 Okay, we are back. We're live and we're honored to have Michael Davis among us again. He's been with us by Skype many times and he's been in the studio too and he flies around the world and he's kind of a nascent intellect going everywhere, doing everything, but mostly about Asia and about Hong Kong and now also India. So let me try to do a kind of introduction if I could, Michael. Welcome to the show first. Thank you. Thank you. So we met him and he was a local boy. I love that. We met him in his role at the Hong Kong University where he was also involved in the media and we talked to him about the umbrella movements and all the things that were going on in Hong Kong in the last few years. But at some point he left Hong Kong although he had retained all kinds of strings and he still has his radio show in Hong Kong and he's a fellow at Hong Kong University. Some things keep going and going. And he went to Washington, wasn't it, at first? Yes, the national endowment for democracy. Okay, this is very important. And then he got connected with Notre Dame where he is involved in Asian law there or rather Asian politics and international issues. And then with Jindal University in India, which is a university that was established by one very wealthy person who sort of created it and holed cloth immediately. And now it is a splendid place. And Michael is involved on the faculty there. So the question is, what do you like best? It's hard to say. I like Hawaii the best. I have to say. That's why I'm here for a month during the holidays every year. My kids have been here every year of their childhood. And I was a lawyer for Native Hawaiian Legal Corporation years ago. So I'm very much involved in this community. But I enjoy those other places as well. They're very challenging. Hong Kong is the most challenging city on the planet. And India is probably the most challenging country. So I'm having a good time. We have a correspondent, by the way, in Varanasi. Oh, there you go. Near the northern border there. He talks to us about the issues that come across. He's a student. Well, I visit the north of India a lot because I also work on the Tibet issue. So I just came from a big meeting a couple of months ago in Dharamshala in the north of India where the Tibetans are trying to figure out what to do next. Yeah, but that was sort of a vitamin pill, so you take, Michael. Never mind. I get up and run every morning trying to wake up each section of my body. So you've specialized in law and human rights and constitutional evolution. You specialize in things Asian. And it's really important because, you know, whether the pivot actually happened or not doesn't matter. The fact is that Asia is more important in our world now than it ever was. And you're right on that. And I envy you that because you're current on all these things that happen in Asia, including seed changes, which we really have to watch. And you wrote an article in October and you entitled the article, and I switched it for this show. It was entitled Strengthening Constitutionalism in Asia. And that's in the Journal of Democracy. Journal of Democracy. And in fact, you were, when you, yeah, when you went to Washington, you were the National Endowment for Democracy. So for you, it's all about democracy. I changed that to include human rights because you were so involved in human rights as you have been. So the title of this show is Strengthening Constitutionalism and Human Rights in Asia in the journal, well, from the article. To be honest, that was one of the earlier titles of that article. Is that right? There you go. We struck something there. There you go. So, you know, I'd like to know where you are these days. I mean, intellectually in terms of teaching and writing, what are you covering and what are you saying? Well, the biggest thing I've been doing for years and something I really appreciate from actually I worked on Kan Kan in Hawaii many years ago. What a constitution of Hawaii. About time to have another one. That's right. Well, I did that many years ago and I've always found that human rights violations are local and solutions tend to be local. And so I tend to view a democracy and human rights to the prism of constitutionalism. And I think that's the challenge for us. That's the challenge that when I was in Washington, I met with a lot of think tanks and tried to encourage them to pay attention to constitutionalism, not to break down the things they spend their money on and invest in into too many small pieces, but to see the bigger picture. So that's what I do. I teach courses on what I call constitutionalism in emerging states. And I teach courses on international human rights and so on. So I see these two things as intimately tied together. Yeah, I'm thinking at first that constitutionalism really means the rule of law. Am I right or is it more than just the rule of law? Well, it certainly at its heart is the rule of law. The idea that that even the leaders are subject to the law and the courts have a role in upholding that in different systems that's done in different ways. But at the end of the day, you're looking for independent institutions that can oversee the processes of democracy. Democracy is a messy business. So we want to have institutions. And you can use the word tumultuous if you wish. Yes, very good. And so we want institutions that that lend stability to democratic processes. If we don't have them, they tend to fail. And this is one of the big problems. This is what I'm writing about in this article that we see in Asia that the institutions that are required haven't been there in many cases, or they've been undermined by expediency in many cases. And this is something we should all care about because most of the wars that we've been involved in have arisen out of these problems. So we all pay a price if we don't pay attention to the