Appellate

Appellate (pronounced uh-pel-it)

(1) Of or pertaining to that which can be reviewed by a power or authority vested with the necessary jurisdiction.

(2) A court, tribunal or other body having the power or authority to review and decide appeals made against decisions issued by subordinate individuals or institutions; that which legally can be appealed to.

1726: From the Classical Latin appellātus (called upon, summoned), past participle of appellāre (to appeal) and perfect passive participle of appellō (address as, call by name), the construct being ad (to, towards) +‎ pellō (push; impress).  The noun appellant (one who appeals from a lower to a higher court) dates from the 1610s, from the Anglo-French & French appellant, noun use of present participle of the French appeller (make an appeal), from the Old French apeler, from the Latin appellare (appeal to).  Appellate is an adjective and appellant is a noun; the noun plural is appellants.

Unrelated to the hierarchy of courts, there are words used formal grammar and linguistics including the noun appellative (a common noun; an epithet), the adjective appellative (of or pertaining to an appellative noun or common noun; of or pertaining to ascribing names), the noun appellativeness (the state or quality of being appellative), the adverb appellatively (after the manner of appellative nouns; so as to express whole classes or species and the noun appellativization (the process of a proper name becoming a common noun (such as hoover; kleenex; google et al)).  The antonym is proprialization (White House, Grand Canyon et al).  The noun appellation (designation, name given to a person, thing, or class) entered English in the mid-fifteenth century, from the twelfth century Old French apelacion (name, denomination), from the Latin appellationem (nominative appellatio) (an addressing, accosting; an appeal; a name, title), the noun of action from the past-participle stem of appellare (address, appeal to, name).  An appellation is a descriptive and specific term (Joan of Arc’s appellation was Arc; John the Baptist's was Baptist while those who were most associated with the political discussions which culminated in the formation of the United States of America (USA) are given the appellation “Founding Fathers”.  An appellation differs thus from an official or honorary title such as earl, bishop, general, professor et al but technically, these too are appellations.  The adjective appellative dates from the early fifteenth century (of a noun, serving to name or mark out, common (as opposed to proper))," from the Latin appellativus, from appellat-, past-participle stem of appellare (address, name, appeal to).  As a noun, it was in use by at least the 1590s in the sense of “a common” and by the 1630s as a “title or descriptive name”.

Courts of appeal

Appellate courts, usually styled as courts of appeal, are those vested with the jurisdiction to an appeal from a subordinate court within the same hierarchy.  In Australia, as a general principle, the court system exists in three layers (1) a trial court, (2) an intermediate appellate court and (3) a final court of appeal although variations exist and appeals from lower courts are not always of right; in many cases an application for leave to appeal can be declined.  Details of appellate jurisdiction in English courts appear in Sir William Blackstone's (1723–1780) Commentaries on the Laws of England (1765–1769), a matrix which has since been a thing of repeated change.  The hierarchical nature of the appellate food-chain is of significance because ultimately it's the final stage which is decisive: A case might for example be heard by eleven eminent judges, one in the supreme court at first instance, three on a court of appeal and seven at a high court so if the first appeal is decided 3-0 and the final 4-3 then one party can have enjoyed the concurrence of 7 of the 11 yet still lose.  That's how the appellate system works.

The Australian court systems are now unitary which means that, depending on the law(s) involved, the avenue of appeal lies to a state, territory or Commonwealth court, appeals to the Privy Council (actually the Judicial Committee of the Privy Council (JCPC)) in London sundered for Commonwealth matters in 1968 and for those involving the states in 1986 by the Australia Acts although there is one historic relic.  Section 74 of the constitution provides for an appeal from the High Court of Australia (HCA) to the the Privy Council if the court issues a certificate that it is appropriate for the Privy Council to determine an inter se (a case concerning constitutional relations between the Commonwealth and one or more states or between states) matter.  The only such certificate was issued in 1912 and in 1985, the High Court judges (unanimously) observed that the power to grant such a certificate “…has long since been spent… and is obsolete".  However, it’s there with full legal force so, in the strict constitutional sense, an appeal from the HCA to the JCPC, however unlikely, remains possible.

In the matter of Grand Theft Auto (GTA5): Lindsay Lohan v Take-Two Interactive Software Inc et al, New York Court of Appeals (No 24, pp1-11, 29 March 2018)

Truly a martyr, Lindsay Lohan hasn't had much luck in appellate courts.  In a case which took an unremarkable four years from filing to reach New York’s highest appellate court, Lindsay Lohan’s suit against the makers of video game Grand Theft Auto V was dismissed.  In a unanimous ruling in March 2018, six judges of the New York Court of Appeals rejected her invasion of privacy claim which alleged one of the game’s characters was based on her.  The judges found the "actress/singer" in the game merely resembled a “generic young woman” rather than anyone specific.  Unfortunately the judges seemed unacquainted with the concept of the “basic white girl” which might have made the judgment more of a fun read.

Beware of imitations: The real Lindsay Lohan and the GTA 5 ersatz, a mere "generic young woman".

Concurring with the 2016 ruling of the New York County Supreme Court which, on appeal, also found for the game’s makers, the judges, as a point of law, accepted the claim a computer game’s character "could be construed a portrait", which "could constitute an invasion of an individual’s privacy" but, on the facts of the case, the likeness was "not sufficiently strong".  The “… artistic renderings are an indistinct, satirical representation of the style, look and persona of a modern, beach-going young woman... that is not recognizable as the plaintiff" Judge Eugene Fahey (b 1951; associate judge of New York Court of Appeals from 2015-2021) wrote in his ruling.  Ms Lohan’s lawyers did not seek leave to appeal.

