How Destructive Autocratic Legalism is to a Country and the Role of Civil Society Sensitivity

Oleh: Rizqi Ashari

The control to the legal sector by autocrats to advance the interests of the elite is one of the negative indications of the presence of autocratic legalism. Bivitri Susanti describes autocratic legalism as a planned and continuous use of attacks by the rulers (executive) on institutions that have a duty to oversee their actions (legislative), especially within the framework of their democratic mandate. In one of her webinars, Bivitri added that the concept of autocratic legalism is loosening the constitutional ties and restrictions on the executive through legal reform, which is the first sign of an autocratic legalist. In short, autocratic legalists walk according to the law (as if it is right), but actually violate the principles of the rule of law (existing laws have been changed to make private things happen), and even have a tendency towards authoritarianism, she added (Thea, 2021).

The classification of autocratic legalism noted by Javier Corrales (2015) has three key elements; the use, abuse and non-use of law in the service of the executive sector. More specifically, the use of law in autocratic legalism is usually used to justify the actions of legalists in undermining potentially dangerous parties to the ruling party. Furthermore, regarding the misuse of law, with reformed law, the implementation of laws and regulations tends to be inconsistent and biased; depending on which situation is favorable to the rulers. Lastly, the non-use of law, or more commonly, electoral irregularities, which create a sector or electoral scope exposed to irregularities — there are biased laws and are regulated by biased regulatory institutions.

How Destructive is Autocratic Legalism in a Country?

In Venezuela, there is a hybrid concept associated with the characteristics of a state that is simultaneously democratic and authoritarian. In such a mixed regime, usually the political party that is in charge and competing in elections (ends up winning), will get a smooth set of paths from an autocratic president who deliberately reduces checks and balances. One of the manifestations of this concept is Venezuela under the rule of Hugo Chavez (1999–2013) with Venezuela’s tendency towards authoritarianism, which was developed again at a new level by Nicolas Maduro (2013-present) (Corrales, 2015).

A note from Javier Corrales (2015) on autocratic legalism in Venezuela shows that the incumbent party in an authoritarian regime, plus feeling electorally challenged, will emphasize the authoritarian side to continue in power by decreasing the level of democracy — weakening the opposition or civil society. Not surprisingly, these hybrid regimes tend to be more authoritarian when conservative voters push for the need for competition for votes when various attractions (ideological, economic sector resources, policy innovation, and competent governance) are not available — it looks like there is a competition to show appeals. One of the examples is the reduction of electoral competition in Venezuela as a manifestation of autocratic legalism with Maduro’s intensification of repression on opposition parties.

The next reason for Venezuela’s more authoritarian tendencies is the realization of the “international shield” where during Chavez’s presidency, Venezuela used its foreign policy to create alliances that would not criticize Venezuela, or Venezuela used its oil resources to expand alliances throughout Latin America-Venezuela with high petroleum production provides benefits to neighboring countries (Corrales, 2015). These descriptions show how indications of autocratic legalism as a semi-authoritarian climate are destructive for a country — low levels of democracy, the eroding of checks and balances between the executive and the legislative, tone deaf rulers, and much more.

Autocratic Legalism, Authoritarianism, and the Death of Democracy

There was a moment when new charismatic leaders would be elected by a democratic society and then use their electoral mandate to deconstruct the constitutional system they inherited. In recent years, laws have been made to appear as if democracy is being upheld, but in reality democracy has been hijacked, which is the autocratic legalism that Kim Lane Scheppele believes in, especially in the case study of autocratic legalism in Hungary. (Scheppele, 2018).

Autocrats not only take advantage of the crisis of trust in public institutions — the public does not trust administrative institutions. Autocrats take advantage of the public “trust issue” to public institutions because they feel the focus on institutions is reduced, but they also attack the basic principles of democratic constitutionalism because they want to consolidate power and secure their positions for a long time (Scheppele, 2018). From Scheppele’s explanation, I assume that every autocratic legalist will always maintain a situation of public hatred towards strategic institutions in government, just to easily reform institutions and further personal interests. Back to Indonesia, such as the presence of the revision of the Indonesian Corruption Watchdog Institution (KPK) law, which placed the KPK under the executive branch and weakened critical institutions — the independence of the KPK is intervened.

