The Rise of Authoritarianism and Assaults on the Rule of Law, Part 1 transcript

Welcome to the Rule of Law Matters podcast. If you're wondering what the Rule of Law means and why it matters, this is the podcast for you. This is season one, episode four, The Rise of Authoritarianism and Assaults on the Rule of Law Part 1. This episode was recorded on November 3rd, 2020, the day of the United States' election.

This podcast is brought to you by the Law Society of British Columbia. The Law Society is a regulatory body that protects the public by enforcing professional standards for lawyers in our province. We bring you this discussion today to raise awareness about the importance of upholding the rule of law. Here's your host. 

Jon Festinger

I'm Jon Festinger. I'm a member of the Law Society's Rule of Law and Lawyer Independence Advisory Committee. I'm also a lawyer and I teach at UBC's Allard School of Law and Thompson River University's Faculty of Law. We are very lucky today to have the Honorable Professor Irwin Cotler join us from Montreal. Professor Cotler is the chair of the Raoul Wallenberg Centre for Human Rights and an Emeritus Professor of Law at McGill University. He is also a former professor of mine I'm very proud to say and a former Minister of Justice and Attorney General of Canada and Member of Parliament from 1999 to 2015. Professor Cotler is also a renowned international human rights lawyer. For many years, he has worked extremely hard to free political prisoners and advocates for democracy around the world. Macleans has referred to him as counsel for the oppressed and the Oslo Freedom Forum has described him as freedom's counsel. Today, Professor Cotler and I will be discussing how authoritarianism is on the rise around the globe and how democracies are responding, or in some ways not responding. Welcome Professor Cotler, it's so wonderful to see you again and have you here today.

Irwin Cotler

Well, it's a pleasure to be interviewed by you Jon, you are a former student but you are in fact a peer and colleague and maybe the best example of how I've been inspired by former students. So that to me is the best test of whether I may have had some modest impact during my teaching.

Jon Festinger

Well, in terms of teaching, I do want to start there because of all of the creative excuses that those of us who teach law have ever used to either delay a class or reschedule a class, I think yours is certainly in the best ever category. You once had to cancel a McGill Faculty of Law class because you were in jail in the Soviet Union; is that right?

Irwin Cotler

That's correct. I had gone to the Soviet Union in 1979, in late August '79. It had been arranged that I would appear before you know Soviet Court that had tried and convicted Sharansky and I was there for the appeal but one day before the appeal was to take place, after I had been for 10 days in the Soviet Union without any problems at all, participating in an international jurists conference etcetera, I was arrested, denied, expelled and boarded onto a Japanese airliner which fortunately was going to London and not to the Far East. To the chagrin of even the Japanese attendants as I was coming onto the plane, they said your boarding pass sir, and I was being boarded by these KGB agents, and I said I'm sorry, I said I'm being expelled. I said can you do me a favour, could you just advise the Canadian government, the Canadian Embassy that I'm being expelled, and journalist, Don Fisher, Moscow correspondent for the Los Angeles Times, just tell him I won't be able to meet him for dinner. When I arrived some five and a half hours later in London, it was a very anguished flight. The reason I say anguished because I was very worried, they had seized all my documents, all my pleadings, witness testimony, documentary evidence, and I was very worried about the kind of retaliatory reprisals that might take place with regard to those that had provided me with evidence and the like. So when I arrived in London, I quickly called my wife, I'd been married only three months, and I said Ariela, don't tell anyone, I've been expelled from the Soviet, I'm here in London. She said what do you mean don't tell anyone? She said it's all over the news. Don Fisher broke the story, headlined it, you know Sharansky's lawyer expelled. It was sort of front page in the international media. Nobody knew who I was, everyone knew who Sharansky was because he was a co-celeb. So this is a story, as I say, Andy Warhol said everybody could be famous for 15 minutes and that's how my students even found out that I wouldn't be there for that first class.

Jon Festinger

Well, your reputation at the Law School was as the busiest of all of our professors and we all you know wondered and tried to figure out how you could possibly do all the things you did on top of the rather wondrous teaching that you also did for us. So Professor Cotler, on the assumption that international human rights lawyers are made and not born, what made you? What were the constituent elements, the influences that led you to be the advocate for the rule of law that you have spent your life as?

