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151040755.Pdf http://researchcommons.waikato.ac.nz/ Research Commons at the University of Waikato Copyright Statement: The digital copy of this thesis is protected by the Copyright Act 1994 (New Zealand). The thesis may be consulted by you, provided you comply with the provisions of the Act and the following conditions of use: Any use you make of these documents or images must be for research or private study purposes only, and you may not make them available to any other person. Authors control the copyright of their thesis. You will recognise the author’s right to be identified as the author of the thesis, and due acknowledgement will be made to the author where appropriate. You will obtain the author’s permission before publishing any material from the thesis. Can Justice be Traded for Democracy? A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy in Political Science at The University of Waikato By Debrin Foxcroft 2017 ii Abstract For much of the Twentieth Century, the transition processes of democratizing states have followed a familiar pattern. Outgoing authoritarian regimes relinquished power after extracting the promise of amnesty from the incoming democratic leadership. These authoritarian leaders demanded amnesty for gross human rights violations. The incoming democratic leaders felt like they had no choice. Amnesty has consistently been viewed as a necessary price to pay for democracy. While expedient, in agreeing to amnesty the incoming democratic leaders agreed to sacrifice justice for democracy. This thesis examines the long-term consequences of the amnesty pact on the democratic state and questions whether justice can be sacrificed without ultimately undermining the basis of the democracy. While other studies have focused on the moral implications of amnesty, this work examines the functional realities. Rather than asking whether democratic elites should agree to amnesty, this work asks whether they actually can. Can measures of justice be sacrificed without fundamentally undermining the development and stability of democracy? Can the argument that amnesty is in the interest of the greater good subdue later demands for restoration or retribution? Case study methodology is employed in the examination of the political transitions of Brazil, Chile and South Africa. These countries have each employed different approach to amnesty, though all coming to the same general end. The political and social outcomes in each country speak to the fundamental consequences of amnesty legislation decades after the bargain was struck. The case studies inform my response to the larger theoretical question. This research posits the argument that there are fundamental incompatibilities between the injustice of amnesty and the fundamental requirement of justice that is characteristic of democracy; the current collapse of democracies in Brazil and South Africa, and the fundamental struggles in Chile, are, it is argued, the inevitable results of this impossible trade-off. Building on the data gained from in-country qualitative research, this thesis argues that democratic norms will either be fundamentally weakened by the continued existence and use of amnesty, or, alternatively, democratic norms will be forced to undermine the law or decree itself, compelling leaders to eventually repeal such legislation that ultimately makes iii democracy, in its basic foundation in justice, impossible. Either situation is highly problematic, creating the potential for instability and the possibility of regime reversal. At its core, this research suggests that the long-term negative consequences of amnesty outweigh the immediate gains made during the transition. For democracy to work, it must be built on a foundation of justice. Amnesty legislation undermines that foundation, and this is simply more than a newly democratizing state can sustain. iv Acknowledgements One of the challenges of comparative analysis is that events continue to take place long after the pen has been set down. This has certainly been the case here. Brazil and South Africa have both entered a period of political crises. Chile is equally facing questions around its democratic legitimacy. Events relevant to the questions presented here continue past my publication date. However, my hope is that this analysis helps to explain some of the underlying issues that drive the current crises in Brazil, Chile and South Africa, and to mark out the pitfalls of amnesty pacts for states looking to follow this transition path. I would like to thank my supervisors, Professor Daniel Zirker and Dr Colm Mckeogh for their incredible supervision, support, guidance and patience. Additionally, I would like to thank Dr Alan Simpson for his guidance during the time that he also supervised my work. I would also like to acknowledge the profound impact of the late Dr Ross Casci, who inspired my first foray into political science almost two decades ago. A number of people helped and housed me during my research trips to Brazil, Chile and South Africa. A particular thank you to Garth, Shirley, Karen, Göran, Leah, Pam, Chris, João, Tania, Carla, Juana and Pelu. You all gave me a place to stay as I conducted research, as well as additional support, advice and, at times, translation services. I would not have been able to finish this thesis without all the help that was given to me during these travels. I would also like to thank all of those who were willing to participate in this research. Your contributions have been invaluable. In New Zealand, I would like to thank all my friends who have been there for me throughout my academic journey. In particular, thank you Gemma, Graeme, Stan and Ben. During different periods, you all helped me forward with laughter, friendship and encouragement. Thank you to all of the other doctoral students at the University of Waikato who shared the challenges of this experience: Gauri, Rebecca, Estelle, Ibikunle and Todd. A particular note of appreciation must also be given to Bev and Frances. This research was made possible through the University of Waikato Doctoral Scholarship and the Zonta Whangarei Women’s Graduate Scholarship. v The travel was made possible by a gift from the late Alistair Miller. Even in passing, the positive impact of your life has continued through the generations of our family. Finally, thank you to my family. To Wendy, Gordon, David, Neil, Carola, Katie and Leah, you have all been amazing. Thank you to Phillip for your support when we were together. And to Nova, my precious girl. I hope this inspires you and proves that you can do anything. vi Table of Contents Abstract .......................................................................................................... iii Acknowledgements .......................................................................................... v List of Tables ................................................................................................. xiii Chapter One .................................................................................................... 1 Introduction .................................................................................................... 1 1.2 Hypotheses ............................................................................................... 5 1.3 Situating the question in literature – transitional justice .......................... 7 1.4 Theoretical review ................................................................................... 10 1.4.1 The impact of perception on legitimacy ............................................. 11 1.4.2.1 Defining democracy: the liberal democratic model ........................... 14 1.4.2.3 What makes for a "good" democracy ................................................ 16 1.4.3 State Transitions ................................................................................. 20 1.4.4 Theories of Justice .............................................................................. 22 1.4.4.1 Understanding Justice ....................................................................... 22 1.4.4.2 Two streams of justice ..................................................................... 23 1.4.4.3 The “perception of justice” framework ............................................. 24 Table 1.1: Perception of Justice Indicators ................................................ 26 1.4.5 A word on equality ................................................................................ 26 1.4.6 Amnesty legislation ............................................................................... 28 1.4.6.1 A negotiated choice ............................................................................ 28 1.4.6.2 What is amnesty legislation? ........................................................... 30 1.4.6.3 Typology of Amnesty legislation ......................................................... 31 1.4.6.4 Arguments for and against amnesty legislation ................................. 32 1.4.7 Crimes against Humanity ..................................................................... 34 1.5 Methodology ............................................................................................ 36 1.5.1 Two Methodological Approaches .......................................................... 36 1.5.2 Comparative Analysis ........................................................................... 37 1.5.2.1 Primary Sources ...............................................................................
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