An independent judiciary saves American democracy


Image: I Got This by Sousa & Machado

CONGRATULATIONS to Joseph Robinette Biden Jr and Kamala Devi Harris for having been successfully inaugurated as the 46th president and vice-president of the United States respectively. It almost did not happen on Jan 20, or at all, if not for the US judiciary.

On Jan 6, the losers fomented mobs to storm the US Capitol to stop the certification of the 2020 US presidential election results. To former President Donald Trump and his acolytes, this was perhaps their last hope to get rid of what they called the “rigged result” after American courts, including the US Supreme Court, twice refused to overturn the results in battleground states. Despite five deaths, the incident could have been a calamity had any elected legislator been taken hostage or killed by the insurrectionists.

For a moment, the 245-year-old American republic almost became a banana republic devoid of the rule of law. On that day of infamy, democracy as the best form of government almost died in a country which has always prided itself on being the world’s greatest democracy.

In the words of national youth poet laureate Amanda Gorman – who wowed the world at Biden’s inauguration ceremony with her poem – “This effort very nearly succeeded/ But while democracy can be periodically delayed, it can never be permanently defeated.”

The free world heaved a huge sigh of relief at this irenic victory for democracy, though this embarrassing episode has now diminished America’s moral authority as the keeper or beacon of democracy.

Before I go on, I need to pause here to say that I have not been watching too much CNN. In fact, I watch the conservative-leaning Fox News Channel too.

To the world at large, Biden did secure an emphatic victory. The world was just simply astounded to see how Trump, who was unable to accept defeat in an electoral democracy, could lie that the elections were rigged and urge his supporters to “Stop the steal”. It is even more mind boggling to see how some Americans could so easily turn cuckoo overnight, deluded by misinformation into believing in conspiracy theories.

This reminds me of the tactic employed during World War II by the Nazi minister of propaganda, Joseph Goebbels: Turn a lie into the truth just by repeating it often enough. He reportedly said: “If you tell a lie big enough and keep repeating it, people will eventually come to believe it.... It thus becomes vitally important for the state to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the state.”

And the truth is that Biden had won by seven million more votes, receiving nearly 81.3 million votes, or 51.3% of all votes cast. His Electoral College majority is identical to Trump’s Electoral College win in 2016, which the latter described as a landslide victory.

Even the then Senate majority leader Mitch McConnell, a powerful Republican, admitted that there was no illegality of a massive scale that could have tipped the entire election. He warned: “If this election were overturned by the losing side, our democracy would enter a death spiral.”

But not all Republicans agreed with him. It was reported that 70% of Republicans still refuse to accept the election outcome.

What saddens the legal profession around the world is to see how lawyers like Rudy Giuliani and Sydney Powell could set aside professional ethics to help perpetuate these lies.

Indeed, there is an old saying in the legal fraternity that if the facts are against us, we should argue the law. If the law is against us, then we should argue the facts. But if the law and the facts are against us, our last resort is to pound the table and yell like hell! This was exactly what Giuliani did when he lost on both the facts and the law.

On Dec 11 last year, the US Supreme Court tossed out the specious suit filed by Texas Attorney-General Ken Paxton to invalidate the election results in the four swing states of Georgia, Michigan, Pennsylvania and Wisconsin. The apex court, in a very brisk and brusque manner, dismissed the case without even hearing the lawyers. This is incredibly significant because the suit was endorsed by 106 Congressional Republicans and 17 state attorneys-general.

In fact, Trump lost in nearly 60 cases in the courts. The judges, the majority of them appointed by Trump, did not rule in his favour. Imagine if they had done so, it would have been the death knell for global democracy when millions of voters were disenfranchised.

I salute these judges. They obviously recognised that judicial gratitude must cease upon appointment. Thereafter, they must always choose duty over loyalty even though in the case of Chief Justice John Roberts, one of Trump’s most ardent supporters, Senator Josh Hawley, was his clerk. If at all loyalty is required, it is only to the Constitution.

That said, it will now be registered for posterity that the independent American judiciary has valiantly saved the United States from the abyss of anarchy and the destruction of democracy.

The judges have indeed borne true faith and allegiance to the oath of office they took when being sworn in “to support and defend the Constitution of the United States against all enemies, foreign and domestic”.

But Congressmen and Senators, elected through the same electoral system as Biden, took a similar oath upon being sworn in. On inauguration day on Jan 20,2017, Trump too swore to preserve, protect and defend the Constitution.

