Rise of the executive and the decline of civil liberties

In the last decade at least, we have seen two things happening side-by-side globally. One is the rise of the executive branch of government—the significance of its role in the workings of government and society at large. The other is the decline of civil liberties—some of which, such as the right to privacy and free speech, people are now "willingly" compromising on, or no longer view as inalienable even.

That means civil liberties, in our times, have become somewhat malleable. But what should it actually mean?

According to American attorney and journalist Glenn Greenwald, civil liberties refer to "the list of limitations that we have imposed on the government, in terms of the power that they exercise and what it is that they can do to us." These "limitations are not ambiguous, conditional or circumstantial," but exist in "all circumstances" and can legitimately "be claimed by all groups and all people", as they "are really 'absolute' in their nature". Limitations that are dictated by the constitution—another somewhat forgotten or overlooked concept of our time.

As Thomas Paine wrote in his book Rights of Man, "A constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence." American attorney Patrick Henry, similarly wrote, "A government is only the creature of a constitution. The constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government." And as such, according to Paine, the constitution "contains the principles on which the government shall be established"—in its entirety and as separate branches—including "the power which the executive part of the government shall have."

As the idea of the constitution slowly got relegated to the realm of being only a piece of paper, the executive part of governments around the world has been able to cross those limits, step-by-step. And here we can find similarities between Bangladesh and the US even.

To take one example, during his presidentship, president Obama "not only asserted" the power to target US citizens for execution without any charges or due process, but also "exercised it in practice" to justify the killing of Anwar al-Awlaki in 2011 and his 16-year-old American-born son Abdulrahman citing the controversial law known as the Authorisation to Use Military Force, according to The Guardian ("US cited controversial law in decision to kill American citizen by drone," June 23, 2014). Which is what all Bangladeshis understand and term more simply as extrajudicial killings—perhaps because its occurrence is so common here.

But what led to this concentration of power at the hands of the executive branch that allowed it to so blatantly cross constitutional limits and violate the rights of individuals?

Firstly, it has been achieved under the framework of endless conflicts, where nations portray themselves to be constantly under some kind of threat, or at war, without clearly identifying with whom and where. If we look at history, we see that it has always been the case during wartime that political leaders have been able to exert powers without limitations. As the famous Roman statesman Cicero said, "When men take up arms, the law falls mute."

In Bangladesh, that threat has sometimes been defined as "anti-liberation" forces—without describing what that actually means. Even though Bangladesh has been an independent nation for nearly 50 years, politicians continue to make the claim that someone, somewhere, wants to return it to a state of subservience to another country.

The second reason that has led to limitless government power is the perception among people that the violation of rights is only affecting a particular group. Governments throughout history have exploited this to grab additional power for itself, by initially targeting a minority within society towards which the rest of society, for various socio-economic or other reasons, would be apathetic, and thus unwilling to defend.

Once you accept the premise that you are only going to care about injustices if they directly affect you or the "group" you identify with, you end up legitimising that rights abuse. And abuses of state power almost always extend far beyond the group against which they were originally applied, once such abuses have been institutionalised—at which point it becomes increasingly difficult to object to them.

We have seen this in the US through the use of the Patriot Act. It was first used to violate the rights of Muslims after 9/11, but has now been expanded to include everyone else—for example, the targeting of the entire US population through mass surveillance.

The third reason, which is closely associated with the second, is the role that partisan allegiance plays in how people react to rights violations. In 2008, the CIA prepared a top-secret report—only known about after it was leaked to WikiLeaks who published it—in the middle of the US presidential election which was quite extraordinary. It stated that there was a rising anti-war sentiment in the west, which the CIA feared would quickly get out of hand unless it was immediately contained.

The report explicitly concluded that the best weapon to arrest this trend would be if the US elected Barack Obama as president. The reason being that once he (a black male) became the face of US wars, instead of George Bush (a white male), people who were inclined to oppose them under Bush would begin to view them more favourably.

And what happened eventually? The US openly waged seven wars under Obama—more than it did under Bush—with the US and global anti-war movements largely remaining silent.

The lesson that should be drawn from this is that constitutional rights and civil liberties cannot be safeguarded in the long run simply by going to the ballot-box once every few years, and electing a political leader who we like or believe we can trust—but by citizens banding together across "group identities" to demand that no matter who wields power, the government respects its constitutional limits.

This is not a new lesson but a very old one. One we have had to relearn time and again.

And although it may seem too idealistic to some, history teaches us, as it is doing now, that it is the most practical, and perhaps only viable, alternative that we have ever come up with to one or another form of despotism.

Eresh Omar Jamal is a member of the editorial team at The Daily Star. His Twitter handle is: @EreshOmarJamal