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Author: Tayyab Mahmud

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The Military-Judiciary Nexus – Egypt and Beyond

The deputy president of Egypt’s Supreme Constitutional Court, Tahani el-Gebali, disclosed that she had advised Egypt’s ruling generals how not to cede authority to the first freely elected Parliament. The Court then issued a decision that opened the door for the military to resolve the elected body and to usurp the constitution drafting process.

The still-unfolding military-judiciary concert in Egypt to decline transfer of power to elected civilians has infamous precedence in other polities, particularly Pakistan.

In 1958, Pakistan’s Supreme Court upheld the validity of the country’s the first coup d’etat. The decision, drafted by Chief Justice Mohammad Munir, used Kelsen’s theory of revolutionary legality to hold that a successful revolution becomes a law-creating fact whose legality is judged not by the annulled constitution but its own success. This military regime lasted for eleven years. Twenty years later, Munir disclosed in his autobiography that he had advised the generals about how to abrogate the constitution and had helped draft the proclamation of martial law.

In 1977, Pakistan’s Supreme Court validated yet another coup d’etat as a “constitutional deviation dictated by necessity.” The Constitution, was held to be in place and the military regime was permitted to take only such actions that are permitted by the Constitution. When the decision was released in the customary printed form, there was a hand-written insertion by Chief Justice Anwar ul Haq giving the military regime the authority to amend the Constitution at will. This military regime, that inaugurated the “Islamization” of laws, lasted eleven years.

A few months earlier while this case was being heard, the military had removed Chief Justice Yaqub Ali, deemed not sympathetic to the coup-makers, and had appointed Justice Haq.

Note that all judges of Egypt’s Supreme Constitutional Court were appointed by the Mubarak regime. This military-judiciary nexus in Egypt does not bode well for hopes triggered by the Arab Spring as it unfolded in Tahrir Square last year.

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Alternative Development or Alternatives to Development – IV

While the genealogy of the development discourse is rooted in ideologically laden Cold War rhetoric of “stages of growth” and “modernization,” development as a discursive phenomenon and as a policy assumes a stubbornly non-ideological character. International development agencies and state bureaucracies become what has been evocatively designated “anti-political machines.” They continually reduce questions of poverty and degradation to failures of technological advancement. In its refusal to interrogate the history and operations of capitalism and geopolitical power relations that produce and sustain conditions of poverty, developmentalism as an ideology conjures up an anti-historical reality whereby its structure and function are deemed immutable, present in the same form throughout history.

To date critiques of development have taken two roads. First, there is the series of internal critiques of the project accompanied by proposals for its modification and revitalization. These critiques often use the rhetoric of relief for the poor. Their overriding concern, however, is to keep intact the foundations of the global economic order and its favorite progeny, the development project. Then thee are critiques that often succeed in exposing claims of universality and justice of the capitalist model of development, and in the process demystify the linkages of the development project with capitalism.

However, some problems remain with the second line of critique. By externalizing the sources of crisis, states and ruling elites of the Global South are deemed the only relevant actors for any strategy of action that may be suggested by counter proposals. The center-periphery models of global economic relations do not recognize the supra-territorial flexibility and heterogeneity of globalization. Prescriptions of delinking postcolonial economies from global capitalism do not adequately address contemporary modes of global capital accumulation. The conceptual frame of the delinking thesis rests on an understanding of the postcolonial state as an autonomous regulator of the flows of commodities, capital and labor – an understanding not warranted in the context of neo-liberal restructuring of the global economy.

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Alternative Development or Alternatives to Development – III

The specific discourse of development emerged in the era of national liberation struggles as a containment strategy to appropriate and normalize challenges to colonialism and neo-colonialism. Development policies and projects proliferated in an attempts to mange the evident poverty and inequality in post-colonial settings by isolating the causes of these conditions within these settings, thereby rendering invisible the role of global forces in producing poverty and inequality. “National” development was scripted by this new discourse. It did so by positing an underdeveloped and unproductive subject to be named, located, studied, theorized, and ultimately policed through development agencies and projects. Once defined, located and policed, this subject was to be the ostensible beneficiary of development projects imparted from above by governments under the direction of international development agencies. This teleology of progress not only provided yet another alibi for colonialism’s role in forging the conditions of post-coloniality, but also furnished the rationale for continued surveillance and disciplining of post-colonial societies and subjects.

Development, then, can be conceptualized as an institutional apparatus that links forms of knowledge about the Global South with the deployment of particular forms of power and intervention. Once societies become targets of these new mechanisms of assertion of power – embodied in endless strategies and programs – their economies and cultures are offered up as new subjects of knowledge that, in turn, create new possibilities of assertion of power.

