“The federal judge who blocked part of President Trump’s executive order on immigration on Saturday night worked for years in the Manhattan district attorney’s office, where she was one of the lead prosecutors on the high-profile Tyco International fraud trial.
Colleagues remembered the judge, Ann M. Donnelly, as an astute lawyer unfazed by the spotlight. She found herself in its glare unexpectedly on Saturday night, when she heard an emergency appeal from the American Civil Liberties Union challenging the executive order barring refugees. She granted a temporary stay, ordering that refugees and others detained at airports across the United States not be sent back to their home countries.
Enforcing Mr. Trump’s order by sending the travelers home could cause them “irreparable harm,” Judge Donnelly ruled.”
Faten was writing me this morning: “Americans voted for a change. And a change they will get, but not the one they expect: Trump is serving refugees’, migrants’ and other perjured and segregated groups’ case. He is giving them what they lack: compassion from others, visibility, identity, and to be looked at like victims not criminals (or potential ones for the least). He is giving them what they never had: their human rights and most of all their humanity.”
I think she is totally right. We have been complacent about human rights in recent years, taking them too easily for granted. Despite the populist anti-immigration discourse, we were reassured that the government was not actually violating the rights of most people.
We are now facing populism in government and we realise that this is an entirely different ball game. Populists are characterised by their utter contempt for independent institutions which limit the powers of the elected representatives. These institutions exist precisely because history has taught us that majorities can be wrong: this is the lesson of the Nazi and fascist regimes of the 30s. This is why we created an international human rights regime in 1948, a European human rights regime in 1950 and a Canadian human rights regime in 1982. And we decided that judges who wouldn’t be swayed by electoral pressure would be the best persons to administer these regimes and tell politicians when they were violating the rights of individuals.
Contemporary democracies are thus founded on three pillars: electoral representation, human rights guarantees, and the Rule of Law, i.e. the capacity of individuals to ask a judge to rule when the first two pillars are threatened. Majority rule is only one part of the essence of democracy as we now understand it. The dialogue between the politician and the judge, each of whom performs an equally legitimate role in how our countries are governed, is central to how we conceive a functioning democracy.
Populists constantly criticise those “unelected” institutions which can push back against majority decisions. These institutions include courts and tribunals, but also human rights commissions, equality commissioners, ombudspersons, auditor generals, etc. We remember Immigration Minister Jason Kenney in February 2011 when he deplored that judges were too often declaring his decisions unconstitutional and weren’t doing enough to help the government, accusing them of “heavy-handed” interference in decisions made by immigration department officials.
This is why the decision yesterday by Justice Ann M. Donnelly to temporarily stay the implementation of President Trump’s executive order on immigration, on the basis that sending the travelers home could cause them “irreparable harm”, is important. What is at stake is the capacity of the executive to restrict the rights of individuals, based on one of their immutable characteristics (nationality), without taking into consideration their specific circumstances, thus incurring the accusation of discrimination. This judicial pronouncement (albeit temporary) is the first of what we can expect will be a long list of cases where the judiciary will affirm constitutional rights by opposing decisions made by the White House or Congress or State legislatures.
The silver lining described by Faten is now more apparent. As populist decisions come to bear on individuals’ lives, independent institutions will be asked to decide on their legality or constitutionality. They will be encouraged by much stronger mobilisation of civil society, as we have just witnessed in the case of the seven persons concerned by judge Donnelly’s decision. ACLU and allies immediately reacted to the implementation of the executive order and won a temporary reprieve, which will benefit the hundreds of individuals now stranded in American airports. Big companies, such as Google, Apple, Facebook and Airbnb condemned the executive order. We also heard unexpected bed fellows such as Theresa May and Angela Merkel both criticising the executive order. Hundreds of citizens volunteered to help the stranded migrants. This is what Faten meant: the new President is actually (and counterproductively from his point of view) contributing to a huge mobilisation in favour of migrants and refugees.
Such reactions convincingly undermine the legitimacy – if not the legality – of populist political decisions which undermine decades of progress in the protection and promotion of the human rights of everyone. It is hoped that this mobilisation will also convince a large part of those who would vote for populist leaders that such politics makes for bad policies.
To read the full article in the NY Times, please click here.