Have we reached the end of constitutional democracy? - Dennis Davis

In 1989, Francis Fukayama wrote of the end of history. His argument was that the unfolding of history had revealed – albeit in fits and starts – the ideal form of political organisation: liberal democratic states tied to market economies. (Or to appropriate Churchill, the least-worst form.)

 Thirty-six years later,  this claim appears as a distant memory. Thus, on January 4, that thoughtful analyst on CNN, Fareed Zakaria, wrote that ‘everywhere you look the left is in ruins. Of the 27 countries of the European Union only a handful have left-of-center parties leading government coalitions. The primary left-of-center party in the European Parliament now has just 136 seats in a 720 seat chamber.’

This trend extends far beyond the exclusive domain of the EU. Donald Trump now poses a manifest threat to the core framework of US democracy. India’s Modi, Argentina’s Milei, and, regrettably, Israel’s Netanyahu have faint regard for the substance of political democracy while South Korea lurches from crisis to crisis.

To be sure, growing income inequality, technological change that crushes the employment prospects for a vast population of unskilled workers and many skilled workers, waves of immigration that have overwhelmed the capacity of countries to absorb them, and the concomitant perception that this poses an existential threat to citizens save for the elite, provide reasons for the increasing threats posed to liberal and social democratic politics. And then there is social media that expands the reach of extreme views.

Added to this mix of causes, which have ensured that liberal and social democratic models of government are under such significant retreat, is the recent phenomenon of state capture by oligarchs of the West. In an instructive article in the Financial Times (8 January), Edward Luce has drawn attention to the role played by Elon Musk. He writes that ‘America did not elect Elon Musk. Yet he is acting as Donald Trump’s de facto co-president.’

Not content with throwing truckloads of money into the Trump election campaign, Musk is now supporting the far-right Alternative for Germany, calling for an end to the Labour government in Britain and pledging significant financial support for a Nigel Farage vacated Reform Party. As Luce observes, history offers no precedent for this Trump/Musk presidency. Yes, America had robber barons – the Carnegies, Rockefellers, and Vanderbilts – but they never acted as co-presidents running foreign policy.  Compared to Musk, even JP Morgan’s wealth of approximately $49b (in current terms) or that of Henry Ford  who enthused about fascism ($200b in current terms) pales into insignificance compared to that of ‘onse [our] Elon’. Musk’s silence on Ukraine, Russia, China, compared to his enthusiastic embrace of the extreme right wing in other parts of the world speaks volumes.

In his campaign to have the Starmer government fall, Musk has now latched on to a series of appalling cases involving child grooming by gangs of men of mostly British – Pakistani origin. These go back some two decades and most of the failure to protect these vulnerable children took place while the Tories were in power.  As Michelle Goldberg noted in a recent New York Times article (6 January) ‘Musk is using a genuine atrocity to pursue his campaigns against Starmer with whom he has a long running feud over the regulation of social media and against mass immigration.’

The legitimate horror which the grooming story has  elicited   should not mean that Musk’s demagoguery should be praised or indeed excused. He has accused the Safeguarding Minister Jess Phillips,  a long-time activist against domestic violence, as being ‘a rape genocide apologist‘ in that she refused to commission a national inquiry preferring that the inquiry be a local one in the areas where these horrific crimes took place. Whether that is the correct decision is one matter, that it does not justify the Musk outbursts is another entirely different issue.

The salient point is that  both President Trump and Mr Musk pose a serious threat to the defence of democracy. Musk’s enormous wealth which will doubtless increase exponentially by way of his partial capture of the USA state, and hence the financial benefits that will flow to his companies, will allow him, in this age of social media, to undermine deliberative politics. The implosion of the media that used to provide a reasonably accurate reflection of the news and its context only adds to the threat to the future of the democratic model.

 Trump’s admiration for authoritarian leaders like Putin and Orban  is compelling evidence of where the USA is heading  aided and abetted by a captive media and a compliant Supreme Court. And, by the way, if you excuse his war against democracy on the basis of his support for Israel, perhaps you may wish to read the compelling argument by that wonderful historian Timothy Snyder about the anti-Semitism exhibited by Trump and his Quisling Vice President , the oleaginous JD Vance. (See here)

 The role of independent media in sustaining a deliberative democracy cannot be underestimated. After all, absent reliable sources of information, the public are constrained to read the world through the prism of an alternative reality grounded in falsehoods. Take, for example, the Trump line on Ukraine. He persists in claiming that the USA expended some $350b on support for Ukraine,  far more than that provided by the EU. These are blatant falsehoods. The true figure is $128b which is less than that of the EU but Trump is hardly called out by the media in the USA. Similarly, the claim that Ukraine started the war, when patently that brutal dictator Putin did, is luminously reflective of an alternative universe.

The USA is well on track to replicate the model of Viktor Orban’s Hungary where elections do take place but governance is at the whim of Orban absent any legal guardrails. The Republican controlled legislature and the obedient Supreme Court supported by media, controlled by billionaires who see Trump as a ticket to even greater wealth, are the conveyer belts to the destination of a gutted constitutional democracy.

South Africa, which began its democratic journey toward constitutionalism some 30 years ago, is also facing these challenges. The turn to the right  or other forms of populism across the globe will doubtless  act as an added incentive to the anti-constitutionalists, particularly  the MK  party which seeks to exploit the problems of inequality, poverty, immigration, and tepid economic growth to pursue  its  anti-democratic  agenda. While Mr Musk’s focus is on Europe and the UK, his use of social media coupled to the diminished role of traditional media is a case study of how to undermine the guardrails of democracy.  In many countries, including South Africa, the poverty of party politics and the palpable lack of confidence that the public has in the political system adds to the challenge.  It is arguably to a resilient civil society that we need to look -- it may provide the defence. And in South Africa where roughly 27% of the electorate voted in last year’s election for parties that are have antipathy to the constitution is a prime candidate to join Orban, Modi, and Trump.

For those who embraced the vision of democracy underpinned by a steadfast commitment to the rule of law, the Israeli courts under the leadership of Chief Justice Aharon Barak were a source of great jurisprudential admiration . The development of the law under the shadow of the Basic Laws was remarkable. And, to a large extent, the Israeli courts have continued this tradition. Small wonder that a government that has little commitment to this model of governance seeks to resurrect its initiative to curb the review powers of the courts or the shameful attempt to remove the independent Attorney General Gali Baharav –Miara.  These are moves that, sadly, reflect the increasing embrace of the authoritarian model of governance in which the leader, albeit elected at an election,  can assume that his mandate is not that of a prime minister or president but that of a king unfettered by the constraints of the rule of law.

Thirty years ago, constitutional democracy held hegemonic status as the chosen model of governance. Regrettably, this is no more. To an extent, the Israeli population  was a fine example of what constitutes a defence not only of constitutional democracy but even more so of our precious right to freedom, of how we chose to live our lives. The key question is the extent to which this kind of popular defence can effectively prevent  a scenario where the constitutional model was but a detour in a history in which the rule of the authoritarian  continues to be the norm.

by Dennis M. Davis