an autodidact meets a dilettante…

‘Rise above yourself and grasp the world’ Archimedes – attribution

Posts Tagged ‘separation of powers

more on the slo-mo train wreck – just look at the USA

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much truth in this, sadly

What is the greatest weakness of democracy?

The answer has been the same for over 2500 years. The possibility/likelihood of demagoguery and mob rule. It’s one of the reasons why we don’t have direct democracy – though there’s something close to a version of it in the USA. We have representative democracy, which is actually a check on ‘too much democracy’, because the representatives who are then voted on by the people (and I’m talking here about our Westminster system and to a lesser extent the US congressional system) are given their opportunity to serve in parliament/congress by an ‘elite’, or an in-group (of course there are problems with in-groups which I won’t get into here). Often they’re tapped on the shoulder or receive a late night phone call from a party apparatchik and told ‘X is retiring at the next election and I notice you’ve been active in that electorate and have held position A and B for the party, would you be interested in running for the seat?’ It’s likely the apparatchik isn’t operating on her own initiative – party officials have been observing the prospective candidate and how many party boxes she’s been ticking. So there’s this behind-the-scenes selection process going on before anything ‘democratic’ occurs. And this, IMHO, is a good thing. You don’t want just anybody even helping to run the country, let alone running it. I mean, just look at the USA.

Under the Westminster system there no Presidents, Vice Presidents or powerful unelected officials selected by the President. Yes there are chiefs of staff, private secretaries and advisors in official and unofficial capacities, but there is no unelected Secretary of State, Defence, the Treasury and so forth, who all owe their jobs to the President, albeit subject to some review.

Under the Westminster system there is a head of state whose position is entirely ceremonial. Everything she signs is at the direction of the party elected to power. That party has a leader, the Prime Minister, the first minister, primus inter pares, first among equals, the captain of the team. She works in the parliament, sitting alongside her colleagues, opposite her opposite number, consulting, sparring, winning debates, losing debates, triumphing and being humiliated on a daily basis. There’s no separate ‘executive’ space, there are no veto powers, shut-down powers, special executive powers and the like. Pardoning powers are limited, and not granted to the Prime Minister. In Australia, that power is granted to the Attorney-General, in Britain to the Lord Chancellor, but decisions are made in consultation with the whole of government. Power, in short, is more distributed under the Westminster system, and this is surely a good thing. I mean, just look at the USA.

Under the Westminster system there is only one set of national elections, not two. Britain, Canada, Australia and New Zealand – the four primary predominantly English-speaking nations who use the system – all vary as to electoral terms. In Australia, elections are held approximately every 3 years, but on no fixed dates (but elections are always held on a Saturday, and voting is compulsory). These elections are roughly similar to the US mid-term elections. People vote for their local member, based on that member’s campaign, her personal qualities, and the platform of the party she belongs to, if any. There are two major parties, of the right and left, and each party has its leader, elected by elected members of parliament. If that party holds power, she will be the Prime Minister. The Prime Minister therefore holds her position at the behest of the governing party. If the governing (or any) party loses faith in its leader, they can oust her through a vote of no-confidence, after which they will hold an internal round of voting for a new leader. The ousted leader then may or may not hold another cabinet position in government, or go to the ‘back bench’ as an ordinary elected MP. Thus, a Prime Minister may be removed from office between elections, though this is generally inadvisable as it is seen by the public as destabilising. It is a very different case, however, from removing a President from office, about which there appears to be no clear guidelines. The heavy reliance upon a President and his powers and duties appears to have created a degree of paralysis when it becomes clear that the President is manifestly unfit for office and has engaged in criminal activities before becoming President, during his campaign, and while in office. Under the Westminster system such a person would have been removed from office well before now, and it’s unlikely that such a person would ever have been placed in that office in the first place, since her appeal would not be directly to the people but to the party she is a member of. A person with an extremely shady reputation would be unlikely to appeal to a political party obsessed with the lack of rectitude of its opposite number, and therefore with its own rectitude.

A note on the separation of powers. The idea originated with Montesquieu (1748) who separated the duties of government into three, the legislative, the executive and the judicial. However, under the Westminster system, the legislative and executive branches are essentially fused. This may have strengths and weaknesses, which are alleviated through oppositional and bicameral scrutiny, as well as the democratic process. The executive and the legislative forces of government are always in dynamic interaction, so that too much fusion and too much separation can be inimical to good government. In the USA, the physical separation between the legislative and the executive appears to be the source of a wealth of political problems.

Under the Westminster system there is no direct election of any person or persons by the whole nation, either through an electoral college or by means of a first-past-the-post nationwide vote. This is a useful if not essential curb to the dangers of demagoguery. Although there is no official screening of candidates (as I believe there should be), by means, for example, of a basic political literacy test, involving an understanding of the nation’s political and legal structures, its political history, the separation of powers and other pertinent matters (scientific literacy might be included), there is at least some screening to ensure party loyalty and understanding of party policies and goals. The Presidential electoral system involves no screening, formal or informal, a fact which some people appear to view with pride.

