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Triple jeopardy: American withdrawals, Supreme Court recusals, and “Be a Hitler”! – Rajan Philips

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(24 June 2018 The Island)

It is the time for withdrawals in Trump’s America. It is the time of recusals in Sri Lanka. It is also the time when spiritual pontiffs commend Adolf Hitler as a role model to an aspiring presidential candidate. Left to themselves each one of the three distractions can harmlessly fizzle out. But they also have the potential to harmfully align with each other leading to a triple jeopardy for the rest of us. There are too many withdrawals going on in America, but the one that is making the most fuss here in Sri Lanka is the least consequential over there. America’s withdrawal from the United Nations Human Rights Council (UNHRC) in Geneva, which had been anticipated ever since Trump became President, was announced last week in Washington. But the President was nowhere to celebrate this withdrawal. He is in the throes of several others, mostly involving an immigration imbroglio at the US-Mexican border that the Trump Administration created to enthuse its base, but has since spectacularly blown up in its face.

So the honour of announcing the UNHRC withdrawal went to Nicky Haley, that accidental pop up on the international stage as Trump’s amateurish Ambassador to the UN in New York. In stilted language, she called the UNHRC “a cesspool of political biases” and a “hypocritical body” that “makes a mockery of human rights.” Ms. Haley has been the moving force behind the US withdrawal in Geneva. Trump has no time for UNHRC. He has been pre-occupied with the more dramatic withdrawals from the Paris Accord on climate change, the Iranian Agreement, and the international consensus on the status of Jerusalem. He is threatening to withdraw from North American trade agreements and is provoking tariff-slapping trade wars not only with China but also with neighbouring Canada and Mexico, and other western countries.

Trump has even questioned the rationale for the G-7 group of countries (US, UK, Germany, France, Japan, Canada and Italy) without Russia being part of it. He withdrew his signature to the joint communique after the recent G-7 summit meeting in Quebec, Canada. He was flying to Singapore for his summit meeting with Kim Jong-Un and wanted to show ‘strength’ to his North Korean counterpart by lashing out at Canada and the G-7. Trump didn’t need to show any strength in Singapore. It was a love-fest between him and Kim. Trump was more at home with the North Korean Chief than he has ever been with German Chancellor Angela Merkel. The western interpretation and fear of Trump’s wild oddities is that he is deliberately upending the world order that the West put together after World War II. There are many things that are problematic with that world order but Donald Trump is hardly the person to provide a diagnosis, let alone cure it.

To alt-right ideologues like Steve Bannon and Stephen Miller, Trump is history’s vehicle to put America first, America right and America great. They do not care if along the way Trump builds his private empire and breaks all government rules. Trump sure knows his priorities, and it was not an accident that after at the press conference after the summit in Singapore, Trump was euphoric about North Korea’s beaches for building the world’s best hotels and condos. He sure would have broached the subject of building hotels and condos in North Korea while one-on-one with its sole decision maker. There might be Sri Lankans dreaming of a Trump tower in the Port City under a likeminded Sri Lankan President like Gotabhaya Rajapaksa. Between Trump and Hitler the dual citizen of America and Sri Lanka has his work cut out in emulating super role models. There is no place for human rights in Trump’s limited political vocabulary. That should be another common ground for those who are gloating over US withdrawal from the UNHRC.

The main reason for US government’s annoyance at the UNHRC is the agency’s dogged pursuit of Israel for its lopsided violation of the rights of Palestinians. While even the Obama Administration was not at all pleased with the UNHRC over Israel, the then State Department would not countenance withdrawing from the agency. In fact, it was revived during the Obama presidency. Equally, it would have been antithetical to Samantha Power or Susan Rice who were American Ambassadors under President Obama. Especially for Dr. Power, her political vocabulary was all about human rights. Nicky Haley brings none of Power’s scholarship, motivation or commitment to the UN. A former South Carolina Governor, she has Republican presidential ambitions after Trump. Appeasing the voluble Israeli lobby in the US is critical to her ambition and withdrawing from the UNHRC is prepayment for future political support. After Trump delivered Jerusalem to Netanyahu, Haley has done her mite in doing the withdrawal in Geneva.

