Legality and Legitimacy
Posted on 1-August-2013
When the Egyptian army overthrew the democratically elected President Mohammed Morsi and his government, sending the equally democratically elected National Assembly packing and suspended the constitution last month, many including people like Mohammed El Baradei and Amr Mousa--people reputedly wedded to liberal democratic values--and other high priests of democracy, especially in west Europe and North America, applauded the army action. It is true that large crowds had been protesting against the Morsi government all over Egypt prior to the military putsch. The fact of these protests apparently gave ground to the supporters of the Egyptian army's action to say that Morsi had through his actions and policies forfeited the support of the people of Egypt. Neither the Egyptian army nor those Egyptian liberals who support it have shown any signs of doubting the correctness of the reasons for Morsi's overthrow in spite of the gatherings of large numbers of Morsi supporters all over Egypt during the last four weeks and despite the killing of some of the pro Morsi protesters. Curiously many western commentators have suggested that for those people who are intrinsically anti-democratic themselves--the Muslim Brotherhood of Egypt from which Morsi came, it is claimed, is basically anti-democratic-- it is not quite enough that they win in a free and fair election. One of the conversation stoppers in discussions of this kind is that after all Hitler came to power by winning in a free election in Germany.
Arguments of this kind which have in recent times been used by proponents of modern liberal democracy, above all by western governments, to justify the scuttling of elections in Algeria about two decades ago and for depriving Hamas of the right to administer the post-Oslo Palestinian territory despite having convincingly won elections there earlier during the present decade, raise many difficult questions. But first of all it is necessary to deal with the Hitler digression. Adolf Hitler it is true rose to power through a free election and with wide popular support but his rise happened in extraordinary times and in extraordinary circumstances for which the post first World War Versailles settlement was largely responsible. His rise was also facilitated by active support or tacit approval of right wing, conservative forces all across Europe which drowned out or silenced voices in Germany that could have opposed Hitler. Such liberal voices as were raised in Europe as Hitler smothered all opposition to him in Germany were barely audible and it is a little ironical that most of the condemnation of Hitler has been post hoc.
A fundamental principle in any modern democracy--as opposed to people's democracies of post World War II eastern Europe--is that governments derive their authority from popular support as expressed by the majority of voters in periodical free elections and that only a defeat in the next election can drive that government out of power. A second fundamental principle in a modern democracy is that the armed forces are subordinate to the authority of the elected government. A corollary to this principle is that the armed forces cannot and must not be allowed to overthrow an elected government even though with their brawn they have the capacity to do so whenever they wish. A third fundamental principle is that democratic governments function within the framework of a basic law--or many basic laws as is the case of the United Kingdom--called the constitution and their action is also governed by other laws enacted by processes defined in the constitution. There are devices established by the constitution and by other laws to act as checks against abuse of power. Unfortunately there can be no constitutional scheme or any other system of laws that can ensure good governance or that an elected government remains ever responsive to people's difficulties, wishes and aspirations in the period between two elections or that free elections do not hand power over to a gallery of rogues. Those in power anywhere are susceptible to a disease called arrogance of power and in political classes all over the world the number of scoundrels and idiots is not small. This is where two other devices present in all modern democracies come in: the right to peaceful protest and free and active news media. In recent times, the student protests of 1968 in France destroyed General de Gaulle's political authority just as the anti- Vietnam War protests in the USA destroyed that of Lyndon Johnson or the silent protest of Indian masses destroyed Indira Gandhi's exercise in dictatorship. The undoing of Richard Nixon was largely facilitated by the American press. Yet the departure from power of de Gaulle, Johnson, Indira Gandhi and Nixon took place within the strict confines of the law.
Often the action of forcefully removing from power a democratically elected and a legally constituted government because it is believed by many to have gone bad, brings out strange justifications. In Pakistan in 1954, a Governor General invoked the doctrine of necessity for justifying the dissolution of the Constituent Assembly which had drafted a constitution that he did not like. The Pakistani Supreme Court upheld the application of that principle. Since then Pakistani generals and judges of the Supreme Court have used that doctrine to declare the legality of a number of military coup d'états. Another principle that can be and often is invoked for illegal overthrow of governments is the elegant and morally superior sounding principle of legitimacy. It can be used to justify practically any individual or collective action ranging from overthrow of governments to acts of treachery to non payment of legally prescribed taxes to extra-judicial killings. The trouble is that the entire notion of legitimacy, if not grounded in clearly defined laws is extremely nebulous and liable to totally subjective interpretations. Within Adolf Hitler's set of values the final solution was legitimate just as Indira Gandhi invented some kind of legitimacy for her exercise in dictatorship in 1975, or as within Barack Obama's set of values the execution of an unarmed Osama ben Laden was legitimate and within the value systems of George W. Bush and Tony Blair the unprovoked invasion of Iraq was legitimate on the basis of one falsehood after another. Extra-Judicial killings by the Royal Ulster Constabulary of people they were certain were IRA terrorists or by many Indian policemen of people they were certain were either criminals or terrorists were equally legitimate. From points of view different from those of the people named above all these were illegitimate and from the point of view of the law all these acts were illegal and if legitimacy is to be defined by law then all these acts become objectively illegitimate. The principle of legitimacy divorced from the law can be as dangerous as Rousseau's general will because the former can lead down the road to disorder just as the latter can become a prescription for despotism.
Societies make laws for managing public affairs, regulating relations between their members, for defining people's rights and for promoting public good. Laws are made by authorities whose power to make laws is recognised by most if not all members of society. Every effort is made to ensure that the laws are clearly enunciated and in case of doubts about their meaning in specific situations there are mechanisms for interpreting the law. Societies also create institutions for applying the laws impartially and deciding when the laws are breached and by whom. An illegal act can thus be more or less objectively defined. In democratic societies, the law and its supporting institutions function on the basis of popular approval of the rulers to be determined in a clearly defined manner. Democracies have, in addition to periodical elections the instrumentalities of popular protest and free news media to act as checks on the misuse of power. Very few people in governments, even in democratically elected governments, have more than a limited amount of tolerance either for people's protests or for the news media and impulses to curb both lie dormant in all governments. But democracies also guarantee by law both the right to protest and the freedom of expression. And in democracies it is the law that must be upheld. An illegal act, whether it is the murder of an individual or the overthrow of an elected government by the armed forces must be unacceptable in all circumstances. Those claiming to be wedded to democratic values and yet justifying an illegal overthrow of a democratically elected government must remember that from a democratic standpoint, there is no act more illegitimate than the thwarting of people's wishes for ascertaining which there has to be a clearly and legally defined mechanism. The only rulers who by their actions lend legitimacy to those who wish to overthrow them by violent means or non-violent are despots who rule for the benefit of themselves and of a group around them, ride roughshod over the aspirations, needs and rights and are oblivious of the difficulties and the problems of the people they rule. Mohammed Morsi was not such a ruler. Not yet.