandum splinter from New Democracy – accused the government of bypassing parliament.

Their criticisms were – how should this be put politely? – let’s say ‘unvarnished’.

“You are introducing a new form of governing,” Syriza parliamentary spokesman Panayiotis Lafazanis said. “Ministers will issue edicts that will abolish parliament’s rights and will not be debated at all. You are responsible for turning a parliamentary democracy into a parliamentary junta.”

“We are observing a situation where parliament has essentially ceased working,” said Notis Marias of the anti-memorandum splinter from New Democracy, the Independent Greeks. “Your attitude is ‘Eurogroup uber alles.”

It seems strange to be talking about legislation by decree in the 21st Century. The words ‘decree’ and ‘edict’ evoke images of the Catholic Church releasing papal bulls, or absolute monarchs issuing proclamations changing the religion of a realm overnight.

The development of modern democracy placed great emphasis on ‘legislative supremacy’ (also known as ‘parliamentary sovereignty’). Whether called a parliament or congress or house, the deliberative assembly normally has exclusive authority to pass, amend or repeal laws, raise or lower taxes, regulate trade, and declare war. Western societies did not opt instead for a model of elected monarchs (athough Poland famously employed wolna elekcja, or royal elections, on occasion until the late 18th century).

Why did we do this? Well, it’s a long story and whole libraries could be and indeed are filled with discussions of theories of governance. But boiled down, the argument is that the executive branch – the body that enforces the law and carries out the day-to-day administration of the state – is the servant of the legislature, in order to ensure a separation of powers, which in turn serves as a sort of inoculation against tyrants.

By distributing power away from the executive, and maintaining the supremacy of the elected chamber, a polity is supposed to be protected against authoritarianism. In those places where there is little or no separation between executive and legislative branches, the different powers of government by definition are held by one person or one small group of people. (This situation, by the way – other than during times of national emergency, or ‘state of exception’ – is the very definition of despotism you will find in any dictionary)

Yet what happened in Greece this past fortnight is far from the first time that governments in the eurozone periphery have turned to the use of decrees to avoid parliamentary scrutiny. Indeed, though it has received little notice, the use of decrees, edicts and similar manoeuvres – a direct challenge to legislative supremacy – has been sharply on the increase in since the advent of the crisis.

Grand Duke Draghi of Frankfurt

Most controversially, the ECB’s humiliating ultimatum letter to Berlusconi in the summer of 2011 that was leaked to Corriere della Serra, the Italian daily, included not only a series of demands for legislation in return for central bank bond purchases, but the detailed timetable bills needed to be passed by and that they be imposed by edict, only later to be approved in a similar up/down fashion to this past fortnight’s Greek decrees. According to the letter, the package of austerity and structural adjustment bills had to be passed “as soon as possible with decree-laws, followed by parliamentary ratification by the end September 2011.”

The bulk of the shock therapy that unelected technocrat prime minister Mario Monti has applied to Italy have been performed by decree – the ‘Save Italy’ emergency decree, which took place days after Super-Mario took power; the ‘Grow Italy’ decree, the ‘Fiscal Simplification’ decree, the ‘Spending Review’ decree, the ‘Sustainable Development’ decree, and so on.

Some of the actions undertaken by decree any progressive could support; others decidedly less so. But whether one supports or opposes a move is immaterial – the method through which they are enacted is undemocratic.

Over in Spain, in May last year, Spain’s Mariano Rajoy used a decree to avoid parliamentary oversight of the decision to use public funds to bail out its drowning banks, offloading written-down assets into separate financial vehicles. Similarly, in February, Rajoy used the decree format to force banks to set aside certain amounts as cash buffers against losses. In March, there was a labour market deregulation decree in March, and in November an anti-tax-fraud decree and another delinking pensions from inflation.

After a woman killed herself when bailiffs tried to throw her out of her home and under pressure from protests, Madrid also passed a decree suspending home evictions for poor families with small children, the disabled and long-term unemployed. This action should certainly be welcomed, and probably did need to be instituted instantly for obvious reasons. But the question still remains, even for these sorts of measures – why is so much legislative activity now being done without parliamentary scrutiny?

By contrast, this past week, US President Barack Obama unveiled his gun control strategy. Alongside a series of legislative proposals, Obama announced 23 executive orders that are enacted immediately. Republican opponents and hyperbole-mongers have attacked the president for bypassing congress and ‘ripping up the constitution‘.

But in reality, every one of his gun control recommendations – criminal background checks for all gun sales, reinstating an assault weapons ban, a 10-round limit on ammunition magazines, outlawing armour-piercing bullets and providing mental health support services in schools – require congressional approval. The executive orders cover such matters as directing the Center for Disease Control to perform research into the causes of gun violence, requiring that federal agencies make relevant data available to the background check system, launching a national dialogue on mental health and starting a a national safe and responsible gun ownership campaign.

