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'Democracy endangered: Elected governments have no right to consider themselves above the law'

Mick Le Moignan

By Mick Le Moignan

WESTERN civilisation is indebted to the Ancient Greeks for democracy (although their version was deeply flawed by slavery and discrimination by wealth and gender) and to the Romans for our legal system. Fair, just government needs strong and resilient versions of both.

Of course, governments are elected with the power to draft and change legislation, but this process needs extreme care and circumspection. It should never be rushed. Rules should be respected and not changed on a whim. A government which hastens to change a law in response to a judicial decision is one that has been caught with its metaphorical pants down.

It is concerning that there are many current examples of democratically elected governments currently engaged in this practice. Perhaps the most egregious is Israel’s coalition of right-wing and religious parties, led by Benjamin Netanyahu. Their proposals to curb the powers of Israeli courts were seen as an attempt to extricate Netanyahu from serious corruption charges. In mid-September, tens of thousands of liberals took to the streets of Tel Aviv and other Israeli cities to protest against this power grab.

Less than a month later, Hamas inadvertently reunited Israel with their brutal slaughter and kidnapping of largely unarmed civilians, including the elderly, women and children. The attack clearly achieved its aim, in producing an even more vicious and deadly response. Both sides are guilty of hideous war crimes, but the only referee, in this case the hapless United Nations, is powerless to order a ceasefire.

The UN has created an agreed framework of Conventions to guide nations through internal or external conflict, but most governments simply ignore these rules whenever it suits them.

The USA, long regarded as the bastion of world democracy, has a terribly unfair system, where minority votes in heavily gerrymandered state elections produce a biased Electoral College which misrepresents the popular vote. George W Bush received half a million fewer votes than Al Gore in 2000. Donald Trump lost the popular vote to Hillary Clinton in 2016 by almost four million and to Joe Biden in 2020 by seven million. So much for Trump’s specious claim that the election was stolen.

The power of the US judiciary to reign in government abuses is limited by the sitting president’s right to nominate political appointees to the Supreme Court when a justice dies, giving the current court a six-three conservative bias, which has permitted the ban on abortion and extended gun rights.

Drenched in numerous court cases, Trump has openly signalled his intention to take revenge on those he considers his enemies, declaring in a Veterans’ Day address: “We pledge to you that we will root out the Communists, Marxists, fascists and the radical left thugs that live like vermin within the confines of our country that lie and steal and cheat on elections.”

Commentators and historians have pointed out that such inflammatory, dehumanising language echoes Hitler and Mussolini in the 1930s.

Trump’s campaign spokesman, Stephen Cheung, asked if the former president was proposing to set up such a dictatorship, doubled down on the rhetoric, saying of Trump’s opponents: “Their entire existence will be crushed when he returns to the White House.”

In Australia, the High Court has just ruled that the indefinite detention of several hundred asylum seekers and would-be immigrants is illegal. The Opposition Leader, Peter Dutton, was the hardline Immigration Minister who used this system and other harsh measures to deter ‘boat people’. Dutton was predictably incandescent about the judgment and demanded legislation to reverse it.

Albanese’s Labor government at first refused, but caved in when it was revealed that several alleged murderers, rapists and child molesters were among the detainees. Nobody answered the obvious question: why were these offenders not charged and punished, if they were known to be guilty?

For a government to enact hasty laws in response to a High Court ruling sets an uncomfortable precedent. It suggests that considerations of public perceptions and likely votes may have outweighed any concerns about justice or civil liberty.

The UK government is in a similar predicament. On 15 November, five independent judges of the Supreme Court ruled that the government’s policy to deport asylum seekers to Rwanda was illegal.

Britain’s Law Society applauded the verdict, noting that it believed the Rwanda policy was incompatible with both the UN Convention on Refugees and the European Convention on Human Rights. (The latter is nothing to do with the EU: the UK was the first nation to ratify it in 1951.)

The “Rwanda solution” has a regrettable link with Australia. Our past PM Tony Abbott’s proud boast is that he “stopped the boats” by sending all sea-borne refugees and asylum seekers to offshore concentration camps in Papua New Guinea and Nauru.

Although this brutally inhumane practice has now been stopped, xenophobic British right-wingers decided to emulate it and persuaded the authorities in this impoverished, densely populated, Central African dictatorship to co-operate.

The plan was that successful asylum seekers would be allowed to settle in Rwanda (not the UK) and unsuccessful ones would be sent back to their original countries, where they might face imprisonment, torture or execution. This was the possibility that worried the judges on the Supreme Court.

Backed into a corner by the court’s ruling and his own backbenchers, PM Rishi Sunak plans “emergency legislation” to “confirm Rwanda is safe” and revive the scheme.

Lawyers expect further challenges if the Supreme Court’s concerns are not addressed in full. Lord Sumption, the former head of the Court, told the BBC that “problems identified in the Supreme Court judgment are too fundamental to be cured quickly and possibly too fundamental to be cured at all’.

The rule of law, which goes back to Magna Carta, provides that everyone, regardless of status, race, culture, religion or any other attribute, is equal under the law and equally bound by it. Even elected governments have no right to consider themselves exempt.

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