world is shrunk. And we're all together on this. And we have to look at how our leaders engage these issues or not and judging their performance. Oh, this sounds like something that's happening right here at home in the United States, doesn't it? It is. But I mean, what you know, the suggestion by your comments is that this is a worldwide process. It's not just Asia, although we can see Asia as a laboratory for certain kinds of countries, cultures and constitutions. But in fact, it tracks together with things happening all over. Right. This foe and monk is the two surnames of a pair of writers. A mid last year wrote in the Journal of Democracy about the retreat of liberal democracy in the West. You know, the Journal of Democracy is often paying attention to the developing world. But in this case, they're turning toward it, looking in the mirror and noting how many young people in our country who have never experienced the age of the Cold War and communism versus freedom and all of that don't quite understand the importance of these institutions. And so opinion polls have shown in fact, among millennials in the West, 17% of them thought military rule would be better than democracy. Gary, I mean, it's not that they really understand what they're saying in that case. And they've not seen that up close and personal. But at the end of the day, they see democracy's messiness and they see a kind of cynicism towards Washington, perhaps in their parents and their neighborhood and their community. And so democracy is not delivering and democracy is not for us. And well, of course, we're seeing some of that in our elections as well, and how people turn towards more extreme politicians and a polarization of politics in Asia, like you say, as a microcosm of this, the same things are occurring across that region. A region is generally in present day considered one of the more economically developed regions of the world is experiencing some of the same problem. Well, two things come to my mind, at least for the United States as to why why we have lost touch with you know, the elements of democracy that that were there earlier after World War Two, for example. One is we haven't taught our students about it. We haven't exposed them to civics and the elements of the social contract that makes democracy possible. The other is we haven't given them a role vis-à-vis government. There's no draft. They pay the taxes and hate it. They follow the regulations, go through bureaucracy and hate it. They become completely distanced from government and anything to do when they wind up, you know, feeling the system isn't treating them right. I wonder, and so that's kind of a given these days. I'm assuming from your nodding that you agree with that. But I'm wondering if the same kind of process happens in Asia. Exactly. In fact, in the article, I think you wrote my introduction that there's sort of two sides to this. One is whether you have the institutional map rate that's the constitution itself. And the second is the level of commitment to the processes and institutions that you've created in this constitutional process. And lately, I think in many cases, for example, in Thailand, under Shinawat, the 1997 constitution in Thailand was one of the most liberal in Asia. And everybody thought, well, this is going to work greatly. But then all they got was a populist leader who sort of turned it all to his own cause. And we see that there's a lack of commitment to the kinds of institutions that that constitution, which was the best one they had, contained. And so the result is, of course, Shinawat goes wild and does everything he wants to do and kills drug dealers just like Duterte is today. And eventually you have these protests on the streets and the military swoops down and you have a coup d'etat and military rule martial law. And more or less the same thing continuing to this day in Thailand. These things could happen here. That's right. So this is something that I think people need to understand. Now, it was interesting. Years ago, I was asking in Hong Kong to give a talk to the education department to teachers. And talk was to be how to promote the basic law, which is sort of the constitution of Hong Kong. And they was expecting me to, you know, go through the language of the thing and talk about it in some boring way. And I said, no, no, no. Get your students out on the street. Get them involved in actually making these things happen. Now, little did I know by 2014, there'd be so many of them out on the street with umbrellas. But they would be orchestrating an umbrella movement. But that's in a sense how government works. Sometimes it's based on popular action of the people who are guardians of their institutions and other times, in normal times, those institutions themselves provide the sort of engine of a democracy. So this is the thing. Students can be taught it in class, but sometimes engaging it is also important. It strikes me as so many things come to mind from what you say. It strikes me that, you know, democracy has seen the low-hanging fruit. That the people who organized the democratic nations and institutions early on had no idea how things would evolve. And for example, I point out the social media. I point out the internet. I point out the immediate communication among millions and hundreds of millions of people like that. This has got to change democracy. It's going to change the way people react. It's going to change the way leaders can affect, you know, our daily lives and our sense of connection with the government. So we are now in a different, don't you agree, a new kind of world where democracy has to evolve with all the other new things. And it's interesting. It sort of cuts two ways. Many people saw the internet as really reaching out, a web of communication to all people, creating a broader community of discourse. And