These are precisely the sort of relatively trivial moves that do not require parliamentary debate and oversight – the sort of direction from the directors of the executive branch of government to its officers and agents managing their operations or the appointment of senior civil servants. In France, these are called décrets (although the president may not rule by decree except during national emergencies) and in the UK Orders in Council. Not all executive actions need to be put through the legislative sausage factory.

But major policy changes with significant impacts, such as cutting pensions, radical overhaul of labour markets, bank bail-outs and so on certainly should indeed be looked over by parliaments with a fine tooth comb. And when they aren’t, if there is genuinely some sort of emergency requiring immediate executive action, there needs to be a bloody good reason, and it should be explained why this exception is necessary.

(If you want to be technical about this, what we’re talking about here is the distinction between primary legislation – crafted and approved by the legislative branch – and secondary or delegated legislation – laws made by an executive authority under powers transmitted to them by the primary legislation in order to carry it out)

Special powers

Citizens’ ears should prick up every time they read that something is being passed by decree or edict. Nine times out of ten, it is a sure sign that democracy is getting a bit of a hair-cut. An historical wander through the textbook exemplars of the use of decrees are instructive for comparison.

Famously, George W. Bush enacted a whopping 262 executive orders, the preponderance of which were a clear usurpation of congress’s position as the legislative branch. In this way, he blocked funding for stem-cell research, sidestepped the Geneva Conventions protection from torture, and offered impunity to US corporations operating in Iraq.

Those for whom the origins of Russia’s current ‘managed democracy’ remain a mystery could do worse than read up on Boris Yeltsin’s privatisation by decree and ultimate disbanding of parliament and rule by decree in the autumn of 1993. Fantastic sums in public funds were transferred to banks owned by major figures in the Soviet state and the former Communist Party higher ups. These banks then spent the effectively embezzled funds to snap up state industries on the cheap in privatisation auctions they themselves conducted.

From 1972 to 2007, governance of Northern Ireland was carried out under what was known as ‘direct rule’ – in effect rule by decree. While the people Northern Ireland still technically elected members of parliament to the House of Commons, legislation administering the region was made through Orders in Council, a situation opposed by by both nationalists and unionists for its lack of democratic accountability.

Similarly, during the Algerian War of Independence, in 1956, the governor general of French Algeria, Robert Lacoste, abolished the Algerian assembly and ruled by decree to deal with the mounting political violence. Then in 1961, President Charles de Gaulle became the only French president to rule all of France by decree during a national emergency, employing ‘special powers’ he requested from the National Assembly in the wake of an abortive rightist uprising in Algiers. Over the course of five months from April to September of that year, De Gaulle enacted 16 decrees expanding police powers, enlarging the power of the courts, banning publications, dismissing civil servants for ‘encouraging subversion’, and establishing special military courts, amongst other measures.

Now, one of the difficulties in discussing Europe’s democracy-on-a-diet approach to the economic crisis is that when anyone suggests that there has been a hollowing out of democracy, the cry immediately goes up from defenders of the strategy: “Where are the tanks? Where are the gulags? Where is the police state?”

But this is a category error, a conflation of autocracy and totalitarianism, as there can of course be creeping autocracy without totalitarianism. The advance of rule by decree does not signify the imminent appearance of a Duce or Fuhrer but with a blue and yellow flag. Mario Draghi is not Kim Jong-un.

Cindy Skach, professor of comparative government at the University of Oxford and one of the world’s leading experts on constitutional design, has described precisely this sort of legislative atrophying phenomenon as ‘constitutional dictatorship’. It comes from the use of emergency powers over a prolonged period “during which authority is transferred to non-partisan, above-party sources, leading to a loss of substance in the democratic process.”

In her work comparing Weimar Germany and the French Fifth Republic, she offers a warning of what results from this overuse of decree: “Such periods are also characterised by opaque, nonaccountable decision-making in which the democratically elected institutions of the polity, such as the legislature, have lost their controlling capacity, as presidents become increasingly less accountable.”

Such descriptions will of course be familiar to anyone who has followed the steady transfer of fiscal powers out of the hands of democratically elected parliaments – both in EU-IMF programme countries and across the eurozone.

To be clear, I am not saying that Italy, Spain, Greece and other countries are being ruled entirely by decree, but a lot of the new rules do come in the form of decree.

This state of exception is becoming permanent.

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This Charming Man – The dapper, cosmopolitan face of post-democracy

smithsAutocracy will return to Europe not dispatched by colonels atop tanks this time, but by cosmopolitan civil servants, economists and public intellectuals who as likely as not give money to Amnesty International and Medecins Sans Frontieres. Its partisans will be witty and dapper and subscribe to the RSS feed of The Sartorialist. And the passage to post-democracy will be unhurried but throughout, it will be tweetily endorsed and blogged about and the videos explaining why it is necessary will be uploaded to Vimeo, the ‘artisanal’ online video service, not just YouTube.