There is no immunity from criminal prosecution for a Prime Minister in Australia, Britain, Canada or New Zealand. The Queen as titular head of state, and her representatives (the Governor-General in Australia) may be immune, but that’s hardly an issue for government. There are some protections from civil proceedings while in office, but it would be an expectation that criminal acts of politicians would be treated like those of anyone else, or even more expeditiously considering the position of public trust they hold. Although such criminal proceedings would be scandalous, they need not affect government to a debilitating degree because of the distributed nature of political power and the flexibility of government roles under the Westminster system – unless, of course, the criminality was spread throughout government or opposition ranks, which would be a rare thing. In any case, look at the USA for comparison.

Under the Westminster system there is, of course, no such thing as impeachment. That’s because illegal conduct is dealt with by the law, and other ‘conduct unbecoming’ or conduct contrary to party ideology or ethics is dealt with by no-confidence motions. A no-confidence motion needs no external justification other than that the leader has lost the confidence of her party. If the electorate as a whole disagrees with the motion it will make its view clear at the next election, or at by-elections, which can serve to restrict the power of government, or send a message by reducing its majority.

Finally, there appears to be another, perhaps less tangible difference between Westminster system countries and the Presidential system of the USA. It is rare to hear residents of Westminster system countries representing themselves as partakers of the world’s first and greatest democracy, leaders of the free world, the light on the hill and so forth. Nationalism and jingoism appears to permeate US society like no other. Such parochialism isn’t conducive to self-analysis and reform. It needs to be pointed out, if we wish to talk of ‘true democracy’, that no nation was ever anywhere near full democracy until it granted full voting rights to the female half of the population. On that very reasonable basis, New Zealand was the first true democracy. Australia, Britain and Canada all granted women the right to vote before the USA did – though in Australia, Aboriginal people of both genders weren’t granted the vote until 1962, so Australia cannot be considered a true democracy till that date. But the US Presidential system, in its difference, also represents something else – US individualism, as represented in many Hollywood movies in which one quasi-superhero saves the world more or less single-handed in the teeth of official lethargy, incompetence or corruption. It can be argued that nations can be found on an individualist-collectivist spectrum, with the USA somewhat at one end of the spectrum, the individualist end, and a country like Japan close to the collectivist end. The problem with individualism is a lack of trust in government – if not a lack of trust in each other – resulting in poor support for collective action on education, health and other social goods, and also high incarceration rates. Collectivism suffers the opposite problem, lack of willingness to speak out, to criticise, to behave differently, to seek reform when needed, though it also tends to mean reduced crime rates and genuine respect for others.

What this means for the genuine crisis the USA finds itself in is anyone’s guess. Having allowed a person with no moral compass and little understanding of the world to bypass the checks and balances of party allegiance and teamwork by appealing to a sector of the population which he actively despises (people who actually work for a living, or try to) in order to become their all-too-powerful President, the USA has deservedly lost a great deal of standing in the global community. And because of the way their system operates – so very differently from the Westminster system – the slow-motion train wreck which began with this person’s ascension to the Presidency is very far from over, and one really begins to wonder if this is the beginning of the end of the US ascendency. I for one hope not. The USA is a great, flawed nation. It can do better than this. It can recover. It can reform itself. It might look, for starters, at the Westminster system.

Written by stewart henderson

March 3, 2019 at 8:38 pm

what to do with a serious problem like Trump: part two

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So what damage is Trump doing to the US political system? He sets an example of deceit, disrespect, adversarialism and other negative qualities. He highlights these sorts of qualities as a route to worldly success. He undermines all the essential institutions of western democracy, especially an independent press and judiciary. His belligerence and lack of co-operation with judicial authorities may lead to further damage, including serious civil unrest, of a kind not seen in the USA for decades, or longer. We’ll see what happens.

So that is the problem of Trump, as all reasonable people see it. Having said that, I have some optimistic and some pessimistic comments to add.

I should start with the pessimistic stuff, so that I can end on a positive note.

Trump is the proverbial bull in a china shop. What do we do when we find a bull in a china shop, blundering about, smashing up everything, just being a bull? We take steps to get him out of there, pronto. And being enlightened souls, we don’t want to punish him for being what he can’t help being. A tranquilising dart might be the best answer, though this may make him thrash about all the more, at least for a time. We try to protect the shop as best we can, knowing that some damage will be inevitable.

However, Trump is a bull with friends and enablers, some of whom see him as a mighty stallion trampling over the spoils of the undeserving, while others see him as, for various reasons, a most useful bull. Still others see him as pure entertainment. They’re prepared to fight to prevent this bull from being removed from this china shop…

That’s roughly the present situation. As I’ve stated before, Trump is no Nixon, he won’t go quietly. He would rather barricade himself in the White House than resign. He would argue that a sitting President can’t be charged, he would refuse to co-operate with impeachment proceedings, and this would create a situation far worse than a constitutional crisis.

