As the government and combined military forces of the United States were cranking up and talking up the global “war on terror” in 2003, the Asian Human Rights Commission warned that deliberate efforts to undermine and relativise the absolute prohibition against torture in international law would spread and mutate into attacks on all vital principles underpinning democracy, human rights and the rule of law. That is now happening. In the United States itself, as well as in some other established democracies, the very independence and authority of the judiciary is under concerted and methodical attack by elected leaderships and their minions.
On June 3, in his weekly radio address to the nation, President George W Bush proposed an amendment to the US Constitution to block same-sex marriages. The short speech is remarkable because while having the pretence of attacking homosexual couples, its barely-concealed other target is the judiciary. It blames the courts for forcing the government into drastic action: “An amendment to the Constitution is necessary because the activist courts have left our nation with no other choice.” It constantly returns to the apparently repugnant “activist judges and courts” that have “unfortunately” interpreted the notion of marriage differently from how the administration would have it. It makes a rhetorical division between the courts on the one hand and the American people and their democracy on the other: as the issue is of “profound importance”, it says, “the solution should come from the people not the courts”, concluding that “democracy, not court orders should decide the future of marriages [or whatever else] in America”.
Such expressions of contempt for the courts are not new, of course. They are familiar to the ears of millions of people in Asia and elsewhere in the world living with authoritarian governments and repressive state institutions, in which the judiciary is degraded and made subservient to other parts of the state apparatus. They are most commonly heard at times that a judiciary is attempting to resist the expansion of executive power: that is, on the eve of a takeover, whether via election or otherwise. In this respect, George W Bush is doing no more than echoing the sentiments and following in the footsteps of Ne Win, Ferdinand Marcos, Suharto, Zia-ul-Haq, Lee Kuan Yew, Park Chung-hee, Mahathir Mohamad, J R Jayewardene, Hun Sen, Narendra Modi, Gyanendra, Thaksin Shinawtra and the multitudes of other autocrats that have subjected people throughout Asia and other parts of the planet to uncountable miseries and degradations in the name of “strong government” and “the national interest”. Americans and others in the west who are interested to learn of what may happen to them next would find the recent histories of these places instructive.
In May a retiring US Supreme Court judge already raised the warning flag. Sandra Day O’Connor, who was selected for the Supreme Court by the Republican Party, gave a speech in which she said that the country is in danger of edging towards dictatorship if attacks on the judiciary continue. She pointed out that as the number of attacks from the administration has increased, so has the number of physical threats on judges, including assaults in court rooms and death threats, and that some politicians had used these as a means to make further verbal onslaughts on the role of the judiciary. She noted that the effectiveness of judges is premised on the notion that the judiciary will not be subject to retaliation for judicial acts. Where this is undermined, the entire system is at risk. She encouraged her audience to be vigilant and speak out against attacks on the judiciary, adding that while dictatorship seems a long way off in the United States, the best way to avoid it is by stopping it before it starts.
Similarly, in the United Kingdom a recently-retired law lord has raised alarm at how the law is increasingly being manipulated by the government there to institutionalise injustice. Lord Steyn has warned that the clothing of democratic vote and a cosmetic legality may simply serve to disguise authoritarianism. An election and a courthouse are not the same as democracy and the rule of law. It is worthwhile paying some attention to the details of a speech he gave on April 11:
“History has shown that majority rule and strict adherence to legality is no guarantee against tyranny. Hitler came to power by democratic vote. Moreover, in Nazi Germany, amid the Holocaust, pockets of the principle of legality (for what it was worth) sometimes survived. In Nazi Germany defendants sentenced to periods of imprisonment before the Second World War were left alone during the terms of their sentences. Only when their sentences expired did the Gestapo wait for them at the gates of the prisons and transport them to the death camps. So even in Nazi Germany an impoverished concept of legality played some role. The role of judges in this period is, of course, part of the Nuremberg story. But at or after Nuremberg nobody had any doubt what is torture. That at the highest levels the United States Administration has recently persistently tried to water down what is torture is deeply depressing for our times.
“In the apartheid era millions of black people in South Africa were subjected to institutionalised tyranny and cruelty in the richest and most developed country in Africa. What is not always sufficiently appreciated is that by and large the Nationalist Government achieved its oppressive purposes by a scrupulous observance of legality. If the judges applied the oppressive laws, the Nationalist Government attained all it set out to do. That is, however, not the whole picture. In the 1980s during successive emergencies, under Chief Justice Rabie, almost every case before the highest court was heard by a so called ’emergency team’ which in the result decided nearly every case in favour of the government. Safe hands were the motto. In the result the highest court determinedly recast South African jurisprudence so as to grant the greatest possible latitude to the executive to act outside conventional legal controls.
“Another example is Chile. Following the coup detat in September 1973, thousands were arrested, tortured and murdered on the orders of General Pinochet. The civilised and constitutionally based legal system of that country had not been formally altered. It was not necessary to do so. The police state created by General Pinochet intimidated and compromised the judiciary and deprived citizens and residents of all meaningful redress to law. Fortunately, despite failings, our legal system helped restore the authority of the rule of law.
“Here I pause to summarise why I regard these examples of some of the great tyrannies of the twentieth century as containing important lessons. They demonstrate that majority rule by itself, and legality on its own, are insufficient to guarantee a civil and just society. Even totalitarian states mostly act according to the laws of their countries. They demonstrate the dangers of uncontrolled executive power. They also show how it is impossible to maintain true judicial independence in the contaminated moral environment of an authoritarian state.”
When the senior-most retiring judges in the United States and United Kingdom are reaching these assessments and are prepared to speak out, they must be taken with the utmost seriousness. What O’Connor and Steyn have said about the prospects of emerging dictatorships in the west are no exaggerations. A serious study of recent developments in their countries as against those, for instance, in Thailand in the 1950s, Burma in the 1960s or Sri Lanka in the 1970s would reveal many parallels. Above all, what can be learnt from examining earlier hard experiences is that degeneration can be much more rapid than anyone expects: perhaps even far more so than what O’Connor or Steyn themselves may be prepared to admit.
The Asian Human Rights Commission supports and expands upon their calls for vigilance and collective effort to oppose the onslaught on the basic principles underpinning democracy, the rule of law and human rights by persons holding the highest positions of global power. Independent, active and effectively-functioning courts are not distinct from democracy; they are inseparable from it. They are not contrary to national interest; they are in national interest. They are not removed from the people; they are obliged to be responsive to the times and mores. The world is full of painful examples that prove these statements. The American people, and all others in established democracies that are concerned for the future of their values and institutions, should learn fast and act to educate their fellows about the imminent dangers that they face if present trends continue. For its part, the Asian Human Rights Commission stands willing to contribute its knowledge about the decades of damage done to the people of Asia and their societies by the kinds of words, followed by deeds, which are now coming from the mouths of western leaders. These words must be vigorously resisted now, before a time comes that resistance is made far more difficult.
