This article first appeared in The Fair Observer on November 22, 2019
Amid all the gloom and doom over the slow retreat of democracy, the past few weeks have come as a welcome relief for proponents of the liberal world order. Since the late 2000s, the election of right-wing, xenophobic and authoritarian leaders and the consolidation of power by Vladimir Putin in Russia and Xi Jinping in China have given sleepless nights to the embattled global community of believers in representative democracies.
That narrative might be changing. It began on September 17 when Israel went to polls and ended on September 24 when, in the UK, the Supreme Court declared the proroguing of Parliament to be illegal and, in the US, the Democrats launched an impeachment inquiry into President Donald Trump. The developments in Israel, Britain and the US hold important lessons for India.
Israel Shows Netanyahu the Door
Modern republics are a delicate dance among the three branches of government — legislative, executive and judicial — and the fourth estate of the media. In the case of Israel, although it defines itself as a “Jewish and democratic state” and the “nation-state of Jewish people,” the constitution does not discriminate among its citizens based on religion. However, Prime Minister Benjamin Netanyahu has exploited ethnoreligious fault lines among Jews and Arabs for more than a decade. His fear-mongering and race-baiting have been so successful that he has managed to ride out a wave of credible corruption allegations while in office.
When the Israeli law enforcement agencies and Attorney General Avichai Mendelblit refused to toe Netanyahu’s line, his supporters introduced a bill in the Knesset, the Israeli parliament, to grant the prime minister immunity against prosecution. After the elections in April delivered a split verdict, preventing Netanyahu from garnering a majority in the Knesset, he refused to give opposing parties a chance to form a government and brazenly called for another election instead. In the run-up to the second election in September, he openly embraced the idea of annexing Israeli settlements in the West Bank, which the Palestinians see as part of a future state.
The second-place finish of Netanyahu’s Likud party in the unprecedented second election in a year demonstrates the resilience of Israeli democracy. While Netanyahu wanted an outright majority and another term to protect himself from indictment, voters ushered him to the door. On November 21, he was indicted on charges of bribery, fraud and breach of trust.
Since 2009, Netanyahu has carefully manipulated the media, controlled public opinion with incendiary rhetoric and ruled the executive branch with a tight fist. But fearless law enforcement agencies, an attorney general with a sense of duty and an independent judiciary eventually caught up with him. Even President Trump, who has been one of Netanyahu’s staunchest allies, has belatedly distanced himself from Netanyahu by announcing that the US relationship is with Israel and not with its prime minister.
Boris Is Forced to Hit the Brakes
Less than a week after the Israeli elections, the verdict by the UK Supreme Court calling British Prime Minister Boris Johnson’s decision to prorogue Parliament illegal was a pleasant surprise.
Ever since the ill-fated 2016 Brexit referendum held by then-Prime Minister David Cameron, British politics has resembled a circus. The birthplace of the Westminster system of government, widely adopted around the world, has been lurching from one quandary to another for the past three years. While the government of Theresa May repeatedly failed to pass a Brexit deal to allow the UK to leave the European Union, none of her decisions resembled a constitutional crisis like the one Johnson precipitated when, on August 28, he recommended a five-week suspension of Parliament to the queen.
The attempted power-grab by Johnson, a populist prime minister, was unprecedented and intended to prevent Parliament from deliberating over various Brexit options before the October 31 deadline. As the ceremonial head of state, the queen had to remain above the fray. Legal analysts had predicted that the judicial branch might not be able to reverse Johnson’s recommendation. Bitter divisions among rival political parties, which were on display during then-Prime Minister May’s attempts to pass her EU withdrawal deal through Parliament, inspired little hope that the legislative branch would push back against Johnson.
In a remarkable display of individual and institutional fortitude, both the legislative and judicial branches rose to the occasion. Before Parliament was suspended, 21 of Johnson’s own Conservative Party members sided with the united opposition to force him to request an extension to the Brexit deadline and prevent the UK from crashing out of the EU, which is commonly referred to as a no-deal Brexit.
By the time Parliament was suspended on September 10, the populist executive’s hands were effectively tied when MPs voted against Johnson’s proposal to call an early general election, which would have still allowed him to execute a no-deal Brexit on October 31. Despite the nature of the executive branch as subordinate to the legislative branch, Johnson tried bypassing it. When Parliament reasserted its supremacy, he tried to play the martyr card. After another month of wrangling, a slim majority of Parliament seemed to have agreed on a potential withdrawal deal, but Johnson was forced to ask the EU to extend the Brexit deadline, which is now set to January 31, 2020.
The Supreme Court verdict on September 24 went a step further. In a ruling seeped in symbolism, the first female chief justice of the UK declared Johnson’s recommendation to prorogue Parliament to be illegal.