The American withdrawal neither adds value to nor subtracts value from the UNHRC. The professionals working at the agency are qualified and committed individuals who have been trying hard to implement a global agenda on human rights without consensual political support from member states. As a result, the Council’s work and energies are pulled in different directions often targeting human rights violation inconsistently and even contradictorily. But no country is targeted if there are no human rights violations in that country. The agency’s problem is it does not target every violator country, and it targets some of them more so than others. The Rajapaksa government tried to do an end run on the agency and even tried to imitate Israel in Geneva. The present government swung around through 180 degrees and got nowhere. The hoping in many circles is that the Rajapaksa(s) will return and try to emulate both Trump, or Haley, and Netanyahu. Now one of them has even got the license to “be a Hitler.”

Where does that leave the country? Forget about war crimes. What about other crimes? After strenuously objecting to bringing in foreign judges, the country’s legal eagles have nothing to say in the face of copping out by Supreme Court judges whenever a matter involving Gotabhaya Rajapaksa is brought before them. To date, four Supreme Court judges have recused themselves from hearing a case involving Gotabhaya Rajapaksa, even though one of them issued the initial order preventing his arrest. As judges, it is reasonable to expect, they have good reasons for their recusal, but isn’t it unreasonable to leave the public indefinitely in the dark without knowing what on earth is going on? Apparently according to judicial norms, self-recusal should not be done lightly, and no case should be risked going unheard for want of non-recusing judges. Oftentimes, judges fight hard to stay in a case when one or both parties to the case do not want a particular judge to hear their case. Apparently, as well, if all the judges in a court were to declare conflicts of interest in one or more cases, then any or all of them can proceed to hear those cases. To use Nicky Haley’s description, when there is a cesspool of biases they might cancel each other in resultant rulings.

Talking about judiciary and the rule of law, there is no better place than America and no better time than now to witness all the likely tensions and tussles between the primeval assertion of power, personified by Trump, on the one hand, and the grinding persistence of those who talk law to power, on the other. The man who not only boasted but also believed that because he has money he could do anything and get away with it, is now finding out that it is not easy to do that as President of the United States. He may not be tried while in office and he likes the self-serving constitutional idea that he can pardon himself and others he chooses to, but he cannot stop the hounds of law taking turns and coming after him. In how many other countries, can this be said of their Heads of State, or even former Heads of State and their families?

The crisis of America is that no founding father anticipated a wrecking ball president to provide all the checks and balances to parry every wild swing of an elected wrecker in chief. But the biggest checks are coming from the people themselves. Trump still has a depressingly sizable segment of the American population behind him and whom he cynically manipulates to push an agenda that he himself does not believe but will push anyway as that is the only away to stay in power for a full first term and potentially a second term. He has no compunction musing about unlimited presidential terms in America just as now it is in China. But unlike in China or anywhere else, people protests are stopping Trump in his populist tracks. The American immigration system is a wholly broken system. But the way to fix it is not by inhumanly applying zero tolerance against unauthorized immigration and separating children from their mothers at the American border. That is what the Trump Administration tried to do and that is what it is now being forced to withdraw from.

The Trump presidency is a text book case of how an executive presidency can unravel and become dysfunctional. America will outlive the Trump presidency because it is too large a country to be smothered by a single megalomaniac, and it has historical traditions and institutional resilience to systematically fight back. No one in America wants Trump to “be a Hitler.” The Trump presidency is also an illustration of the inherent dangers of executive presidency that other political societies, much smaller and much weaker than America, can ill afford and must try to avoid. Sri Lanka has the option of: either, staying with the current presidential system and handing it over to someone who might not need much encouragement to “be a Hitler.” Or, modifying the presidential system and re-privileging old parliamentary system.

To the extent the example of Hitler has been elevated to a spiritual blessing, it is fair to ask why the recipients of that have not respectfully dissociated themselves from that advice even though it may have been more a figure of speech than a serious proposition. But even a figurative mention of a historical figure like Hitler is indicative of troubling sentiments in society. Not surprisingly, even this is being blamed on Ranil Wickremesinghe by his inveterate critics: it is all Ranil’s fault, they say; the longer he stays in politics the greater the risk of society folding into fascism. Seriously, the onus is on the Rajapaksas to assert their dissociation from fascism or any other authoritarian contraptions and give the assurance that they stand for a democratic system in which people elect their representative to serve constitutionally limited terms.


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