Sometimes history provides us with fascinating coincidences. This week, we saw two fundamentally different resistances to abuse of executive power — but both a test to the resilience of our democratic institutions.
On September 24, the UK Supreme Court found that the UK prime minister misled parliament, the British people, and the Queen. The judges’ ruling marks a historic moment in the evolution of the UK constitution.
On the same day, on the other side of the Atlantic, US House Speaker Nancy Pelosi initiated a formal impeachment inquiry of President Donald Trump. For betrayal of his oath of office, national security and the integrity of the elections.
The decisiveness of the legal proceedings
When UK Prime Minister Boris Johnson asked the Queen to approve the prorogation of the UK House of Commons, he effectively tried to shut down the parliament for five weeks. Notably at the most crucial moment of the very last Brexit negotiations. Optimistic as he is, he was far from believing his action was unlawful.
UK Prime Minister Boris Johnson certainly consulted internal lawyers who apparently reassured him he could go ahead. Sending “parliament on a break” would enable him to move quicker, more effectively. If only it was not submitted to test of the Supreme Court. The eleven judges, within a week, decided that such an action was unjustified. The relevant limit on the power to prorogue is this: a decision to prorogue (or advise the monarch to prorogue) will be unlawful, if the prorogation frustrates — without reasonable justification -, the ability of parliament to carry out its constitutional functions. That is parliament as a legislature and as the body responsible for the supervision of the executive (including the Prime Minister himself). That limit was reached.
The UK Speaker of the House reconvened the Parliament for the next day. The UK parliament is sitting, back to work.
The eternity of a political process
By contrast, looking at the U.S., the impeachment process is not judiciary. It is a constitutional process, whereby the House of Representatives may “impeach” (accuse of misconduct) the President for trial in the Senate.
The Mueller Report, as an inquiry by the Department of Justice, by itself could not trigger an impeachment. In the US, the President can in principle not be tried in court during his mandate. Impeachment is a political move, not a matter of being right or wrong according to the law. The hesitation of the Democratic Speaker of the House, Pelosi, was amply justified: the impeachment is still unlikely to succeed due to a lack of votes.
But the last facts portray a U.S. president trying to force a foreign government to investigate the son of one of the presidential candidates, Joe Biden, using the U.S. aid to Ukraine as a blackmail.
While the UK Supreme Court declared an act of the executive as nil and void, the impeachment in the U.S. is beyond judging actions but, effectively, the president of the United States as a leader.
Containing abuse of power
When democratically elected officials are in power (which is dubious in case of PM Johnson, but sill), one of the biggest challenges is how to contain abuses of power of the executive branch of government. The impeachment process as well as the UK court case prove that it is not impossible, but difficult, and the constitutions provide for such remedy.
At the center of those sagas are two individuals of courage and integrity: the Speakers of the House hold on to their constitutional means to protect democracy. The recent years have seen a trend of populists pushing the limits of eroding protection against the abuse of power — in the name of the “people” . What need to be done is a revision of those limits and, if need be, making them more effective.