Currently on rolling release throughout Europe, there’s a slick new documentaryGirlfriend in a Coma, by Italian journalist Annalisa Piras and Bill Emmott, the natty former editor of The Economist, based on his 2012 book, Good Italy, Bad Italy, about the risible state the country finds itself in.

The film charts the decline of the country under the rule of Caligulean Berlusconism over the past two decades, and takes a broadly pro-Monti shock-therapy line. It takes its name from the song by seminal Eighties sensitive indie-boy (and allegedly David Cameron) favourites The Smiths and features the thinking girl’s (or boy’s) piece of crumpet, Benedict ‘Sherlock’ Cumberbatch, as the voice of Dante. It’s high-brow, art-house, but classical-liberal Michael Moore.

(Quite literally art-house, as it happens. The continental premiere in Brussels, which features a Q&A with both filmmakers, will be at the Italian Cultural Institute on Thursday (17th January) and is sponsored by one of the only two picture houses on the continent that shows silent films accompanied by a live pianist, the city’s Cinematek. And its UK premiere in December was at the Institute for Contemporary Arts – the fountainhead of Britain’s arts avant-garde).

The problems with the Montabulous package of austerity and structural-adjustment economics backed by the film’s authors – further public sector cuts, spending limits, flat taxes, privatisation and labour market deregulation – are actually not that interesting to me. They would of course be economically disastrous and unjust, hitting ordinary people hardest, but the filmmakers and other partisans of such liberalising policies are certainly within their rights to their position and to fight their corner.

What is much more worthy of being flagged is how the filmmakers even as they lament the dismantling of democracy under Berlusconi, they fawn over Mario Monti and effectively endorse the undemocratic shenanigans that it took to parachute him into power, as well as the ongoing democratically unorthodox manoeuvres that have been employed to achieve such policies both domestically and across Europe.

What is also striking is how Emmott and Piras have clearly learnt from the mis-packaging of shock therapy elsewhere, dropping the wooden-tongued language of troikas and European Council presidents, and instead talk of a risorgimento, or even rinascimento - a renaissance and transformation of Italian society. The Bunga-bungocracy of Berlusconi naturally has made this sort of discourse so much easier than elsewhere, allowing the filmmakers to focus as much on corruption, patronage, nepotism, tax evasion, defeating the mafia, media monopolies – and, crucially, the denigration of women – as they do on the alleged barriers to ‘success’ constructed by the usual villains: trade unions, the public sector, and ‘overspending’.

And it’s not supposed to be just a film – it bills itself as the “Campaign to Wake Italy Up”. It wants to be a movement, an Italian Spring, aiming to both convince foreigners of its authors’ narrative of events in the country and galvanise the young Italian diaspora – the million or so expatriate Italians outside the country, many of them graduates – into participating in a liberal transformation of the country. Viewers are encouraged to upload their own ideas to the film’s website, while the oven-ready hashtags #wakeitalyup and #italiandiaspora are waiting to go viral (albeit presumably only amongst those bilingual ex-pats).

I imagine it will be embraced by a number of my mates of the Italian disposition and otherwise in the Belgian capital too. A week ago, I wrote a piece entitled the Shepherding of Italian Democracy, critical of unelected technocrat Prime Minister Monti and his cowardice in not presenting himself and his ideas for election. A reader tweeted me, responding to the article and saying: “If Italians in the eurobubble could vote, Monti would easily get 70% of preferences.”

I don’t think everyone feels this way in the eurobubble. I know far too many people in Brussels – true believers in the European project – that are horrified by what Brussels (and Frankfurt and Berlin) is doing.

But there probably is a glint of truth to this figure. And these people are not natural conservatives. These are people who adore Obama and hated Bush. People who support gay marriage – who may even be gay. People who support EU justice commissioner Viviane Reding’s push to get more women in the boardroom.

And they’ll say that they of course support democracy – and think that they mean it. But at the same time, when you really push them, they say that they just don’t trust ordinary people to vote ‘the right way’. They support EU efforts to take fiscal decision-making out of the hands of parliaments, lest voters spend their way to oblivion. After a few drinks, they dismiss ‘most people’ as stupid. A few drinks more and they call them ‘the mob’.

It’s this lack of trust in regular people, this unacknowledged attitude that there is a group of experts who know better than everyone else, this belief that there need to be checks on democracy, that frightens. Girlfriend in a Coma‘s emphasis on the bright, young, hyper-educated Italian diaspora speaks volumes about the filmmakers’ lack of confidence in all other sorts of Italian voters.

The Erasmus-generation fans of this film will be hip. They’re crisply dressed. They like independent cinema and museums and all the right music. They’re friends of mine, and they’re a great laugh and multi-lingual and smart.

And they’re autocrats.

A quick word on what this blog’s going to be about.

Girlfriend in a Coma website: http://girlfriendinacoma.eu

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