The Problems of Exceptions in a Transition to Democracy

The above four cases of exception occurred in different contexts of transition to democracy. In the case of the People's Republic of China, emergency power was used to suppress the 1989 democratic movement. In the cases of Nazi Germany and Chiang Kai-shek's China, emergency powers were used to close the door to democracy and to establish and maintain dictatorship. In the case of the US, the emergency power was used to maintain the unity of the US and the federal system in the Civil War. All of this highlights the importance of the exception in transitional periods, and requires us to analyze the nature of the problem of the exception in a transition.

A transition to democracy can be defined as a movement from a state of affairs in which constitutional rules are so discredited that nobody is committed to them, to one in which constitutional rules attract the commitment of a few members of the elite and are complied with by other members of the elite for their personal security and interests. In other words, a transition to democracy, by nature, is a shift from the gun to rules as the most appropriate way to resolve basic political conflicts. Thus these rules become able to regulate political life and the constitution becomes an overriding authority above executive authority. There are enormous difficulties for a new liberal government in establishing the rules of the game in the transition to democracy. Particularly, China will face the

following predicament. On the one hand, the frequency of exceptions will lead to the discrediting of the constitution and create enormous difficulties in establishing constitutionalism. On the other, if any exception is denied, it will be difficult for a liberal government to maintain social order and to realize constitutionalism. The following discussion will elaborate on this predicament.

During the transition to a liberal system, there is more open social and political conflict for supreme power than in the old totalitarian system where struggles for supreme power were more covert. Everyone is now able to anticipate being a supreme leader, and ambitious persons willingly seek that position through election and procedures. At the same time, these ambitious persons may abuse and violate rules blocking their road to power. Given that an institutional check system has not yet been established fully, in this critical situation, such persons may appeal to armed force as a final and decisive means to settle political disputes. Thus, the most universal phenomenon in a transition period is that states of emergency and martial law are often invoked to violate human rights (such as torture, disappearances and virtual abolition of procedural guarantees and lack of independence of the judiciary). This is done to try to perpetuate dictatorships, to suppress democracy and to attack fundamental freedom as shown in Section 1 about. Worse still, in Latin America, the states of exception in effect became the rule, acquiring permanent status, and becoming the essential judicial support of a "new order" so that judicial debates were excluded, legislative powers were reduced, and the police, adm inistrative regulations and military tribunals became the principal mechanism of social control. And most states of exception were arbitrary and merely a pretext in the interest of the dominant regime. Thus, some Latin American jurists even advocate the total suppression of the rules authorizing states of emergency (Zovatto, 1990, Alvarez-Garcia, 1981).

The violation of rules might be justified by the so-called rapid and radical social changes of the transition, which make laws and regulations unstable and unreliable. People often seek solutions outside legal channels, and even sacrifice the requirement of proceedings so as to deal with the complex issues of the transition. For example, in China, the nature of the problem of breaking a promise in a contract lies not only in one party failing to keep the promise, but in the unfairness of the social conditions under

which the contract was made. When the social conditions changed, so did the content of the contract; and difficulties for maintenance of the contract occurred. Thus some Chinese people often use this situation as an excuse to withdraw from a legal proceeding, and seek a more flexible solution to deal with the conflict of interests regarding whether the contract should be kept. Thus rapid and radical social changes become a justification for not complying with rules.

There are negative effects of exceptions on constitutional rules. To admit any exception at all to a rule is to open up the possibility of an ever increasing proportion of exceptions, and open up the way to that rule's destruction. The occurrences of exceptions also increase the difficulty of making and checking judgments about whether exceptions are justifiable and this may lead more and more people to discredit rules. For example, Li Peng's government might have used constitutional and legal methods in dealing with the 1989 crisis, but it used instead arms and tanks to crack down on the students' demonstration. As a result, the 1982 Constitution was much more discredited than before, because in a critical situation, it was the gun rather than the Constitution that finally decided the outcome of the 1989 events.

