Source: Brownstone Institute | VIEW ORIGINAL POST ==>
The only period of legal authoritarian rule in India was June 1975–March 1977 following the declaration of an Emergency by Prime Minister (PM) Indira Gandhi. I happened to be back in India, based in New Delhi, doing archival and interview research for my PhD. The experience of the overnight transition from a rambunctious democracy to which argumentative Indians had taken with gusto, to a stifling and oppressive rule by state fiat, was deeply and permanently sobering. It led to my first academic article on returning to Canada, ‘The Fate of India’s Parliamentary Democracy’ (1976).
Looking back at that now, I expect I would temper my harsh criticisms of PM Gandhi. For in fact the constitutional crisis arose from an Allahabad High Court verdict, confirmed by one Supreme Court justice that was appealed but not heard before the Emergency came into force. She had won a decisive victory in the 1971 general election with 68 percent of seats in parliament. I would now be strongly opposed to the judges vacating a clear verdict on a technicality of violating electoral laws which, if applied across the board, would have led to almost all parliamentarians losing their seats.
But my main point in recalling that incident and leading with it is that the issues of constitutionalism and the boundaries between law and politics and the institutions of the judiciary, legislature, and the executive, have preoccupied me for half a century in both their philosophical abstractions and practical applications.
Importantly, my opinions have changed in the sense that at the end of the day, I’ve come to believe that politicians and the political process pose less of an institutionalised threat to people’s freedoms, liberties, and speech than unelected, unaccountable, and unsackable judges who often, in the guise of interpreting laws, don’t hesitate to make – and make up – laws. Indeed in India in the end it was the voters who dealt Mrs Gandhi a crushing electoral defeat in 1977 for all the thuggish excesses under the Emergency, but then brought her back decisively in 1980 when they discovered just how incompetent the other lot of rabble-rousers were.
Law, Politics, and Norms in International Affairs
Human rights courts have become the place where democracies go to die. Law, both within and among nations, is an effort to align power to justice. All justice systems rest on a dynamic interaction between law, politics, and norms. Politics is about power: its location, bases, exercise, effects. Law seeks to tame power and convert it into authority through legitimising principles (e.g. democracy, separation of powers, due process), structures (e.g. legislature, executive, judiciary), and procedures (e.g. elections, trials).
Law thereby mediates relations between the rich and the poor, the weak and the powerful. No one is above the law in democracies; everyone is subject to the laws that apply without fear or favour to all. But equally, everyone is under the law and law protects everyone. Only when both conditions apply is everyone equal under the law. The greater the gap between power and authority, the closer we are to anarchy, to the law of the jungle where might equals right, and the greater is the legitimacy deficit.
Unlike national courts, the International Court of Justice (ICJ) and the International Criminal Court (ICC) are not embedded in a broader system of democratic policy-making. There are no political checks on them. In a national system, the office of the prosecutor functions within a well-established structure of state governance. In the international system, neither the ICJ nor the ICC was established as part of a centralised system of world government. The ICJ regulates only interstate relations. The ICC has jurisdiction over the nationals of state parties and, in some contested contingencies, can exercise jurisdiction over non-party nationals also. But in doing so it displaces the state as the conduit of democratic representation and provides no alternative mechanism for democratic governance, which has landed it in deep trouble with the Trump administration vis-à-vis Israel.
In the idealised conception, the constitution encapsulates and articulates the social purpose of a state. The laws and institutions of state give practical content to the social purpose and work together to that common end. The closest equivalent to a constitution for the international order is the Charter of the United Nations adopted in 1945. But there is no world state whose social purpose can be found in the purposes and principles spelt out in Articles 1 and 2 of the Charter.
In The United Nations, Peace and Security (Cambridge University Press, 2006), I described the UN as ‘a symbol of an imagined and constructed community of strangers’ (p. 369), but also noted that the Founders’ ‘vision of a world community equal in rights, bound by a common vision and united in action is still to be realised’ (p. 359). The last great reform effort faltered in 2005 in part because of the erosion of the sense of community as the UN membership had almost quadrupled since its creation in 1945 with the addition of almost exclusively non-Western newly decolonised nations.
Nor is there a world government with its own legislature and executive. The General Assembly and Security Council are very inadequate equivalents. Moreover, the Security Council, dominated by the five permanent members, is not elected by the Assembly, not answerable to it, and not dismissible by it. The UN does have a secretariat but it doesn’t have its own law enforcement agencies nor its own military force. Instead, it is dependent on member states’ cooperation for these tasks.