One of the impacts of autocratic legalism regime is the regression of democracy. According to Gerschewski (2021), various countries are experiencing democratic regression, which is defined as a loss of democratic quality. For example, the quality of democracy in Hungary and Poland has deteriorated, as well as in Turkey with Erdogan, and Russia under Putin. The factors and parameters here are usually economic, social, cultural and political aspects that play a role. As one example, I consider the economic sector to be one of the vital sectors for the emergence of autocratic legalism. Reflecting on Venezuela, with abundant oil resources, the economic sector is a crucial sector in the emergence of autocratic legalism, or as in Indonesia with many tycoons — such as extractive industry businessmen, like Aburizal Bakrie, Prabowo Subianto, Luhut Binsar Pandjaitan — who are involved in politics, especially through political parties (Greenpeace Indonesia, 2018).

The Relevance of Autocratic Legalism in Present Time and Society’s Sensitivity

Both authoritarianism and autocratic legalism have a broad time landscape and are always relevant. For example, a country like Indonesia has a period of Reformation (post-authoritarianism). Indonesia has the potential for a state regime that leads back to authoritarianism in a democratic period with a similar pattern to a country backgrounded in autocratic legalism, such as the presence of the Indonesian latest law about labor (Cipta Kerja) — changing in the law to manifest the presence of new labor-related laws that have defects, the ITE Law (Information and Electronic Transactions) — like Corralles’ classification of the abuse of law, this law is prone to only be used for repressive actions against civil society or opposition to the rulers (Mochtar, 2022).

Indeed, Petr Kopecky’s (2002) concept of civil society emphasizes civil society as a “watchdog” for the regime. In this sense, civil society with political capacity will always be aware of various deviations from a regime. The responsiveness and criticality from a non-apolitical society is needed and important in putting pressure on rulers who begin to violate the mandate of constitutional positions.

A not-so Epilogue…

In a regime that is maneuvering in a democratic system, it is illegal for a small group to push the regime towards authoritarianism and through the domination of the legal sector, the “erosion” of checks and balances, and the restoration of democratic quality. The critical feature of this article is how a small group plays a gap to revive an authoritarian regime through autocratic legalism. The sensitivity and an anti-apolitical society are needed to revive critical thinking, to preserve the climate of democracy and prevent the emergence of elites of small groups.

References

Corrales, J. (2015). AUTOCRATIC LEGALISM IN VENEZUELA. Journal of Democracy, 26(2), 37–51. https://doi.org/10.1353/jod.2015.0031

Corrales, J. (2015). The Authoritarian Resurgence: Autocratic Legalism in Venezuela. Journal of Democracy

Gerschewski, J. (2021). Erosion or decay? Conceptualizing the Causes and Mechanisms of Democratic Regression. Demokratisasi,28(1), 43 — 62. https://doi.org/10.1080/13 510347.2020.1826935

Greenpeace Indonesia. (2018). Greenpeace Indonesia. https://www.greenpeace.org/indonesia/publikasi/1243/elite-politik-dalam-pusaran-bisnis-batu-bara/

Kopecky, P., & Mudde, C. (Eds.). (2002). Uncivil Society?: Contentious Politics in Post-Communist Europe (1st ed.). Routledge. https://doi.org/10.4324/9780203988787

Mochtar, Z., & Rishan, I. (2022). Autocratic Legalism: the Making of Indonesian Omnibus Law. Yustisia, 11(1), 29–41. doi:http://dx.doi.org/10.20961/yustisia.v11i1.59296

Scheppele, K. L. (2018). Autocratic legalism. The University of Chicago Law Review, 85(2), 545–584.

Thea, A (2021). 3 Indikator “Autocratic Legalism” dalam Kebijakan Negara. Hukumonline.com.https://www.hukumonline.com/berita/a/3-indikator-autocratic-legalism-dalam-kebijakan-negara-lt6102bdb6645ee/