Irwin Cotler

Well I think it goes back to the first teachings of my parents of blessed memory. While I didn't understand at the time maybe the profundity of the messages as when my father told me when I was very young and would say to me that the pursuit of justice is equal to all the other commandments combined. This, as he would put it, you much teach onto your children. This must be your life's credo. And then my mother, when she would hear my father saying these things, would then add that you know if you want to pursue justice, you have to understand, you have to feel the injustice about you. You have to go in and about your community and beyond and feel the injustice and combat the injustice. Otherwise, as she would put it, the pursuit of justice will just be a kind of theoretical abstraction.

As I said, at the time, I didn't fully appreciate or not able to grasp the profundity of those teachings but as I you know grew older and the teachings were repeated, and then they were nurtured by a successive group of teachers that I had in high school and university. For example, I went to a Jewish day school and on the Jewish part of the curriculum at the time I was, in the late '40s, early 50's, there were some Holocaust survivors who were teaching us and they were teaching us in courses of Jewish history. Here to I couldn't understand but later Elie Wiesel would speak to me about things too horrible to be believed but not too terrible have happened. But I was internalizing it somehow and I, at some point, you know the Association of Survivors of Nazi Oppression became, when I was finishing law school, Jon, became my first pro bono client. But at the same time, I had what's called the secular studies program in late elementary school and high school, Irving, the Canadian poet, Irving Layton, he would teach us all our courses on the secular side of the curriculum. Therefore, to this day, I know nothing about physics and chemistry but I learned a great deal about you know poetry and the humanities and literature and so on. And you know he would always rail against injustice. He actually looked what I thought like the prophet Jeremiah would look like and so he railed against injustice and found expression in his poetry and you know we would engage with his cohort of friends that somehow overlapped with my you know father's friends. I'm thinking of people like A.M. Klein and David Lewis and the like and so these were people in the household.

And then when I went to university, you know I was blessed to have you know great teachers in the law school like Frank Scott who I regarded really as a kind of, the architect of certain discourse about what he would always call "la primauté des droits", the rule of law. And John Humphrey, the father of the Universal Declaration of Human Rights, and the fascinating thing is that F.R. Scott actually taught my father when he was in law school and then taught me when I was in law school. So there you see the intergenerational connection on so many levels.

Jon Festinger

Well I'm gonna contrast your story with my own. I was the son of immigrants and I didn't, I had certainly firsthand accounts of the Holocaust and those were deeply embedded in me. But in terms of my influences to become a lawyer and the interests I had, those came from media, those came from William Kunstler and the Chicago Seven trial. And I think that there's an interesting generational change where you know the media of the 1950s and early '60s was sort of naïve and then media changed as the world changed in the late '60s and early '70s when you were at Yale for example. You talked about Elie Wiesel but what about Robert Kennedy and John Turner and those inspirations to you and in your interests around the rule of law?

Irwin Cotler

A word about Elie Wiesel because he was a profound influence. It began while I was in law school and he remained for me you know a mentor, a colleague, a friend for some 50 years. He cofounded with me the Raoul Wallenberg Centre for Human Rights but it was his moral teachings. We referred to him as the conscience of humanity when he would say you know the importance of, the danger I would say, the danger of silence in the face of evil, the danger of indifference and inaction in the face of mass atrocity and God forbid genocide, and he was always telling us you know that indifference always means coming down on the side of the victim and not on the side of the, or coming down on the side of the victimizer I should say and not on the side of the victim. So Elie Wiesel was a profound influence.

I carried all these influences when I went to Yale Law School. I was there on two occasions in '65-'66 and then in '67-'68 and you know I was exposed to the beginnings if you will of two turbulent dynamics in the American political culture, that is the race protests and also the Vietnam War, and especially in my second sojourn there in '67-'68, though it was in the first that I actually got my first arrest in a peaceful protest regarding the Vietnam War. But '67-'68 was a very you know compelling experience and memory because I recall in the spring of '68 Martin Luther King being assassinated and thereafter, shortly thereafter Robert Kennedy being assassinated.