Nor does the UN have its own elaborate structure of a multi-layered judiciary from lower courts to an apex court exercising civil, criminal, and appellate functions. Comparable, for example, to the Australian constitution which deals with ‘The Judicature’ in Chapter III, Chapter XIV of the Charter does list the ICJ as ‘the principal judicial organ of the United Nations,’ incorporates the court’s Statute as an annex, and describes it as ‘an integral part of the present Charter’ (Article 92).
In communist systems, courts are not just an integral part of the structures of state, but an equally integral part of the communist party regime. Independence of the judiciary from the party is incompatible with the organising ideology of communist rule and unimaginable in practice. Thus it is that China’s ICJ judge Xue Hanqin, a vice president of the court, is a member of the Chinese Communist Party (CCP) and a former director general of the department of treaty and law in China’s foreign ministry. No surprise then that, consistent with Chinese policies, in 2019 she ruled that the Chagos Islands in the Indian Ocean should be returned by Britain to Mauritius and in 2022 was one of only two judges to dissent from the majority judgment calling on Russia to suspend the invasion of Ukraine. The second dissenting judge was Russian.
As for the ICC, why should it have authority over constitutionally legitimated democracies like Australia, Israel, or the US? But if the ICC cannot claim authority over democratic countries, can it fairly claim jurisdiction over non-democracies like China and Russia? At the other end of the spectrum lies the UN Security Council as the sole enforcement arm of international criminal justice should ICJ and ICC decisions be defied or disrespected. Unfortunately, the Security Council’s democratic credentials are exactly zero and its successful resistance to meaningful reforms has greatly eroded its legitimacy.
Having multiple layers of national courts and judges means that by the time it gets to the apex court, there is greater distance of the judges from the location, events, time, and passions of the crime. In addition, the apex court’s judges benefit from the facts already elucidated and arguments canvassed and clarified in the lower courts. Australia’s Cardinal Pell was found guilty in a unanimous jury verdict; this was upheld by a two-to-one majority by the Victorian Court of Appeals but overturned in a unanimous High Court judgment. The international system lacks such essential safeguards, with only one ICJ and ICC each. This multiplies the possibility of wrongful verdicts with no recourse to appeal.
Law, Politics, and Norms in National Affairs
The UN system’s legitimacy deficits notwithstanding, a rules-based international order offers the prospect of normative protection, albeit less than foolproof, for the weak states against the predatory instincts of powerful states. The international rule of law is a necessary but far from sufficient condition for regulating the use of force and levelling the playing field for small and great powers.
Domestically, a firmly established rule of law offers more reliable protection for the poor, weak, and marginalised members of society than the discretionary beneficence of an enlightened despot. The gap between the normative structure and power equations exists within nations as well, but to a significantly lesser degree in democratic countries. In apartheid South Africa, judges routinely denied reality staring them in the face to uphold a system of criminal injustice against blacks and Asians. In Canada, courts have succumbed to the pressure of racialised justice and apply what are called Impact of Race and Culture Assessment reports (IRCAs) in sentencing.
The justification is that these will help judges better understand how poverty, systemic racism, and discrimination might have influenced and constricted the life choices and trajectory of the convicted offender. In a further subcategorisation of this racialised justice, clients who self-identify as black do not need an endorsement from the court to obtain an IRCA report, but self-identifying members of other racial communities do.
In the US it’s generally acknowledged that filling a Supreme Court vacancy is of more long-term consequence than a presidential election. The nomination battles in the Senate are conducted more along ideological lines disguised in the language of legal qualifications of the nominee. The remarkable reliability of predicting the vote of most justices along the conservative-liberal divide on most precedent-setting important cases belies the myth of the impartial majesty of the legal system interpreting and applying independently objective laws.
Within Western countries, the reality of mass immigration plus a difference in birth rates between native and immigrant groups means that the Third World has come to the West and diluted the pre-existing social cohesion and cultural community, to the extent that one existed. The contrast with the continuity of cultural cohesion in low-immigration, low-crime, and high-trust Japan that I witnessed firsthand during almost a decade of living in Tokyo is striking.
