Rule of Law: Country Studies — Singapore

Singapore Country Study

Rankings in Freedom in the World 2016: Status: Partly Free.  Freedom Ranking: 4; Political Rights: 4; Civil Liberties: 4.

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Singapore

Summary

Singapore, a city-state located on an island located off the southern end of the Malay Peninsula, declared its independence from Great Britain on August 31, 1963. Following a brief merger with the Malaysian Federation from 1963 to August 1965, it became fully independent.

Like Malaysia, Singapore’s has been ruled by the same party since independence and its government is highly authoritarian. Freedom House regularly categorizes Singapore as “partly free.” The ruling party, the People's Action Party (PAP), has dominated Singapore’s politics since before independence. The country’s first leader, Lee Kuan Yew, served for 30 years as Prime Minister (1959–90). After that, he remained a dominant figure in political life as a “senior minister” to his first successor, Goh Chok Sun (1990–2004) and as “minister mentor” for his son, Lee Hsien Loong, who has served as prime minister since 2005. (He formally retired from the “minister mentor” position in 2011 and died in 2015.) The rule of law operates to serve the interests and authoritarian policies of the government. Courts regularly restrict and imprison political opponents. Singapore is known for its restrictive culture and severe punishment of such transgressions as chewing bubble gum. Like Malaysia’s initial prime minister Mahathir Mohamad of Malaysia (see Country Study in Multiparty Systems), the elder Lee was a prime defender of authoritarian political values and argued that democracy is incompatible with Asian culture. As an example of a "successful" authoritarian system, Singapore is a model that some other countries (including the People's Republic of China) have looked to as an alternative to Western democracy.

Singapore is one of the smallest UN member states by landmass, with a total area of just 693 square kilometers. It has a population of 5.5 million (75 percent are ethnic Chinese, 13 percent Malay, and 9 percent Indian) and is the second most densely populated sovereign state in the world. It also has one of the world's most successful economies, combining free market policies with a high degree of state involvement in the economy. According to the International Monetary Fund (IMF), in 2015 its nominal per capita GDP ranked 6th highest in the world at $53,225 per annum (it is 3rd when measured by Purchasing Power Parity, which takes into account inflation and currency rate factors).  Singapore is also considered one of the least corrupt countries in the world, ranking 8th (out of 167 countries) in Transparency International's 2015 Corruption Perceptions Index.

History

Given its central geographic location on the straits between the Indian and Pacific Oceans, Singapore has served as a center for trade for two millennia. Its early settlers were Chinese and Malay traders and fishermen dating at least from the early first centuries AD. Its Malay name, "Singa Pura," means "Lion City," and according to legend, it was given the name by a prince of the Sri Vijayan Malay Empire, who believed that he saw a lion on the island upon his arrival. The island fell under the control of several Malay empires and in 1511 became a part of the Jahore Sultanate.

British Colonization

In 1819, the British governor in India, Lord Hastings, approved a proposal of Sir Thomas Raffles, a governor of a neighboring island, to establish a new trading post in Singapore as part of a general policy to challenge the Dutch colonial hold over Indonesia and Malaysia (see Country Studies). Despite its central location and natural harbor, Singapore had been ignored by the Dutch in favor of other routes through the Strait of Malacca. Upon his arrival in Singapore, Raffles signed a treaty with the Sultan of Jahore granting the British East India Company rights to a trading post in exchange for an annual fee. In 1823, the British gained full possession of the island — also in exchange for a yearly payment. On March 17, 1824, the Anglo-Dutch Treaty cemented British control over Singapore and demarcated British and Dutch holdings: the British controlled territory north of the Strait of Malacca (Singapore, Penang, and Malacca), and the Dutch controlled the area to the south (Indonesia).

Sir Thomas Raffles: Founder of Modern Singapore:

Today, Sir Thomas Stamford Bingley Raffles is considered the founder of modern Singapore. Raffles set up an ethnic neighborhood structure and established the city as a major commercial hub in the region rivaling other British and Dutch trading centers. In the decades after Raffles's departure from Singapore in 1823, Singapore grew to be one of the major ports in the world, the combined result of Malaya's rubber and tin trade, the advent of steamships, and the opening of the Suez Canal in 1869 to facilitate Europe’s sea traffic to and from Asia. In 1867, the growing merchant population lobbied successfully for the Straits Settlements, a group of British-held islands and territories in Southeast Asia to which Singapore belonged, to be designated as what the British called a Crown Colony. This meant that within the Straights Settlements Singapore would be ruled directly by leaders in London and not by appointed governors. This status also led to the establishment of advisory legislative and executive councils (mainly of British subjects but with some non-British representation) and the adoption of the British court and legal system.

From Crown Colony to Japanese Occupation

In the first years of World War II, Great Britain suffered a series of defeats to the Japanese in its Southeast Asian territories, including the Battle of Malaya in late 1941 and the Battle of Singapore in February 1942 that resulted in the occupation of the Malaya peninsula, Singapore, and all of the Straits Settlements. The Japanese occupation of Singapore from 1942 to 1945 was one of the harshest periods of rule in Singapore's history. Like their Axis counterparts in Europe, the Japanese armed forces willfully violated accepted rules for the conduct of war and occupation. Up to 25,000 Singaporeans lost their lives during Japan’s brutal occupation.

Following the surrender of the Japanese to the Allies on August 15, 1945, the Straits Settlements was dissolved, with its main territories, Malacca and Penang, becoming part of the Malayan Union and the island of Singapore becoming its own crown colony.

From Self-Governance to Independence

The return of Great Britain's milder colonial rule, while widely welcomed, was nevertheless still resented by many Singaporeans, who felt that the British had failed in its defense of a loyal ally against the Japanese. Singaporean leaders began to ask for greater self-rule. Facing independence movements elsewhere in the empire and with the British public generally favoring decolonization, the British government granted a plan for greater self-governance and ultimately self-rule. The first elections in Singapore’s history were held in 1948 but these were restricted to the city-state's approximately 23,000 British subjects, who chose six of the 25 Legislative Council members. At the same time, however, a Communist insurgency in Malaya prompted the British to impose a state of emergency on both colonies. The emergency rule allowed indefinite detention without charge and the abolishment of other basic precepts of rule of law otherwise applied under colonial rule. But the British grew more confident in allowing the establishment of a Singapore-based government when expanded elections in 1951 were won by the conservative and business-oriented Singapore Progressive Party.

Elections were then held in April 1955 for a new 32-member Legislative Assembly with 25 directly elected seats. In this election, two leftist parties, the Labor Front and the People's Action Party, won a majority of the seats. The leader of the Labor Front, David Marshall, called for full independence and a merger with Malaya. Following Malaya's independence in 1957, the British government permitted the establishment of formal self-governance for Singapore and arranged for new elections. In those elections, held in 1959, the People’s Action Party (PAP) won 43 of 51 seats for the assembly and its leader, Lee Kuan Yew, was elected prime minister.

The main question for Singapore, which is majority ethnic Chinese, was its relationship with Malaya. In 1962, the PAP's proposal to merge with Malaya was approved in a referendum and Singapore joined the Federation of Malaysia on September 16, 1963. But problems emerged between the two states over a number of issues: the Federation’s national policy of discrimination in favor of bumiputera, or indigenous Malay; its establishment of Islam as the state religion; and different efforts to foment racial antipathy. Race riots between ethnic Chinese and Malay in 1964 led to Singapore being expelled from the federation by a 126–0 vote in the federation legislature (Singaporean members did not attend the special session called for the vote). In a rare, if not unique, case of unasked-for independence, Singapore announced its sovereignty on August 9, 1965.

The Lee Kuan Yew Model

http://www.democracyweb.org/images/quotes1.gifLee Kuan Yew ruled in a politically authoritarian manner. The rule of law, while uniform, was uniformly repressive. http://www.democracyweb.org/images/quotes2.gif

The dominance of Lee Kuan Yew’s PAP in the 1959 Singaporean elections set the stage for the city-state's future as an independent and authoritarian country. In subsequent elections, the PAP continued to win the large majority of seats in the legislature, which was expanded to a total of 84 seats and renamed Parliament. Lee Kuan Yew served as prime minister until he resigned in 1990, whereupon he continued to dominate politics, first as “senior minister” his first successor, Goh Chok Sun (1990–2004) and then as “minister mentor” for his son, Lee Hsien Loong, who has served as prime minister since 2005.

Since self-governance was established, Singapore has been highly successful economically. Both before the federation (1959–63) and after independence in 1965, Prime Minister Lee adopted a set of policies that set Singapore on an upward economic path, including state investment in electronics and other export sectors, the nationalization of major industries, control by a housing development board of all rental property, tax holidays to welcome foreign investment, and establishment of the basic legal foundations for a free-market economy.

The Rule of Law

At the same time, Lee Kuan Yew ruled in a politically authoritarian manner. The rule of law, while uniform, was uniformly repressive. The judicial system, although structurally and procedurally based on Anglo-Saxon tradition and formally independent, routinely favors the government and the ruling party. The courts frequently punish free expression, independent political activity, freedom of association, and other basic rights that are considered fundamental to the rule of law.

There has not been a change of ruling party or government since 1959. While Lee resigned his position as prime minister voluntarily in 1990, his successors were hand-picked. Goh Chok Tong (1990–04) was a longtime PAP ally; Lee’s next successor was his son, Lee Hsien Loong, whom he had carefully groomed for power. The elder Lee maintained his dominant influence in Singaporean politics through so-called advisory positions he held until 2011. Even after formally retiring he continued to influence Singapore’s politics through his active commentary in the media and pronouncements as a member of parliament until his death in March, 2015.

Opposition political parties face numerous obstacles and confront an unbalanced electoral playing field. The governing PAP’s position is bolstered by its long-time dominance over the press, restrictions on assembly and speech, and the use of detentions through the Internal Security Act. The leaders of the main opposition parties and the editors of their party newspapers are frequently jailed or sued in court for slander. If a case of slander is lost, as is often the case, individuals and news and other entities are bankrupted in the process.

The Reach of the Internal Security Act

Singapore lacks many elements of the rule of law found in free societies, most importantly the protection of human rights and separation of powers. While Singapore is governed by English common law, laws have often not been amended since the 19th century, thus maintaining provisions that are clearly outdated, including corporal punishment. Caning is frequent (one prominent example involved an American student, caned in 1994 for vandalizing cars).

As in Malaysia, a critical component of Singaporean law is the Internal Security Act, which the British imposed on all parts of Malaya in 1950 in response to the Communist insurgency. Today it continues to permit the Internal Security Department to take action against perceived security threats, such as terrorism or the disruption of racial and religious peace. Other laws adopted since 1965 have imposed a regime of harsh penalties for what many Westerners would consider normal activity, such as chewing gum or writing that Singapore politics is governed by a family dynasty. The severity of punishment is heightened for illicit activities such as the transport or use of drugs, for which there are mandatory penalties, including the death penalty in some instances. The state has also granted Islamic law courts jurisdiction for the minority Muslim community in non-criminal cases, meaning all marital, personal, and religious matters. Rulings are generally unfavorable to Muslim women, who cannot appeal to Singaporean courts.

Judges in Singapore lack independence and generally decide cases in support of the regime regardless of the case presented before the court. Justices are appointed by the president at the recommendation of the prime minister. (Since 1991, the president has been elected by popular vote but in effect he has been chosen by the head of the ruling party, since the ruling party candidate has always won.)