And as I said, I was at Yale at the time so I was at the vortex where these things were happening. And then that summer, I had had a summer of fellowship to go to University of Wisconsin Law and Behavioural Sciences which turned out to be the organizing center for preparing for the Chicago demonstrations. And I was in the midst of that. I don’t know if I ever told you this story Jon but I actually was dating in Wisconsin a radical revolutionary that had been brought in from Paris to teach us you know how to, from the, 'cause the French revolutionary student, well she came and she was sort of our mentor with regards to what would be happening in the States and I was part of that. The only thing is she was a radical revolutionary, I still remember her name but she had a wonderful sense of humor, unlike some of the other revolutionaries at the time, but I'll never forget you know the pain of the two assassinations of Martin Luther King and Robert Kennedy.

And then it was from that experience that I then left to go work with John Turner and there was a real juxtaposition of all these things because I was straight out of the radical '60s. I mean I was like a poster boy for the radical, I came with long hair with horn rimmed glasses and you know some of John Turner's advisors warned him against you know having me work there. But you know he hired me and I had an office a couple doors away and I put up on my first day of work a big picture of Che Guevara in the office. I remember Turner coming in a day later and saying who's that? I said that's Che Guevara. He said no, no, no, I know who that is, he says what's he doing on your wall? What's that revolutionary doing on your wall? I said well, he's a due process radical, he's also a role model for me whereupon some two days later, Turner did his research, came back and he said you know that due process radical of yours? And I said yeah, he said well you know he executed quite a number of people in prison.

Well, not long after that, we had a state visit to the Nixon administration, Nixon had been elected, John Mitchell was his Attorney General. I had come to meet Turner and we walk into John Mitchell's office and the first thing that happens is that Mitchell looks at me, looks at John Turner and he says you let people who look like that work for you? And Turner said well everyone has to have their one resident radical. But the thing about John Turner that I always remember and the lessons learned with him during my two years full time, two years part time, were lessons that also were lifelong lessons and that I sought to act upon them when I became a parliamentarian and Minister of Justice and Attorney General of Canada because it was John Turner who would repeat again and again that democracy does not happen by accident, that you have to work at it, and the importance you know of freedom of the press and free media.

So these were things that I carried with me and as I say those were very dramatic days and for me both painful but evocative memories to this day. John Turner was very friendly with Robert Kennedy and I learned that you know after I had that picture of Che Guevara put up, after I came back from the meeting with the Nixon administration, I took down the picture of Che Guevara, I put up a picture of Robert Kennedy with the statement "Those who see things as they are and ask why I see things as they might be and ask why not". That was Turner's aphorism, that was mine and we sought to act on it.

Jon Festinger

So now let's start comparing and contrasting, which you're in a unique position to do, the United States when you were at Yale and in that time of the late '60s and what is happening in the US right now as we speak. Do you find there to be similarities or is the rule of law hanging in the balance in the same way? Do you see clear differences? How do you compare and contrast that time to where we are now in 2020?

Irwin Cotler

Well you know as I say, the two issues that were besetting and burdening us then, on the domestic side the race issue, on the foreign policy side the Vietnam War, we don't have that kind of you know Vietnam War situation today but I think the race situation has now, and maybe because we're talking on the day of the election in the United States, I can't avoid connecting what is happening in the States you know to Trump's four years in office. I think he's been the most divisive, polarizing, inciting, dog whistling, etcetera, etcetera, president that maybe the US has ever had. And when you talked earlier about the importance of media, he has single handedly you know undermined the whole fundamentals of a free press. The fake news that he wails about is the fake news, etc.... you know the kind of fact checking that they do of the thousands of lies on an ongoing basis, you know and an increasing crescendo during the four years of his presidency… the whole thing culminating in the manner in which he has been involved in denial and deflection and the like with regard to the pandemic.

So I think that the situation in the United States today taken as a whole is probably worse than it was then because everything has become more vulnerable and more brittle and because of the media now more amplified and you know Maria Ressa just said the other day, one of the journalists on the cover of Time Magazine two years ago, editor of Rappler in the Philippines but a great, great advocate of freedom of expression but she has spoken about you know the weaponization of the social media and how today a lie can travel around the world you know a thousand times before you know a truth can begin to catch up with it a million times as she put it. So and I think Trump, when it happens from the pulpit of the presidency and he weaponizes the social media for that purpose, then that to me is a standing threat you know to the whole notion of a free press.  