In recent years a clear divide has emerged between the ruling elites and their peoples in the welcoming versus increasingly hostile attitudes towards continuing mass immigration. Not only is the legal clerisy, including lawyers and judges, part of the ruling elite. In addition, it too has been captured by the prevailing nostrums of the centre-left ideology during the long march through the institutions. In Australia, we saw this most clearly in the failed Voice referendum in October 2023 which would have given special recognition to Aboriginal Australians by inserting an entirely new chapter in the constitution.
Lawfare and Activist Judiciaries Imperil Democracy
Laws simultaneously act as both a licence and a leash. On the one hand, in their permissive function they enable individuals, authorised agents of the state, businesses, and organisations to engage in particular behaviours. On the other hand, in their restrictive function, they set out limits to what the various actors may do, transgressing which puts them beyond the safety of the law. The rights and responsibilities of the different actors as prescribed in law are the bedrock of the rule of law. Constitutional governance and the rule of law in turn are essential underpinnings of democratic politics.
There is a corollary. If there is an imbalance between the licence and leash attributes of law, if laws make it either all too easy or impossible for the government to govern, then democracy can end in tyranny, with all or too much power concentrated in the government at the expense of citizen’s liberties; or its opposite, anarchy, with a complete collapse of the functions of government. In recent years I have become increasingly apprehensive at the weaponisation of law to paralyse governments, by human rights lawyers in particular, albeit not exclusively so.
An essential component of the democracy project has been to transition nations of people holding power into nations of laws. Law seeks to tame the arbitrary and capricious exercise of power. Democracy seeks to make the holders and wielders of power chosen and dismissible by the citizens and the exercise of power subject to the consent of the people. ‘Judicial romanticism’ is the belief that judicial activism is the solution to all social-political conflicts and ills. It is a conceit of judicial romanticism that law can never be appropriated to serve the ideological worldviews of the juristocracy and in the process frustrate the functioning of democratic politics.
Regional and global institutions of justice like the European Court on Human Rights, the ICJ, and the ICC worsen the anti-democratic pathology by not being grounded in local culture and values and physically located at considerable distance from ‘We, the people.’ The end result is that the rule of law is corrupted into the bastard child of a rule by lawyers.
Within nations, Western democracies have reached an inflection point on mass immigration. The highly charged issue is proving decisive in shaping electoral outcomes from the US to the UK, Italy, The Netherlands, and Germany. One would think that this should make judges all the more cautious in venturing into the political minefield. Wrong. Pushed by voters to take back control of porous borders, governments are often frustrated by courts that buy activist lawyers’ suits alleging breaches of national, continental, and international human rights laws and conventions.
USA
Gwythian Prins of the LSE uses the metaphor of Trump as the captain of an ice-bound ship of state who is dynamiting the pack ice with linked and sequenced charges to break free. The shock waves from the explosions are being felt around the world.
The Democrats’ weaponisation of the justice system against Trump during the Biden administration was so cynical that in the end it backfired spectacularly and proved more politically damaging to Joe Biden and Kamala Harris than to Trump. Having lost the presidency and Senate to the Republicans and failed to win back the House, Democrats have turned to lawfare to frustrate Trump’s voter-mandated second-term agenda. Why? Because the vigorous campaign to disinfect the DC swamp with sunlight is proving fatal to the swamp-dwelling bureaucracy. Trump’s blizzard of executive orders to implement his campaign promises of cutting back on government inefficiency, waste, and corruption have been countered with a flurry of lawsuits from panicked unions and Democrats that have produced some stay orders.
The nationwide injunctions could bring Trump’s frenetic implementation schedule of his agenda to a stuttering halt. The institution and practice of national injunctions inevitably encourage forum shopping to lodge a case in a jurisdiction and with a judge likely to be sympathetic to the complaint. Yet there is a legal case to be made, as per a well-cited 2017 article by Samuel L Bray in the Harvard Law Review, that a federal court should give a plaintiff-protective but not a national injunction. The latter is a relatively recent innovation in US jurisprudence: ‘a federal court’s power to issue injunctions is restricted to a specific defendant’s conduct only with respect to a specific plaintiff.’
Another risk is that the injunctions might be playing into a calculated strategy of provoking lawsuits that will clarify the executive’s right to control the bureaucracy, including the so-called independent agencies that have sprawled over the last century and blur the legislative-executive-judicial boundaries. This might prove to be the most effective route to reining in the administrative state. Congress has seeded a veritable forest of regulatory agencies that perform executive and quasi-judicial functions that are free of executive control and judicial oversight, reporting only to Congress.