The Westminster system was born in the UK, but it lacks a codified constitution in its home. A judicially conservative Supreme Court could have easily stayed neutral without attracting public wrath, but the flipside of an uncodified constitution is the power it gives to the judiciary to set legal precedents. It is a double-edged sword that can give activist judges the power to bring the entire system down.
Yet in this case, the unanimous verdict created an important legal precedent. The fact that the British system has survived since its inception through Magna Carta of 1215, and that 11 Supreme Court judges unanimously ruled against Johnson in one of its gravest constitutional crises, reaffirmed the faith of the global liberal community in self-government.
Trump Faces Impeachment
On the same day as the UK Supreme Court’s ruling, US House Speaker Nancy Pelosi launched a formal impeachment inquiry into Donald Trump. The move could potentially end the disdain the president has displayed for constitutional norms in running the American executive branch.
Unlike Israel and Britain, the American system prides itself on the well-designed checks and balances among the three co-equal branches of government. Over the past few decades, the executive branch has arguably become more equal than the others. Yet no American leader has ever shattered presidential norms as ruthlessly as Trump has since his inauguration in January 2017.
So far, the judicial branch has held its own in its battles against the Trump administration regarding the Muslim travel ban, funding for a border wall, immigration policies, the Mueller investigations and more. While the administration managed to overcome judicial scrutiny with the Muslim ban by repeatedly tweaking executive orders, Trump has been effective in using the inherent sluggishness of the judiciary to his advantage by delaying all legitimate oversight and investigative powers of the legislative branch in other cases.
Trump’s media machine has flooded airwaves with so many lies that voters are bitterly divided on the issue of whether the president’s behavior is normal, let alone impeachable. After the Democratic Party took control of the House of Representatives in the 2018 midterm elections, it found it difficult to sway public opinion in favor of impeachment in spite of launching multiple investigations and gathering credible evidence of obstruction of justice.
It was freedom of the press that came to the legislative branch’s rescue. While the House had been doggedly pursuing the withholding of military aid to Ukraine since July — albeit behind closed doors — two explosive reports, first in The Washington Post and then in The Wall Street Journal, forced Speaker Pelosi’s hand in ordering an impeachment inquiry.
It is difficult to predict whether the Republican-controlled Senate will vote to remove Trump from office, but based on all the evidence that has already come out, it is likely that the House will impeach Trump. The delicate dance among the various branches of the US system of government has, at least temporarily, strengthened the legislative branch’s hand. Unless Trump resigns, he may go down as only the third US president to be impeached by the House regardless of whether he is removed from office by the Senate.
And in India…
The contrast with the situation in India couldn’t be more jarring. Ever since the Hindu nationalist Bharatiya Janata Party’s election win in 2014 with a majority in the Lok Sabha — the lower house of Parliament — Prime Minister Narendra Modi’s government has systematically destroyed whatever little freedom Indian media enjoyed. It has meticulously rigged the process of political fundraising to practically hold the entire democratic system hostage. In its lust for power, the government has brushed aside warnings that the new electoral bond scheme of political funding is susceptible to direct foreign influence and counterfeiting by enemy countries. The scheme was rushed through Parliament without much scrutiny, despite the objections of the Reserve Bank of India that it undercuts its authority as the sole issuer of currency — a fundamental change in the country’s monetary policy with potentially far-reaching consequences.
After its resounding reelection in May 2019 with a stronger majority, the executive branch has practically made the Lok Sabha a rubber stamp for its right-wing social agenda. Seemingly unconstitutional bills like the abrogation of Article 370 of the constitution in relation to the special status of Kashmir, selectively criminalizing the use of triple talaq (instant divorce) among Indian Muslims, and amending the Unlawful Activities Prevention Act (UAPA) have received Parliament’s approval with little legislative scrutiny.
While several legal challenges are listed for hearing in the Indian Supreme Court over the coming weeks, the court has mostly been a bystander until now. It has deferred to the executive branch even in cases related to habeas corpus and denial of fundamental rights to Jammu and Kashmir residents since the abrogation of Article 370, bolstering claims that the government is eroding the independence of the judiciary.
The Indian economy is currently in shambles with the highest unemployment rate in almost five decades and manufacturing plants are announcing staff layoffs and halting of production every month. Despite this, 50,000 adoring Indian and Indian-American fans of the populist prime minister — enjoying the freedom of expression and individual liberty guaranteed in the US — filled a football stadium in Houston, Texas, to hail the dismantling of democratic institutions in India.
The delicate dance of democracy in Israel, Britain and the US may be forcing a day of reckoning on their democratically-elected populist leaders, but the majority of Indians at home and overseas are still cheerleading as the government erodes the separation of powers.