so this is viewed very positively. And when I was on the streets of Hong Kong in the early stages of the Umbrella Movement, it was interesting how the internet was being used to bring people anywhere. They wanted one of them in terms of the protests that were unfolding. And I thought it was amazing to watch this. I actually wrote an article, a book chapter on this, on how the internet, the social media were used in the Umbrella Movement. And that becomes a very positive case of mobilizing people. So police are gassing people somewhere, you know, out goes all the messages. We're being gassed, it comes all the people, the support of the students that are protesting. But the other side of it is this kind of, I call the bubble phenomenon, that people become politically isolated in these bubbles of information. And I think we've seen a lot of that in this country, which is divided right and the left. I think the right in particular has been prone to this kind of certain sources of news and then certain interactions from Breitbart to Fox News, where they never hear any of the other side of the story. You and I may have grown up in the day when there were three networks and you turn on Walter Cronkite or Dan Rather or something and you'll hear you know, different sides of a story. Yes. But that kind of, that's been diminished. So how we can make the internet serve us. And I have a feeling Big Brother can't jump in and solve this problem that we have to solve the problem. That we have to have a kind of consciousness within our community that causes people to try to understand what other people are saying and doing and different sides of the story. I don't see a way around that because the alternative is to silence those speakers and that's also a problem. Yeah. Are we further away from you know, good service to and through the internet because of these diminishing the net neutrality rules this week. That makes it possible for fewer to run it, fewer to control it and for the ordinary people in the tumultuous prospect process of democracy don't have as much to say. Likewise, the efforts in this country anyway to put power in the hands of the wealthy and take power away from everybody else doesn't that put us further away from good democracy? Right, well of course the Citizens United case in the Supreme Court was something that had a major impact on how our politics have been conducted especially in the last presidential election and the huge amount of money spent in every country across Asia has various rules on this. Some don't even allow campaigning until near the end, right before the election. So there's various kinds of ways to sort of diminish the the role of money in all of this but yeah it's a problem how you can have elections and so on where people are given information and we have this whole fake news phenomenon going on and across Asia the same kinds of problems occur and do they copy us? I mean for example the term fake news is that used? Well that language is used. Things are described as fake news so sometimes the things we do you know take on legs and start going beyond where we are. I was a fellow at the National Endowment for Democracy under a fellowship that was involving social activists. So I'm academics are among them but you're sort of an academic who's a social activist and one of the social activists in my case was a woman from Thailand who ran a blog a social media thing and what happened was someone got on her blog and said something that violated the laws of what's called less majesty the laws against saying something negative about the king and so she as the owner of that social media page was arrested and sentenced to eight months in jail. So this idea that that the I don't know if the social media organizations really want to buy into what they've just got they may have a pyrrhic victory here because they may come to own if they don't block people from saying things that that are somehow illegal get to be responsible they may be responsible for it because they they can't claim no no no we're neutral we don't have anything to do with it that's that guy just using Facebook then suddenly well Facebook is responsible for what's on Facebook we're a we're going to encourage censorship that's going to encourage censorship by private individuals but at the same time it's going to encourage holding private individuals responsible as this young woman in Thailand found herself it's all in process it's all in play Michael yes everything is in play these days and we're going to take a moment of neutrality now we're going to have a one-minute break it'll be totally neutral you'll see we'll be back research says reading from birth accelerates the baby's brain development and you're doing that now oh yeah this is the starting line posh when this is over you're dead read aloud 15 minutes every child every parent every day hi guys it's rb kelly i'm your host of out of the comfort zone where i find cool people with cool solutions to problems that all of us face now the thing is we're really cool and i only invite really cool people but the thing is i think you're kind of cool too so i think you should come and watch that thursdays at 11 a.m here on oc 16 television with think tech hawaii i'm rb kelly host of out of the comfort zone and i will see you next thursday we're sorry we're flying with michael davis we're bringing the world together but let's talk about asia because that's his primary beat okay let's talk about constitutional evolution in asia what countries are doing well what countries are not doing so well and why well of course where i have my feet on the ground and it's been a lot of last summer in in hong kong and in marches over the death of the noble lawyer leo shall bow and protest over the arrest of student activists and so on what in hong kong this is the one case where sort of democracy