Kishali Pinto Jayawardene
As the world watches transfixed in amazed horror, the spectacle of ‘these United States’ seemingly heading into a meltdown over the peaceful transition of power with the 2020 Presidential election racing to an unnerving photo finish, the clash here is not purely of civilizations a la Samuel Huntingdon, (Christianity versus Islamic).
A clash of ideologies
Even with the underplay of racism intertwined with cultural and religious tensions as stoked by inflammatory rhetoric of US President Donald Trump, this is fundamentally a clash of competing ideologies; antipathy to democracy versus the energy behind democracy, as flawed and as dysfunctional as it may be on occasion. Already the American boast of a historically peaceful electoral system has been put to shame with reports of attempted attacks on counting centres by armed men in military vehicles.
These attacks have followed inflammatory rhetoric by the US President calling on his supporters to rally around him and are thus, no coincidence. With opposing crowds shouting war cries in the streets as election officers continue the torturous process of counting the votes, boutiques in the most exclusive parts of Manhattan in New York City had already boarded up their shutters in anticipation of election violence.
The Democratic camp, emboldened by the electoral performance of Joe Biden, once looked upon as ‘lacking charisma’ but now soothingly cloaked in the garb of a ‘unifier’ and a ‘healer,’ has said that it is fully within its rights to eject ‘trespassers’ from the White House
This is amazingly combative language.Closer at home, India is in the grip of a worsening pandemic amidst a cult-like fixation with Prime Minister Narendra Modi. Each of these examples, the US, India and tinpot versions of the same scattered throughout the world teach us the same lesson; obsession with a single source of overweening power is infinitely dangerous.
Manipulation of democracy
It is dangerous for routine governance minus checks and balances. It is even more so in extraordinary situations of emergency such as a health pandemic. And what the US tells us is that just because democracy itself or indeed liberal democracy has come to be manipulated and subverted as a result of weak or corrupt leaders, that does not mean that the values it embodies should yield to the ‘autocrat,’ the ‘authoritarian’ or as a trenchant critic of US President Donald Trump put it, ‘ a lying, blustering bully.’
Astute political observers have also blamed Democratic for the bitter divisions in which the American people find themselves, fuelled by easy condemnation of liberal elites of the ‘deplorables,’ as rural Trump voters were once typified by Hillary Clinton. Absent strategies for finding common ground or understanding the reasons why desperation is rampant in (white)communities ravaged by poverty and lawlessness and rift by hate of (black) communities, it is no surprise that terms such as ‘endemic racism’ and ‘white supremacists’ are now part of normal commentary in the United States.
This speaks to an irreversible shift in social behaviour that may have a far longer shelf life than President Trump himself. But the astounding shenanigans that the President is up to has led observers in his own country to draw comparisons with African dictators. This makes for risque humor no doubt for citizens of the global South, too long the target of solemnly hypocritical pontification on the Rule of Law by the United States, who now poke fun at their tormentor.
Certainly, notwithstanding who wins or who loses in these elections and even if the process is salvaged by a miracle of reason dawning on the impossibly infantile incumbent in the White House, the road to recovery in the US will not be easy or pleasant even as the global health pandemic sees its highest numbers.
Warnings that the US elections hold out
Nonetheless, the warnings that the US elections hold out for us are very real. In particular, the interplay of judges with the legal cum constitutional process, is of immediate interest. At the moment, multiple law suits challenging the ongoing election process have been filed in the state courts by Republican lawyers.
Propelled by the frenzied whip lashings of President Donald Trump which reminds one of the death throes of a wounded wild boar, whether fatally or not we have yet to see, these cases have not met with any noticeable degree of success so far.
Some cases have already been tossed out summarily by irritated judges who have found no evidence to substantiate a wild Presidential claim of election fraud. In the rare case or two, procedural safeguards such as a closer watch by election observers on the vote counts, have been ordered. But as to how this unedifying drama of legal challenges to the vote count is finally played out in the US Supreme Court is anybody’s guess.
The Court, as critics have contended, has been ‘packed’ by appointees of the President. This includes a recent appointee who was pushed into the Court most unbecomingly at the very edge of the Presidential election to fill the place left by liberal icon Ruth Bader Ginsburg.
Several vacancies in the federal courts, including the circuit courts of appeals have similarly been filled by conservative appointees. Even so, the US judiciary had held firm to its judicial function so far despite blustering and bravado from the Office of the Presidency.
Judges serving on state courts have been particularly robust in ruling against executive overreach. On this occasion as well, they will, no doubt remind themselves, as should the members of the Bench in this part of the world, that history is a harsh judge of judicial character under pressure.
Look listen and learn from the agonies of the US people
Indeed, the record of our countries will tell us that, regardless of how a particular political moment may shape a judicial response, a reckoning will come at some point or the other. In some cases, these reckonings have been acknowledged by judges themselves. Thus, the line of Indian judges who justified Indira Gandhi’s trampling of civil liberties in the seventies, including declaring that the right to life was not available during a time of emergency, came to profoundly regret their decisions. Some even wrote open apologies to the nation in a spirit of sincere regret, decades later.
In Sri Lanka, some judges who had sat on the Bench which approved the 18th Amendment giving judicial carte blanche to (then) President Mahinda Rajapaksa to demolish the institution of the Constitutional Council under the 17th Amendment to the Constitution and reduce the constitutional commissions to caricatures, had reason thereafter to question themselves.
Ironically, one of those very same Justices was later impeached when she was not found to be sufficiently servile to the Rajapaksa (the First) Presidency at the time.
This is the inexorable manner in which ‘judges are judged,’ finally and irrevocably, by history. That is the most fitting answer to the vexed question posed by Juvenal echoing in the millennia of human history, ‘quis custodiet ipsos custodes’ (who will guard the guards themselves?).
The corrupt judge and the ‘political’ judge will undoubtedly find their place in the historical record to be shameful, regardless of profits or positions that may momentarily be held, in Sri Lanka, the US or India as the case may be.
Above all. look, listen and learn from the US. Its agonies should surely teach us something.