While some observers consider the judiciary to have achieved greater independence in recent years, courts regularly rule against opposition party leaders and activists as well as independent critics of the regime both in civil slander cases and in criminal cases. In a precedent-setting case in 1997, Prime Minister Tong and other PAP members were awarded damages worth over $2 million in response to accusations by an opposition politician, Tang Liang Hong, that ruling party members were liars. More recently, in July 2011, British author Alan Shadrake was deported after the Supreme Court denied his appeal for conviction of defamation (he was also jailed six weeks and fined $50,000). In a book, he had written that the judicial system was biased in determining capital punishment. Opposition leaders also faced arrest, including Dr. Chee Soon Juan, the leader of the Singapore Democratic Party (SDP). In 2006, he was arrested for speaking in public without a permit. In 2011, he was barred from running for parliament after being ruled bankrupt after failing to pay damages resulting from a joint civil lawsuit won by former Prime Ministers Lee Kuan Yew and Goh Chok Tong, who accused Chee of slander. He since raised the $30,000 to pay the damages and was allowed to contest a seat in the 2015 elections.

Media Freedom: Not Free

The media are also strongly controlled by the state, with few alternatives available to citizens for independent news and a strict regime of censorship that prevents any seditious or sexually related material and bans advocacy of homosexuality. Freedom House's Freedom of the Press survey consistently rates Singapore as "not free." The media watchdog group Reporters Without Borders also consistently ranks Singapore quite low in media freedom, 153rd out of 180 countries surveyed in 2015. Restrictions on freedom of expression also extend to foreign media outlets, which are sometimes restricted from distributing materials containing negative stories about Singapore or its political leadership. Such restrictions have been placed on the Wall Street Journal, the New York Times, Newsweek, and others. The Financial Times has agreed to be sold in a partly censored form, while the Economist refuses to be distributed under any censorship review. All magazines deemed pornographic (which include any pictures of semi-clad women) are banned. Political party newspapers are effectively banned through regular use of defamation laws (see above).

In the 2006 elections, the possibility for political speech and thus of effective political opposition was further restricted by new rules prohibiting political commentary through websites, blogs, and podcasts that might be considered biased toward a candidate or party. The clear purpose of the law was to stifle even implied criticism of the regime by supporting an opposition candidate. In the 2006 elections, the PAP retained 82 of the 84 directly elected seats.

Current Issues

The 2011 parliamentary elections appeared to signal some slight political openings. Opposition parties fielded candidates in 82 of 87 contested seats, an unprecedented number, and the Workers Party won a record 6 directly elected seats, including one Group Representative District, where it won all 5 seats. It was also awarded two of the three additional seats provided to ensure minimum representation to opposition parties; in 2013, it added a ninth member to parliament by winning a by-election for a vacated seat. Although the PAP retained 81 of the total 90 seats, its overall support dropped to 60 percent of the vote. Also, the 2013 presidential elections were contested for the first time since the position, largely ceremonial, became directly elected in 1991. The PAP-supported candidate, former deputy prime minister Tony Tan, won with just 35.2 percent of the vote in a narrow victory over three opponents.

The 2015 parliamentary elections, however, demonstrated that the political space for the opposition remains narrow. Instead of showing some progress towards broader representation, the results were nearly identical. The PAP won 83 out of the 89 directly contested seats (adding one to its total). The Workers Party kept its six seats but was unable to increase its number of candidates beyond 28. The only other opposition party lost its seat (meaning the Workers Party gained the three additional seats allotted to the opposition). The PAP increased its vote share to 70 percent, while the Workers Party dropped to 12.5 percent nationally. None of the other six opposition parties polled higher than 4 percent.

While the ruling party has a clear base of support, it is not possible to gauge its actual support through election figures for parliament, since there are not free or fair conditions for elections or any real possibility for an opposition party to develop a base. The opposition was caught off guard when the Prime Minister Lee asked the president to call elections one year early. The campaign period was restricted to the minimum period: 9 days. Meanwhile, the government continues various means to restrict free expression, association, and assembly to restrict criticism of the government and to prevent negative information from being published. As noted by Freedom House in its 2015 Survey of Freedom in the World report, “All domestic newspapers, radio stations, and television channels are owned by companies linked to the government. Editorials and news coverage generally support state policies.”  Attempts to broaden expression through the internet are also blocked. Any internet newspaper must be approved by the Interior Ministry. In 2014, the blogger Roy Ngerng Yi Ling was convicted of defamation for writing about mismanagement of Singapore’s retirement savings system and protests against the mismanagement were dispersed. Another blogger, Alex Au, faced defamation suits for writing that the judiciary was biased in cases dealing with same-sex activity.

Rule of Law: Country Studies — Federal Republic of Germany

Germany Country Study

Rankings in Freedom in the World 2016: Status: Free. Freedom Ranking: 1; Political Rights: 1; Civil Liberties 1.

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Federal Republic of Germany

Summary

Germany has experienced one of the greatest political shifts of any country between dictatorship and democracy, between civilization and barbarism, and between the rule of law and lawlessness. After becoming a modern state in 1871, Germany rose to become Europe's great economic power, but its aggressive policies led it to a disastrous defeat in World War I, a conflict that was catastrophic for all of Europe. Following a period of unstable democracy, the country fell under the iron grip of Nazism from 1933 to 1945. Adolf Hitler's Third Reich, which sought to achieve world domination, was finally defeated in World War II by the Western Allies and the Soviet Union, which occupied and divided the country in two, West and East.

From a condition of absolute defeat, West Germany emerged from Allied control to become solidly democratic, a bulwark of the NATO alliance, and an economic world leader. In East Germany, the Soviet Union imposed a harsh Communist dictatorship through a loyal German-led communist party. The stark contrast between East and West was symbolized by the Berlin Wall, built by the Communist government in 1961 to keep people from escaping to the Western part of the divided city. In 1989, East German citizens, encouraged by a successful campaign to force the authorities to open the border, mobilized in mass demonstrations against the Communist regime that culminated in citizens tearing down the Berlin Wall from both sides of the city. The communist dictatorship also fell and a year later, on October 3, 1990, a new East German government agreed to reunify with West Germany to form the Federal Republic of Germany; the reunited Germany adopted a single constitution and a democratic system.

Germany is the 63rd largest country in the world by area (137,882 square miles). It has the 16th largest population at 81.5 million in 2015 (which is 91.5 percent ethnic German, 2.5 percent Turkish, and 6.1 percent other European). In the center of Europe, Germany is bordered by nine countries and has access to the North and Baltic Seas. Despite the heavy economic burden of absorbing the much poorer East, Germany has remained the fourth-largest economy in the world (next to the U.S., China, and Japan), with strong manufacturing, export, agricultural, service and technology sectors. In 2014, according to the International Monetary Fund (IMF), Germany’s nominal gross domestic product (GDP) was $3.87 trillion. It also ranked 18th in the world in nominal GDP per capita at $41,267 per annum. The U.N.’s 2015 Human Development Index placed Germany 6th behind Norway, Australia, the U.S., and Netherlands.

History

Early History, the Code of Euric, and the Holy Roman Empire

Germany did not become a unified modern state until 1871, but its regions and principalities played a central role in influencing Europe from its earliest history. Germanic tribes initially migrated from the Black Sea region around 500 BC to the Jutland peninsula on the Baltic Sea and then to other parts of the coast. Beginning in the first century BC, Germanic tribes migrated west to England and south to contemporary France, Italy, Germany, and Poland. After enduring centuries of attack and eventual conquest by Roman legions, Germanic tribes repelled Rome's imperial army and in AD 410, the Visigoths, led by Alaric, sacked Rome itself. During the fifth century AD, Euric, the king of the Visigoths, wrote down the oral tradition of Germanic laws into the Code of Euric, which influenced the development of European political systems through its manner of choosing successor kings by a grand council of electors, namely the leaders representing the many Germanic regions).

Under Charlemagne's rule (768–814), the Frankish Empire became the dominant Germanic tribe. It expanded its control north to Saxony, east to present-day Austria, and south to Lombardy (in Italy). Charlemagne’s empire was divided in three among his grandsons after the death of his son: the East Frankish Kingdom (present-day Germany and Austria); the West Frankish Kingdom (present-day France); and the Middle Kingdom, a loose confederation of Germanic and Italian lands and principalities. From the mid-1400s onward, these three territories formed the Holy Roman Empire of the German Nation. The empire's influence reached its height during the Crusades when military orders such as the Teutonic Knights arose in response to papal calls to restore Jerusalem and the Holy Land to Christendom following the Islamic conquests. After their defeat in the Crusades, the Teutonic Knights returned to conquer Prussia and then expanded east under papal orders as far as Estonia (see Country Study of Estonia). The Holy Roman Empire faded over time and formally ended in 1806 during the Napoleonic wars.

The Reformation

In 1517, Martin Luther’s Ninety-five Theses, which protested the widespread practice of Catholic clergy to sell indulgences (absolution for forgiven sins) and challenged the authority of the Pope, launched the Reformation, a continent-wide development of alternative Christian churches and sects generally known as Protestant (because their beliefs and practices protested against Church doctrine). This religious division had political consequences. The Germanic principalities and kingdoms divided into a largely Protestant (Lutheran) north and mostly Catholic south. The bloody Thirty Years' War (1618–48), which involved all the major European powers, was fought to prevent the Reformation’s spread to other parts of the Holy Roman Empire. The fighting, which was concentrated on German lands, resulted in the deaths of four million people from war, famine, and disease. It ended with the signing of the Treaty of Westphalia in 1648, which established the principle of freedom of religion within and between European states for the first time (see also Freedom of Religion).

Prussia and the Rise of the First German Empire

Over the next century, the Protestant Brandenburg-Prussia monarchy began to eclipse the Catholic Hapsburgs of the Austro-Hungarian Empire in military and economic power. Prussia took over Poland's western territories in the 1793 partitions of the Polish-Lithuanian Commonwealth, but its growing power in Central Europe was stemmed by Napoleon's victory over Prussia in the Battle of Jena in 1806. At the Congress of Vienna following Napoleon’s final defeat in 1815, the 39 German states decided to place a new German Confederation under Austro-Hungarian leadership. But after the 1848 revolutions, Prussia re-emerged as the dominant state within a gradually weakening German Confederation. After William I became King of Prussia in 1861, his prime minister, Otto von Bismarck, put together a new federation of 22 northern states under Prussian leadership. In 1871, Bismarck established the First German Empire (or Reich) and made himself chancellor.

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Sculpture of Otto von Bismarck, the "Iron Chancellor"

World War I and the Weimar Republic

Under Bismarck, Germany emerged as a modern nation-state, propelled by rapid industrialization and a high level of militarization. But Germany's economic power and aggressive foreign policy brought it into conflict with other European states, which ultimately led to World War I. After four exhausting years of fighting on two fronts, East and West, Germany surrendered in 1918. The end of the war led to the establishment of Germany's first democratic constitution and government, led by the popular Social Democratic Party. But the new government was weakened by Communist rebellions and, more lastingly, by the Treaty of Versailles, which it was forced to sign in June 1919. The Treaty set harsh terms requiring Germany to cede disputed territories, to demilitarize and deindustrialize in key economic areas, and to pay large reparations. Germany's postwar period of democratic government, the Second Republic (known as the Weimar Republic), was marked by failed putsches, temporary occupation by France, hyperinflation, and ultimately economic depression with millions left unemployed.