intersects with a hard line of authoritarianism and the chinese leaders don't like the democracy side of that they don't like the open society that's in hong kong and these youngsters that are taken to the streets in first as holding umbrellas and now continue their protest Beijing seems to be mopping up and arresting them and they've been some of them a bunch of them got elected to the legislature were thrown out yeah and and so they oh you mean the the the activists the activists yeah they were elected and then Beijing they were giving oaths that annoyed Beijing the oaths they were saying something bad about Beijing so then that was used as an excuse to expel them so six of them were expelled and then three of them were arrested for their march their protest activities and and they were sentenced to community service and then the Beijing kind of nudged the governor that's not enough and so the government appealed the sentence and then they were sentenced to six to eight months in jail for protesting oh it's got worse yeah got worse oh my goodness and and so these things are all going on and now Beijing officials are lecturing hong kong that they have to enact these national security laws you know anything about my history i was one of nine people who in that was in years in 2003 we formed the article 23 concern group article 23 is an article in the basic law that says Hong Kong must enact on its own laws on secrecy national security sedition subversion and so on separate from right major and in 2003 the government came up with a proposed legislation and the nine of us seven lawyers and two academics myself being one of the latter we formed this group and we wrote pamphlets and distributed them on the street we wrote nine pamphlets for each of us wrote one we distributed a half a million of them on the street and then we wound up with a half a million protesters against the little government's proposed law legislation and it was withdrawn so every since then the government said Hong Kong and said no no no we're gonna stay away from this we don't want this kind of trouble and now Beijing doesn't like the fact that some of these youngsters are advocating independence so now Beijing independence from China from China yes wow so now Beijing is saying oh you have to enact these laws and they've given lectures to the new chief executive that they've selected they don't really elect them democratically and they've given her the riot act you know you have to try to pass this kind of legislation and so that's the big issue in Hong Kong today because the general sense is that today could even be worse than 2003 because Beijing may not when we protested we actually got the government to change and amend a lot of the language of the law before it was withdrawn because the government lost the the votes that needed in the legislature but now some people say well if you're going to do it you should take up the draft we had and improve it but Beijing may not be in mind to do that so so this is one place Hong Kong the sort of New York of Asia is in the middle of a constitutional battle over basically free speech of people is it is it a violation is it should it be a crime to advocate peacefully independence or to use that word and describe what you need as independence should people be put in jail I thought one of the big the big principles of Hong Kong was free speech and when you and I first started having our discussions I was so pleased to find that no matter what else was going on in Hong Kong there was free speech in the newspaper on the radio you were in the middle of that and but I sense now and I think I asked you at the time what's the general direction here what's the sea change because we know that Beijing doesn't like it but be criticized and they got a plan ultimately to control more and more of what goes on in Hong Kong so what is the sea change on that well see that's the problem for them because what happens and this is across Asia generally in the world when governments it's kind of called Newton's law when you put pressure one way there's going to be resistance and the Beijing in a sense Hong Kong was almost let's put a footnote here Hong Kong was almost apolitical you know 30 years ago that people didn't really have much interest in politics they'd been living under colonial rule and so as they have this freedom more freedom and and open society the more Beijing interferes the more they push back and so the radicals promoting independence there's no serious support for that but this is a consequence of Beijing's own actions and so the more they try to contain people and now to use article 23 legislation to do so it's just going to cause pushback from the people they're trying to contain so there was a poster during the um right after the umbrella about a year later when these independence movement only started a year later and when these guys were talking about independence and it showed the chief executive of Hong Kong at the time CY Long as the father of the independence movement because these guys that are doing this are actually causing you know right it's a reverse twist state created protests protest in the world generally are state created yeah we we have we only mobilize a half a million people not because we're so clever over article 23 at the time we mobilize them because the government behaves so badly in response to what we were doing if they hadn't been so uh you know dismissive we probably could never have mobilized that kind of suggestion I just learned a lot from watching that process right so state driven then if you look at that so there's there's Hong Kong sort of at the heart of Asia where the base of CNN is at and news media and information flows from Hong Kong and then across the region there's been problems you know the Philippines you got to Tarte there's a constitutional crisis