Jon Festinger

So obviously you see a free press as a very important sign post of when a country may be sliding towards a more authoritarian state, the earliest attacks are on the press. The early attacks are also often on lawyers when that happens and on the bar; have you seen that and in, and other than of course being put in jail in Russia and sent out, and expelled from the country, how else have you seen countries sliding into authoritarianism, treating the law and lawyers who try and stand up for the rule of law?

Irwin Cotler

Well, you see there are a number of sort of indicators. There is not only the erosion of a free press but the criminalization of fundamental rights so that it's free speech, assembly, association become criminalized. And we see this amongst what I would call the resurgent authoritarianism.

You see also that those who would defend those who are in prison such as the lawyers Nasrin Sotoudeh, the heroic lawyer in Iran being just one case study, they're the ones that are being put in prison. And all the other metrics that I identify, on the one hand a democratic society and on the other an authoritarian one, you see them being eroded. In other words, free and fair elections and democratically elected government, when I mention a free press, the protection of fundamental freedoms, the freedom of religion, protection of minority rights, due process, fair trials, all these indicators are not only eroded in the authoritarian states but in fact have been you know suppressed and that suppression as we speak you know is intensifying.

Jon Festinger

I think one of the most frightening things to me, and feel free to push back on this, is that there is a remarkable lack of diversity in the playbook of authoritarianism, there aren't that many different flavours. They tend to be exactly that, erode democratic elections, attack the press, imprison the lawyers, find scapegoats and act on that either by expelling or murdering or worse. And the playbook always kind of looks the same. Would you agree with that when it comes to authoritarianism because that seems to be what the research shows?

Irwin Cotler

Well the playbooks look the same and they are increasingly acting in concert which is another thing that we find. So we have the global authoritarians acting in concert on the one hand and we have the backsliding of democracy on the other and we have you know a kind of individual by the authoritarians, an individual and collective assault on what we call the rules based liberal democratic order and we don’t have you know any American leadership as we did for a long time protecting that democratic order and at the same time we had in, and I don’t like to dwell on Trump but what we saw was a man who in fact was indulging the authoritarian leaders as he was dividing his allies.

And so what we had there as I said not only the backsliding of democracy but divided democracies, polarizing democracies that had to be pitted against you know authoritarians who were uniting in concert with each other. Now our own Raoul Wallenberg Centre you know has as one of our main priorities the combatting of the resurge in global authoritarianism, promoting and protecting democratic renewal, protecting media freedom, and defending political prisoners who are a looking glass into these resurgent global authoritarians.

And if we look at what's happening as we are speaking in terms, and I use the term intentionally, Xi Jinping's China or Khomeini's Iran or Maduro's Venezuela or Mohammed bin Salman's Saudi Arabia or Putin's Russia, and I'm doing it that way because I wanna distinguish them from the people and publics in their countries who are the targets of mass domestic repression that is increasing as we speak.

I never thought in December 2018, two years ago, we'd produced a report on realizing rights over repression in Iran and we said of the year 2018 that it was the year of shame in Iran as Amnesty International and others called it at the time because of the escalation of repression targeting lawyers, targeting journalists, targeting even environmentalists, environmental protection was made a crime, targeting in particular the women's movement, I can go on; I never thought that two years later each of those targeted groups would have been in fact the subject of even more repression so the human rights defenders and the lawyers and the environmental etcetera, etcetera, their repression would have intensified in a widespread and such a systematic way that it almost amounts to you know crimes against humanity and it's all state orchestrated. And what I say about Iran I could say about all the others, in fact, the primary one of concern today is Xi Jinping's China.

Jon Festinger

So you know you said something as you went through the list of authoritarian leaders and their countries and juxtaposing them, in doing that I really got a chill and the reason is that I can't think back through history where anybody would have referred to Obama's United States or Clinton's United States or even Nixon's United States and yet I hear people refer to Trump's United States and that seems to me to you know put the symmetry into where the United States is headed in terms of authoritarian regimes and we'll see where that goes. We are on a very propitious day today.

Irwin Cotler

You're right, there is in the US just an authoritarian populism that is personified you know by Trump and it's lucky that the US still has a free press and the checks and balances etcetera, etcetera. But there is, in terms of the manner in which he has engaged in his presidency, authoritarian populism and populist and illiberal impulses and practices.

