Criminalization of protest, the constant attempt to sweep the dirt under the rug.
A group of representatives from the opposition headed by Martín Tetaz seem interested in restricting social protest. In recent weeks they not only presented a bill limiting social protest, but they also presented another bill to convene a binding referendum about this project. The National Constitution establishes a mechanism in art. 40 and these members of Congres seem to believe that, either through the purely representative route or through a referendum, social protests must be regulated.
In our country, the debate over the regulation of social protest is an old one. The 90s saw the birth of a new form of politics that brought about a new repertoire of collective action. This new repertoire included, among other things, picketers, roadblocks, and street blocks. Although the first reaction of the Judiciary was to understand these forms of protest as offenses, the appearance of new arguments (1) and a change in the discourse of the national government (2) seemed to have resolved the matter in favor of the protest.
In general terms, we could say that this change in orientation was related to understanding that the protest was, in the first place, an expressive act by which generally disadvantaged groups demanded a change in public policies from their representatives. Given that access to the traditional means of communication is extremely difficult for a large part of the people and the severe degradation of the material living conditions, broad sectors of society lost confidence in their representatives and found an effective way to express this dissatisfaction. This increased distrust towards the representatives culminated in the protests of December 2001 and their famous motto “let them all go.” Thus, the natural thing for the political processes that derived from 2001 was not to criminalize social protest.
However, this discussion does not seem to have been done. In 2014, then president Cristina Fernández de Kirchner asked to regulate social protest, followed by a bill with the same purpose presented by Carlos Kunkel. Compared to Tetaz's project, Kunkel's was less restrictive in that it did not completely exclude public spaces for protest. However, both the existence of the bill and the presidential support show that social protest never ceased to be an issue that concerned relevant actors in various political spaces.
I do not want to delve here into the problems that the regulation of social protest implies for freedom of expression. As we said, they have already been addressed both by the specialized literature and several relevant institutions. In brief, we can say that protest is a form of social responsibility in which generally disadvantaged sectors of society seek to change the orientation of public policies established by their representatives. Therefore, protecting protests equals protecting the political discourse of sectors with limited power to influence the public agenda.
Beyond the value of these responses to attempts to regulate protest, I would like to focus on another aspect of this phenomenon. More specifically, I am interested in thinking of the protest as a symptom of the problems of the contemporary representative system. I believe these symptoms are not the consequence of any specific set of policies (although bad policies add fuel to the fire) but structural elements of our institutional organization.
As we all know, we are going through a crisis of representation. Although citizens in various parts of the world continue to believe that democracy is the best form of government, disenchantment with representatives is increasing(3) and we can observe the emergence of outsiders and populist leaders(4) who claim to be different from the rest of the representatives because they do embody the popular will. Argentina does not seem to be the exception to the rule.
In this context, it would seem that the constant presence of relevant groups of citizens who feel that their demands are not heard is one of the ways in which the representative problem manifests itself. At this point, someone could say that the problem is that the representatives do not listen to the people, but if they did, the crisis of representation would disappear. I think this is not the case. In the first place, if the feeling of non-representation were a consequence of the decisions of the Argentine political leadership, we would not observe this same phenomenon around the world. Second, we should be curious about the recurrence of these crises. If, despite the political change, people continue to feel that their representatives do not listen to them, it seems sensible to believe that the explanation for this phenomenon goes beyond a specific group of people. Therefore, we should look for the causes of this phenomenon in elements that are common to representative democracies.
The first element we can regard with suspicion if we talk about a crisis of representation is, precisely, representation. More specifically, we should ask ourselves if we are still satisfied with the notion of representation that sustains our institutions. Contemporary democracies are structured around an electoral conception of representation, that is, we believe that someone represents the citizenry when they were voted to do so. This was not the only conception available, but it was one of the many that characterized the political dispute at the end of the 5th century and the beginning of the XNUMXth century, and its choice pursued a double objective: on the one hand, to allow citizens to control representatives through a periodic vote. On the other, to establish a mechanism that would select a group of people especially suitable to govern (XNUMX). Thus, according to Bernard Manin, the main characteristic of elections is that they are inherently democratic — because they grant control to citizens — and elitists because those who end up effectively governing are people with a series of particular qualities. In other words, we do not expect representatives to be like us but better.(6)
We can now conceive an explanation for the crisis described above. If those who govern are people with particular characteristics, it seems sensible to think that their socialization, interests, and biases are also distinctive. Given that the activity of representatives is, ultimately, the enterprise of a group of people, it is possible to expect that the product of their work reproduces the biases that appear more or less repeatedly in representative institutions. Thus, when citizens feel that the representatives do not reflect their interests, act as they would, or are involved in discussions that feel distant, this is not an isolated phenomenon but a consequence of institutional design.
When the representatives of Juntos por el Cambio want to limit social protest, they are not only restricting the exercise of freedom of expression by disadvantaged groups but also attacking in a partial and misguided way the representation problems that afflict our democracies. Far from messing with the causes, this group of representatives seems concerned with its symptoms. Thus, a proposal to reduce the distance between representatives and represented does not appear in this or any other bill, they are simply interested in their demonstrations not affecting other parts of the citizenry.
Although a good part of the institutional innovations that follow from abandoning the purely electoral conception of representation would require institutional changes at the constitutional level and therefore a high level of political and social consensus (7), another set of institutional innovations could be compatible with our constitutional text. In particular, I am thinking of spaces for citizen deliberation, law initiatives (8), or participatory systems that allow the design of popular consultations without their content being determined exclusively by representatives' decisions. Thus, there are participatory paths to follow even within our constitutional structure.
In conclusion, both the Martín Tetaz project and others that sought to limit social protest are trying to hide the problems afflicting representative systems. If these problems arise from the very foundations of representation as we understand it, the answer would have to begin by thinking outside the limitations of this conception of representation and seeking various forms of institutional innovation. Ultimately, restricting protest is just a way to sweep the dirt under the rug.
Footnotes:
(1) Roberto Gargarella's arguments were criticized by Mauro Benente here!
(2) The practical consequences of this change in official discourse are debatable. For further information on this point, see here!
(3) See the 2021 Latinobarometro report.
(4) Many times the same person has both characteristics.
(5) In Argentina, the clearest example we have is the characterization made by Alberdi of representation as a filter.
(6) Some years ago I read an article in which it was highlighted that, between members of Congress and senators, 47 representatives did not have a university degree. The first noteworthy aspect of the news is how different the body of representatives is from society. While a fifth of Argentines have a university degree, in the group of representatives this proportion scales to approximately five sixths. The second interesting element in the article is that the writer seems to find a problem in that one sixth of the representatives do not have a bachelor's degree. Thus, it seems that the way we understand representation makes us aspire to have representatives who have been trained as much as possible.
(7) Although in principle it would seem that this consensus among representatives is impossible to achieve because they are precisely the beneficiaries of the current institutional scheme, cases such as that of British Columbia show that sometimes social discontent is so great that the only way to save a portion of power is by expanding the spaces for citizen participation.
(8) This institute is provided for in our Constitution but, despite what the constitutional text mandates, almost no initiative was dealt with by the House of Representatives.