in full bloom there killing people yeah he's killing people he doesn't give a damn you talk about the importance of no due process yeah separation of powers liberal institutions forget it uh the parliament the legislative body could be a check but the way the Philippines finances the money the president controls generally when a guy wins the office then everybody flocks to support him because they want large ass from it yeah so there's no real serious resistance in the legislative body there's street activists many of whom I've trained because I was teaching human rights in Hong Kong for many years they're out there protesting but you know they get arrested and so on and did Tarte could care less about all of this and even foreign criticism as Obama discovered isn't welcome right and Trump is only too happy not to criticize to Tarte and so that that their buddies so huge moral decline here yeah we we kind of wonder in Asia whether to Tarte is the Trump of Asia or whether Trump is the to Tarte of America juries out so this is the problem we face and then if we go across and we look in Thailand of course we know that Thailand was one of the most vigorous new democracies in Asia and they as I think you and I discussed earlier they wrote this 1997 constitution which was wonderful it was the most liberal most democratic constitution in the region then they proceeded to elect a guy like to Tarte and Trump who's proceeded to unravel it and use his power to do things that were not very mindful of human rights and the constitution that was a shit of what and he's out of power now he there was a coup d'etat that took him down and then his so be stabilizing yeah his sister got in power and she got taken down as well and so there's military rule there now the military's come up with a constitution that's pseudo democratic it promises elections they're now under an interim constitution which privileges the military endlessly and then this new one was created which was to go in force in 2017 now it's pushed back to 2018 and it essentially provides continuation of martial law until a cabinet is put in place you know once a cabinet is put in place which the government the military government is so easy and delaying then then that constitution will operate but it there's a lot of criticism and i've written about it in this article the journal democracy so there's another one and then Myanmar of course 2008 constitution again the military writing the constitution but there was sort of in a liberal trend liberalizing trend and sanctions yeah and they allowed for elections of the first time they allowed elections lost they they arrested everybody second time they figured they they they will live with it because they really wanted support from the west and business and trade you know they're the poor man of asia so they did what they had to do and unsun su cheese party won i think 391 out of 490 seats and and a quarter of the seats were already guaranteed to the military in the in the parliament so so that one is not very democratic and the military retains control over defense foreign affairs and and homeland affairs and border affairs so the Rohingya problem we've been watching in the news is pretty much all under the control of military the only question about unsun su cheese which she's getting a lot of heat for whether she speaks up but she's sort of in a political crossfire there is a lot of shall we say very little support let's put it that way for the Rohingya among the buddhist population of an old entity right yeah it's old stuff they view them as Bengalis from Bangladesh a neighboring country although many of are have lived in in that border region of Myanmar for generations so they're not really but that that's sort of the argument that that that's made properly and buddhist monks even get in this business of organizing very anti-muslim ways terrible what's happening they're terrible and so what she's sort of at a dilemma if she speaks out as everybody wants her to forcefully then she may lose political support in the military we're only too happy to do that so she's sort of got her whole democracy thing on the table on one hand and these values and we don't know what her own views are as herself she's Berman whether what her own views actually are on this but but I think she's extremely cautious and this is has been very disturbing yeah to many people who have supported her for generations we only have a minute left but doesn't this last question doesn't this all suggest that in the complexity of our our times and current you know developments and sea changes not only in Asia but in the world it has become more difficult to be a good and effective a moral ethical democratic leader and we can't seem to find them put them in office empower them support them and be in a social contract with them and this is a threat to the world yeah and I think this is why in this article and your audience is welcome to read it it's in the Journal of Democracy October issue I've promoted seven principles that I think are I think are helpful they're not solutions there's no easy fix only authoritarian leaders have easy fix but these are principles that I think can help to mock people to understand how democracy works and and what things might be important informing a democracy and on that basis I think we can get leadership we like even the US system assumes that we could have scoundrels in the White House but it has the institutional equipment to deal with that you know and I think that's kind of what we're looking for we don't need a savior but we need a system of governance that works and and and it's never going to be perfect but it will be much better if the population is engaged in the process thank you so much Michael Davis it's great to talk to you and I hope we can get you back here soon there's so much more to cover absolutely