The passing on of Justice Scalia of the US Supreme Court who was renowned for his conservatism affords one an opportunity of paying tribute to his life at the bench and also to interrogate the philosophy of law that informed his decisions. On Saturday the 13th of February, 2016, the US judiciary, and the entire, nation lost one of the most highly respected justices of the Supreme Court, regarded by many as a fierce intellectual force of the right wing in the Supreme Court.
His departure and consequent replacement has sparked fierce debate amongst the conservatives and liberals in that country.
The conservatives have called upon President Obama to refrain from nominating a new justice to replace Justice Scalia for fear that he will replace him with a liberal justice who may tilt the balance of the US Supreme Court jurisprudence – on major constitutional issues – to the left. These forces argue that the tradition in the US is that a lame duck President – a president who is on his way out, should not nominate a new justice in the dying days of his tenure. However, President Obama is adamant that he intends to fulfill his constitutional obligations. With the departure of Justice Scalia, the US Supreme Court is evenly balanced in terms of ideological outlook.
Justice Anthony Kennedy is considered a vacillating justice, who often tours the middle path, and therefore unpredictable. His record shows that in a majority of cases, he votes with the right although on occasions he has voted with the left. If history is anything to go by, the Court is set to continue being divided on major constitutional issues touching on the rights of LGTBQ’s, abortion, affirmative action and immigration laws. Justice Antonio Scalia was born in 1936, in Trenton, New Jersey. He was the only child of Mr. and Mrs. Scalia.
His father emigrated from Sicily as a teenager to the United States of America. In 1953, he enrolled at George Town University in Washington DC where he graduated with a bachelor’s degree in History. He is a Harvardian – having graduated at the prestigious Harvard Law School. In 1967, he took up an academic post as Professor of Law at the University of Virginia Law School.
Justice Scalia has also taught law at the University of Chicago Law School. He was appointed to the Supreme Court in 1986 by President Reagan and soon thereafter earned a reputation as a constitutional textualist who believed that the duty of the court in interpreting the Constitution is to give effect to the intention of its framers. This judicial philosophy was called originalism. It is an interpretation method that seeks to hold the Constitution hostage to those departed.
This method has no traction with modern constitutional lawyers. This brought him in confrontation with liberals who believed that the Constitution is a living and breathing organism that allows the courts to interpret it expansively and in a manner that is consistent with the contemporary values of the society. Justice Scalia believed that an expansive and generous interpretation allowed judges the opportunity to legislate and often to be the overlords of the Constitution.
He took the view that to regard the Constitution as a living document allowed courts to facilitate change, which is not their duty. He abhorred judicial activism with a passion believing in the fairy tale that judges do not make law, when in actual fact judges are the best lawmakers. He was a firm believer in the doctrine of stare decisis – which meant that the principles derived from previous decisions formed a body of controlling law for future decisions.
He derided liberals for striving for ‘justice’ in a case, in the light of their own philosophies and socio economic values and in the process according settled legal principles little or no weight. According to Justice Scalia, judicial power should never be exercised for the purposes of giving effect to the will of the judge, but rather that of the legislature, the primary lawmaker.
It is this approach that defined Justice Scalia as a conservative – some would say an ultra-conservative. It seems to me that judges, like other mortals, need to view complex constitutional issues with a broader compass and a more sharper microscopic lens – and of course with some measure of humility – the conviction that one human mind can embrace but a tiny fraction of all judicial wisdom and knowledge. Conservative to the core, he occasionally veered to the left.
He surprised many members of the legal fraternity when he voted to uphold free speech in the Texas flag burning case. He acknowledged the discomfort in seeing the flag burnt, but could not fathom those who wanted to punish the flag burners. He recognized that the ability to speak one’s mind, to challenge authority without fear of recrimination by the State is the essential distinction between life in a free country and in a dictatorship.
He understood that although the flag was a fundamental symbol of American nationhood, a proper constitutional reasoning requires the courts to make decisions they do not necessarily like, but that must be taken because they are right – and that to this extent, it is imperative that the flag protects those who hold it in contempt. Justice Scalia weighed in his conservative views in the case of Bush v Gove and literally helped hand over the 2000 election victory to President George Bush. Many constitutional scholars have criticized the decision as wrongly decided.
In the dissenting judgment of Justice Stevens, with whom Justice Ginsburg and Justice Breyer agreed with, the majority decision, in essence discredited the independence and impartiality of the judiciary. He concluded that: “Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however is certain. Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
In June 2015, when the Supreme Court upheld the Obama care, Scalia, was scathing against the majority decision which allowed the federal government to provide nationwide tax subsidies to help Americans buy health insurance, accusing the majority of twisting the meaning of plain words, saying in the course of his dissent: “the court’s decisions reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct supposed flaw in statutory machinery.
