Thursday, May 13, 2004

Freedom of the press and the problems of Latin America

Several months ago, a professorial couple from Mexico was discussing the problems of
Mexican governance.

"The wrong people are in power. Fox is trying to change this,
but it is slow."

"If only we had the right people in power...."

This is such a theological attitude! If only we would give all power to the "saints",
all our problems would be solved!

Psychology teaches us that behavior is largely a function of environment. The same
laws of economics (i.e, limited resources) and evolutionary psychology that apply
to everyone else largely apply to "saints".

("But we can overcome human nature, can't we!?" a theologian protests. Oh yes --- in
genetics there is the concept of an "altruism", a gene that makes one altruistic towards
other individuals with a similar genetic makeup --- relatives, ethnic groups, one's
nation, humanity, higher organisms, etc, which presumably also have such an altruistic
gene. The altruistic gene thrives by increasing "relative's" chances of biological
success, even at the expense of the individual. "Overcoming human nature" is human
nature --- it's just an expression of altruistic behavior, also genetically determined
and also very human.)

A "saint" given great power would more often than seek to bestow privileges on their children and on their ruling clique of cronies --- that's human nature, and that's we've seen history. Charlemagne supposedly outlawed marriage among priests in the 1200s (after it was practiced for more than a millennia) out of fear that the bishopric, with the often large estates, were becoming a powerful hereditary position rivaling the traditional Western Nobility. In doing so, he perhaps saved Western Civilization from becoming a hereditary theocracy.

Because the "ruling classes" often have been genes, better inherited wealth, and
better familial connections most societies allow some amount of nepotism, but ultimately
the practice has to be curtailed to protect democracy. Absolute inherited monarchy, once
the most common form of government, is, after all, the ultimate form of Nepotism.

While some individuals are sufficiently vile that they should be kept away from power at all costs, in general behavior is a function of environment.

Good government, therefore, is created by a sophisticated system of system of democratic accountability to provide checks and balances on human nature, not by finding "good saintly people" in positions of power.

Traditionally, in Latin America too much power has been given to the executive branch, "El Presidente."

This comes both from the Code Napoleon --- a tendency to put far too much prosecutorial power in the hands of the government (and executive branch), as well as Latin America's
powerful cult of celebrity --- a desire to be led by "saints" or macho individuals who can do no wrong.

Another problem is the "Banana Republic" issue --- a tendency to arrest former Presidents as soon as they are removed from power. In the United States, we don't like
to try former Presidents for wrong-doing, out of fear that doing so might drive future Presidents to undermine the democratic process to keep themselves out of jail.

The U.S. Constitution says that presidents and other officials are not personally liable for "official acts" unless impeached and convicted by Congress --- a cumbersome political process requiring a majority of the House and 2/3rds vote in the Senate. Conviction by impeachment has never happened for a US President, although the Senate has removed many lesser federal officials. Sitting US Presidents have the additional power of "auto immunity" stemming from their ability to pardon individuals for crimes; it is assumed they would simply pardon themselves from any criminal prosecution while sitting in office. Even after they leave office (term limits in the U.S. guarantee that Presidents shall have power for no more than 8 years) however, Presidents and other federal officials cannot be prosecuted for "official acts" unless impeached and convicted by Congress.

This is very much in contrast to some Latin American countries, whose Constitutions expressly state that the executive branch is personally liable for all official actions. Some of the constitutions even prohibit the executive from leaving the country without the permission of the legislature, presumably out of fear he or she might someday flee prosecution. Members of the legislatures in these countries, by contrast, seem to be structured like privileged clubs, with constitutional provisions being made for extended year-long absences (the US Constitution gives Congress the important power to compel attendance of its own membership) and an explicit statement that legislatures, unlike the executive, are not accountable for their official actions. So it is not surprising one sees "Banana Republic" type phenomenon in these countries, where the executive is often tempted to take on additional, extra-legal powers out of fear of almost certain prosecution upon leaving office.

Consequently, in an ideal democracy, the executive branch is heavily accountable to the legislature and to the people. However, to ensure executives readily relinquish power to their successors, an executive should rarely, if ever, be prosecuted for official acts of his or her administration, and then only by a carefully crafted political process, such as the US system of impeachment. The US "founding fathers" seem to have understood many of these principles back in the late 18th century, but many in the rest of the world still don't.

Is an executive branch of government even necessary? All democracies have seem to have some form of executive branch, although in some cases it is a member of legislature (Prime Minister) or a committee of the legislature ("executive committee").

The idea of an executive goes back at least to the ancient Greeko-Roman historian Polybius, who believed that a constitution should consist of an elected executive, oligarchic group, and larger democratic institutions. Power between these different groups would fluctuate in response to conditions. In times of military crisis, the elective executive would assume greater powers to ensure the nation's defense. In more ordinary times, power would pass back to the people to ensure optimal government and address the larger needs of society.

In reality, however, the executive's primary function during ordinary times is as a guarantee against selective enforcement of the law. Legislatures pass laws, but an executive agency is required to enforce them. During the Terror of the French Revolution, political leaders sought to escape blame for their atrocities by hiding behind large, anonymous committees that had supposedly "democratically" enacted these outrages. The U.S. "Founding fathers" had similar experiences with the legislatures of some states prior to the ratification of the Constitution. Members of legislative committees were able to escape blame for unpopular acts by hiding behind the committee.
Lack of a single executive prevented effective democratic accountability in cases of selective, or tyrannical, enforcement of laws.

In normal times, then, the executive is the single individual held accountable for the enforcement of the laws. In the event of tyrannical or uneven enforcement of the laws, the legislature or the people can remove (but not prosecute, except in rare cases) the executive.

As I wrote yesterday, democracy is merely a system for processing informative. No single individual can understand the complex problems of a society. Democratic processes are the solution, integrating information across all spectrums of society, enabling better decision making. A free press, therefore, is absolutely essential to good governance.

If an executive interferes with the free press in a democracy, this is a tyrannical and uneven enforcement of the laws. The legislature should use its considerable oversight authority to force the executive branch to modify its behavior.

The story coming out of Brazil this weeks suggests that, so far, this has not yet happened.

President "Lula" da Silva of Brazil decided to expel a New York Times correspondent who suggested in an article that the President may have a drinking problem.

Traditionally, an inaccurate story in the newspaper is treated through judicial process. The wrong individual may sue for liable if the story is indeed false, and thus impose a monetary penalty. In order to encourage newspapers in their oversight role, the U.S., "public individuals" such as high-ranking government officials have reduced abilities to sue newspapers for liable.

However, President "Lula" decided to use his executive powers to simply expel this journalist, an unusually heavy, and seemingly tyrannical, penalty for an inaccurate story. As a former Brazilian president in the opposition pointed out, journalists published inaccurate stories on him all the time, but he never thought of taking personal revenge in this way.

Press groups in Brazil and around the world have pointed out that President "Lula"'s actions are likely to chill freedom of expression in Brazil, and thus interfere with the media oversight so essential to democracy. So far, the opposition parties have failed to muster enough support in the Brazilian leaseholder to use their oversight authority to force President "Lula" to reverse course.

In this way, again, we see the process of democracy subverted to the interests of a small ruling clique around one man --- the President of Brazil --- who publicly signaled a willingness to ruin journalistic careers to preserve his macho/saintly image and his "cult of celebrity". All of this is at the expense of democracy and the larger interests of Brazilian society.