The Rise of Hitler and the Third Reich

In this setting, a dictatorship emerged from a democracy. Two parties representing opposing totalitarian ideologies, the National Socialist (Nazi) Party led by Adolph Hitler and the Communist Party, gained the most seats in in the 1932 elections for the Reichstag (parliament). In early 1933, President Hindenburg asked Hitler, who had promised to reverse the national humiliation of Versailles, to form a government. Ten years earlier, Hitler had declared his vision of absolute power and of so-called “Aryan” racial domination in his political manifesto Mein Kamp. Once in power, he quickly moved to implement his vision.  Soon after Hitler became chancellor, a fire destroyed the Reichstag building. When an unemployed Dutch communist admitted to setting the fire, Hitler claimed that it was a planned provocation of the Communist Party and arrested its leaders. Hindenburg, although with dubious authority, approved emergency powers for Hitler (the Reichstag Fire Decree). Then, on March 27, 1933, the Nazis arranged passage of the Enabling Act in the Reichstag, which gave Hitler power to govern without parliamentary approval.

The Enabling Act constituted a coup d’état. The two-thirds majority required for this drastic measure was achieved by banning the Communist Party, arresting parliament members, and physically preventing others from voting. From then on, Hitler rapidly and dramatically consolidated his power by combining the offices of president and chancellor, banning other opposition parties, carrying out purges of the civil service, judiciary, and security forces, and transforming the SS (Schutzstaffel), the Nazis’ paramilitary organization, into the dominant government security force overseeing all police agencies (including, later, the Gestapo). The Nazi regime carried out an unparalleled campaign of terror and repression within Germany, establishing concentration camps and filling them with tens of thousands of people. The Nazis targeted the entire Jewish community for repression — and ultimately extermination. As Hitler remilitarized Germany and reoccupied demilitarized territories, the Allied powers, especially Britain, adopted a policy of appeasement. The 1938 Munich Agreement allowed Germany to reoccupy the Sudetenland (a territory ceded by the Versailles Treaty to Czechoslovakia). Hitler, however, was just beginning. Having built the most powerful military on the continent, he set out to pursue his horrific design of world conquest and racial purification.

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SS-Schutzstaffel rounding up prisoners during WWII

The Cataclysm of World War II

Hitler annexed Austria later in 1938, established a Tripartite Pact with other fascist powers (Italy and Japan), and signed a non-aggression Pact with the Soviet Union in 1939. The Pact allowed Hitler to invade western Poland on September 1, 1939, thus launching World War II, while giving the Soviet Union carte blanche to invade eastern Poland and other Eastern European territories. Within a year the Nazi army defeated France, occupied much of Western Europe and North Africa, and attacked Britain. Hitler broke his agreement with Stalin and ordered the invasion of the Soviet Union in June 1941. And in December 1941, Germany declared war on the United States as an ally of Japan following its attack on Pearl Harbor. After reaching Moscow in 1942–3, the Nazi army was repulsed on both the eastern and western fronts. By 1945, Nazi Germany was defeated and occupied by Allied and Soviet forces. The total number of lives lost in the European theater of WWII alone was unprecedented in human history. It is estimated that between 40 million and 60 million soldiers and civilians were killed overall, including in the Holocaust, the Nazi regime’s systematic murder of six million Jews (two-thirds of the European Jewish population). Approximately three million others, including Roma, Slavs, the disabled, and homosexuals, also were murdered by the Nazi regime and its supporters.

The Federal Republic of Germany (West Germany)

Following Germany's unconditional surrender on May 8, 1945, the Allied powers set the terms of post-war Europe at a meeting in Potsdam, Germany. Germany's eastern territories were ceded to Poland (whose own eastern territories had been annexed to the Soviet Union) and Germany was divided into four occupied zones to be administered by the Americans, British, French, and Soviets. The capital, Berlin, was similarly divided. In its drive to Germany, the Soviet Union had occupied most of Eastern Europe and effectively extended its border to eastern Germany. The Soviet Union's blockade of the western zones of Berlin in 1948 confirmed its intentions to permanently occupy the eastern zone and all of Berlin. In response, the Americans, British, and French decided to create a separate state out of their three zones, the Federal Republic of Germany. It was established on May 23, 1949 with the adoption of the Basic Law. The Soviet Union established the German Democratic Republic (East Germany) on October 7, 1949.

During the occupation, the Allies carried out a policy of de-Nazification, rebuilt Germany's economy, and re-established democratic institutions. Organizations such as the American Federation of Labor helped their German counterparts rebuild. The Christian Democratic Union (CDU), formed by members of pre-war democratic parties, won the country's first elections in 1949. Its chairman, Konrad Adenauer, who was imprisoned as part of the German resistance during the war, led CDU and coalition governments from 1949 to 1963. In building a broad consensus with the CDU’s political competitor, the Social Democratic Party, he is usually credited with overseeing the country’s economic recovery, its rebuilding of a democratic society, and establishing a balance of free market and social welfare policies. Adenauer also pushed a policy of European integration. In 1951, Germany joined France, Italy, and the Benelux countries in creating the European Coal and Steel Agreement, the precursor to the Common Market and European Union. In 1955, West Germany joined the North Atlantic Treaty Organization (NATO), cementing the country’s remarkable ten-year transformation from a hated military enemy to a Trans-Atlantic ally. Germany's recovery, aided by the Marshall Plan, propelled it to the world’s fourth largest economy. The Federal Republic of Germany’s fundamental change achieved a general climate of political freedom, a multi-party democratic system, stable transfers of political power, an independent judiciary, a federal system marked by separation of powers and decentralization, and a repudiation of its Nazi past.

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Plenary hall in the German Federal Parliament building.

The German Democratic Republic (East Germany)

By contrast, in Germany’s eastern occupied zone, the Soviet Union established a communist dictatorship that was incorporated into a new system of satellite countries that in 1955 formed the Warsaw Pact. Early in the Soviet occupation, the prewar Social Democratic Party was forced to merge with the Communist Party to form the Socialist Unity Party (SED). With the formal establishment of the German Democratic Republic (GDR) in 1949, a Soviet-style constitution was imposed in which all power was concentrated in the SED. East Germany was among the most closed and repressive of the Soviet bloc countries. Political opponents were imprisoned and all institutions were placed under the control of the secret police, the Stasi (Staatssicherheit). By the end of the period of Communist rule, the Stasi had nearly 100,000 employees and as many as two million collaborators who spied on the population. From the West, the most obvious sign of the GDR's repressive system was its shooting of people who tried to escape across the “Iron Curtain” fence that ran the length of the German border. (Overall, as many as 1,200 people were killed.) To prevent escapes from its capital, the GDR constructed the Berlin Wall in 1961, perhaps the most infamous symbol of the Cold War. Following the opening of Hungary's border with Austria in August 1989, thousands of East German citizens flooded into Hungary in order to emigrate to the West. This action sparked massive protests in cities across all of East Germany, a popular uprising that eventually led to the fall of the Berlin Wall on November 9, 1989. The communist regime collapsed soon thereafter. Following these dramatic events, negotiations between the two German governments for reunification proceeded quickly. On October 3, 1990, East Germany was formally incorporated into the Federal Republic of Germany.

The Rule of Law

For much of German history, like that of Europe generally, the rule of law existed within the framework of authoritarian governments and hierarchical societies dominated by land-owning aristocracies. The rule of law that had evolved within its confederal states and in the First and Second Republics was thoroughly destroyed in the Third Reich. The Nazi regime under Adolph Hitler established a state of lawlessness ruled by violence and terror and imposed by the vicious repressive agencies of Nazi control, the SS and Gestapo. Postwar Germany offers a clear contrast in terms of governance and the rule of law. In East Germany, the Soviet Union established a communist dictatorship that also deprived citizens of the rule of law in nearly all respects and kept the society under control through pervasive repression and constant surveillance. The Federal Republic of Germany, on the other hand, created a stable democracy with a firm foundation for rule of law that protected the rights of citizens. In the reunification of East and West Germany in 1990, the constitution of the Federal Republic was adopted and accepted by East Germans.

The united Federal Republic of Germany is governed by its Basic Law, the constitution that was originally adopted on May 23, 1949. Although American influence is illustrated in its well-defined federal structure, the political and legal system reflects Germany's own history and most importantly the rejection of the barbarism of Nazi rule by the Federal Republic’s post-war political parties and other representative institutions within German society, like the trade union movement, all of whose leaders resisted Nazism.

The most important principle of the Basic Law is stated in Article 1. It states:

Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.

In the Weimar Republic, human rights were considered only "state objectives" and the president had the authority to override respect for human rights by granting emergency powers to the chancellor. Article 1 of the Basic Law firmly roots all state institutions in the protection of human rights. Article 79, which outlines how the constitution may be amended, makes human rights inviolable to prevent any legal maneuvering that might temporarily suspend human rights in emergency situations.

http://www.democracyweb.org/images/quotes1.gifGermany, in its Basic Law, firmly roots all state institutions in the protection of human rights.http://www.democracyweb.org/images/quotes2.gif

The Basic Law establishes a parliamentary system of government with diffusion of powers through a federal system of states (lander). The president has largely ceremonial duties, such as the formal naming of the cabinet. There is a two-chamber parliament consisting of the Bundestag (Federal Assembly), whose members are elected in a mixed-proportional system in national elections held every four years, and a Bundesrat (Federal Council) made up of representatives of the lander or federal states, now 16 in number after reunification The Federal Chancellor is the head of government and elected by secret ballot by a majority of all members of the Bundestag. The Chancellor names all other members of the cabinet. 

The Basic Law also establishes an independent judiciary consisting of a Federal Constitutional Court; a Federal Court of Justice (Bundesgerichtshof); and administrative, labor, and social courts. The Federal Constitutional Court, whose members are elected by both the Budestag and Bundesrat to 12-year terms, is guardian of the Basic Law and rules on the constitutionality of laws and actions by state bodies. Although much of Germany's civil and criminal law remains rooted in Roman tradition, basic due process rights under the Basic Law are similar to those in the U.S. Constitution. During a rise in left-wing extremist violence in the 1960s and 1970s, the government adopted several exceptions to due process rights, but these were limited and time proved that there was not much need for “special measures.” These violent groups gained little adherence and ultimately dissolved after several of their members were arrested. 

The post-war Nuremberg Trials, a related proceeding at Dachau, and the International Military Tribunal for the Far East (the Tokyo war crimes trial) established a principle of international accountability for crimes against humanity. The Nuremberg Trials were held from 1945 to 1949 and included the Major War Criminals Trial of 24 leading Nazi figures, as well as trials of 185 SS and army officers, doctors, judges, lawyers, and others complicit in war crimes, crimes against humanity and the Holocaust. The Dachua trials convicted 1,419 persons, mostly those engaged in running concentration and death camps, on similar charges. These open trials established an important foundation for public acknowledgment of the crimes of the Nazis, the complicity of German society in those crimes, and Germany's responsibility for the Third Reich, including the need for reparations to victims. 