It might be an idea for those attempting to block Trump’s ability to govern through court injunctions to look again at some of the poll findings on what voters liked about Trump: he doesn’t care what others think, says what he means, and does what he says. Vice President J D Vance, who is proving to be an articulate, cogent, and telegenic champion of the Trump agenda, tweeted on 10 February: ‘Judges aren’t allowed to control the executive’s legitimate power.’ It has had 63 million views. On 9 February, Trump himself commented that judges interfering with the executive’s political agenda was ‘a disgrace:’ ‘No judge should…be allowed to make that kind of a decision’ whereby ‘a president can’t look for fraud and waste and abuse.’When asked directly by an ABC News reporter on 11 February whether he would comply with a judge’s adverse ruling, Trump replied:
‘Well, I always abide by the courts and then I’ll have to appeal it. But then what he’s done is he slowed down the momentum.’
This has produced conniptions among Democrats and their cheerleaders, frothing that Trump is provoking a constitutional crisis. Set aside the memory of Biden openly boasting a year ago that the ‘The Supreme Court blocked’ his student loan debt relief plan ‘but that didn’t stop me.’ Separation of powers means there are limits to the jurisdictional overreach of all three branches, including the judiciary. Who holds the judiciary accountable to its limits? To claim that any reminder to the courts to stay in their judicial lane and not stray into the legislative and executive lanes risks a constitutional crisis, is to make the judiciary the sole arbiter of its own reach and limits, as well as that of the other two branches. Nice job if you can get it.
Maybe Trump should launch a campaign to Make America Governable Again. A constitutional cleanup, not a constitutional crisis.
UK
PM Keir Starmer is already firmly stuck with the public belief that he is operating a two-tier justice system and has become known as Two-Tier Keir. Starmer’s Attorney General Lord Hermer, a human rights barrister colleague and close personal friend, is in a class of his own in the portfolio of cases involving allegations of breaches of international human rights law by the UK. His roll call of clients included the former leader of Sinn Fein in Northern Ireland, one of the plotters of the 9/11 attacks, an al-Qaeda chief linked to the 7 July 2005 bombings in London, a willing ISIS bride demanding the right to return to Britain, and a Pakistani terrorist who plotted to bomb a Manchester shopping centre. Most recently, Hermer is reported as supporting an Oxford don, who backed the claim of Mauritius against the UK in the Chagos Islands case, as the UK’s nominee to the ICJ. Announcing Professor Dapo Akande’s nomination last year, Starmer said he was ‘personally committed to strengthening international rule of law and the institutions that support it.’
Some UK verdicts have been so outrageous as to make one wonder if judges are trolling the public and daring the government to reverse some of their incendiary rulings. Rulings just this month have granted a Gaza family of six right of entry under a family reunion scheme enacted for Ukrainian refugees, as if there are not already enough Jew-hating residents; stopped an Albanian criminal’s deportation because of his ten-year old son’s distaste for foreign chicken nuggets; granted asylum to a woman who, having failed eight times to gain asylum, joined a Biafran terrorist organisation and reapplied because of risks to safety if returned to Nigeria, with the judge acknowledging she’d joined the group solely ‘to create a claim for asylum;’ prevented deportation of a Pakistani man incarcerated for child sex offences because depriving his children of their convicted paedophile Dad would be ‘unduly harsh;’ allowed a convicted paedophile, sentenced to more than five years imprisonment, to stay in Britain because he would face ‘hostility’ if deported back to Zimbabwe; and aborted attempts to deport another convicted paedophile Sri Lankan because, being gay, he could face prosecution in his home country.
Europe
In a similar vein, Gavin Mortimer argues in The Spectator that the judiciary is fuelling Europe’s immigration crisis. An Italian court ordered 49 migrants who had been sent to Albania after a sea rescue to be brought to Italy, the third judicial frustration in four months of PM Giorgia Meloni’s efforts to curb illegal immigration. A French court overturned the deportation order of a convicted Algerian with two failed attempts to enter illegally. An angry Interior Minister asked: ‘Should our law protect dangerous individuals or protect French society against dangerous individuals’?
Germany suffered the death of a police officer in Mannheim in June by an Afghan; the deaths of three people in Solingen in August stabbed by a Syrian asylum seeker; a December car attack on a Magdeburg Christmas Market by a Saudi refugee that killed five people; and a stabbing in the Bavarian town of Aschaffenburg in January by an Afghan asylum seeker who killed two.