That philosophy ignores the American people’s decision to give Congress all legislative powers enumerated in the Constitution.” Justice Scalia was equally scathing in his dissent in the 2015 landmark case in which the Supreme Court upheld the right to same sex marriage by a majority of one. He came hard on the majority decision, writing that the ruling was “at odds not only with the Constitution, but with the principles upon which our nation was built”.
Over the many years of his extra-ordinary judicial career, Justice Scalia was the very epitome of conservatism. Some traces of this can be discerned from his upbringing, for the truth is that no judge ascends to the bench as an ideological virgin, sometimes personal and professional experiences may influence the colour and texture of one’s jurisprudence.
The tragedy though of conservative/liberal contestation over what the task of judging entails is often characterized by self-serving criticism; the right accusing the left of judicial activism – shaping the law in accordance with the judges socio-economic views or philosophy; whilst history would testify that conservative elements, just like liberals, may occasion violence to plain words to give effect to their world outlook.
The truth of the matter though is that in each of us, judges, there is a stream of tendency; call it philosophy for lack of better word, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other ordinary mortals. All their life experiences which they cannot recognize or name have some influence on how they tackle jurisprudential issues of our time – all these constitutes, as it has often been said, “the total push and pressure of the cosmos,” which, when reasons are nicely balanced, must determine where choice shall fall. It is incontestable that our background constitutes a critical context to our thinking process – for we may try to see things as objectively as we may wish to, but the bottom line is that we can never process a problem, with any mind other than our own.
It can hardly be contested that in the life of the mind, there is a tendency towards the reproduction of the essence of the self. Liberals do not consider legal interpretation to be a mechanical enterprise. They consider that the ultimate objective of law should be the welfare of society. Perhaps the most significant advance in the modern science of law is the change from analytical to the functional attitude.
In the enterprise of judging, justice must be the overarching objective that must direct our reasoning process. In conclusion and in reflecting on the life of Justice Scalia and his philosophy of law and the debates it has generated over the years, it seems to me that logic, history, values, and social welfare are critical considerations in judicial reasoning.
As to which of the above considerations should predominate in any given case, must depend largely upon the judges outlook, knowledge of the law (for the level of jurisprudential output is a product of knowledge borne of intense reading and study) and his/her commitment to justice. In conclusion, whilst Justice Scalia, and many in his ideological camp subscribe to the view that judges do not make law; the truth is that judges make law in the course of interpretation. A provision in a Statute or Constitution may appear clear and straightforward – and until construed, is not really law, it is perhaps “ostensible” law.
There is therefore merit, philosophically, in the view that, real law is not found anywhere except in a judgment of the court. In that view, even past decisions are not law because the courts may overrule them. Men and women go about their business from day to day, and govern their conduct by an ignis fatuus (something deluding or misleading). The rules to which they yield obedience are in many respects “ostensible” law; for law never is, but is always about to be – unless construed is not real law.
Parliament was this week once again seized with matters that concern them and borders on conflict of interest and abuse of privilege.
The two matters are; review of MPs benefits as well as President Mokgweetsi Masisi’s participation in the bidding for Banyana Farms. For the latter, it should not come as a surprise that President Masisi succeeded in bid.
The President’s business interests have also been in the forefront. While President Masisi is entitled as a citizen to participate in a various businesses in the country or abroad, it is morally deficient for him to participate in a bidding process that is handled by the government he leads. By the virtue of his presidency, Masisi is the head of government and head of State.
Not long ago, former President Festus Mogae suggested that elected officials should consider using blind trust to manage their business interests once they are elected to public office. Though blind trusts are expensive, they are the best way of ensuring confidence in those that serve in public office.
A blind trust is a trust established by the owner (or trustor) giving another party (the trustee) full control of the trust. Blind trusts are often established in situations where individuals want to avoid conflicts of interest between their employment and investments.
The trustee has full discretion over the assets and investments while being charged with managing the assets and any income generated in the trust.
The trustor can terminate the trust, but otherwise exercises no control over the actions taken within the trust and receives no reports from the trustees while the blind trust is in force.
Botswana Democratic Party (BDP) Secretary General, Mpho Balopi, has defended President Masisi’s participation in business and in the Banyana Farms bidding. His contention is that, the practise even obtained during the administration of previous presidents.