Germany bans the advocacy of Nazism and the display of Nazi insignia or paraphernalia and forbids the denial of Nazi crimes, most importantly the Holocaust. While such restrictions are challenged by free speech advocates as counterproductive and overly restrictive, they are considered an essential part of the postwar political consensus in Germany to never again allow totalitarianism to take hold.

Current Issues

Since reunification, political power has alternated between right coalition, left coalition, and unity governments. In the 2013 federal elections, the Christian Democrats and Christian Social Union (CDU/CSU), led by incumbent Chancellor Angela Merkel, continued its recent dominance, gaining 41.5 percent of the vote and 311 of 630 allotted seats. Lacking a majority, she formed a “grand coalition” with the Social Democratic Party (SPD), which won 26 percent and 193 seats. The opposition is formed by the Alliance ‘90/Greens and Left Party, a fusion of the post-communist party from East Germany and a splinter SPD party, which each gained about 8.5 percent (63 and 64 seats, respectively). The liberal Free Democrats fell below the 5 percent threshold for the first time since 1948. In 2012, Joachim Gauck, a former pastor who oversaw the opening of the Stasi files after the fall of the East German regime, was elected president by a consensus of all parties.

The largest issue facing Germany today is the refugee crisis. More than 1.25 million refugees entered Europe in 2014–15 from war-torn Middle East and Northern Africa, the largest refugee crisis in post-war European history. Most of the refugees, facing hostility elsewhere, tried to get to Germany after Prime Minister Merkel said the country would welcome them. Many Germans volunteered to help the newcomers but as the number grew to 1 million people, Merkel faced increasing domestic opposition for her stance as well as protests from Eastern European leaders who blamed Germany for encouraging the refugee flow. At the end of 2015, she sought to stem the number of refugees by working with the EU to stop dangerous crossings of the Mediterranean and Aegean Seas and also gave $1 billion to President Erdogan to help keep refugees in Turkey (up to 4 million people have fled their homes in Syria as a result of the civil war there). Extremist groups have used the situation to organize protests and violent attacks directed at Muslims and mosques. An incident over New Years’ Eve in Cologne, where packs of men, reportedly refugees, attacked women, provoked greater fears of refugees and reduced support for Merkel. (It later was reported that other refugees acted to protect the women being attacked.)  Another concern, however, is extremism among Muslim refugees. In September 2014, the Interior Minister announced a ban on any support for the Islamic State and estimated that there were around 550 supporters of IS in Germany.

Already, there were concerns about the rise of the National Democratic Party or NDP, an extremist party that has clear Nazi sympathies. Despite a ban on any continuation of the Nazi party, the NDP has been allowed to run in elections. After merging with another extremist party in 2011, it cleared the 5 percent threshold for representation in the conservative Mecklenburg-Vorpommern region. The standing of the NDP and other groups, like Alternative for Germany and Patriotic Europeans Against the Islamization of the West (PEGIDA), appears to be growing since the onset of the refugee crisis and made significant gains in the recent state elections at the expense of the CDU. Alternative for Germany recently won seats in regional elections and is incrasing in popularity in recent polls leading up to the 2017 parliamentary elections..

In fact, although it is nearly 70 years since the end of World War II, reminders of Germany’s Nazi past and its rule of lawlessness are frequent. In January 2014, museum officials in Bavaria found a guillotine in storage that had been used to murder hundreds of opponents of Hitler, including 14 members of the White Rose, a student resistance group that distributed fliers informing Germans of war atrocities and persecution of dissidents and urged fellow students to rebel. The discovery brought to light the immense bravery of the group but also renewed public debate about German society’s knowledge of and complicity in Nazi crimes. In another reminder, in the fall of 2013, German authorities seized 1,280 pieces of art stolen by the Nazis during the Holocaust that were still being hoarded by the son of a Nazi-era art dealer. The 81-year-old son could not be prosecuted due to a 30-year statute of limitations on stolen property. His death in the spring of 2014, however, allowed the German government to return the art pieces to their owners and descendants upon proof of provenance.  It is the largest recovery of stolen art since the war and restores an enormous cache of masterpieces to Europe’s cultural heritage.

New academic and human rights focus is being placed on the mass killings of Jews outside death camps, at a large number of “informal” extermination sites that have been identified in the last few years. At a conference in Krakow organized around International Holocaust Remembrance Day on January 27, 2014 (the day marks the liberation of Auschwitz by Soviet Red Army troops), scholars put the number of Jews killed outside the camps at 2 million. The findings have also brought to light the 1.3 to 1.5 million non-Jews estimated to have been killed at extermination sites.

In bringing perpetrators of Nazi crimes to justice, the case of John Demjanjuk has had particular significance. After lengthy investigation and proceedings, he was extradited from the US to face trial in 2011 on charges of facilitating the murder 27,900 Jews as a camp guard at the Nazi concentration camp in Sobibor, Poland. He was convicted but died the next year at age 91 while on release pending appeal. The case, however, set a precedent for finding guilt based on his service at concentration and extermination camps and prompted German prosecutors to revive efforts at finding camp guards and others who served in them (see New York Times article in Resources). One case brought before a court was of Oskar Gröning, a 94-year old former SS officer at Auschwitz-Birkenau, the largest death camp. He was found guilty of complicity in the murder of 400,000 Hungarian Jews who were brought to the camp in 1944. The case brought to public view excruciating details of the workings of the death camp and the roles played by ordinary officers like Gröning, who admitted his complicity. In the ruling sentencing the 94-year old to 4 years’ imprisonment, the judge, Franz Kompisch, rued the limited sentence and indicted the German legal system for allowing many thousands of officers complicit in mass murder to escape justice. One such perpetrator was Erich Priebke, an “unrepentant organizer” of the Ardeatine Caves massacre in Italy — whose story was published in the Economist (see Resources). Priebke, even after being found guilty by an Italian court, had his sentence of life imprisonment commuted to “comfortable house arrest,” in which he lived 12 more years. Still, German prosecutors are continuing to bring new cases based on the Demjanjuk precedent. One was opened in February 2016 of 93-year-old Reinhold Hanning, an ex-SS sergeant who served at Auschwitz, charged with complicity in 170,000 murders committed during his time at the camp in 1943.

All of these issues continue to highlight the importance of the rule of law, its complexity when seeking justice, and the great dangers to society — and the world — when it does not exist.

Rule of Law: History

History

The Code of Hammurabi

The earliest written legal code for a government was the Code of Hammurabi, dating from 1750 BC. Hammurabi, the King of Babylon, needed to unite his disparate realm, and decided to establish common rules of conduct, commerce, and devotion to the king under a system overseen by judges. In comparison with contemporary standards, much of the code is severe: many crimes were punishable with death or corporal punishment. Nevertheless, it was remarkable for introducing the ideas that government should be subject to the law; that laws should be based on public rules, not secret or divine ones; and that law should be efficiently and fairly applied by judges. (These are all principles that the scholar Rachel Kleinsfeld Belton mentions as being essential to establishing the rule of law: see Essential Principles.)

The Modern Understanding of Athens

In the area of the rule of law, ancient Athens is best known for its prosecution and execution of the great philosopher Socrates in 399 BC on charges of treason and corrupting the youth of Athens. But this case, usually presented as an example of injustice, masks the contributions of ancient Athens in the development of rule of law principles. In the Athenian system, for example, magistrates and jurors were drawn by lottery from the Assembly, which was composed of all citizens, since it was believed that judgment should be by one's peers. All citizens had the right to bring both private and public matters before the courts. In commercial law, Athens introduced the principle of binding and enforceable contracts among equal citizens. This meant that law, not brute force, determined the resolution of commercial disputes, a principle which helped to make Athens the region's center for trade. Its large juries were a common subject of mockery by critics at the time (they could number as many as 5,000), but overall the Athenian system appears to have worked efficiently and citizens safeguarded this legal system jealously. Judgment by juries composed of peers and the equal access of citizens to courts are just some of the characteristics of Athenian law included in most contemporary justice systems.

Roman Law

Most scholars cite the Roman system as the most important tradition influencing Western law. Roman law was less egalitarian than Athenian law, since its first purpose was to protect aristocratic landholders. Furthermore, the spread of Roman law occurred through empire and military dominance. Yet, the Roman tradition also implanted several basic principles of the rule of law, including the need for public knowledge of civil law and judicial procedures, that the law should be stable and evolve according to precedent and circumstances, and that natural law (the universal rights of man) can provide the basis for positive (man-made) law. The Roman tradition was maintained under the Byzantine Empire and over time was incorporated into much of European law and practice throughout the Holy Roman Empire.

The Anglo-Saxon Tradition

The Magna Carta, signed by King John of England in AD 1215, established one of the most basic concepts of governance, namely that the power of the head of state, the monarch, was limited in relation to his subjects. Among the provisions of the Magna Carta was:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way,
nor will we [the King] proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

http://www.democracyweb.org/images/quotes1.gifThe English Bill of Rights recognized the importance of positive rights, which were being asserted by Enlighten-ment thinkers. http://www.democracyweb.org/images/quotes2.gif

The battles between parliament and the Stuart Kings of England led to the adoption of other landmarks in the rule of law. The Petition of Grievances (adopted in 1610), established the right of citizens to petition government to seek redress for abuses of power. The Petition of Right (adopted in 1628) more firmly grounded in law that the monarch could not arbitrarily violate basic civil liberties or raise taxes without parliament’s approval. The Habeas Corpus Act in 1679 formalized and strengthened the existing legal principle that anyone arrested by the king’s authority had the right to be presented to a judge to determine if there was legitimate cause for arrest so that people were not held in secret. (The law ordered "all sheriffs, jailers, and other officers" holding citizens in custody to "yield authority" to all writs of the court, also called “great writs.”)

The Glorious Revolution of 1688, which placed Protestants William of Orange and Mary on the throne, required that they accept the newly adopted English Bill of Rights, which reiterated these basic principles and also formalized other foundations in the Anglo-Saxon constitutional tradition, such as the right to trial by jury and the prohibition against cruel and unusual punishment. The Act of Settlement of 1701 later established Parliament's power to determine succession to the monarchy, effectively abolishing the “divine right of kings.” All of these landmark documents were part of the foundation for the US Constitution and the Bill of Rights.

The Rule of Law as Bulwark Against Government Tyranny

The English Bill of Rights recognized the importance of positive rights, a concept asserted by Enlightenment thinkers. Positive rights refer to a moral obligation that is owed to someone, as opposed to negative rights, which require only the absence of interference. According to many Enlightenment philosophers, these positive rights were natural rights, meaning that all persons were entitled to them and that the state could not violate them. Such rights were an indispensable accompaniment to representative government and were adopted by supporters of both the American and French Revolutions. In addition to the basic principles of rule of law adopted in British practice, the American Bill of Rights expanded constitutional protections to include the right to a fair and speedy trial, the right not to incriminate oneself, the right to confront one's accuser in court, and the right to protection against unwarranted search and seizures. In the US Constitution, these standards of rule of law — encompassed within the phrase "due process"— are considered the main bulwark against any threat of tyranny by the government. Of course, the universal understanding of and full respect for natural rights to include all persons — regardless of race, gender, religion, ethnicity or even property-owning status — took until the 20th century (see below). The concept of universality, however, was an extension of the original assertion of human rights during the Enlightenment.