In Malaysia, our Federal Constitution also requires that, upon being sworn in, our Cabinet members, Speaker and Deputy Speakers of Dewan Rakyat, members of Dewan Rakyat and the Senate, and judges take an oath, inter alia, to preserve, protect and defend the Constitution.

That is why it is so pivotal to have an independent judiciary whenever a nation’s Constitution comes under attack from the other two branches of government, namely the executive and legislature. The founding fathers of the United States obviously did not foresee the day when the Constitution would have to withstand an assault by a rogue head of executive, supported by powerful legislators.

Regardless of where you are and from, a country that practises the rule of law can never afford to have people who behave almost non compos mentis walk the halls of power.

In this respect, I am grateful to American artists Sousa and Machado for permitting me to use the cartoon I Got This to convey this message. The cartoon, drawn in May 2017, depicts Lady Justice saying to Lady Liberty, “I got this”, as Trump assaulted civil liberties.

In fact, the date July 4, 1776 in Roman numerals are inscribed in the left hand of the Lady of Liberty, which is the date of the United States Declaration of Independence.

I could not have done better to reinforce this fundamental principle, that an independent judiciary is the bulwark of our fundamental liberties and Constitutional rampart against any assault by the executive and/or legislature.

Not forgetting the need, too, for a strong and independent Bar.

I am reminded by these American events of what took place at the 1992 annual general meeting of the Malaysian Bar. It was almost four years earlier that Tun Dr Mohamed Salleh Abas had been removed as the sixth Lord President. Since then, the Bar had refused to invite his successor, Tun Hamid Omar, to the Bar’s events.On the morning of March 14,1992, the Chair of the meeting, Manjeet Singh Dhillon, abruptly read out his letter of resignation as the president of the Malaysian Bar, apparently due to events that took place at the Bar Council meeting held the day before.

Before the House that morning, a group of senior and prominent lawyers comprising, among others, Low Yong Suan, Ronald Khoo, Abdul Kadir Kassim, KB Thurai-singham, Zaid Ibrahim, Kam Woon Wah, Jagjit Singh, Munir Abdullah and G. Sri Ram were in favour of the motion asking the Bar to acknowledge the appointment of Hamid and set aside any policy of withholding any member of the judiciary such courtesy and respect as is normally accorded to such an office bearer. They argued that this was necessary with the passage of time and for the sake of enabling the administration of justice to proceed with optimum smoothness and efficiency if there was to be complete cooperation between members of the Bar and the judiciary.

I still remember what the legendary Karam Singh said in objecting to this. He argued that if the Bar had thought Hamid unfit to be a judge in 1988, then the Bar should hold the same now because time does not run on a Constitutional issue. He rebuked those members who felt a bit cold because they had not been sitting with judges and that such people were only paying lip service to the 1988 resolutions. He urged members not to sell themselves out and to reject the resolution.

With all due respect, the principle of the independence of the judiciary is immutable. The motion was defeated overwhelmingly: 809 voted against it with 52 voting in favour and nine abstentions. As a matter of record, I was one of the 809.

The next day, lawyers appearing before Tun Hamid at the Supreme Court were each asked first whether they recognised him as the Lord President before granting them the right of audience. The Bar objected strongly because the right of audience is guaranteed under the Legal Profession Act, 1976.

Beginning the week of Feb 8 this year, Trump will face an impeachment trial at the United States Senate for incitement of insurrection.

He will most likely be indicted under Section 3 of the 14th Amendment of the US Constitution which states that no person shall “hold any office, civil or military, if they, after having taken an oath to support the Constitution, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”. If convicted, he may be disqualified from running for president again in 2024.

In fact, I was rather surprised that Trump did not pardon himself before leaving office. If he had, I would have had to resort to the wise words of Abraham Lincoln: “He reminds me of the man who murdered both his parents, and then when sentence was about to be pronounced, pleaded for mercy on the grounds that he was an orphan.”

All in all, fragile democracy has prevailed. Our best wishes to Biden and his team. Many in the world are rooting for his success. We know it will take time to heal his divided nation. But Gorman’s poem, The Hill We Climb, gives Americans the hope needed to rebuild Ronald Reagan’s “City on the Hill”.

Senior lawyer Roger Tan is a member of the Malaysian Bar Council. The views expressed here are solely the writer’s own.

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Roger Tan

Roger Tan

The writer, a senior lawyer, is formerly a law lecturer and member of the Malaysian Bar Council.

   

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