Right to Democracy: A Utopist Daydream of the 21st Century

Felicia Andryanti

10/27/20246 min read

Protesters in Bandung, Indonesia, following the 2024 constitution amendment on presidential candidacy requirements. (Image source: Foreign Policy/Timur Matahari)

The New Autocrats

The end of World War II is often touted as the world’s victory against authoritarianism, in the hands of (predominantly) Western allies. Fascism was out; democracy was all the new rave. It gave way to the formation of the contemporary international legal system, the decolonization movement, and—particularly vital to the two—the principle of self-determination. As former colonies began exercising their right to sovereignty, the world saw an influx in the birth of new States. Most of these States ended up adopting some variation of liberal democracy as their governmental system; a phenomenon often dubbed as “democratization waves”.

However, it is all but naive optimism to suggest authoritarianism died in a bunker some decades ago. They killed Mussolini, not Nazism or spazio vitale. Killers get killed, dictators die. But the drive for absolute power remains well alive in all parts of the world. On a more urgent note, it has been documented that a worldwide swing towards authoritarianism (the so-called “third wave of autocratization”) has been taking place for quite some time now, only cloaked differently.

These days, it’s no longer commonplace to hear fascist slogans, machiavellian chants for “Big Brothers”, or unchecked despot dominions. Instead, we get vaguely-worded calls for “national security” with militant, patriotic overtones. We may be more familiar with trends of tough policing, border strengthening, and state surveillance through nebulous “social media” laws—as they pervade our daily lives and grow normalized.

Last week, Indonesia saw Gibran Rakabuming—son to ex-president Joko Widodo—sworn in as the new vice president. During his tenure, Jokowi infamously consolidated military involvement in governmental positions, introduced draconian penalizations (among which includes extramarital relations/cohabitation, same-sex relations, abortion, and blasphemy), and many more, with critics charged under defamation laws. By the end of his term, word traveled of plans to nominate his son for the leading ticket, despite ineligibility under the constitution’s age requirement for candidacy. Then—in an impressively convenient feat—a last-minute ruling by the Constitutional Court (chaired by Jokowi’s brother-in-law) amended the article, clearing Gibran’s path to the presidential palace.

This is the playbook of modern autocrats: in public, they proudly pledge allegiance to democracy, fair elections, independent judiciary, and freedom of opinion. Behind doors, slithering through gaps within institutional confines, they monopolize elections, infiltrate oversight bodies with familial oligarchs, and brutalize dissenters, leaving “democracy” an empty shell with a pretty name.

This tactic has gained many names: autocratic legalism, illiberal democracy, electoral authoritarianism; all commonly understood to indicate a democratic backslide. In response, many have raised suggestions of varying measures to counter and “stop authoritarianism!”, one of which being the enigmatic right to democracy. It argues that democracy itself is an inalienable human right; and it should have a place in international law (if not already).

Ubiquitous Proceduralism

Democracy. While the pursuit of a strict definition will (and has) resulted in endless debate, it is an inevitable predicament, should we entertain the big claim that such abstract concept is an ontological droit of humanity. Many would name populist rule (“power of the people”) as the philosophical crux of democracy; as most of us, too, were taught. For centuries, the concept went on to be critiqued and challenged—with many raising issues such as majoritarianism and minority rights. This ushered in countless mutations of the formula (i.e. liberal democracy, social democracy, etc), attempting to ameliorate its perceived shortcomings and/or refine it to their ideological goals.

Many legal scholars, for practicality, resort to defining key features of the average modern democracy; elections, human rights, rule of law, and many others. This is also the approach endorsed by most proponents of the right to democracy, as it provides a clear threshold based on States’ laws on human rights or elections, or their constitutions. To combat autocratic legalism, the standards may be tautened to focus on substantive criterions: freedom of expression, opinion, equal suffrage, political participation, etc.

