U.S. set to teach the world a wrong lesson

As the U.S. Senate sets its rules for conducting the impeachment of President Bill Clinton, it has failed to carefully scrutinize the original impeachment resolution. Bearing in mind the norms of parliamentary procedure, our Asia correspondent Harvey Stockwin questions the validity of that resolution.

HONG KONG (JP): As Bill Clinton becomes the second U.S. President to face an impeachment trial in the U.S. Senate, the event impacts upon Southeast and East Asia in three ways.

There is natural concern lest the Clinton Administration's likely preoccupation with the impeachment trial provides a temptation for Asian trouble-makers.

Yet at the same time it probably has the contrary result of increasing longterm U.S. influence in Asia.

But that influence could be diminished by another emerging fact: the impeachment resolution by the U.S. House of Representatives is of dubious authenticity, and appears legally questionable.

First, widespread Asian fears over a possible vacuum of proper policy making by the Clinton Administration are perfectly understandable. Reflecting these fears, numerous Asian newspapers (Tokyo Shimbun, Bangkok The Nation, and Hongkong Standard to mention only three) have urged Clinton to resign rather than subject the world to a protracted legal diversion.

Such fears of an abnormally distracted Washington have been growing throughout 1998 as Japan observed the ways in which Clinton was lurching towards China's corner in the strategic China-Japan-U.S. triangular relationship.

Southeast Asia has noted China's continued expansion into the South China Sea and wondered if Beijing would be a little more circumspect if the U.S. was giving the region the attention it deserves.

Operation Desert Fox should have removed some Asian worries that the sole superpower was too domestically preoccupied, but it is doubtful if it has done so. In West Asia, Iraq President Sadam Hussein still obviously calculates that the time is ripe for playing games with the U.S. military, notwithstanding the damage done to his arsenal and assets.

Other leaders with long frustrated ambitions, such as North Korea's Kim Jong-il, might be tempted to follow suit.

Yet, even as the Clinton impeachment probably encourages or even enhances a policy vacuum in Washington, it also helps to indirectly increase American influence, in Asia.

Hearing about Clinton's tribulation, millions of Myanmar people wish that their military leaders could be similarly impeached for refusing to recognize the results of the 1990 general election which the regime itself organized.

North Koreans may not be allowed to hear about Clinton, but millions of North Koreans would love to impeach their leaders for placing the development of ballistic missiles ahead of the provision of food for a starving country.

As they clearly indicated recently, many Cambodians would like nothing better than for the surviving Khmer Rouge leadership to be retrospectively impeached for their savage crimes against humanity.

Almost as certainly, there are at least a few thousand Malaysians who would relish Prime Minister Mahathir being held legally accountable for the sharp decline in the standards of what was formerly a developing democracy.

This decline has resulted in the Royal Malaysian Police treating Anwar Ibrahim with the respect due to a deputy premier one day -- and then feeling free to beat him up and give him a black eye the next.

This simply could not happen without some higher sanction. But Anwar's attempt to sue Mahathir over his treatment looks likely to be frustrated by the subtle control Mahathir exercises over the judiciary.

In all these and other ways, in many corners of Asia Clinton's impeachment intensifies a deep Asian yearning for the rule of law instead of the rule of men.

So it is mystifying that -- so far -- the U.S. Congress appears to have fallen short in its task of making sure that the Clinton impeachment exemplifies the rule of law.

As far as this reporter has been able to discover so far, in Asia only India has impeachment provisions within its legal framework -- though it is carried out in the courts, not through the two Houses of Parliament, the Lok Sabha and the Rajya Sabha. Conceivably impeachment provisions may exist in other former British colonies through the continued use of Anglo-Saxon common law.

But, for the most part, the Asian majority can only hope that the accountability which exists under the rule of law in the United States will one day exist in their nations, too.

Given the importance of the rule of law, it is to be hoped that someone in the United States Senate raises, before it is too late, the issue of whether or not this present bill of impeachment is legally valid.

As in every real Asian Parliament (as distinct from the rubber stamp assemblies), so in the United States, at the end of every session, every bill or act or resolution lapses if it has not been finally passed into law.

Once a parliament adjourns for an election, there is usually no question of that body being reassembled to pass more laws. But a quirk in the American system means that an outgoing Congress can meet and do business even after its successor has been elected.

Simplifying what is a complex legal issue, the impeachment of President Clinton was passed by the 105th Congress, after the 106th Congress had already been elected at the beginning of November. Members defeated in the November elections voted for or against the passage of the impeachment in the House of Representatives.

The 106th Congress is now in session and the post-election Senate will try the impeachment.

But the clear implication is that the House of Representatives should first revisit the issue, with the elected members of the 106th confirming or rejecting the earlier impeachment decision.

Anthong Lewis writing in the New York Times raises a crucial point -- suppose the Democrats had won a House majority in the last election, would anyone have accepted, as they are now accepting, an impeachment passed by the expiring lame-duck 105th Congress? Obviously they would not.

Just because the Republicans again won a House majority in November does not mean this point should be ignored. On such a critical issue as impeachment, those most recently elected by the people should have been the ones to decide the issue.

As Prof. Bruce Ackerman of Yale Law School explains "if this lame-duck impeachment is allowed to go forward, a terrible precedent will be created", capable of distorting the future course of American politics.

The House of Representatives, even now, could easily avoid such a precedent being set, by passing a motion endorsing the decision of its predecessor.

If it does not do so, then there is an urgent need for at least one Senator to ask the impeachment trial presiding judge, Supreme Court Chief Justice William Rehnquist for a ruling: given the legal complexities arising from the 20th Amendment to the U.S. constitution, should a lame-duck impeachment by a lame-duck House of Representatives be allowed to stand?

From an Asian perspective, the rule of law must be seen to be done. But, in reality, the power and pull of politics is being emphasized.

The suspicion remains that the U.S. House of Representatives has been so obsessed with politically impeaching or eliminating President Clinton that it has failed to take proper pains with, and give due regard to, the rule of law.

Almost certainly, the possible political disadvantages of itself delaying the trial by questioning the legal validity of the House impeachment resolution mean that the Clinton lawyers will refrain from raising the issue.

The U.S. is all set to teach the wrong lesson. To an Asia wherein the rule of the powerful is far too often the law, often with tragic results, Washington will be conveying the message that the same thing can happen in the home of democracy, too.