The President is the most influential figure in the country. His role is representative and he enjoys a plethora of privileges. He is not an ordinary citizen. The President should therefore be mindful of this fact.
We should as a nation continue to thrive for improvement of our laws with the viewing of enhancing good governance. We should accept perpetuation of certain practices on the bases that they are a norm. MPs are custodians of good governance and they should measure up to the demands of their responsibility.
Parliament should not be spared for its role in countenancing these developments. Parliament is charged with the mandate of making laws and providing oversight, but for them to make laws that are meant solely for their benefits as MPs is unethical and from a governance point of view, wrong.
There have been debates in parliament, some dating from past years, about the benefits of MPs including pension benefits. It is of course self-serving for MPs to be deliberating on their compensation and other benefits.
In the past, we have also contended that MPs are not the right people to discuss their own compensation and there has to be Special Committee set for the purpose. This is a practice in advanced democracies.
By suggesting this, we are not suggesting that MP benefits are in anyway lucrative, but we are saying, an independent body may figure out the best way of handling such issues, and even offer MPs better benefits.
In the United Kingdom for example; since 2009 following a scandal relating to abuse of office, set-up Independent Parliamentary Standards Authority (IPSA)
IPSA is responsible for: setting the level of and paying MPs’ annual salaries; paying the salaries of MPs’ staff; drawing up, reviewing, and administering an MP’s allowance scheme; providing MPs with publicly available and information relating to taxation issues; and determining the procedures for investigations and complaints relating to MPs.
Owing to what has happened in the Parliament of Botswana recently, we now need to have a way of limiting what MPs can do especially when it comes to laws that concern them. We cannot be too trusting as a nation.
MPs can abuse office for their own agendas. There is need to act swiftly to deal with the inherent conflict of interest that arise as a result of our legislative setup. A voice of reason should emerge from Parliament to address this unpleasant situation. This cannot be business as usual.
The 490-hectare campus researches the world’s deadliest pathogens, including Anthrax (in 1944, the Roosevelt administration ordered 1 million anthrax bombs from Fort Detrick), Ebola, smallpox, and … you guessed right: coronaviruses. The facility, which carries out paid research projects for government agencies (including the CIA), universities and drug companies most of whom owned by the highly sinister military-industrial complex, employs 900 people.
Between 1945 and 1969, the sprawling complex (which has since become the US’s ”bio-defence centre” to put it mildly) was the hub of the US biological weapons programme. It was at Fort Detrick that Project MK Ultra, a top-secret CIA quest to subject the human mind to routine robotic manipulation, a monstrosity the CIA openly owned up to in a congressional inquisition in 1975, was carried out. In the consequent experiments, the guinea pigs comprised not only of people of the forgotten corner of America – inmates, prostitutes and the homeless but also prisoners of war and even regular US servicemen.
These unwitting participants underwent up to a 20-year-long ordeal of barbarous experiments involving psychoactive drugs (such as LSD), forced electroshocks, physical and sexual abuses, as well as a myriad of other torments. The experiments not only violated international law, but also the CIA’s own charter which forbids domestic activities. Over 180 doctors and researchers took part in these horrendous experiments and this in a country which touts itself as the most civilised on the globe!
Was the coronavirus actually manufactured at Fort Detrick (like HIV as I shall demonstrate at the appropriate time) and simply tactfully patented to other equally cacodemonic places such as the Wuhan Institute of Virology in China?
THE FORT DETRICK SCIENTISTS’ PROPHECY WAS WELL-INFORMED
About two years before the term novel coronavirus became a familiar feature in day-to-day banter, two scientist cryptically served advance warning of its imminence. They were Allison Totura and Sina Bavari, both researchers at Fort Detrick.
The two scientists talked of “novel highly pathogenic coronaviruses that may emerge from animal reservoir hosts”, adding, “These coronaviruses may have the potential to cause devastating pandemics due to unique features in virus biology including rapid viral replication, broad host range, cross-species transmission, person-to-person transmission, and lack of herd immunity in human populations … Associated with novel respiratory syndromes, they move from person-to-person via close contact and can result in high morbidity and mortality caused by the progression to acute respiratory distress syndrome (ARDS).”
All the above constitute some of the documented attributes and characteristics of the virus presently on the loose – the propagator of Covid-19. A recent clinical review of Covid-19 in The Economist seemed to bear out this prognostication when it said, “It is ARDS that sees people rushed to intensive-care units and put on ventilators”. As if sounding forth a veritable prophecy, the two scientists besought governments to start working on counter-measures there and then that could be “effective against such a virus”.