The Separation of Powers

Who enforces the standards of the rule of law? In modern democracies, the rule of law relies on a judiciary or court system that can act independently of executive and legislative powers and thus rule on the basis of established law and precedent, not arbitrary or politically motivated considerations. In describing the idea of the separation of powers Baron de Montesquieu wrote in Spirit of Laws (1748):

Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative,
the life and liberty of the subject would be exposed to arbitrary control, for the judge would be then the legislator. Were it joined to the
executive power, the judge might behave with all the violence of an oppressor.

http://www.democracyweb.org/images/quotes1.gifGandhi succeeded in forcing the British government to abide by its own principles.http://www.democracyweb.org/images/quotes2.gif

The independence of the federal judiciary in the United States was established through the "advise and consent" powers of the Senate in approving presidential nominees for federal judges and in the House and Senate's authority to impeach and remove judges from their lifetime appointments for reasons of incompetence or malfeasance. The independence of the judiciary was further strengthened in Marbury v. Madison (1803), decided under Chief Justice John Marshall, which asserted the Supreme Court's power of judicial review, meaning that the Court became the final arbiter of whether or not laws and the government's actions are constitutional.

The Expansion of Rule of Law

The incorporation of the rule of law and the separation of powers in British and US law had a great influence over the next two centuries, first as a result of the expansion of the British Empire, and second as a result of the growing influence of the United States as a world power. Rule of law principles came to symbolize the expansion of rights and liberties around the globe, including in British colonies. More significantly, natural law arguments in favor of due process, human rights, and self-governance became the instruments for many independence and democracy movements worldwide. Mahatma Gandhi is one of the best-known and most successful of the advocates for combining claims of legal rights with civic resistance against unjust laws. Gandhi succeeded in forcing the British government to abide by its own principles. This strategy has attracted many followers. In the United States, followers of Gandhi, such as Bayard Rustin and Martin Luther King Jr., used the instruments of protest and civic resistance, together with legal challenges to unjust laws, to empower African Americans to act against Jim Crow laws and legalized discrimination.

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Karl Brandt, a Nazi physician and member of Hitler’s inner circle, being sentenced at the Nuremberg Trials.

The Contraction of Rule of Law

As noted earlier, the rule of tyranny stands in opposition to the rule of law. In dictatorships, the institutions of the rule of law become instruments of oppression. Indeed, dictators recognize the power of law as a foundation for governance and develop their own perverted claims to the rule of law. Nazi Germany and other Fascist states, for instance, imposed legal systems based on the supreme power of the leader and the superiority of one race over all others. Communist regimes superimposed the class struggle over "bourgeois" concepts of human rights for attaining a classless egalitarian society. Constitutions in communist countries frequently “guaranteed” basic human rights but then established the absolute authority of the Communist Party, governed by “democratic centralism,” to decide on all aspects of law and life. Many intellectuals were seduced by the idea of a higher form of justice or morality based on "national" or "socialist" law. In fact, there was no rule of law, only legalistic justifications for the most brutal actions: torture, mass imprisonment and murder, forced labor, ethnic cleansing, and genocide.

Universality of Rule of Law

The defeat of fascism and Nazi Germany propelled the establishment of universal standards of human rights and the rule of law through agreements such as the Universal Declaration of Human Rights (1948), the Convention Against Genocide (1948), the Covenant on Civil and Political Rights (1966), and the Convention Against Torture (1984). The collapse of communism and the Soviet Union in 1989–91, the end of apartheid in South Africa in the early 1990s, and the collapse of military and fascist regimes in Latin America in the 1980s and 1990s further reinforced the rule of law as a universal principle not only of justice but also of governance. (The history of the adoption of these standards is discussed more fully in Human Rights. The adoption of an international court system to apply those standards is discussed in this section’s Essential Principles.)

Islamic Law

There is an Islamic tradition of law developed over many centuries that competes with the Western definition of the rule of law based on individual rights. The Islamic system of justice (or Shari’a) involves the application of principles Muslims believe were related to the Prophet Muhammad by Allah (the Arabic word for God) and that they therefore hold as sacred. In many Muslim countries, Islamic or Shari’a courts are complementary or superior to state courts in civil and religious matters or, as in the case of Saudi Arabia, serve as state courts on all matters.

Such courts are presided over by clerics who interpret the Koran for its application in specific instances of claimed injustice or appeals for mediation in civil disputes. Sometimes, such religious courts follow established procedures and act as a mediator within society. Many times, however, Islamic courts or Sharia courts are both extreme and arbitrary, based on originalist interpretations of religious texts (these interpretations vary, there being several schools of Islamic justice). In such cases, Shari’a courts operate outside of the concepts of the rule of law discussed in Essential Principles that stress a government established based on consent of the governed, guarantees of human rights, equal application of the law, and uniformity of expectations, among others. Thus, it must be noted that in Muslim countries where democracy has been established (as well as in some other predominantly Muslim countries), state courts generally supersede religious courts and the latter deal mainly with civil matters (marriage and divorce, inheritance, among others).

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Members of the Taliban

In countries such as Iran, Afghanistan under the Taliban, Saudi Arabia, and Sudan, Islamic “justice” is a tool for imposing a harsh dictatorship based on restrictive interpretations of Islamic law and texts. In recent decades, a form of radical Islamism based on Wahhabism or Salafism has spread to other countries and is used as a tool for seeking power or imposing the will of the majority over the minority. Fanatical movements such as al-Qaeda, Boko Haram, and ISIS have arisen seeking to achieve a radical vision of Islam in order to establish a universal theocracy. In this vision, the use of violence against innocent Muslims and non-Muslims alike is justified to fulfill radical Islamist goals (see, for example, the Country Study of Nigeria). Such views have gained strong followings in northern Africa and the Middle East, but are antithetical to any ideas of the rule of law and are contrary to the understanding of Islam for a majority of Muslims.

 

Rule of Law: Essential Principles

Essential Principles

". . . the world may know, that so far as we approve of monarchy, that in America
THE LAW IS KING. For as in absolute governments the King is law, so in free
countries the law ought to be King; and there ought to be no other."
Thomas Paine, Common Sense, 1776

"Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority." 
Basic Law of the Federal Republic of Germany, Article 1 

"Government in Saudi Arabia derives power from the Holy Koran and the Prophet's tradition." 
The Basic Law of the Kingdom of Saudi Arabia, Article 7 

The Rule of Lawlessness 

Many Crimean Tatars, a small Muslim group that settled on the Crimean peninsula originally in the 14th century, had loyally joined the Red Army in the Soviet Union's battle against Nazi Germany. Yet, during the course of World War II, Soviet leader Joseph Stalin began to question the Tatars' loyalty as an entire community because a very few had collaborated with the Nazi occupation. After the Soviet Red Army retook the Crimean peninsula in 1944, Stalin ordered the summary deportation of the entire Crimean Tatar population to Central Asia without any legal proceeding or process.  

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"We Are All Equal." 

On May 18, 1944, the Soviet secret police (at the time known as the NKVD) began rounding up Crimean Tatars and deporting them by train to Uzbekistan and Kazakhstan. Within three days, approximately 238,500 Tatars had been exiled. A third to half of those forced from their homes to live in Central Asia died from hunger, exposure, and disease. Using the same pretext, Stalin's regime undertook similar actions against other small ethnic groups in the Caucasus in an attempt to rid the region of its historical minority communities. 

The ethnic cleansings that occurred under Stalin are an example of the consequences of unchecked power. Overall, Stalin was responsible for the deaths of tens of millions of people throughforced collectivization, ethnic cleansing, mass imprisonment, penal labor, and executions. The Soviet regime is itself an example of the ultimate breakdown of the rule of law, namely the rule of lawlessness. 

Rule of Law: A Necessary Accompaniment for Democracy

The use of arbitrary power is anathema to the rule of law. In democracies, constitutional limits on power require the subjugation of state authority to a country's laws as established through popular consent and adopted by the people’s representatives as determined in free elections. This is the meaning of the oft- cited phrase "a government of laws, and not of men" (it was originally used in the Constitution of Massachusetts, quoted above, drafted by John Adams). Under such a system, the rule of law should be supreme to the capricious authority of any individual. The rule of law is the supreme check on political power used against people's rights. Without the regulation of state power by a system of laws, procedures, and courts, democracy could not survive. And just as the rule of law protects the majority from arbitrary power and tyranny, it must also protect the minority from arbitrary power and the "tyranny of the majority" (see also "Majority Rule/Minority Rights").

http://www.democracyweb.org/images/quotes1.gifThe use of arbitrary power is anathema to the rule of law. In democ-racies, constitutional limits on power require the subjugation of state authority to a country’s laws as established through popular consent. This is the meaning of the phrase, “a government of laws, not of men.” http://www.democracyweb.org/images/quotes2.gif

Without the rule of law, there is likely to be either a dictatorship or mob rule. Some revolutionary thinkers have extolled mob rule, or anarchism, as the highest form of political and social justice. In reality, mob rule has meant violence and political chaos; indeed, it creates the very conditions that give rise to dictatorship, the exercise of arbitrary power, and the wholesale denial of individual rights. 

The Rule of Law: Contrasting Principles 

Much of what Americans consider to be the rule of law is derived from Anglo-Saxon legal traditions (see History). But there are many variations in how different countries organize legal and political institutions and apply the rule of law. These differences can often be confusing when talking about basic principles. For example, the basic principles of "innocent until proven guilty," the right not to incriminate oneself of a crime, and the right to be tried by a jury of one's peers are so deeply ingrained in the fabric of American and British law and society that they might be considered absolute principles. Yet the rest of Europe, most of which follows a Roman law tradition, does not operate by any of these tenets. The French legal system has the presumption of guilt over innocence and allows indefinite periods of incarceration. These practices violate American and British standards of justice but do not negate the claim that France also operates by the rule of law. 

The Rule of Law: Common Definitions

Still, the adoption and practice of some basic principles of the rule of law are clear barometers for the practice of democracy. While there is no set definition of the rule of law encompassing all of its characteristics, there is a basic realm of common principles. The scholar Rachel Kleinfeld Belton identified five: 

1. a government bound by and ruled by law;
2. equality before the law;
3. the establishment of law and order;
4. the efficient and predictable application of justice; and
5. the protection of human rights.

These principles are common sense. A government that is not bound by its own laws is by definition lawless. Without equality before the law, the rule of law has meaning only for the few. Without political or social order, the law cannot be applied. Slow and arbitrary application of the law means a breakdown of rule of law. If the law is neither efficient nor predictable no one can trust its application nor abide by its rules. The essential principle that the rule of law must protect human rights was not always accepted, but has become an obvious precondition for any democracy that establishes human rights as a foundation for its constitutional principles. One might add that in a democracy, the Western concept of the rule of law should also include the separation of religion and state as a basic constitutional principle, since no specific religious institution should establish general law for the entire community.

Apparent contradictions in principle or practice do not negate the rule of law’s essential importance. The awful consequences of the breakdown of the rule of law in dictatorships, as recounted above and in innumerable other historical circumstances, make self-evident the importance of adhering to the rule of law. In democratic societies, deviations from the principles of the rule of law, such as slavery, systematic discrimination, or the unequal treatment of women, serve as powerful arguments in favor of the fulfillment of those principles rather than as legitimate justifications for invalidating them. 

Institutions of the Rule of Law 

Belton also identifies the necessary institutions of the rule of law. These include: 

1. a set of comprehensive laws or a constitution based on popular consent;
2. a functioning judicial system; and
3. established law enforcement agencies with well-trained, professional officers. 