On the other hand, there is a need to see the state of exception as a instrument devised to defend democratic and legal order in a transition period, as suggested by Case 4 of Section 1 above. The really difficult problem associated with the process of realizing the rule of law and procedural democracy is that the aim of procedural democracy is to replace the "rule of man" with the "rule of law", which implies a limitation on personal authority. Now, in the case of China, while legal-rational authority has not been established fully, paternalistic authority appears to have been eroded in the transition period. It follows that the positive elem ents^0 of

130pye has discussed some positive elements of paternalistic authority as such: (1) there is the possibility for great flexibility in policies. Leaders can change direction without fear of losing their constituents' support; (2) paternalistic authority can have the great advantage in that it avoids a basic dilemma of political development that appears under more legalistic forms of authority; (3) although paternalistic authority usually has a way of avoiding accountability, it can also heighten peoples' sensitivities concerning whom they should turn to if they want to get something done; (4) the autonomy of leadership in policy­ making can also be translated into longer term perspectives in policy practices (Pye, 1985, 332-4).

paternalistic authority seem to have disappeared in the past ten years. 131 This may have created a situation in which there are new problems such as distortion of liberty, and burden and abuse of procedure, and in which there is a lack of a strong state to deal with the complex problems and to maintain social order. If that is the case, there is no hope for the establishment and maintenance of the highest authority of procedure. Further, even if the market becomes predominant in the Chinese economy and even if it takes a capitalist form, which is very probable, there is a continuing need for a new form of strong state to tackle fundamental economic and social problems. As the events of the late 1980s in China dem onstrated vividly, the transition process was fraught with instability and tensions arising from the growing complexities of the policy process, conflicts between old and new interests, threads to economic security and growing social inequality (White, 1994). A strong state with strong personal and executive authority is thus needed to deal with complex difficult problems and to defend the authority of the constitution when it faces challenges in the transition period in order to manage the transition to democracy. This strong personal authority will require emergency power provided by the constitution on exceptional occasions. This is vital for the establishment and preservation of procedural democracy provided that a strong authority is limited and regulated by just institutional arrangements and that this authority complies with the principles of justice and procedures.

Yeltsin's appeal to "special presidential rule" is a good example of the demand for a strong authority which requires the emergency power of president so that the president can control and reduce social conflicts in the transition.132 We leave open the question of whether Yeltsin's appeal is constitutionally justifiable, the point is that the emergency power is vital for a successful transition, because emergencies do occur, and a new liberal state has to live through periods of real and present danger that may threaten not merely the stability of a new liberal government or the normality of

131 For example, the former general secretary, Zhao Zhiyang concerned himself with short­ term policy-making, rather than long-term policy-making; his concern was confined solely to his own term of office. My friend, Wang Xiaolu, a reformer, who has met Zhao Zhiyang, told me that he was impressed by Zhao's short term perspectives when Zhao replied to Wang's report.

13^On Yeltsin's emergency power, see Michael Dobbs, "Green Light for Yeltsin Plan,"

co n stitu tio n al life, b u t even the physical survival of the state and its population. The question, therefore, is now about the wise design of the articles re g u la tin g em erg en cy p ow er. It is w ell k n o w n th a t m o st constitutions have such articles. A com puterized com parative stu d y of 142 constitutions in the w orld before 1975 show s that, 31 constitutions contain provisions concerning suspension of (part of) the constitution, 47 deviation from (p art of) the constitution, 17 both suspension and deviation, and 47 have no such provisions (M aarseveen, 1878, 83). Section 1 above show s that the constitutions of PRC, ROC, G erm any and the US have some provisions for suspension, or relaxation of p art of the constitution d uring emergencies. This is also true for the 1982 Spanish C onstitution, E uropean and Latin A m erican constitutions and sim ilar charters in Portugal and Brazil.

H ow ever, there are serious problem s associated w ith the em ergency p o w er articles of the 1982 C o n stitu tio n of PRC. First, the p ro v isio n s concerning em ergency pow er of the 1982 C onstitution are ill-designed in the sense th at these articles did not set lim itations on the em ploym ent of em ergency pow er and did not specify w ho has the overriding authority to im plem ent it (Section 1). Second, if the collapse of the Chinese C om m unist P arty o c c u rre d , w h ich m ay im p ly the in v a lid ity of the c o m m u n ist constitution, at least for anti-com m unists, there will be no such provisions available if there is not enough time to draft and pass a liberal constitution. This is e v id e n t in R ussia w here Yeltsin's justification of his decree of "special p re s id e n tia l rule" d id n o t com e from the form er co m m u n ist co n stitu tio n s b u t from the claim th at the C ongress is d o m in a ted by conservative com m unists w ho fail to do their d u ty and even conspire to o v e rth ro w a d em o cratic g o v e rn m e n t.*33 On the o th er h an d , Y eltsin's a p p e a l to " p r e s id e n tia l ru le " w as d e e m e d by th e C o n g re s s u n c o n s t i t u t i o n a l . This raises the q u estio n of w h e th er the form er com m unist constitution can p ro v id e an ov errid in g au th o rity over how to resolve a crisis in the transition period. I will not discuss this question in detail here, because further discussion of this im portant question is beyond

133$ee Australian, 22-5 March, 1993.

