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Don't Look to Canada as a Model of Human Rights

Posted: 02/ 9/2012 7:46 am

Supreme Court Justice Ruth Bader Ginsburg has come in for some criticism for telling an Egyptian television network that as Egypt devises a new constitution, it should not look to the Constitution of the United States to provide whatever protection for human rights it is seeking. (The existing Egyptian constitution probably reads quite purposefully on the point; the problem would be in the execution. The same will almost certainly be said of the incoming regime dominated by the Muslim Brotherhood, and the same can be said of the United States also, as the justice implicitly acknowledges.)

Justice Ginsburg counseled her Egyptian viewers to look at the South African constitution's guarantee of basic human rights and an independent judiciary, and further commended the Canadian Charter of Rights and Freedoms and the European Convention on Human Rights.

The justice's concern for the adequacy of protection of due process in the United States is well-founded, but her choice of jurisdictions that are more exemplary is open to some question. South Africa is a country where even the sainted President Mandela described the high frequency of break-ins and robberies in wealthy white districts as a form of wealth redistribution.

When management of the South African hydro-electric power authority was outsourced to a Japanese company because of the occurrence of unacceptable and unprecedented power shortages, the deal was sealed with a publicly disclosed, outright ex gratia gift by the hired manager of $1 billion to South Africa's governing African national Congress. These aren't strictly civil rights matters, but they are symptomatic of a chronically lawless condition, whatever rights the country's constitution may purport to enact and protect.

Canada's Charter of Rights and Freedoms was devised by the former Prime Minister Pierre Trudeau for 15 years up to 1984, and his principal mandate was to prevent the secession of the mainly French province of Quebec, to distract voters from the issue of the division of powers between the federal and provincial governments, and to focus instead on the rights of man in flamboyant, Rousseauesque fashion.

As a recitation of civil liberties, it is quite comprehensive, but the federal parliament and the legislatures of all the 10 provinces can vacate the property and civil rights clauses of the Charter on a case-by-case basis as it applies to each jurisdiction. This is not a very ironclad guarantee of the people's rights, and the escape clause has been invoked occasionally for dubious purposes. But the Canadian provinces have their own civil rights legislation, the common law is strong in these areas, and Canada does have one of the best civil rights records of any country in the world, but not particularly because of Trudeau's Charter, (which did largely succeed in its tactical political objective of out-maneuvering the Quebec separatists).

The European Convention is, again, a ringing affirmation of the rights in question, but it has practically no enforcement powers. Where it is applied within the European Union, most countries will act on rulings based on it, but the delinquent jurisdiction can re-legislate for another 10 years or so as the process repeats itself.

The perversity of legislatures is a tenacious condition. With that said, such an assertion of rights over 27 contiguous countries, where within living memory 20 of them were governed by communist, fascist, or Nazi dictatorships, whether indigenously generated or imposed by military occupation, is a great achievement. But its relevancy as guidance from a U.S. Supreme Court justice to the 80 million rights-starved people of Egypt is not entirely clear.

Where Justice Ginsburg deserves great commendation is in recognizing the erosion of the United States as the haven of human rights it has always proclaimed itself to be. It is one of the great ironies of modern times that the United States, in World War II, and the Cold War, led the world to the triumph of democracy, but is not now itself one of the world's better functioning democracies.

From the end of the Revolutionary War and the independence of the United States in 1783 to the landing of the allied armies in Normandy in 1944 to liberate Western Europe, there had been a net diminution of democratic rule in the world, other than in the demographic growth of its original beneficiaries: the British isles and advanced colonies, later the dominions (Canada, Australia, etc.), and the United States, Switzerland, and parts of Scandinavia. The Netherlands had enjoyed some democratic rights in 1783, as had the Danes, Norwegians (though part of Sweden), and as had, subsequently, France, Belgium, Greece, and the Czechs, but in 1944 these countries were awaiting deliverance from Nazi occupation.

Once the Cold War got underway, the U.S. grand strategists brilliantly defined it as mortal combat between godless, totalitarian communism and the "Free World," never mind that among the free were Franco, Salazar, the Shah, Syngman Rhee, Chiang Kai-shek, Saudi Arabia, the Turkish and Pakistani generals and Greek colonels, and the overly bemedalled (to the point they could hardly get their tunics on) juntas of Latin America.

The Free World won and democracy prevailed in all of Europe west of the Ukraine, almost all of Latin America, much of the Far East, South Asia, Australasia; almost everywhere except China, Russia (and there are flickerings there), North Korea, Vietnam, Cuba, and much, but not most, of the Near East and Africa.

But in the United States, politics is more financially corrupt than ever; the political class has dodged dealing with immigration, abortion, wealth disparity, and now the deficit -- almost anything seriously contentious. The media has dumbed down discussion to the subterranean level of CNN and MSNBC on the left and Fox News on the right. The national conversation is between Paul Begala, Sean Hannity, and their sound-alikes. Public education has been effectively hijacked and destroyed by the teachers' unions, and the criminal justice system is a neo-fascist parody.

The United States has gone in 35 years from having a per capita number of incarcerated people at the average for advanced countries to six to 12 times the number in Australia, Canada, France, Germany, Japan, and the United Kingdom. A $2 trillion phony war on drugs has been waged and lost, and over 90 per cent of prosecutions are won, as the prosecutocracy enjoys a huge evidentiary and procedural advantage and extorts and suborns perjury under the plea bargain system (under which everyone around a target is threatened with prosecution, unless their memories miraculously disgorge carefully rehearsed and long forgotten recollections of the wrongdoing of the benighted target).

Defendants are routinely deprived of the means to defend themselves by ex parte seizures or freezes of their assets often on the basis of false FBI affidavits alleging that their assets were ill-gotten gains. Criminal charges come down immediately, staying these spurious proceedings and often forcing the defendants into the hands of the public defenders, most of whom are just Judas goats for the prosecutors.

Grand juries are rubber stamps for the prosecutors; most judges are ex-prosecutors, and the whole country has been whipped into a creinous frenzy by screams of "law and order" from all the media and the gimcrack majority of the political class from left to right. Almost everyone is convicted; almost all of those convicted are over-sentenced by civilized international standards, and the living conditions of probably a million (out of 2.5 million in total) American prisoners are barbarous.

Justice Ginsburg is right to be disappointed by the deterioration of human liberties in America, and she dissented admirably on the Thompson case last year where an absolute immunity was granted prosecutors who had left the complainant on death row for 14 years while deliberately suppressing DNA evidence that ultimately exonerated him.

The justice is correct, but she gives no hint of where the Supreme Court has been for the nearly 20 years that she has been a member of it, as the Fifth, Sixth, and Eighth Amendment guaranties of the grand jury as insurance against capricious prosecution, of due process, against seizure of property without due compensation, of an impartial jury, access to counsel, prompt justice, and reasonable bail, have been put to the shredder.

The Supreme Court is complicit in the destruction of the people's rights and Justice Ginsburg and the rest of them should be doing more about it than advising the Egyptians to look elsewhere for guidance on civil liberties, unexceptionable though that advice unfortunately is.