Well, it was not by sheer happenstance that Tortura and Bavari turned out to have been so incredibly and ominously prescient. They had it on good authority, having witnessed at ringside what the virus was capable of in the context of their own laboratory. The gory scenario they painted for us came not from secondary sources but from the proverbial horse’s mouth folks.
CDC’S RECKLESS ADMISSION
In March this year, Robert Redfield, the US Director for the Centre for Disease Control and Prevention (CDC), told the House of Representatives’ Oversight Committee that it had transpired that some members of the American populace who were certified as having died of influenza turned out to have harboured the novel coronavirus per posthumous analysis of their tissue.
Redfield was not pressed to elaborate but the message was loud and clear – Covid-19 had been doing the rounds in the US much earlier than it was generally supposed and that the extent to which it was mistaken for flu was by far much more commonplace than was openly admitted. An outspoken Chinese diplomat, Zhao Lijian, seized on this rather casual revelation and insisted that the US disclose further information, exercise transparency on coronavirus cases and provide an explanation to the public.
But that was not all the beef Zhao had with the US. He further charged that the coronavirus was possibly transplanted to China by the US: whether inadvertently or by deliberate design he did not say. Zhao pointed to the Military World Games of October 2019, in which US army representatives took part, as the context in which the coronavirus irrupted into China. Did the allegation ring hollow or there was a ring of truth to it?
THE BENASSIE FACTOR
The Military World Games, an Olympic-style spectrum of competitive action, are held every four years. The 2019 episode took place in Wuhan, China. The 7th such, the games ran from October 18 to October 27. The US contingent comprised of 17 teams of over 280 athletes, plus an innumerable other staff members. Altogether, over 9000 athletes from 110 countries were on hand to showcase their athletic mettle in more than 27 sports. All NATO countries were present, with Africa on its part represented by 30 countries who included Botswana, Egypt, Kenya, Zambia, and Zimbabwe.
Besides the singular number of participants, the event notched up a whole array of firsts. One report spelt them out thus: “The first time the games were staged outside of military bases, the first time the games were all held in the same city, the first time an Athletes’ Village was constructed, the first time TV and VR systems were powered by 5G telecom technology, and the first use of all-round volunteer services for each delegation.”
Now, here is the clincher: the location of the guest house for the US team was located in the immediate neighbourhood of the Wuhan Seafood Market, the place the Chinese authorities to this day contend was the diffusion point of the coronavirus. But there is more: according to some reports, the person who allegedly but unwittingly transmitted the virus to the people milling about the market – Patient Zero of Covid-19 – was one Maatie Benassie.
Benassie, 52, is a security officer of Sergeant First Class rank at the Fort Belvoir military base in Virginia and took part in the 50-mile cycling road race in the same competitions. In the final lap, she was accidentally knocked down by a fellow contestant and sustained a fractured rib and a concussion though she soldiered on and completed the race with the agonising adversity. Inevitably, she saw a bit of time in a local health facility. According to information dug up by George Webb, an investigative journalist based in Washington DC, Benassie would later test positive for Covid-19 at the Fort Belvoir Community Hospital.
Incidentally, Benassie apparently passed on the virus to other US soldiers at the games, who were hospitalised right there in China before they were airlifted back to the US. The US government straightaway prohibited the publicising of details on the matter under the time-honoured excuse of “national security interests”, which raised eyebrows as a matter-of-course. As if that was not fishy enough, the US out of the blue tightened Chinese visas to the US at the conclusion of the games.
The rest, as they say, is history: two months later, Covid-19 had taken hold on China territory. “From that date onwards,” said one report, “one to five new cases were reported each day. By December 15, the total number of infections stood at 27 — the first double-digit daily rise was reported on December 17 — and by December 20, the total number of confirmed cases had reached 60.”
TWO CURIOUS RESEARCH HALTINGS
Is it a coincidence that all the US soldiers who fell ill at the Wuhan games did their preparatory training at the Fort Belvoir military base, only a 15-minutes’ drive from Fort Detrick?
That Fort Detrick is a plain-sight perpetrator of pathogenic evils is evidenced by a number of highly suspicious happenings concerning it. Remember the 2001 anthrax mailing attacks on government and media houses which killed five people right on US territory? The two principal suspects who puzzlingly were never charged, worked as microbiologists at Fort Detrick. Of the two, Bruce Ivins, who was the more culpable, died in 2008 of “suicide”. For “suicide”, read “elimination”, probably because he was in the process of spilling the beans and therefore cast the US government in a stigmatically diabolical light. Indeed, the following year, all research projects at Fort Detrick were suspended on grounds that the institute was “storing pathogens not listed in its database”. The real truth was likely much more reprehensible.