134Article 121 of the 1977 Constitution of the USSR specifies that the presidium of the Supreme Soviet of the USSR has power to proclaim, in the interests of the defence of the USSR, martial law in specific localities or for the whole country and general or partial mobilization. See, William B. Simons, 1988, 380.

the scope of this present enquiry. Here, I sim ply hold the conservative view th a t the fo rm er co m m u n ist co n stitu tio n sh o u ld be rev ised and be m aintained rather than abolished insofar as there is not enough time to draft and pass a liberal constitution. Given this assum ption, my concern is now the question of redesign of articles regarding emergency pow er in the co n stitu tio n . H ere I sh o u ld m ake clear th a t a w ell-d esig n ed article regulating em ergency pow er cannot resolve the complex problem s of the transition, but it provides a due procedure to resolve crises.

The above discussion raises the issue of justification of exception at a theoretical level. If a liberal g o v ern m en t w hose sole concern is equal political liberty is th reaten ed by a form er com m unist p a rty m ovem ent which looks likely to attain pow er again, w hat should the liberty-concerned governm ent do? Should it honour or respect the liberty of the com m unist m ovem ent to advance its cause w ithin the existing law? O r should it be p rep ared to deny the liberty of the com m unist m ovem ent for the sake of preserving constitutional o rd er and prom oting liberty overall? It is well know n that the form er m em bers of the C om m unist Party have questioned Boris Yeltsin's order th at the activities of the C om m unist Party be banned in Russia claim ing he violated the principle of equal political rights. Does the liberal governm ent have a right to m ake an exception of the intolerant, a n d e v en re p re s s th o se w h o are fo rm er c o m m u n ists a n d a n ti­ constitutionalists in ord er to m aintain social and political stability? If the answ er is yes, does an exception really underm ine constitutionalism ? How does proceduralism constitute a solid foundation for dem ocracy given the existence of exceptions? H ow do we defend constitutionalism w hen an exception is m ade? C an and how do we d istin g u ish ju stifiab le and unjustifiable exceptions in defending constitutionalism ? W ho decides that an em ergency exists? W ho im poses the exception? Who m ay im plem ent it? W ho m ay term in ate it? W hat lim its exist d u rin g the em erg en cy on g o v e rn m e n t a u th o rity ? Do co u rts rem ain in session? W hat are the p ro b lem s asso ciated w ith the em ergency p o w er articles in the 1982 C onstitution? A nd finally, how do we design and revise these articles? The following sections will address these questions.

3. A Critique of Schmitt's Theory of the Exception

Schmitt's political theory of the exception was conceived to justify banishing the extreme political movements of the Nazis and the Communist party which threatened the Weimar constitutional order from the political arena. Schmitt feared that existing electoral methods could be and would be exploited by revolutionaries of the left and right in their quest for power. He also believed that the Reich president, armed with constitutional emergency powers, could prevent a total collapse of political order or a seizure of power by extremists. The political outcome, however, was far from what Schmitt expected: the emergency powers were partially employed several times in the 1920s-30s, but they did not save the Weimar constitution after all. Ironically, Hitler invoked Article 48 to establish his dictatorship and finally destroyed the constitution. More ironically, Schmitt, who urged the employment of emergency power to prevent the Nazis from coming to power, turned to serve Hitler and became a prominent "crown theorist and jurist" of the third Reich in 1933. The questions raised from the above historical facts, are, can Schmitt's theory of the exception be attributed to his support for Hitler? What then is wrong with this theory?

The concept of the exception, in Schmitt's theory, should be regarded as a "universal concept central to political knowledge" (Slagstad, 1988, 116). An exception can, according to Schmitt, at best be characterized as a case of extreme peril, a danger to the existence of the state, or the like (Schmitt, 1985, 6). Thus the exception is seen as a dangerous situation or worst case that guides Schmitt to an unlimited authority. Further, Schmitt's type of exception can be described as statist, presidential and authoritarian; the president whose duty is to maintain the existence of the state, has the unlimited power to suspend the constitution but not to abrogate it in the case of an exception.

Schmitt's type of the exception is characteristically statist. In Schmitt's thought, the state has remained the crucial element. Only the state can guarantee the basic human and social requirements of order, peace and stability which are prerequisites for freedom. Under a constitutional system,