That’s the problem, the pessimistic stuff, and frankly I’ve no idea how this will be resolved. The worst case scenario is serious civil strife, of a kind not seen on American soil since the civil war, and Trump being Trump, I honestly can’t see a best case scenario that doesn’t involve violence of some kind, hopefully only to Trump himself, so as to prise him out of office. Given that scenario, tranquilising mightn’t be such a bad idea.

With that out of the way, let’s turn to the optimistic stuff, the silver lining, the lessons learned. Clearly, post-Trump, the American political system needs some restructuring, just as a town might do after being severely damaged by an unanticipated storm, one that could always strike again.

Trump has revealed serious failings in political and judicial structures. In fact he’s been revealing them for decades, from what I’ve gathered, as he has emerged largely unscathed from a lifetime of extortion, standover tactics, unpaid debts and dishonest deals and enterprises. He has surrounded himself with similarly shady characters; fixers, mobsters, goons and corruption merchants of all stripes. His success mirrors the failures of law and order in ways that I’m not equipped to deconstruct, but it’s surely true that these are failures.

Trump’s list of dodgy deals and litigations should have excluded him from candidature for high office, but there seems to be very little vetting for the position of President, something which seems to be a matter of pride in some circles. You don’t want just anyone to become your head of state, and democracy, to give away a nasty but surely open secret, doesn’t guarantee the best leadership. That is why the separation of powers is so important.

So these are two areas that need some work, post-Trump; tighter rules and vetting for Presidential and other political candidature, and a tightening and bolstering of the separation of powers. I would also like to see white-collar crime pursued far more vigorously, but again I’m not equipped to go into detail on this. Another area of concern in the light of Trump’s assaults is the media and its protection. It would be hard to quantify the damage Trump has done in this area with his ‘fake news’ meme. Lying is, of course, not a crime, or we would all be criminals, but the massively irresponsible behaviour of a head of state who lies about virtually everything, and who regularly denigrates and abuses those who speak obvious truths to power – a major media role – shouldn’t go unpunished. The media should be given greater legal means to fight back against this denigration. Getting more into the detail – producing tax returns should be absolutely mandatory for all political candidates, with no exceptions and strictly enforced, and the ’emoluments clause’ in the constitution, an out-dated piece of verbiage describing gifts from members of the nobility, should be upgraded and strengthened to prohibit those in high office to profit directly from their position.

On the separation of powers, so regularly attacked by Trump out of wilful, self-serving interest: many are unaware that this separation serves the important purpose of limiting democracy. Limiting demagoguery in this case. Among the checks and balances which seek to defuse the danger of a directly elected President, beholden to no party or principle, are an independent judiciary, an independent fourth estate, and a system of independent or bipartisan vetting of those nominated by the President for such Level One positions as Secretary of State. This separation of powers needs to be strictly adhered to and supported by law to the extent that regular attempts to undermine this separation, as is practiced by this President, should be seen as obstructing the rule of law and dealt with severely.

There need to be other checks and balances of course – checks on the media itself and on such organisations as the Department of Justice, which according to Alan Dershowitz and others beside the President, is pursuing Trump beyond the scope of its mandate. I’m not sufficiently au fait with these checks, which should of course include defamation laws to protect public personae, to make effective comment, but the scope of the Mueller enquiry is a matter of public record. There is no doubt that the Mueller enquiry has been given wide powers, but there is also no doubt that Russian interference in the 2016 election was considerable, and the indictments of many Russian citizens and entities as a result of the probe have supported this. There is also no doubt that Trump’s businesses in recent years have been linked to Russian oligarchs, as freely admitted by Donald Trump Jr, and that Trump has been extremely reluctant to make accusations against Russia and its dictator in light of clear evidence of interference which benefitted his Presidential bid. It’s highly likely that the probe has found clear evidence of conspiracy with a foreign power during the 2016 elections, to say nothing of obstruction of justice in the ousting of James Cohen and possibly also Andrew McCabe. The constant denigration of the Department of Justice and the FBI by the current President is of course unprecedented, and will require, I think, unprecedented responses in order to preserve and reinforce the separation of powers and to ensure that lawyers, judges and law enforcement officers can do their jobs without having to face the kind of treatment meted out to them by the likes of Trump and his enablers.

So, finally, no more from me about Trump, I hope. There are threats and opportunities here. The immediate threat to civil society comes from a bull who won’t go quietly, who will be supported by some powerful allies in defying authority, with possibly disastrous immediate consequences. The opportunity, as always with disasters of this sort, is to improve the political system to ensure that this is the first and last rogue President to disgrace the White House. Good luck with all that.

Written by stewart henderson

May 7, 2018 at 11:57 am