1.Two democracies and their vigilante problem
While in India, the word spells bad news, in the U.S., as seen in Texas, the citizen arrester seems hardly diminished
In the world’s largest democracy, the word ‘vigilante’ evokes unsavoury images of goons stopping cattle trucks and lynching drivers, or video filming themselves assaulting men accused of love jihad, or beating up couples celebrating Valentine’s Day. A vigilante in India is both bad news and a bad word. Vigilantes are anti-democratic. They lack the values of a constitutional democracy. A consensus has emerged in India to demand that the law-and-order machinery comes down heavily on such vigilante behaviour.
A respectable garb in the U.S.
So, imagine my shock when I discovered that in the world’s oldest democracy, the word ‘vigilante’ receives only half the opprobrium that we heap on it in India. The other half is suppressed by a law that makes vigilantism respectable. One form of the vigilante, in the United States, is the ‘citizen arrester’ who enjoys legal status and whose actions are protected by a law that permits him or her to pursue and arrest a person accused of breaking the law. Drawing on a legal convention that comes from the Common Law tradition in England, dating from the 12th Century, a citizen arrester can physically arrest a person, on behalf of the Monarch (now State) who is regarded by them as breaking or evading the law. There are procedures to be followed, and risks involved for wrongful arrest, but assuming that these are adhered to the citizen arrester is regarded as aiding the consolidation of a political system based on the rule of law. Because of its potential for abuse, in legal circles in the U.S., there is a debate on the need to circumscribe the scope, and eligibility, of who can be a citizen arrester.
The ‘Heartbeat Bill’
But rather than diminish the place of the citizen arrester, the recent decisions of the Texas legislature are in fact encouraging the practice. Two cases are particularly noteworthy. The first is the latest innovation introduced in Senate Bill 8 (SB8) in Texas, known as the ‘Heartbeat Bill’, signed into law by the Texas Governor Greg Abbott in May 2021, that seeks to ban abortions after six weeks when the foetus registers a heartbeat. The passage of this law has produced an active debate in the U.S., between pro-abortion and pro-life groups, drawing on medical science, law, bioethics, and women’s rights, to refine the different elements of the Roe vs Wade judgment of 1973.
There are five aspects worthy of attention. The first is it deprives women of the right over their own bodies by making abortion illegal after six weeks when many women do not even know that they are pregnant. This in effect means that abortions, when needed, are unavailable. The second is to include, in the applicability of the law, even women who are victims of rape and incest. Victims are thereby subjected to a second victimisation since now they will be compelled to carry the pregnancy to full term or seek termination in the dark alleys beyond the law. The third is to make culpable anyone associated with an abortion after six weeks and this could include the Uber driver who takes the pregnant woman to the clinic, the receptionist, the nurse and the doctor. The fourth is the declining, by the Supreme Court of the USA, in a five versus four vote, to hear the injunction challenging the Texas Anti-Abortion Law.
In her dissenting note, Justice Sonia Sotomayor wrote: ‘Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand… The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.’
This sandy terrain to which the court retired is, unfortunately, very familiar to us in India. And the fifth, on which I wish to comment here, is the legal device that blocks State officials from enforcing the law but outsources the enforcement to private citizens who can sue abortion providers from performing abortions and are entitled to collect $10,000 as a civil payout in addition to their legal fees. Such a person can even be someone from outside the state who can show any connection to the abortion. Enter the ‘bounty hunter’ or ‘citizen arrester’.
While each of the five aspects raises important ethical and legal issues I wish to highlight only the fifth since Republicans in Texas have used the legal device — call it a cunning innovation — of empowering and encouraging citizen arresters to perform the job of state officials who are thereby protected from being sued.
The effect of this innovation is to deny women the rights given by Roe vs Wade. The case shows the length to which partisan groups in a democracy, even in one as mature as the U.S., will go to overturn settled law and redesign both the public discourse and the institutional order to make it consistent with their religious ideology. Linda Greenhouse commenting on the legislation in her article in The New York Times (September 9, 2021) asked in exasperation: ‘Who let God into the legislative chamber?’ This is the same question we often ask in India.
The second case in Texas concerns the Reforms to the Voting Law in Texas which seek to reverse the gains of earlier years. SB1, the Bill recently signed by the governor, bans drive through voting, 24 hour voting, and distribution of mail-in applications. It requires new ID requirements for voting by mail, creates new rules for voter assistance, establishes monthly checks, etc. To block the passage of the Bill, the minority Democrats who felt the changes amounted to voter suppression and would disadvantage minority voters, flew out of the State to Washington DC so that the house could not convene for want of a quorum. The Republicans responded by relying on the law to compel voting and thus Speaker Dade Phelan signed warrants authorising the Sergeant-at-Arms to arrest and produce the missing representatives. The length to which the Speaker went is shocking to our democratic sensibilities. Some representatives stated that they were less worried of being arrested by officials and more by citizen arresters.