The imaginary of development imprisons even its critique. This is the primary effect of a meta-theory of history, the foundation of the development project, which holds hegemonic sway even over the critics. This meta-theory is one that posits all human history as an unidirectional and linear movement from primitive to modern. Forges in the context of the colonial encounter, this meta-history assigned colonized societies to the pre-history of the West and served to legitimize domination and subjugation. This meta-theory of history trained on the difference the colonized native presented to the colonizer, and explicitly empowered certain cultures while suppressing others. In this meta-history all surviving cultures in the Rest have to rewrite their own history and live up to that of the West. In this schema post-colonials have a noxious past, a degraded present, and some others enviable present as their future.

Rabindranath Tagore, writing almost a century ago, stated the matter well when he said: “The entire East is attempting to take into itself a history which is not the outcome of its own living.”

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Alternative Development or Alternatives to Development – II

Since the mid-twentieth century, the idea of “development” has operated as both a cognitive category and a relation of force to remap the terrain marked by the colonial encounter and the condition of post-coloniality. One has to be clear that the grammar of colonialism is in the genetic code of the development project. How could it be otherwise? After all, both capitalism and liberalism, hallmarks of modernity and founts of the development project, were constituted in and through the colonial encounter. Indeed, the very first use of the word “capital,” in the sense of the grounds of capitalism as a new mode of production, was coined in 1766 in the context of capital-intensive though slave-hungry Antillean sugar plantations.

The development project is the latest variant of the 500 year-old project variously called “saving native souls,” “the white ma’s burden,” “manifest destiny,” “the civilizing mission,” and “the historical imperative of progress.” Development is not just a theory about economic development and elimination of poverty, but also an ideological and institutional device to consolidate the domination of the Global North over the Global South.

One can configure the development project as the sum of three gestures. First, it demarcates a site of intervention of power by constituting abnormalities in the anatomy of the Global South. Second, through normalization of development within a knowledge/power matrix, a field of control is demarcated. Social issues are removed from the political realm and relocated as preserves of science to facilitate a regime of truths and norms. Third, institutionalization and professionalization of development at all levels is secured, ranging from international organizations and national planning bodies to local development agencies and NGOs. These institutions – a network of new sites of power – constitute an interlinked global apparatus of development.

We can conceptualize the development project as an institutional apparatus that links forms of knowledge about the Global South with deployment of particular forms of power. Once societies become the targets of these new regimes of power – embodied in endless programs and strategies – their economies and cultures are offered up as new objects of knowledge that, in turn, create new possibilities of assertion of power.

The development project is, above all, a way of thinking. Once consolidated, it determines what can be thought, said, and even imagined. The development project defines a perceptual domain, colonizes reality, and produces particular subjectivities. Development is not only an omni-historical ideological construct and a hegemonic global discourse, it is the primary instrument of cartography of post-colonial imaginary. As a full-service enterprise, with confident notions of time and space, of nature and culture, of society and the individual, of the good and the truth, development is a mechanism through which particular subjects and subjectivities are produced. In the process, and as a result, precluded are other ways of imagining, seeing, doing and living.

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Alternative Development or Alternatives to Development – I

Rio + 20, United Nations Conference on Sustainable Development, held 22-24 June in Brazil, is over. The Conference did not achieve much. With most of the world, particularly the Global North, preoccupied with the aftermath of the 2008 global financial meltdown, no breakthroughs were expected at Rio- + 20. There was perhaps never a better moment to interrogate the concept of “sustainable development” and the general category of “alternative development.” This is what I plan to do in the next few posts.

First, a word about the current conjuncture: The fog of market fundamentalism and the neoliberal consensus has lifted a bit in the wake of the financial meltdown and the lingering economic crisis. Bond market vigilantes are turning even governments in the Global North into debt-collection agencies on behalf of the global oligarchy of finance capital; a fate until now reserved for the Global South. The purported link between capitalism and democracy appears strained if not severed – note Italy and Greece being run by technocrats appointed by the European Central Bank and cities in the United States resorting to declaring “financial martial law” to facilitate gutting labor contracts. “Capitalism with Asian characteristics” complements “socialism with American characteristics” – read public bailouts of private banks. Technocratic governance displaces political government. While the welfare state follows the fate of the development state towards shrinkage and oblivion, the coercive capacity of states, the capacity and willingness to wage wars both within and without, grows unabated. Ubiquitous austerity measures and structural adjustments are yet again transferring wealth from the poor to the rich both within and between polities. Apparently, the only growth industry today, besides privatized prisons, is the production of liminal spaces and subjects at the margins of legal orders and formal economies. All this unmistakably underscores that mythologies of the “free market” notwithstanding, the concert of the hidden hand of the market and the iron fist of the state is indispensable for capitalism, and that accumulation by dispossession is a basic ontological condition of capitalism rather than just its historical precondition.