Vice President Vance in his remarkable speech on 14 February at the Munich Security Conference, referencing the car attack on a trade union rally in Munich the previous day by a 24-year-old Afghan asylum seeker who killed a 37-year-old mother and her two-year-old daughter and injured 37 people, asked:
How many times must we suffer these appalling setbacks before we change course and take our shared civilisation in a new direction?
He received an answer of sorts the very next day. A 23-year-old Syrian asylum seeker took a knife to a crowd in Villach, a southern Austrian town, killing one 14-year-old boy and wounding five people.
The serial attacks associated with refugees and asylum seekers solidify the sentiment that Germany is adrift in uncharted waters. They fuel public support for the anti-immigration Alternative for Democracy (AfD) party, one of whose members was convicted last year of incitement to hatred for repeating official statistics showing Afghan migrants are disproportionately likely to commit serious sexual offences. The AfD is routinely castigated as far-right, a descriptor that is fast proving to mean ‘Too Right’ or ‘Totally Right.’ Vance’s meeting with AfD co-leader Alice Weidel, in conjunction with his failure to meet one-to-one with Chancellor Olaf Scholz, was deeply symbolic.
Optics matter. Vance’s message to the European leaders in the audience, in capitals across Europe, and in Brussels, was: democracy means listening to the people and responding to their concerns. In effect their sniffy reply was: Opinions may vary on that.
Australia
One of the best examples of the dangers of judicial activism by woke-infected Australian judges is the Love decision. In 2020 Australia’s apex court decided in a 4-3 split verdict that two men, neither of whom was born in Australia or was an Australian citizen but both claimed Australian Aboriginal ancestry, were not aliens and therefore could not be deported as non-citizens for having served over a year each in prison for violent assaults. The majority judges’ reasoning explicitly included Aboriginals’ inalienable connections to the lands and waters of Australia, irrespective of their citizenship status.
Any Australian who still believes that the Albanese government has not been influenced by electoral calculations in its kid-glove treatment of anti-Semitism, hate speech, and violence against Jews is ripe for being sold one of the most iconic opera houses in the world, on the steps of which the current wave of soft policing of hate-spewing anti-Semitic protests was first witnessed and the images went viral around the world.
How appropriate is it for NSW chief justice Andrew Bell to publicly criticise Elon Musk as the man ‘who attacked the Australian government’s attempts to regulate the flow of misinformation and disinformation?’ As The Australian’s Janet Albrechtsen commented, instead of trying to play the role of chief censor, ‘‘The only person Bell should censor is himself.’
Conclusion
Allister Heath, editor of The Sunday Telegraph, wonders just when British democracy gave way to ‘a tyranny of the human rights lawyers.’ The Telegraph itself argued in an editorial on 12 February that judicial overreach has made Britain ‘almost ungovernable.’ It added:
‘Through a series of decisions and unintended consequences reaching back decades, the judiciary of this country has been permitted to consolidate power at the expense of other branches of the state. This must now be wound back.’
When PM Starmer and Opposition Leader Kemi Badenoch both criticised the Gaza family decision as wrong, Chief Justice Baroness Sue Carr huffily declared herself to be ‘deeply troubled.’ Their criticisms, she said, were ‘unacceptable’ because any public criticism fails to ‘respect and protect’ judges. Yeah, right. The politicians were not demanding the judge be sacked. Justice Carr is demanding that the two major party leaders self-censor any criticism of judicial decisions inside Parliament. To avoid criticism, judges need to be better educated on the boundary between interpreting laws and dictating policy, or else resign from the bench and run for public office with their own policy platform. It’s the politicised quality of the judgments that is lowering public esteem for the judiciary, not the fact that political leaders are responding to that public disquiet.
As this article documents, the problem is far more widespread across the West than just the UK. In the 2019 Reith Lectures, the distinguished former Supreme Court judge Lord Jonathan Sumption issued a warning against ‘law’s expanding empire.’ He’s been sobered by how the European Court of Human Rights has acquired powers well beyond its treaty. In an article for The Law Association of New Zealand on 3 November 2023, he cautioned:
‘We have to have a minimum of fundamental rights in order to function as a democracy. That I accept. But if we place too many rights beyond the reach of democratic choice, then we cease to be a democracy just as surely as if we had no rights at all.’
A shorter version of this was published in the Spectator Australia magazine on 22 February.
