Legal challenges for political leaders are evidence that a separation of powers is working
Such cases send the strongest possible signal that governments can and will be held accountable
The world appears so off its regular axis that it is easy to believe many of our most hallowed norms are either perishing or have already been done away with. Right-wing populists are getting away with saying the previously unspeakable about ethnic groups, whom they blame for societies’ woes. Ludicrous conspiracy theories have advanced from the margins to the mainstream. The territorial integrity of states is no longer guaranteed by a unanimous international consensus. When scholars ask if democracy and the rule of law are dying, it frequently seems as though they have already decided the answer is “yes”.
So it is good to be reminded that there are countries where normal rules not only continue to exist but are being exercised to protect the system of checks and balances essential to good governance.
Impeachment hearings are under way in the US for only the third time in the country’s history. So extraordinary has Donald Trump’s presidency been that the first attempts to start this process were in 2017 – only a few months after he took up residence in the While House. It was obvious this would go nowhere when the Republican Party, which Mr Trump leads, controlled the House of Representatives, where the impeachment process must begin. After long agonising over whether using this ultimate censure would actually rebound and help the president in his re-election bid next year, the ascendant Democratic Party – which now has a majority in the House – is pushing ahead.
It seems likely that the House will vote to impeach the president but the Senate, still in the Republicans’ hands, will not vote to convict him. Regardless, the testimony we have already heard from current and former officials – including those who are supposed to be on Mr Trump’s side – has been devastating. The US Constitution, according to Mr Trump's edict earlier this year, means: “I can do whatever I want as president”. However, the impeachment process has become a very public and humiliating rejoinder to Mr Trump that this is not the case, that he might have broken numerous rules and laws, no matter how much William Barr, his attorney general, assures him that his presidential powers are virtually unlimited.
In Israel, Benjamin Netanyahu has just become the first sitting prime minister to be indicted on criminal charges, including bribery, fraud and breach of trust. It may be that he cannot legally be forced to stand down until and unless he is convicted. Nevertheless, Mr Netanyahu’s claims that the investigations into him constituted an “attempted coup” are unconvincing, to say the least.
The charges have been laid by Avichai Mandelblit, the attorney general whom Mr Netanyahu appointed and who had previously served as his cabinet secretary. Further, Mr Mandelblit is close to his prime minister but he also has a reputation for being fiercely impartial. It is hard to see how long Mr Netanyahu can cling to office – especially as when his predecessor Ehud Olmert was himself investigated in 2008, Mr Netanyahu said that under the circumstances Mr Olmert had no “moral or public mandate to make crucial decisions” and called for him to go.
Meanwhile in Romania in May, the leader of the then ruling Social Democrats, Liviu Dragnea, was sent to jail for abuse of power. His protege Viorica Dancila was still prime minister at the time. But after massive demonstrations and a clear rejection by the voting public in the European parliamentary elections – the Social Democrats won only 23 per cent – her government could stand in justice’s way no more. Mr Dragnea was picked up by the police from his home the very next day.
In Britain, too, some have worried that the Conservative government is pushing the bounds of its unwritten constitution in terms of the powers it can assert. To suggest that British Prime Minister Boris Johnson is in the same company as the men mentioned above would be absurd. But the fact that the courts stymied his attempt to shorten parliament’s working days in September and have just allowed another legal challenge to his Brexit withdrawal agreement shows that checks and balances in Britain are still working – even if some strongly dispute the judges’ rulings.
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What is significant about all these cases is that they concern incumbent leaders. It is far easier to prosecute prime ministers and presidents after they have left or lost office, but doing so runs the risk of appearing to be political persecution. For instance, there are many who question the jailing of Luiz Inacio Lula da Silva, the former Brazilian president, on money-laundering and corruption charges last year. That, tweeted US presidential candidate Bernie Sanders this month, was “something that should never have happened in the first place”.
However, when leaders in office – in the executive – receive major pushback in a just application of the rules from the other branches of government – the judiciary and legislature – it shows that the doctrine of the separation of powers is working. The signal is sent that governments can and will be held accountable. No one is above the law. That those in power can be accused of such crimes might be appalling; that they must answer the charges, however, should be reassuring.
In times of baffling change and uncertainty, it is good to hold onto these examples. We might feel buffeted by storms but some timbers are holding strong. The fact that they are should give us hope that they, and the foundations of good governance in many other countries, will still be standing when the tempest abates.
Sholto Byrnes is a commentator and consultant in Kuala Lumpur and a corresponding fellow of the Erasmus Forum
Updated: November 26, 2019 06:49 PM