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Praetorian Polities and Free Elections

Canonical texts of comparative constitutional law seldom take into account the phenomenon of nullification of election results by extra-constitutional means in praetorian polities. The political drama unfolding today in Egypt is a case in point.

After having dissolved the first-ever freely elected parliament in the country, Egypt’s Supreme Military Council is now withholding the results of the first-ever free presidential election. On June 20th, a commentator in Cairo termed the present situation “the most dangerous 48 hours.” If the history of nullification of election results by the military is any guide, dangerous times in Egypt may extend far beyond 48 hours.

Pakistan (1971) and Algeria (1991) present ominous parallels to the current constitutional crisis in Egypt. In both cases the military refused to honor the results of free democratic elections, and in both cases the result was a bloody civil war with lasting consequences for the polity.

In the case of Pakistan, the first-ever free elections for a parliament and constituent assembly were held in December 1970, after twelve years of direct military rule. Awami League, a political party representing East Bengal, won an overwhelming majority of the seat in the new parliament. Instead of transferring power to the Awami League, the military dissolved the parliament and unleashed a military action in East Bengal. A civil war ensued that quickly graduated into a war between India and Pakistan. By December 1971, over one million Bengalis had been killed in what was widely recognized as genocide, Pakistan stood dismembered, and Bangladesh emerged as an independence state.

In the case of Algeria, the first free elections for a new parliament were held in December 1991. The Islamic Salvation Front (FIS), an Islamist political party gained a clear majority in the first round of voting. In a quick response, the military took over direct control of the government, cancelled the elections, banned FIS and arrested thousands of its members. A bloody civil war was the result, one that lasted for nearly twenty years and claimed over 200,000 lives.

Note that military juntas often cite political stability, social order, national integrity and similar high-sounding ideals as rationales for their refusal to recognize results of democratic elections. The real reason is to protect their power and privilege. Increasingly, their privilege includes a direct and lucrative role in the economic sphere. For example, the military in Egypt, Indonesia and Pakistan is directly engaged in industrial production, mining, banking, insurance, transportation, mining, real estate, and, would you believe, wedding halls. It may well be that more than anything else the Egyptian military is trying to protect its share of the economic pie.

A very productive study of the lucrative economic role of a military establishment is Ayesha Siddiqa, Military Inc.: Inside Pakistan’s Military Economy (London: Pluto Press, 2007).

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A Judicial Coup?

On June 14, 2012, Egypt’s Supreme Constitutional Court dissolved the country’s first-ever democratically elected parliament and struck down a law passed by this parliament that barred senior officials of the Mubarak era from running for high office. Three days later, on the eve of the first-ever democratic presidential elections, Egypt’s shadowy military council proclaimed an interim constitution that grants the military broad veto powers over legislation, the national budget and foreign policy, and immunity from any civilian oversight. The military council also hand-picked a 100-member panel to draft a permanent constitution.

Popular forces in Egypt quickly dubbed the Court’s action a “judicial coup.” Indeed, in a single stroke the Court has erased nearly all political gains of the year-long popular resistance that made Arab Spring and Tahrir Square household words the world over. The Court also paved the way for usurpation of unbridled power by the military. By doing so, the Egyptian Court has added yet another chapter in the long history of judicial support for reactionary and counter-revolutionary forces throughout the world.

Courts in the Global South in particular have more often been instruments to thwart democratic aspirations than protectors of constitutional and human rights. Indeed, praetorian usurpers have repeatedly relied on the courts to secure legal validity and political legitimacy. The range of legal doctrines fashioned by the courts to accomplish this sordid task include “revolutionary legality,” “implied mandate,” “de facto organ,” and “state necessity.”

The Egyptian Court’s facilitation of last week’s coup d’etat brings into relief the long history of the judiciary as a reactionary and counter-revolutionary force. Both liberal revolutions of England, the U.S., and France and radical revolutions of Mexico and Russia had to contend with this tendency. The rise of human rights jurisprudence in some parts of the world in the twentieth century, and that too not an unidirectional one, should not blind us from the ever-present threat that courts in any setting can at any time put their weight behind reactionary political projects.