2 Countries, 2 Courts, Too Cockamamy Conclusions

BY GAREN YEGPARIAN

By now you know we took a couple of good thwacks in the judicial sphere over the last fortnight.  Both the U.S. Court of Appeals for the Ninth Circuit and France’s Constitutional Council handed down decisions inimical Armenian interests.  But, as if that’s not bad enough, both decisions don’t even make sense!

The more recent French decision is easier to address, so let’s dispense with it first.  I did not have access to a translation so I have not read the decision itself.  But simplicity is elegant, as in simple solutions to seemingly complex mathematical solutions.  And here, we have such a situation.  France ALREADY has a law on the books making denial of the Holocaust illegal.  Now, the law found unconstitutional by the Constitutional Council would have made any genocide recognized by France illegal to deny. This is a simple, self-evidently parallel pair of concepts.  Yet, somehow, the latter law is not, in the esteemed Council’s considered opinion, constitutional (the reason given being that it curbs freedom of speech), while the former is.  Perhaps this difference arises from Holocaust deniers only using mime, in the grand tradition of Marcel Marceau, thus criminalizing their expressions is not really curbing speech…

The Ninth Circuit’s decision takes a little more to ditch into the dustbin of legal drivel.  The court based its decision on the “precedent” established by three other cases it had ruled on over the last half century.  All three were use in the court’s decision to bolster the contention that the California law in question improperly interfered with the Federal government’s Constitution-based exclusive prerogative to administer U.S. foreign policy— state and local governments are preempted from doing so.  Yet, this law which enables those cheated out of payments by insurance companies to sue the latter for just compensation is about a contract, not about foreign policy.  The simple mention of a time frame and historical events doesn’t change that fundamental reality.

Nevertheless, the court, citing Turkey’s cry-baby reactions to instances of Genocide recognition (referring specifically to the most recent, French, situation) chose to interpret the law as an imposition of foreign policy.  Yet, if the Armenian Genocide had not been mentioned, would the court have found differently?  Would it not have found a breach of contract between insurer and insured?  Also, if the measure of “establishing foreign policy” is the loud, over-reaction of a foreign government, where will the line be drawn?  If China decides to whine over civil rights, environmental, labor, or other human-needs based laws that impact on its export oriented manufacturing juggernaut, will the court interpret those as the establishment of foreign policy by whatever agency(ies) has(ve) passed them?

Both the French and American cases reek of political influence on the judiciary.  The French case is glaring— Turkey raises a hue and cry, the Constitutional Counsel makes a finding with a result that is inconsistent with the undergirding of an existing law, as explained above.  In the American case, the political influence is a bit less obvious.  It would probably be a useful exercise to have a law student research the background, thinking, appointer (which president), and judicial voting histories of the judges who ruled on the on this case.  But even without that the tenuous logic and fact that Hillary Clinton, U.S. Secretary of State knew about the decision, speak volumes about the arm twisting that must have occurred behind the scenes.

Shame on the judges in both countries who have sullied the ideal of blind justice!  Don’t let them get away with it.  Write them letters expressing your indignation and concern over inappropriate political meddling in the judicial process and their succumbing to it.