Absent any of these features, the rule of law may arguably break down. A constitution without legitimacy will not be respected by the people, and thus its principles cannot be upheld. If there is no constitutional check on the misuse of power, a corrupt judiciary or police force can manipulate the laws to their advantage. Incompetent lawyers cannot adequately represent their clients, and so on.

The Watergate scandal of the early 1970s — when former president Richard Nixon tried to cover up the involvement of his administration in illegal activities aimed to ensure his reelection — illustrates how the institutions of the rule of law act together to protect its principles. The media and public, exercising their right to free speech, uncovered and publicized the Nixon administration's illegal activities. The U.S. Supreme Court, in its decision in United States v. Nixon (1974), established that executive privilege was not absolute and that Nixon was required to release tapes he made of conversations in the Oval Office. In this ruling, the Supreme Court was also enforcing Congress's authority to investigate "high crimes and misdemeanors." The House of Representatives, in turn, impeached the president for breaking the law and violating his oath of office. These actions forced Nixon to resign, the first time a president had done so in U.S. history. These democratic institutions acted to ensure that even the president was not above the law. This principle will certainly be put to the test again.

The Will of the Society 

Another factor is necessary to achieve the rule of law, namely the will of society to enforce basic principles of equality, fairness, and justice when these are not enforced by the courts or other institutions of law and are violated in the practices of the state or citizenry. The British abolitionist movement, for example, brought an end to the British slave trade in the early 19th century.  Indeed, it caused the British government to take military action to end the slave trading internationally, at high cost of British lives.  (Such action, and the general introduction of an Anglo-Saxon court system within its colonies, did not prevent the British Empire from generally trampling the democratic rights of the indigenous inhabitants in many countries. It would be more than a century later before the United Kingdom granted independence to most of its colonies.) 

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Thurgood Marshall (center) after the Brown v. Board of Education decision in 1954, the most sweeping of the Supreme Court’s renunciation of the previous “separate but equal” doctrine that had permitted systematic discrimination of African Americans.

In the United States, the periods of slavery and segregation are perhaps the most flagrant example within a democratic society of the breakdown of the principle of the rule of law. Federal and state Constitutions and democratic institutions at both levels upheld this nation’s “peculiar institution” — the barbaric practice of slavery. It was only through prolonged political struggle and ultimately the prosecution of a bloody civil war that the nation’s foundational principle as set forth in the Declaration of Independence — that “all men are created equal” — was incorporated in the US Constitution through the 13th, 14th, and 15th Amendments. Even after the Civil War and Reconstruction, the US Supreme Court repeatedly ruled to protect Jim Crow laws that were enacted in the South (and other laws in the North) that imposed a system of discrimination and segregation for black Americans. These laws and Supreme Court rulings turned the 14th Amendment’s guarantee of equal treatment before the law on its head. Yet it was precisely through a commitment to the rule of law that African Americans were able to slowly win back their rights. The sustained efforts to challenge legal segregation in the courts (most persistently by Thurgood Marshall) resulted in a series of US Supreme Court rulings that declared all previous Court doctrines protecting racial segregation and discrimination unconstitutional. In the end, it was the dramatic struggle of the Civil Rights Movement beginning in the 1950s that helped to convince American society to put an end to legal segregation and the systematic denial of equal rights for African Americans. Sweeping civil rights legislation was enacted in the 1960s to put an end to this legal wrong. The Supreme Court decisions and civil rights laws reflected evolving standards within society in favor of equal rights. Even so, of course, equality remains elusive more than 50 years after their enactment. There continue to be many examples not only for African Americans but also other minorities where the principles of the rule of law outlined above are still betrayed. New civic and legal actions are attempting to re-engage “the will of society” in favor of greater equality for all Americans. 

http://www.democracyweb.org/images/quotes1.gifYet it was precisely through a commitment to the rule of law that African Americans were able to slowly win back their rights. http://www.democracyweb.org/images/quotes2.gif

International Rule of Law 

In response to the gross lawlessness and violations of human rights perpetrated by Nazi Germany and other Axis powers, after their defeat in World War II a new international system of the rule of law began to be established. The first precedent was set through the ad hoc Nuremberg and Tokyo war crimes trials; the second was established through the adoption in 1948 of the Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide by the United Nations. Most importantly, these precedents held that no government is above the universal laws of nations and that the international community may act to prevent and respond to acts of genocide and violations of sovereignty. They also established that individuals responsible for violating basic international standards of human rights should be held accountable for their actions.

At the time, however, there were no permanent international judicial institutions to ensure that states would adhere to these international principles. This task was left to the UN General Assembly and Security Council, whose ability to act was stymied by conflicting ideologies and interests among UN members. Consequently, ethnic cleansing and genocide continued to occur without an effective international response to end the killing. Horrific crimes have occurred, most recently, in the former Yugoslavia, Rwanda, Syria (see Country Study), and the Darfur region of Sudan (see Country Study), among other places. In the mid-1990s, the United Nations established courts to prosecute war crimes and crimes against humanity in the former Yugoslavia and Rwanda with the aim of preventing similar atrocities from occurring again. The Rome Convention established the International Criminal Court (ICC) in 2002 to prosecute individuals accused of genocide, war crimes, and crimes against humanity. It is not formally part of the UN and its jurisdiction applies to cases occurring after its adoption in situations where national judicial systems do not or cannot assume jurisdiction. The innovation of the ICC is that it has the power to prosecute individuals who commit abuses within a signatory state (see, for example Country Studies of Sudan and Kenya). More recently, mixed or hybrid tribunals, established through the joint efforts of the United Nations and national governments, have been established in Cambodia, East Timor, Kosovo, and Sierra Leone. In some countries, such as Guatemala and Iraq, the prosecution of crimes against humanity has been conducted through domestic courts. It is open to debate whether or not domestic or even mixed criminal tribunals are more successful than the International Criminal Court in establishing consistent principles for an international rule of law. The trend towards pursuing such cases in both forums, however, is clear. In both venues, it is hoped that through such institutions the rule of law may be clearly applied so that the type of lawlessness represented by Stalin’s Soviet Union described at the beginning of this section or that represented by the more recent cases listed above may be deterred and that violators of basic international standards are brought to justice.

Economic Freedom: Study Questions

Suggested Study Questions and Activities

Teachers: The following are questions and activities that can be given to your students after they read the materials in each section. The questions are meant to be asked as a review exercise, although some encourage critical thinking as well. The activities can be presented as classroom exercises or as individual homework assignment. Unlike the questions, they tend to require additional research. Some call for students to create mock trials or debates that would engage the entire class. Both the questions and the activities are formatted so that they might be used directly by students, although you may rewrite them as you feel necessary.

Essential Principles

Questions

How do Adam Smith’s ideas affect national economies today? Does laissez-faire mean complete economic freedom? Are there any reasons to limit laissez-faire? What are they? How do Adam Smith’s ideas correlate with modern laissez faire theorists like Milton Friedman? Use selections of The Wealth of Nations (especially Books I, IV, and V) and The Road to Serfdom for the discussion.

Do you agree with the Heritage Foundation's definition of economic freedom (see Essential Principles)? Why or why not? Is this definition consistent with Adam Smith’s The Wealth of Nations? Some define economic freedom as economic rights (see UN Covenant on Social and Economic Rights)? How would you define economic freedom?

Activities

Some argue there are "twin" — political and economic — characteristics of democracy? Discuss the ideas of political and economic democracy. How does one differ from another? When is it permissible to limit political liberty? Individual liberty? Economic liberty? How do different political philosophies come to different answers to the last question and how do these justify such limitations.

Compare the Essential Principles sections for Economic Freedom and Freedom of Association. Does economic freedom preclude freedom of association? Is freedom of association an unnecessary or necessary constraint on economic freedom “in order to protect liberty itself.” Review different economic periods in which trade unions acted to constrain business practices towards labor and workers. Discuss the interrelationship between economic freedom and freedom of association in terms of Ezra Solomon’s definition of economic freedom.

Estonia

Questions

Why was Estonia able to improve its economy so quickly after independence from Soviet rule? What do independence leaders Tunne Kelam and Mart Laar attribute the success to? Are there any lessons that other developing countries could learn from Estonia and apply themselves?

Activity

Compare the economic experiences of Estonia and Cuba as described in the Country Studies. Both have experienced communist dictatorships and economic policies. What factors influenced the different routes that the two countries have taken since the fall of the Soviet Union? Discuss why Estonia changed and Cuba did not after the fall of the Soviet Union?

Kenya

Questions

What factors contributed to the economic decline of Kenya, and when did it begin? What is the correlation between political and economic freedom in Kenya? How do these relate to the legacy of British colonial rule?

Activities

Freedom House lists Kenya as a Partly Free country. Assign a paper to research and compare Kenya's economic history with those of neighboring African countries (e.g. Uganda — see Country Study). Briefly compare the Freedom House ratings are for Kenya's neighbors and what are their economic situations (using IMF GDP rankings, UN Human Development Index, and Heritage Foundation survey). What is the methodology that Freedom House uses to determine economic freedom? What correlations are there between economic and political freedoms as measured by Freedom House?

The most recent elections in Kenya resulted in the inauguration of Uhuru Kenyatta as president and William Ruto as vice president, both of whom were indicted by the International Criminal Court for their role in the ethnic violence that erupted after the 2007 elections. Have students research New York Times and Economist articles on the 2013 elections to review and discuss whether these were free and fair. Organize a students’ debate: The 2013 elections were a step forward for Kenya’s democracy (Yes/No).

Cuba

Questions

What countries affected Cuba’s history? Which had more impact: Spain, the US, or the USSR? How are principles of economic freedom and political freedom treated in Cuba under the communist dictatorship?  Are social and economic rights respected?

Activities

Cuba has followed a communist policy for more than five decades now and the United States has maintained a trade embargo against Cuba for almost as long. Have students discuss: Which has affected ordinary Cubans more: the communist government’s economic policies or the trade embargo? Should the embargo be lifted? Have students read articles related to President Obama’s historic visit to Cuba in March 2016 and discuss: did the trip help or hurt human rights and economic freedom in Cuba?

Have students go to Yoanni Sanchez’s web site Generation Y (see link in Resources) and read recent blogs by her as well as other independent bloggers linked by her site through Voces Cubanos (Cuban Voices). What are the most important issues reported on by Sanchez and these independent journalists? How are human rights reported on? Economic policy and changes? How do they assess Cuba’s current situation? To what can these independent journalists exercise freedom of speech and media?

The Cuban Revolution promised to improve the situation of Afro-Cubans, who have suffered a four-century legacy of slavery and discrimination. Has the revolution improved the situation of Afro Cubans? Look at the New York Times article “For Blacks in Cuba, the Revolution Hasn’t Begun.” How does it describe the current situation of Afro-Cubans? How are Afro Cubans active in the opposition?

Economic Freedom: Resources

Resources

Essential Principles

Economic Policy Institute (home page).  

Heritage Foundation. Index of Economic Freedom: (link) 

Lipset, Seymour Martin
    
Some Social Requisites of Democracy: Economic Development and Political Legitimacy.”
    
The American Political Science Review. 53, 1 (Mar., 1959). pp. 69-105. (link)
    
The Social Requisites of Democracy Revisited: 1993.” American Sociological Review. 59, 1 (Feb., 1994), pp. 1-22. (link) 

Sen, Amartya. Development as Freedom. New York: Knopf, 1999.