In an overview article titled ‘Vilifying the Vigilante: A Narrowed Scope of Citizen’s Arrest’, Professor Ira P. Robbins discusses its historical origins, pitfalls, good application and reform. He argues for the scope of citizen arresters to be restricted to only a small category of people, such as shopkeepers, out-of-jurisdiction police, and private police forces, and being abolished in all other cases. The trend, unfortunately, as shown by Texan laws, SB1 and SB8, is moving in the other way. Because of the opprobrium we have heaped on vigilantes in India, I hesitated to equate them with the citizen arrester till I read the phrase in a letter on SB8, by the Chairman of the U.S. House Judiciary Committee, Jerrold Nadler, to the Attorney General, Merrick B. Garland, to prosecute ‘would be vigilantes attempting to use the private right of action established by that blatantly unconstitutional law’. The oldest and the largest democracies, it seems, both have a vigilante problem today.
Which states have passed Heartbeat Bill?
North Dakota became the first state in the USA to pass the Heartbeat Bill. However, the Supreme Court of the US held the law unconstitutional.
Later several other states passed the law. This includes Ohio, Louisiana, Georgia, Alabama, Missouri, Kentucky. However, the federal courts of the states have blocked the law temporarily. These states are in the Bible Belt of US.
What is Bible Belt of US?
The southern region of the United States are socially conservative. In these states, the church attendance is higher than the nation’s average.
- Many women are unaware of their pregnancies at six weeks. Most of them have an abortion only after six weeks.
- The Center for Reproductive Rights says that these laws are inconsistent. It is a global legal advocacy organisation that aims to advance reproductive rights (such as abortion). The organisation works to make reproductive freedom as a fundamental human right.
- At the stage of six weeks, the embryo isn’t a foetus and doesn’t have a heart. The bill still bans abortion at such early stages. An embryo becomes a foetus only in the eleventh week of pregnancy. However, the heart beat of the foetus can be heard in early stages, that is around six weeks.
2.AUKUS seeks to reshape Indo-Pacific ties
Under the new security partnership, the U.S. and the U.K. will equip Australia with nuclear submarines
Australia, the U.K. and the U.S. (AUKUS) have announced they’re forming a new security alliance that will help equip Australia with nuclear-powered submarines. The alliance will see a reshaping of relations in the Indo-Pacific region and beyond.
Here’s what it might mean for various players:
Ten years ago under President Barack Obama, the U.S. began discussing the need to focus more attention on the Indo-Pacific region while pivoting away from conflicts in West Asia.
Under President Joe Biden, the U.S. has now withdrawn its troops from Afghanistan while finding that tensions with China have only grown.
In the Pacific, the U.S. and others have been concerned about China’s actions in the South China Sea and its antipathy toward Japan, Taiwan and Australia.
In announcing the deal, none of the three leaders mentioned China. The U.S. had previously only shared the nuclear propulsion technology with Britain. Mr. Biden said it was about ensuring peace and stability in the Indo-Pacific over the long term. Leaving the EU under Brexit has left Britain seeking to reassert its global position. Part of that has been an increased focus — or tilt — towards the Indo-Pacific.
British Prime Minister Boris Johnson said the new alliance would allow the three nations to sharpen their focus on an increasingly complicated part of the world.
Under the arrangement, Australia will build at least eight nuclear-powered submarines using U.S. expertise, while dumping a contract with France for diesel-electric submarines.
Experts say the nuclear submarines will allow Australia to conduct longer patrols and give the alliance a stronger military presence in the region.
Australian Prime Minister Scott Morrison said he had called the leaders of Japan and India to explain the new alliance.
Japan, India, Australia and the U.S. already have a strategic dialogue known as ‘the Quad’. Mr. Biden is set to host fellow Quad leaders at the White House next week.
Australia told France it would end its contract with state majority-owned DCNS to build 12 of the world’s largest conventional submarines. The contract was worth tens of billions of dollars. France is furious, demanding explanations from all sides.
“It was really a stab in the back. We built a relationship of trust with Australia, and this trust was betrayed,” said French Foreign Minister Jean-Yves Le Drian on France-Info radio.
Left out of the new alliance is Australia’s neighbour New Zealand. It has a long-standing nuclear-free policy that includes a ban on nuclear-powered ships entering its ports. That stance has sometimes been a sticking point in otherwise close relations with the U.S.
Prime Minister Jacinda Ardern said New Zealand wasn’t asked to be part of the alliance and wouldn’t have expected an invitation. Still, it leaves New Zealand out of a deal to share a range of information, including artificial intelligence, cyber and underwater defence capabilities.
Five Eyes Alliance
- The Five Eyes alliance is an intelligence-sharing arrangement between five English-speaking democracies: the US, UK, Canada, Australia and New Zealand.
- The alliance was created during the Cold War (1946-1991) that was fought between the United States and the Soviet Union, as well as their respective allies.
- The alliance was needed to share sensitive information regarding their adversaries on all possible fronts available.
- It is often described as the world’s most successful intelligence alliance.