Last year, before Donald J. Trump became the President of the United States of America, I had the opportunity to interview Kyle Kondik, a political scientist from the University of Virginia Center for Politics, about the presidential election and the powers of the president.
At the time, many Americans (including Kondik) did not think Trump would fare any better at the polls than his Democratic opponent Hillary Clinton. They were also very confident that even if he did win, it wouldn’t be the end of American democracy because the U.S. political system has its checks and balances.
Basically, no U.S. president enjoys absolute power; the principle of separation of powers prevents that – the three branches of government (executive, legislative and judiciary) exist independently to provide the necessary safeguards against an authoritarian dictatorship. Any major decision by the executive branch needs approval from Congress. And it is not guaranteed that Congress would support it, not even if the houses are dominated by the president’s party.
So while the U.S. president may be one of the most, if not the most, powerful leaders of the world, he or she cannot use executive diktat beyond the scope of the presidency, no matter how cleverly he or she navigates past hurdles in the system.
This was perhaps best illustrated by the recent row over Trump’s controversial immigration ban.
Trump had, in one of his first acts as Commander-in-Chief, signed an executive order suspending the entry of all refugees for 120 days; banning Syrian refugees indefinitely; and blocking entry for citizens of Iran, Iraq, Libya, Sudan, Somalia, Yemen and Syria for 90 days.
Controversial as it was, we must understand that an executive order by a president is not, in fact, a new law. Basically, it is just the president asking the agencies under his authority to conduct specific work that is under their existing operational framework. And it is definitely subject to legal review.
The order sparked protests across the country, with many calling it unconstitutional and against the spirit of the United States, a country built by immigrants. In response, a number of federal court judges filed emergency rulings against the order.
The gavel finally came down on the ban early Saturday, when federal court Judge James L. Robart granted a restraining order against it, saying he felt it could cause irreparable harm and that blocking it was in the best interest of the public.
The very next day, the U.S. Department of Justice filed an appeal to overturn the ruling but the U.S. federal appeals court rejected it. This means the order remains suspended until a full case can be heard.
But in its immediate response, the department on Monday filed a brief with the court, arguing that the order is “a lawful exercise of the President’s authority over the entry of aliens into the United States and the admission of refugees”. The court will be hearing oral arguments by phone on Tuesday at 6pm ET. At the time of writing, however, the temporary nationwide restraining order on the immigration ban remains in place.
What a dramatic turn of events!
Sure, like any other country, the U.S. executive has had to deal with plenty of legal challenges to its policy moves, but this particular case is clear evidence that the branches of government are independent of one other. The president does not have absolute power, thanks to this check and balance system.
For example, Trump, in his response to Robart’s decision, openly derided the judge.
Remarks aside, however, he has no authority to sack or dismiss him. In fact, it’s not just the president who doesn’t have the authority to sack judges – no one can. They are tenured for life.
Hence, judges can be independent and make rulings they think are right because they do not have to fear losing their jobs. The only way they can be dismissed is through impeachment, which involves Congress (both the House and Senate).
Allow me now to pull comparisons with Malaysia, whose administrative system also has, or is supposed to have, the same three independent branches of government. While this is true, some amendments to the law in recent years appear to have gifted the executive branch far-reaching powers beyond what some might say is acceptable in a healthy democracy.
An example of this is the National Security Council Act, which came into force in August last year. The Act has been criticised as overly ambiguous as it allows the government to declare, under fairly vague reasons, emergency rule in any area in the country.
When an area is designated as a security risk zone, the council headed by the prime minister immediately takes over. The legislation essentially allows the council to suspend civil liberties, while security forces are given sweeping powers of arrest, search and seizure.
The Malaysian judiciary, on the other hand, exists as a watchdog to provide check and balance for both the executive and the legislative arms of government. Again, this does exist for the most part but as any anti-government dissident might tell you, it doesn’t always bode true.
One just needs to recall the controversy in 1988 when then Lord President Salleh Abas and five supreme court judges were accused of misconduct and sacked.
Under the Constitution, no one but the king can remove a judge. However, he acts on the suggestion of the prime minister. Dr Mahathir Mohamad, who was then Malaysia’s prime minister, however, has and still denies any involvement in the sacking. But according to Tunku Abdul Majid, the son of the late Sultan Iskandar Ismail who was then king, his father was used by Dr Mahathir to remove Salleh.
It is often said that it was this crisis that marked the end of judicial independence in Malaysia.
To me, these few examples clearly illustrate the fundamental importance of having a democratic system of checks and balances. Knowing full well the difficulty of identifying and making sure only totally incorruptible leaders are elected to power, such a system would provide us the relief we need to rest assured that our beloved country is being governed fairly and transparently.
So here’s what we in Malaysia can learn from Trump’s immigration drama: Malaysians must fight hard for a clean government and a transparent system that keeps our leaders honest and accountable to the decisions they make. We must defend our right to have avenues for legal redress, and we must keep these platforms independent to ensure no single individual becomes more powerful than any democratic institution.
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