Smith, Adam. An Inquiry into the Nature and Causes of the Wealth of Nations, 1776. Full text available at http://www.bibliomania.com/2/1/65/112/frameset.html.

Solomon, Ezra. "The Economy in a Free Society." The Free Society Papers. American Federation of Teachers: Washington, 1989. Introduction on Gozaar web site. 

Transparency International (home page). 

UN Development Report 2015 (link).  

Estonia 

The New York Times: World: Times Topics: Estonia.

Estonica, a web encyclopedia produced by the Estonian Institute.

The Wall Street Journal. See, e.g.:
     “An American Ally in Putin’s Line of Fire,” April 4, 2014.
     “Estonia Taps Youth for Next Premier,” March 12, 2014.
     “Estonia: The Role Model for Tech-Enabled States,” August 13, 2013.

The Washington Post
      “New Estonian Government Sworn In,” March 26, 2014

Uncaptive Minds, a journal of the Institute for Democracy in Eastern Europe (1987-98, 2015).
     “25 Years After 1989–91: The Case of Estonia.” Tunne Kelam. pp. 22-28. (link). 

US Department of State Human Rights Country Reports (go to current year Country Report drop down menu for Estonia). 

Kenya

Achebe,  Chinua.  Things Fall Apart (1994) and Anthills of the Savannah (1997). Anchor Books: New York.

Barkan, Joel. “Kenya’s 2013 Elections: Technology Is Not Democracy.” Journal of Democracy, July 2013 (link).

Economist magazine. Topics Index: Kenya. See, e.g.:
     “Kenyan Politics: Rift in the Rift,” January 23,, 2016.

Human Rights Watch, World Report: 2016: Kenya. See also previous year reports

Journalists for Justice (home page). 

Kenya Human Rights Commission (KHRC). 

Maathai, Wangari
     2004 Nobel Peace Prize Award Speech (December 2004).
     Unbowed: A Memoir. Knopf: New York, 2006.

Ngegwa, Stephen N., "Kenya: Third Time Lucky?" Journal of Democracy, vol. 14, no. 3 (July 2003).

U.S. Department of State Human Rights Country Reports (go to current year Country Report drop down menu for Kenya). 

Cuba 

Economist magazine: Topics Index: Cuba. See, e.g.:
     “Cuba’s Economy: Picturesque but Doing Poorly,” May 16, 2015.
     “Investment in Cuba: Strait Talk,” April 5, 2014.
     “Huber Matos: Revolutionary-Turned Political Prisoner,” March 15, 2014.

The New York Times. World: Times Topics: Cuba. See, e.g.:
     “A Year After Cuba-US Thaw, Obama Says Change Will Take Time,” December 16, 2015.
     “Cuban Vendors, in Rare Move, Stage a Protest,” January 23, 2014.
     “For Black in Cuba, the Revolution Hasn’t Begun,” Sunday Review, March 24, 2013.

Arenas, Reinaldo. Before Night Falls. Translated by Dolores Koch. Penguin: New York, 1994.

Cuba-Europe Dialogues: a publication of the Czech organization People in Need and its International Committee for Democracy in Cuba. Past issues can be found at link.

Generation Y by Yoanni Sanchez.

Ms. Sanchez’s blog (available on the Huffington Post ) is one of the best sources of independent information in Cuba. Her web site is a portal for other independent bloggers. See also: Translating Cuba, a web page translating independent bloggers from Voces Cubanos, as well as 24ymedio, a new online newspaper in Spanish 

Human Rights Watch. World Report: 2015: Cuba.

National Geographic. “Cuba’s New Now” by Cynthia Gorney, November 2012.

US Department of State Human Rights Country Reports (go to current year Country Report drop down menu for Cuba).

Valladares, Armando. Against All Hope: A Memoir of Life in Castro's Gulag. (Encounter Books: San Francisco, 2001.

World Affairs Journal. “The Once Great City of Havana” by Michael Totten.

Economic Freedom: Country Studies — Cuba

Cuba Country Study

Rankings in Freedom in the World 2016: Status: Not Free. Freedom Ranking: 6.5; Political Rights: 7; Civil Liberties: 6.



Cuba

Summary

Cuba, the largest island in the Caribbean Sea, was claimed by Christopher Columbus for the Kingdom of Spain in 1492 on his first transatlantic voyage. The island was under Spanish rule for more than 400 years until 1898, when it was ceded to the US as a result of the Treaty of Paris ending the Spanish-American War. Cuba gained independence in 1902 but the island's politics and economy remained intertwined with those of the United States until the overthrow of the Batista dictatorship in 1959 by the July 26 Movement led by Fidel Castro. Under his leadership, Cuba became a repressive Communist dictatorship allied with the Soviet Union. In consolidating power, the Castro dictatorship carried out summary executions, instituted a massive police state, and nationalized nearly all property. Despite the loss of large subsidies after the Soviet Union’s collapse in 1991 and a continuing economic embargo by the US, Cuba remained politically unchanged and adopted only minor economic reforms. The Communist Party remains in control of all of Cuba’s political and state structures.

Cuba has been ranked “not free” in all of Freedom House’s world surveys since 1973. Cuba is also consistently ranked by the Heritage Foundation's index as among the least economically free countries in the world. Despite some policy changes allowing specified economic activities and limited property ownership, state structures still employ 80 percent of the workforce and continue to control most economic activity. The independent economy remains highly constrained and subject to severe state controls. The usual economic rankings are difficult to ascertain.

Cuba’s population of 11 million is 65 percent white, 25 percent mestizo (mixed race), and 10 percent Afro-Cuban. Since 1959, more than one million Cubans have left the island for political and economic reasons. Most of them landed in the United States by boat. The World Bank and IMF no longer estimate Cuba’s GDP either by nominal or PPP (purchasing power parity) measurements. The last IMF estimate in 2013 ranked Cuba’s nominal GDP at 65th in the world (around $71 billion in total output) and the World Bank estimated its nominal per capita income at 92nd ($6,501 per annum) for 2012. These measurements, however, do not accurately depict Cuba’s economy, which has been aided until recently by a large oil subsidy from Venezuela. State employees average around $25 per month in salary, while state benefits are generally exaggerated in value.

History

Spain established its first permanent settlement in Cuba in 1511. From that time, Cuba was under continuous Spanish colonial rule until 1898 (with the exception of 1762–63, when the British briefly occupied the island during the 7 Years’ War before returning it to Spain). The indigenous peoples on the island (estimates of their number range from 16,000 to 200,000 people) were quickly decimated by disease, forced labor, and dislocation. From the outset, Spanish colonists imported large numbers of African slaves to carry out agricultural labor. In the 18th century, slavery expanded with the increased cultivation of sugar cane and production of sugar. Aided by French colonists fleeing the slave revolts in Haiti, Cuba became the world's largest sugar producer as well as a major tobacco and coffee exporter.



Jose Marti

Abolition of Slavery and Independence

The path to independence began in 1868 when Carlos Manuel de Cespedes and some other landowners freed their slaves and organized an armed rebellion against Spanish control. Their ten-year struggle to establish a republic failed, but the conflict led to the eventual abolition of slavery in 1886. In 1895, Jose Marti, whose writings in support of freedom made him a symbol of the Cuban independence struggle, led fellow exiles in an armed attack to end Spanish rule on the island. He died a month after the landing, but the uprising gained strength in the countryside. Even so, the rebel forces failed to take any major cities until the United States intervened in 1898 as part of the Spanish-American War. After the US armed forces won a quick victory, Spain ceded control over Cuba, Puerto Rico, Guam, and the Philippines to the United States in the Treaty of Paris. Cuba gained independence from Spain, but as a protectorate under US occupation.

Independence and the Platt Amendment

Cuba declared its independence in 1902, when US authorities formally ceded power to newly elected Cuban leaders under a constitution modeled on that of the United States. As part of the handover of power, the US Congress adopted the Platt Amendment, which required Cuba to lease Guantanamo Bay to the US on an open-ended basis and granted the US the power to intervene in Cuban affairs. (The amendment had to be made part of the new republic's constitution.) US forces reoccupied the country from 1906 to 1909 in order to put down a rebellion against the US-backed government. After returning control to Cuban leaders, the US remained highly involved in Cuba and US investors dominated many aspects of the island's economy, including sugar production, industry, and tourism.

Democracy, Dictatorship, and the Sergeants' Revolt

Cuba had a fitful electoral democracy with competing political parties (although the one Afro-Cuban party was banned in 1912). In 1933, the increasingly dictatorial Gerardo Machado, first elected president in 1924, refused to leave office and resigned only after a general strike and army revolt. A short-lived provisional government was then toppled in a coup led by Fulgencio Batista, an army sergeant. Assuming the title of army chief of staff, Batista wielded power behind the scenes before he ran for president himself in 1940. Although he retired to the US after losing his re-election bid in 1944, he returned to run for president again in 1952 on a platform to end corruption. Trailing in opinion polls, he seized power in a coup three months before the elections. After initially suspending the 1940 constitution, he held elections in 1953. He won the presidency despite strong opposition to his political manipulation.



Fidel Castro

The Overthrow of Batista

Batista's leadership provoked opposition from various political parties. When he failed to win a legislative seat in elections, the young lawyer and activist Fidel Castro organized an unsuccessful attack by armed guerillas on the Moncada army barracks on July 26, 1953. After being jailed for two years, he was amnestied and went into exile in Mexico. He returned in December 1956 with another small rebel force called the July 26 Movement. The group's initial landing was also a failure, with most of the fighters killed or captured. But Castro and several associates escaped to the Sierra Maestra highlands, recruited new guerrillas, and allied themselves with several other anti-Batista groups. By late 1958, the rebellion was gaining ground and he had lost US support. In the face of increasing military defections and civilian resistance in the cities, Batista fled on January 1, 1959. Castro seized control with his guerrilla force and formed a provisional government with other groups.

Consolidation of a Communist Regime and the Embargo

Castro consolidated power quickly by marginalizing other revolutionary leaders and imprisoning one-time supporters who broke with him over his dictatorial methods (one, Huber Matos, served nearly 20 years in prison before agreeing to exile in the US). Castro signed a trade agreement with the Soviet Union in early 1960 and seized the facilities of US oil companies that refused to process Soviet crude oil at their Cuban refineries. After further expropriation of assets of US companies, the US government imposed a trade embargo on exports to Cuba in October 1960 and soon afterwards broke off diplomatic relations. In April 1961, an armed force of Cuban exiles, sponsored and trained by the CIA, landed at the Bay of Pigs on Cuba's southern coast. The uprising was quickly defeated by government forces, after which the regime intensified police repression of the population. By the end of 1961, Castro had collectivized agriculture and publicly defined himself, and the Revolution, as Communist. Castro began repressing the Roman Catholic Church by taking over its schools and imprisoning or expelling clergy members. The trade union federation was taken over and made into a monolithic structure to control the workforce.

Missile Crisis

In October 1962, the US government confirmed that the Soviet Union was establishing intermediate-range nuclear missile bases in Cuba. President John Kennedy ordered a naval blockade to prevent the transfer of missiles to the island. After a tense standoff that included threats to use nuclear weapons, Soviet leader Nikita Khrushchev agreed to withdraw the weapons and dismantle the bases in exchange for a US pledge not to invade Cuba in the future and to remove nuclear missiles from Turkey. Considering the Cuban regime an ongoing threat, however, the US government maintained a full trade embargo.

