Over the past few years, it is undeniable that western politics has experienced several unpredicted events and general upheaval. Few pollsters predicted the election of President Trump or Brexit. Across Europe, other countries such as France and Spain have grappled with equally divisive elections and secession. But this article will not address these landmark events. It will rather attempt to illuminate the accompanying effects that these momentous decisions will have had on the trust that we the people hold in legal institutions, such as the judiciary and parliament, with examples chiefly from the UK and the USA. These two nations are useful to discuss, given the increased bipolarisation of the political alliances their voters hold and the ongoing populistic “culture wars” that recent votes seem to have exacerbated, thus causing the uproars against legal institutions that we have observed.
Chronologically, the first of these after-effects to occur was the debate surrounding the celebrated (or reviled, depending on your publication) decision of the Miller case. To summarise, Mrs Gina Miller, and others brought forth a legal claim that challenged the UK government’s decision to leave the EU without first ratifying the process through parliamentary vote. The Daily Mail labelled the judges of the High Court “enemies of the people” in their scathing assault on out of touch elites who attempted to frustrate the will of the people, and Mrs Miller faced vitriolic backlash as well as death threats for her efforts. What these critics didn’t understand is the service that she performed through this case; Britain’s constitution is unwritten, uncodified, with the balance of power between the three branches of government constantly being modified and corrected by individuals’ claims and courts that ask necessary questions of the legal relationship between them.
The judges ruled that had the Prime Minister triggered article 50 without the approval of the sovereign legal institution of this country, Parliament, she would have set a precedent whereby the executive branch could effectively rescind fundamental human rights granted to the people by statute. The Prime Minister was in effect attempting to unmake law and destroy the rights it conferred, namely the European Communities Act 1972 that afforded the right to UK citizens to vote in elections of the European Parliament. This seminal legal decision should not be framed as an attempt to subvert democracy; rather, it was a necessary contribution to the ongoing conversation that determines the remits of power the government may exercise in Britain. It is far better to question the reach of government before the public experience the sting of an unchecked executive and the gradual erosion of civil liberties and human rights. Far from subverting democracy, this decision further entrenched the authority of our democratically elected Parliament to act as the supreme maker of law.
In addition, the recent decision to allow Parliament to vote on the final details of the Brexit bill and thereby make it law is a further success in this vein. Keir Starmer welcomed David Davis’ concession to allow MPs to vote on matters such as fiscal duties and citizen rights as a “significant climb-down” while Labour’s Chris Leslie labelled the announcement a “sham”. Ardent Brexiteers bemoaned the decision as a further complication to the people’s will being manifested. But this too should be seen as a commendable decision. Critics forget that the meaning of sovereignty means the ability of our democratic legislature to make or unmake law, and the ability of MPs to scrutinise the most profoundly complicated political, legal and economic decision in recent British history (if not, ever) is no tragedy.
Attacks on the practice of the judiciary or legislative chambers need not start from disgruntled members of the public, or even powerful media publications. They can originate from the most powerful man in the world, as US President Trump proved when he labelled federal Washington Judge James Robart a “so-called judge” following Robart’s approving of requests for temporary restraining orders against President Trump’s travel ban in certain states. Robart observed the order had caused “immediate and irreparable injury” in “employment, education, business, family relations and freedom to travel”. Once again, the role of the judiciary was construed as subordinate to that of the executive, and as imposing a travel ban upon predominantly Muslim countries was one of President Trump’s most famous campaign pledges, it was strategically framed by the Trump administration as a betrayal of voters.
President Trump’s dismissal of judicial authority in this case was wrong both substantively and procedurally. Firstly, it was a gross encroachment on the freedoms of visa-holders and refugees wishing to travel to the USA and who were already on their way to do so when the ban was announced, potentially threatening them with deportation as soon as they arrived. The US constitution was specifically written so that the judiciary could act through checks and balances to rein in the power of the executive when certain constitutional principles were threatened by the actions of the President or Congress; namely, a discriminatory policy that defies the US constitutional maxim of all men being created equal. But secondly, President Trump was wrong to question the authority of the judiciary in this decision, and was rightly reminded that the position of President does not grant him unlimited power. To implement discriminatory policy in order to hastily acquire political capital and influence whilst simultaneously denying the authority of the judiciary is an attack on democratic procedural values in and of itself. Rather than being inferior to the executive, the judiciary acts in concert alongside it, in order to protect the law of the constitution and prevent arbitrary rule.
To conclude, we should continue to have faith in our legal institutions. Not only when we agree with the decisions that they substantively make, but when their authority is under threat from governments who seek to undermine or circumvent institutional checks and balances on their power which are necessary for a healthy, functioning democracy. Our western democracies have witnessed the development of increasingly adversarial political climates, whereby electorates become increasingly disenfranchised and dismissive of ideologies different to theirs. Populists have arisen across the political spectrum to assure their voters that they are the true, genuine, moral people of their nation, and that elites conspire to deprive of them of enfranchisement, promising them bold political solutions with umpteen difficult practical implications. But we cannot simply allow the executive branch to evade procedural and substantive constitutional values to quickly win over their demographic to appear to govern successfully. This is precisely why the prescient separation of powers was introduced, in order to prevent arbitrary tyranny and ensure that whilst the people could vote for potentially divisive and transformational policies, they would not be implemented by would-be tyrants that ignore the rule of law and human rights.
22 January 2018