World View: Democracy and the courts

By Gwynne Dyer | Aug. 11, 2023

THREE of the world’s biggest democracies, all with past, present and/or prospective leaders facing prison at the same time. In the end, it’s the courts that decide.

Donald Trump in the United States is under five indictments in three jurisdictions, potentially involving up to 10 years in jail, with more indictments to come.

It is either the biggest ‘witch hunt’ in history, or else he has been a very naughty boy.

Rahul Gandhi, the leader of India’s main opposition party, was facing two years in prison for insulting Prime Minister Narendra Modi, but the Supreme Court has just ‘stayed’ his conviction. Charges are “stayed” when a judge decides that it would be bad for the justice system for a case to continue.

And in Pakistan, former prime minster Imran Khan has just been arrested and imprisoned, having been sentenced to three years in jail on a charge that most lawyers would see as ‘vexatious litigation’.

Imran Khan came late to politics, but he had three assets that made him prime minister in 2018. He was ‘world famous in Pakistan’ as the country’s greatest cricket star; he was not from either of the great feudal families that dominate Pakistani politics, the Bhuttos or the Sharifs; and he had the backing of the Army.

When his policies displeased the Army, however, it switched its support, and enough members of parliament shifted their positions to vote him out of power.

The problem was that he still had enough popular support to make any election risky for his rivals, so he had to be discredited. What would be the crime? Well, he (or somebody on his staff) failed to declare the income from selling off some gifts he had received while in power. That should get him three years in jail, if the judge plays along.

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Almost all the judges play along in Pakistan, and all Pakistani governments jail opposition politicians (including Imran Khan’s, when he was in power). This is not a real democracy, and the courts do not protect those who fall out of favour with the regime or with the Army.

Now consider India. Prime Minister Narendra Modi is a populist and Hindu nationalist whose government enjoys strong support from the Hindu majority despite (or maybe because of) its increasingly hostile policies towards the country’s 215 million Muslim citizens.

Opposition leader Rahul Gandhi is also a Hindu, of course, but his Congress Party attacks Modi’s BJP (Indian People’s Party) on this and other issues, as an opposition party should. However, Modi sees opposition as illegitimate, and seized upon an unfortunate remark by Gandhi a couple of years as a pretext to put him in jail.

Gandhi, in mid-speech at an election rally, asked “Why do all these thieves have Modi as their surname? Nirav Modi, Lalit Modi, Narendra Modi.”

Nirav Modi is an Indian diamond tycoon who has gone on the run; Lalit Modi is a disgraced Indian cricket official who has been banned for life; Narendra Modi is the prime minister. It was crude oratory, but every politician has an off day occasionally. It was not a hanging offence; more like ‘slap wristies’.

A BJP politician called Purnesh Modi in the prime minister’s home state, Gujarat, brought a defamation suit against Gandhi on behalf of all India’s Modis. He certainly did not do this without the boss’s permission.

The Gujarat court duly found Gandhi guilty and sentenced him to two years in prison. A two-year sentence was enough to get him expelled from parliament as well, so the opposition was leaderless there.

The case was mind-bogglingly petty, but so was the motivation: just harassment, really. There is virtually zero chance that the BJP could lose the next election.

But finally the case came to India’s Supreme Court (which is not in Gujarat). The judges condemned the Gujarat court’s judgement as “gravely detrimental to democratic free speech”, and Gandhi will regain his seat in parliament immediately.

That is why an honest and effective court system is essential to a democratic political system — and so we come at last to Donald Trump, who is already abusing the courts that will pass judgement on him.

In the US the charges are not trumped up. There was an attempted coup — what Latin Americans call an ‘autogolpe’ — and people were killed. The courts cannot ignore the crimes, but jailing Trump might risk civil war.

If Trump is running behind before next year’s election, he might find it electorally useful to spend a few days in jail. Justice must be done, but convictions should be postponed until after the election, if possible.