Exodus

The regime required exit visas to leave the country, but in 1965 agreed for a time to allow the US to provide air transport for people seeking to leave. Around 250,000 Cubans emigrated to Florida between 1965 and 1973 under this agreement, mostly small business owners whose property had been seized. In 1980, when Castro briefly relaxed exit requirements again, 125,000 people fled Cuba in the so-called Mariel Boatlift. Castro used the boatlift to expel violent criminals and psychiatric patients in violation of humanitarian law. A surge in attempts by Cubans to reach the US on flimsy rafts led to a US-Cuban agreement in 1994. The US would admit 20,000 people a year through normal immigration channels but agree to return refugees caught at sea making an illegal crossing. Cubans who set foot on US shores are still granted asylum. Altogether since 1959, an estimated one million Cubans have fled the island.



Refugees from the Mariel Boatlift

Economic Freedom

Since 1959, the Castro regime adopted a Communist model of dictatorship. Under the constitution, the Communist Party controls the political structures of the state and through these all of Cuba’s social and economic structures. Much of the state-directed economy is devoted to the military and security forces, which exercise dominant control over the society and oversee key economic sectors. Since the Cuban Revolution, assets of foreign companies were expropriated, private property owned by Cubans was seized without compensation, and the state undertook to direct all economic activity, including production, distribution, and purchase of all goods and services. Food rationing was imposed in 1962 and has continued to the present day. Each household is restricted to a minimal amount of basic foods through use of coupons, although reforms eased some controls on distribution and private sales of goods.

Until 1991, Cuba depended on the Soviet Union and Soviet bloc countries for massive subsidies in exchange for sugar and other agricultural products. As part of its alliance with the USSR, Cuba supplied troops and medical personnel to conflicts in Africa. In addition, Cuba sponsored numerous revolutionary groups in Latin America with arms and money in order to establish other Communist and Soviet-allied states in the Western Hemisphere. Since 2000, Venezuela has provided Cuba substantial oil subsidies, loans, and investments in exchange for the involuntary services of security, medical, educational, and other personnel. That subsidy — estimated at 8 percent of the state budget — has recently been halved and is likely to be ended entirely due to Venezuela’s economic collapse and the opposition victory in 2015 elections (see Country Study). The confiscation of assets of US companies and Cuba’s alliance with the Soviet Union resulted in the breaking of diplomatic relations and a US economic embargo, which remains in place despite resumed diplomatic relations in 2014 (see Current Issues).

The False Dichotomy

The communist regime imposed strict political controls, instituted a nationwide system of surveillance through neighborhood vigilante groups (known as Committees for the Defense of the Revolution), and severely repressed opponents of the regime and those considered social deviants (mostly drug addicts, prostitutes, and homosexuals).  Initially, the regime executed and imprisoned citizens on a massive scale. Since consolidating power, the regime has engaged in more targeted and systematic repression.

Sympathizers with the Cuban revolution or Fidel Castro's vocal opposition to the United States have often pointed to the regime's so-called protection of “social and economic rights” as justification for its lack of political or economic freedom. While this poses a false dichotomy (see Essential Principles), the social achievements of the Cuban Revolution are highly overstated. In education, there are chronic shortages of textbooks and basic materials (not to mention newer technology such as computers). The regime uses education as a vehicle for indoctrination and limits learning by strictly controlling access to literature, other books, and the internet. Higher education is limited and entrance depends on political loyalty to the state. In health care, there is a chronic shortage of medical supplies, drugs, and now medical personnel (due to their involuntary service to countries like Venezuela in exchange for oil and other subsidies). Most hospital facilities serving the general population are dilapidated and Cubans often pay bribes for basic treatment. (The best health care facilities are typically reserved for the ruling elite and paying foreign guests, who are led to believe that ordinary Cubans receive the same care.)

Overall, social and economic well-being and inequality have worsened. Today, the population has a lower standard of living than in 1959; the average state wage is $25 per month. Ongoing racial discrimination has left most Afro-Cubans living in severe poverty. Meanwhile, favored groups loyal to the regime (such as military officers and party officials) live in better housing, have higher salaries and benefits, and receive luxury goods.

Communist economic policies resulted in severe impoverishment of a country that was once the most prosperous in Latin America.  

The “Special Period”

After the Soviet Union collapsed in 1991, Cuba lost an estimated $5 billion a year in economic subsidies and the country's gross national product fell by nearly half between 1989 and 1993. Cuba entered what Fidel Castro called the “special period” and he announced the need for additional revolutionary mobilization and sacrifice, such as forcing students and government workers to plant and harvest crops and further rationing of all necessary goods. In 1994, the regime adopted economic reforms to allow foreign investment, especially in telecommunications and tourism, a limited degree of independent economic activity, and use of the US dollar as legal currency alongside the peso. Joint ventures were formed by foreign companies and Cuban state entities. Small, semiprivate cooperative farms were established and permitted to sell surplus agricultural products on the market. Private restaurants opened, as did special state-sponsored dollar stores (usually run by people close to the regime). In 1994, US President Bill Clinton allowed the possibility for family remittances and limited travel to the island. But after the Cuban military shot down two unarmed civilian airplanes operated by a US-based exile group, Brothers to the Rescue, the US Congress adopted the Helms-Burton Act, which extended the embargo to penalize foreign firms doing business in Cuba. Travel and family remittances to the island were restricted by US President George W. Bush in 2004 but eased by President Obama in 2010.

Resilience of the Regime

While some predicted the fall of the Castro regime after the Soviet Union's collapse, it has proven resilient. Since the reforms of the 1990s, the economy depends in part on a foreign tourist industry financed by European and Canadian investment. Since the early 2000s, Venezuela's socialist president, Hugo Chavez, has also provided a substitute energy subsidy, bartering oil for the free services of Cuban medical personnel, teachers, and others sent involuntarily to Venezuela. Overall, Chavez provided an estimated $14 billion in loans, investment, and grants.

In July 2006, expectations for change in Cuba were raised when Fidel Castro, nearing 80, transferred presidential and other powers to his brother Raúl, the Minister of Defense, before undergoing intestinal surgery. Failing to return to health, the elder Castro resigned in February 2008, making Raúl’s titles as President of the Council of State and Council of Ministers permanent. The regime has continued to operate smoothly under Raúl’s leadership with no sign of a political crisis. In February 2013, the National Assembly, made up solely of Communist Party-approved members, elected Raúl Castro to a second term as president of the Council of State at the age of 81. He continues to also serve President of the Council of Ministers, Commander in Chief of the Armed Forces, and First Secretary of the Communist Party. Announcing that this would be his last term as state president, Raúl selected a younger candidate for first vice president of the Council of State, Miguel Diaz-Canel, who began his career as head of the Young Communist League.

Current Issues

In December 2014, US President Obama announced the resumption of diplomatic relations with Cuba and eased travel restrictions as part of an overall agreement with the Cuban government involving the exchange of American and Cuban nationals held as prisoners and the release of 53 political prisoners by Cuba. Embassies were reopened in 2015. The president also increased the cap on remittances to Cuban nationals to $8,000 annually, eased some export restrictions, and called for an end to the trade embargo, which must be removed by act of Congress. President Obama stated that the policy of isolating Cuba over 50 years had not resulted in desired change and argued that engagement with Cuba would better encourage political and economic reforms. Leading members of Congress from both parties, however, continue to support maintaining the embargo as pressure on the regime to improve human rights.

The regime is still under the firm control of Raúl Castro and the Communist Party of Cuba. It remains resistant to change. Economic reforms, which began in 2008, have been small and often depend on use of convertible pesos, which are available by exchange in foreign currency and are 25 times the value of ordinary pesos that most Cubans earn in wages. In 2013, the regime announced the possibility to travel without an exit visa and to buy and sell homes and cars on a limited basis. It also extended the number of allowable private economic activities (from 178 to 203). Cubans are now able to earn income privately and even to hire non-relative employees, but all such private economic activity remains under strict state supervision. The government must approve all professional licenses and property sales, which are routinely denied those considered dissidents or not loyal to the regime. Profits are subject to high tax. And state security harassment of entrepreneurs is common. A new foreign investment law provides incentives that continue requiring a majority Cuban partner, usually a state-enterprise or institution associated with the military or security services (which together control two-thirds of the Cuban economy). All foreign investment must be approved by the Council of State or Ministers. In practice, the reforms allowing buying and selling of goods and property do not benefit ordinary Cubans but rather the nomenklatura (the communist state hierarchy), whose members are more likely to own goods and property. The reforms largely bypass Afro-Cubans, who are less likely to receive remittances or be hired in the tourist industry, where foreign and convertible peso currency is used.

The government's control of all media and its sweeping restrictions on free expression means that the public has no reliable information about the political and economic situation in Cuba and the world.

The basic political and economic structure remains wholly unchanged. The Communist Party controls all state power and most economic enterprises. Access to housing, jobs, or state privileges depends on political loyalty or serving as an agent or informant to the police. Independent political activity is subject to severe reprisal, including harassment by state vigilantes, unending unemployment, and worse: imprisonment and extra-judicial killings. In one day in 2003, the regime arrested 75 leading dissidents. They were released over the course of the next ten years but only if they agreed to being exiled from Cuba. Since then, the regime has continued to imprison dissidents and pressure them into exile. The police routinely use “preventive detention” against civic and political activists. The Cuban Commission for Human Rights reported a record number of 9,000 detentions in 2014 and a similar number the next year, including hundreds of persons held during Pope Francis’s trip to Cuba in September 2015. The practice continued in 2016 and escalated prior and during President Obama’s historic trip to Cuba in March. During his trip, President Obama met with a representative group of dissidents on his trip and specifically called for the Cuban government to repression. Such appeals have not altered government behavior. Police and state-sponsored vigilantes routinely attack independent demonstrations, such as the weekly protests of Ladies in White, a group of female relatives of current and former political prisoners, and cultural events organized by independent performance artists and musicians.

Despite such repression, many Cubans bravely organize opposition to the regime and promote democracy and human rights. Organized opposition to the regime was almost eradicated in the ‘70s and ‘80s, but a revived democracy movement emerged in the mid-1990s to organize a variety of initiatives: human rights organizations, political groups, home libraries, self-employment centers, independent trade unions, among others. Musicians and artists have attempted to organize alternative culture. All such groups and initiatives are considered illegal and involvement in them is the basis for imprisonment.

In general, the government's control of all media and its sweeping restrictions on free expression means that the public has no reliable information about the political and economic situation in Cuba or the world. But among the most significant independent activities on the island are efforts to break through the information blockade. Within Cuba, a movement of independent bloggers, led by Yoanni Sanchez, including her Generation Y blog and now the daily news outlet she and her husband edit, 14yMedio, is now tolerated. Their web pages are blocked to Cuban residents by government control of the internet, but many Cubans are able to read them, although often at high cost, with the increase in access to satellite Wi-Fi.

Economic Freedom: Country Studies — Kenya

Kenya Country Study

Rankings in Freedom in the World 2016: Status: Partly Free. Freedom Ranking: 4; Political Rights: 4; Civil Liberties: 4.