In 2014, there was a mini local pandemic in the US which killed thousands of people and which the mainstream media were not gutsy enough to report. It arose following the weaponisation at Fort Detrick of the H7N9 virus, prompting the Obama administration to at once declare a moratorium on the research and withdraw funding.
The Trump administration, however, which has a pathological fixation on undoing practically all the good Obama did, reinstated the research under new rigorous guidelines in 2017. But since old habits die hard, the new guidelines were flouted at will, leading to another shutdown of the whole research gamut at the institute in August 2019. This, nonetheless, was not wholesale as other areas of research, such as experiments to make bird flu more transmissible and which had begun in 2012, proceeded apace. As one commentator pointedly wondered aloud, was it really necessary to study how to make H5N1, which causes a type of bird flu with an eye-popping mortality rate, more transmissible?
Consistent with its character, the CDC was not prepared to furnish particulars upon issuing the cease and desist order, citing “national security reasons”. Could the real reason have been the manufacture of the novel coronavirus courtesy of a tip-off by the more scrupulous scientists?
President Mokgweetsi Masisi may have breathed a huge sigh of relief when he emerged victorious in last year’s 2019 general elections, but the ultimate test of his presidency has only just begun.
From COVID-19 pandemic effects; disenchanted unemployed youth, deteriorating diplomatic relations with neighbouring South Africa as well as emerging instability within the ruling party — Masisi has a lot to resolve in the next few years.
Last week we started an unwanted cold war with Botswana’s main trade partner, South Africa, in what we consider an ill-conceived move. Never, in the history of this country has Botswana shown South Africa a cold shoulder – particularly since the fall of the apartheid regime.
It is without a doubt that our country’s survival depends on having good relations with South Africa. As the Chairperson of African National Congress (ANC), Gwede Mantashe once said, a good relationship between Botswana and South Africa is not optional but necessary.
No matter how aggrieved we feel, we should never engage in a diplomatic war — with due respect to other neighbours— with South Africa. We will never gain anything from starting a diplomatic war with South Africa.
In fact, doing so will imperil our economy, given that majority of businesses in the retail sector and services sector are South African companies.
Former cabinet minister and Phakalane Estates proprietor, David Magang once opined that Botswana’s poor manufacturing sector and importation of more than 80 percent of the foodstuffs from South Africa, effectively renders Botswana a neo-colony of the former.
Magang’s statement may look demeaning, but that is the truth, and all sorts of examples can be produced to support that. Perhaps it is time to realise that as a nation, we are not independent enough to behave the way we do. And for God’s sake, we are a landlocked country!
Recently, the effects of COVID-19 have exposed the fragility of our economy; the devastating pleas of the unemployed and the uncertainty of the future. Botswana’s two mainstay source of income; diamonds and tourism have been hit hard. Going forward, there is a need to chart a new pathway, and surely it is not an easy task.
The ground is becoming fertile for uprisings that are not desirable in any country. That the government has not responded positively to the rising unemployment challenge is the truth, and very soon as a nation we will wake up to this reality.
The magnitude of the problem is so serious that citizens are running out of patience. The government on the other hand has not done much to instil confidence by assuring the populace that there is a plan.
The general feeling is that, not much will change, hence some sections of the society, will try to use other means to ensure that their demands are taken into consideration. Botswana might have enjoyed peace and stability in the past, but there is guarantee that, under the current circumstances, the status quo will be maintained.
It is evident that, increasingly, indigenous citizens are becoming resentful of naturalised and other foreign nationals. Many believe naturalised citizens, especially those of Indian origin, are the major beneficiaries in the economy, while the rest of the society is side-lined.
The resentfulness is likely to intensify going forward. We needed not to be heading in this direction. We needed not to be racist in our approach but when the pleas of the large section of the society are ignored, this is bound to happen.
It is should be the intention of every government that seeks to strive on non-racialism to ensure that there is shared prosperity. Share prosperity is the only way to make people of different races in one society to embrace each other, however, we have failed in this respect.
Masisi’s task goes beyond just delivering jobs and building a nation that we all desire, but he also has an immediate task of achieving stability within his own party. The matter is so serious that, there are threats of defection by a number of MPs, and if he does not arrest this, his government may collapse before completing the five year mandate.
The problems extend to the party itself, where Masisi found himself at war with his Secretary General, Mpho Balopi. The war is not just the fight for Central Committee position, but forms part of the succession plan.