Jon Festinger

And many of these authoritarian leaders were elected in some form or other, in something or other that approached a democratic means of election. But let me change topics only slightly. Do you see what is happening in the world as a resurgence of authoritarianism or a continuation just with a higher profile?

Irwin Cotler

No, well you know if I look back, I still remember you know right at the end, 1989 and Fukuyama and others were talking about the end of history, you know we saw then, if I can borrow a Marxist metaphor you know the withering away of the former Soviet Union, we saw the US emerging really almost as a kind of unipolar democratic power.

We saw the democracies or community of democracies in alliance and alike. And then gradually since then you know we have been seeing, and when I said backsliding of democracy as Freedom House has reported, you know we now have had you know 14 consecutive years and a 15th year where all the indices show a backsliding of democracies.

But at the same time, I would say an intensification not only of the authoritarianism and repression of each of the country that I mentioned but the manner in which they act in concert. You have China and Russia, for example, supporting Maduro in Venezuela so they have now their own almost authoritarian alliance and it's also corrupted the international human rights system. We just had elections for the UN Human Rights Council. Now the UN Human Rights Council's mandate is the promotion and protection of human rights, well who was elected to the UN Human Rights Council just a few weeks ago? So Russia was elected, Saudi Arabia was elected and China were elected to the UN Human Rights Council and they join Venezuela.

Now we have an advocacy campaign to get Venezuela suspended from the UN Human Rights Council. But I'm mentioning this just to say how the penetration now into the international institutions that are to be protective of democracy and promotive of human rights are being undermined by the international reach of the authoritarians so it's not only domestic repression but Xi Jinping now can export that repression abroad through foreign disinformation and penetration such that a diaspora of Chinese Canadians are themselves put at risk and I'm using that just as one example. We knew a lot about Russia's disinformation but we're seeing it now very much so intensifying with Xi Jinping's disinformation.

Jon Festinger

Yeah, no, and the fear of Chinese Canadians is real and it's palpable. One last question for kind of this segment; when you look at the state of the world, the state of disarray, the state of authoritarianism and countries verging towards authoritarianism, how does a global pandemic and how has this COVID 19 pandemic affected the balances, if it's shifting things, it is a big factor, is it a tool or repression or is it creating aspects of cooperation and understanding that can potentially be positive? And your answer will probably be some part of all of the above but give us some specifics if you might.

Irwin Cotler

Yeah, well I'll tell you, I see three parallel pandemics at the same time. There's the global COVID pandemic, there is the global political pandemic characterized by what I mentioned, the resurgent global authoritarianism on the one hand and the backsliding of democracy on the other, and there's the global pandemic of impunity. In other words, no real accountability and the UN Human Rights Council elections are just one example.

So I see these three pandemics and the real problem of course is that we've had this absence you know of a very badly needed American leadership as part of an alliance. I'm hoping that this is going to change. I still believe in what Martin Luther King said and I always maybe was a you know the optimist, I think I got that also from my parents, but I believe that the arc of history in the long run will bend towards justice, it's just that we're going through a period of increasing injustice that we have to mobilize to combat.

Jon Festinger

Well, on that note, let me give deep thanks on behalf of our audience for you joining us today. Thank you Professor Cotler.

Irwin Cotler

Not at all, it's been good speaking with you, great speaking with you.

Jon Festinger

I'm going to sum up our discussion in a few sentences. Professor Cotler walked through his early influences and how those experiences shaped his values and ultimately shaped his career and his human rights work. He also compared his time in the US back in the 1960s to current times, suggesting that the situation might be even more challenging now because of the amplification of social media and false information. Professor Cotler provided us with some factors pointing to the rise of authoritarianism such as erosion of a free press, criminalization of basic rights like free speech and the imprisonment of lawyers. He also observed that authoritarian governments are increasingly acting in concert with one another. In addition to the rise of authoritarianism, Professor Cotler worried that democratic nations are backsliding. We are increasingly seeing divided and polarized democracies. We will, thankfully, be welcoming Professor Cotler back for the next episode. Thanks for listening. If you want to find out more about the rule of law visit the Law Society's website at lawsociety.bc.ca. Vinnie Yuen was our wonderful producer today. This is your host Jon Festinger signing off.