However, it doesn’t take long to notice the inefficacy of this argument. Let us remember: the new autocrats boast their respect for press freedom as they privately mingle with major media outlets, cornering and throttling the opposition’s voices by the pockets. They may claim political participation through formal involvement of minorities in law-making processes, only to passively dismiss and legislate against their interests after taking them “into consideration”, in the absence of mechanisms to prove otherwise.

This is by no means a unique legal hiccup: the ECtHR, for instance, has afforded States a margin of deviation on considerations of “public interests” which it often identified through domestic judicial reviews, relegating its definition to the States themselves. In various courts and jurisdictions, fulfillment of environmental rights are cheapened into governmental reports, while justice for victims of State violence dies at ritualistic gestures and void investigations. Across the board, the functionality of human rights as a legal instrument are marred by the same pattern of long-winded proceduralization.

And so the history goes: a new standard may then emerge—to which new ways of circumvention will supersede. A never-ending cyclical chase, it is the eventual outcome of when notions such as “freedom” or “equality” are boiled down to mere procedural and bureaucratic indicators. Even attempts to prioritize substance falls flat and constrained, as the positivist legal system inherently demands order and rigidity. Bad-faith actors will hunt down loopholes and slip away on technicalities; leaving us right where we started.

These seemingly band-aid solutions are especially frustrating, as they compromise substantive justice for the illusion of legal certainty. They prevail by putting on a face of amicability, negotiating a constant wiggle room for oppressors in return for hollow promises on paper. The reason for this is inseparable from the history of its creators. When it comes down to it, these lauded structures of “utmost impartiality” will never, in reality, betray the hands that brought it to life.

The Democratic Crusade

At this point of analysis, it is crucial to examine the sociopolitical nuances and implications behind the aforementioned legal concepts. Any discussion on the present international dynamics would be a remiss without acknowledging the lasting impacts of colonization. This, too, rings true when it comes to the alleged “right to democracy”. As with the murder of tyrants, the establishment of the UN (backed largely by Western imperialists) did not eradicate colonization; it all but polished and softened their language, and with it, their image.

Implicit narratives painting third world populations and/or minorities as primitive, uneducated, and backwards, is a notorious weapon inherited—and frequently employed—by the current functionaries of colonialism. This fuels the false polarization of colonized peoples as barbarians standing opposite to “modern” or “civilized” values such as democracy and human rights (at least those formulated by Western actors). Such framing has long been used to justify military interventions and occupations, under the guise of “civilizing missions”. We saw this tactic deployed in America’s invasion of Iraq, its decades’ long list of interventions in South American countries, and the myriad other “pro-democratic interventions” it waged in the Global South. And as we live and breathe today, we see the same tune sung by the same people, seeking to wash their hands from blood of their genocide, occupation, exploitation, and impoverishment in Palestine, Sudan, Tigray, Congo; the list goes on, as does the subjugation of the people.

When it comes to the right to democracy, it’s imperative to remain critical and cautious beyond the textual and the normative, and weigh how it may be weaponized and co-opted by the groups we claim to condemn. Plenty of the most renowned figures pushing for such right to be acknowledged and/or realized also opine that the right entitles a “democratic” regime to defend itself from “threats of totalitarianism”. Phrases like “collective security measures” or “popular sovereignty”, all signaling forms of military intervention, get thrown around flagrantly; inconsiderate of the bleak history (and ongoing reality) of such initiatives.

There is seldom doubt that the “right to democracy” may very well be a proposal of just intentions, fostered by thinkers with largely egalitarian aims. However, we must maintain skepticism towards the main beneficiaries thereof. This, fatefully, routes back to whose paradigms of democracy, “justice”, and “peace” are hailed and availed. It is then worth questioning if it’s wise or rather wishful thinking to assume that assimilation with the same frameworks and systems which historically serve to enable and sustain authoritarianism; that primed the breeding grounds for modern autocracy—formalism, positivism, legalism—will somehow yield an effective vehicle in the fight to eradicate their forefathers.

Felicia Andryanti (黃厥新) is an undergraduate law student at Universitas Gadjah Mada, with interests in international human rights law and critical legal studies. Currently an executive editor for the student-based law journal Juris Gentium Law Review.