In happier times: Gladys Berejiklian (b 1970; Premier (Liberal) of New South Wales 2017-2021) & Daryl Maguire (b 1959, MLA (Liberal) for Wagga Wagga 1999-2018).

Also not having much luck with a matter taken on appeal is former New South Wales (NSW, Australia) Premier Gladys Berejiklian, compelled in 2021 to resign after being found to have committed an act of Billigung, her crucial phrase in a secretly recorded conversation being "I don't need to know about that bit" when her then (secret) lover began to tell her some details of his dubious deals.  To that pertinent observation, Mr Maguire replied "No, you don't".  The suggestion is the premier failed to declare a conflict of interest when dealing with the allocation of taxpayer funds which would be to the benefit of Mr Maguire.

The German Billigung is not so much hard to translate as able to be translated in a number of senses; context is everything.  The way it is used to mean “looking away; avoiding specific knowledge of something which one knows or suspects is happening” was clarified in 1977.  Albert Speer (1905-1981, Nazi Minister for Armaments 1942-1945), the convicted war criminal, had always denied any knowledge of the holocaust and was displeased when sent the English translation of a profile to be published in Die Zeit magazine in which Billigung had been rendered as his “...tacit consent...” of the final solution.  This he corrected, explaining Billigung in this context meant “looking away”.  This meant he averted his gaze from the worst crime of the criminal régime he served in order to be able to deny he knew of it.  Speer, predictably, was able to summon a word to explain this too: Ahnumg (the sensing of something without quite knowing exactly what).  He did at least concede the implication of his translation “...is as grave…” as the original, one biographer noting that had Speer said as much at his trial “…he would have been hanged.”  Other historians and some lawyers disagreed with that but it was an assertion the author was unable to pursue.  When she tried to nudge Speer a little further, pointing out that for one to look away from something, one must first know it's there, he didn’t deny what he’d earlier said but added they “…must never speak of it again".  The moment passed and within weeks he would be dead, dying "on the job" in police slang.  Some have noted the feeling Speer conveyed of always somehow longing to confess his knowledge of the holocaust.  He so often came so close to admitting he knew what he'd always denied, as if the last great act of his life would have been to admit worst of the the guilt he convinced himself (and some others) he'd evaded when the International Military Tribunal (IMT) at the first Nuremberg  Trial (1945-1946) convicted him of war crimes & crimes against humanity (counts 3 & 4) and sentenced him to twenty years imprisonment.  Had he then told the truth, he'd have been hanged.

The words used by Ms Berejiklian: "I don't need to know about that bit" are best understood in modern use as an attempt to manufacture "plausible deniability" and may be compared with how Herr Speer described his response in mid-1944 to being warned by a friend "never, under any circumstances" "to accept an invitation to inspect a concentration camp in Upper Silesia".  Speer's friend explained that at that place he'd "...seen something there which he was not permitted to describe and moreover could not describe".  Having received what he claimed was his first knowledge of Auschwitz, Speer asked no questions of anyone, later admitting: "I did not want to know what was happening there".  That was what he later called Billigung.  There's obviously quite some difference between knowledge of the Holocaust and the dodgy dealings of a politician but the Billigung principle is the same. However, the former premier may have been comforted that unlike the IMT at Nuremberg, the ICAC wasn't vested with capital jurisdiction so there was that.

Enjoying their pipes: Albert Speer in conversation with his lawyer Dr Hans Flächsner (1896-dod unrecorded) and a legal associate, Nuremburg, 1945.     

On 1 October 2021, the NSW ICAC (Independent Commission against Corruption) announced an investigation into the former premier's conduct in office, later handing down a finding she had committed “serious corrupt conduct”.  Interestingly,  despite that, the ICAC made no recommendation criminal charges be pursued because the evidence Ms Berejiklian was required to provide to the ICAC wouldn’t be admissible in a court because there, the rules of evidence are different and a defendant can’t be compelled to provide an answer which might be self-incriminating.  In other words a politician can be forced to tell the truth when before the ICAC but not before a court when charged.  That’s an aspect of the common law’s adversarial system which has been much criticized but it’s one of the doctrines which underpins Western law where there is a presumption of innocence and the onus of proof of guilt beyond reasonable doubt lies with the prosecution.

Ms Berejiklian challenged the findings and validity of the ICAC’s findings, her appeal heard by the NSW Court of Appeal, the state’s highest appellate court.  Her grounds for the appeal were claims (1) the ICAC made errors of law and (2) their report may have been delivered outside its legal authority due the expiration of the term of one of the ICAC’s assistant commissioners prior to the report being delivered.  In a split (2-1) decision handed down in July 2024, the court dismissed the appeal (with costs), the dissenting judge finding that because one assistant commissioner was engaged as a consultant after her term had expired (a role which included assisting in drafting the final report and writing assessments of the credibility of witnesses including Ms Berejiklian) what they did was act outside the limits of the authority conferred on a consultant.  The majority disagreed, finding the appointment as a consultant was in all ways “valid and effective” and also rejected the other grounds cited in the appeal.

So the ICAC’s finding of “serious corrupt conduct” stands.  Responding to the court’s decision, Ms Berejiklian didn’t mention that “c-word”) but thanked the court for its consideration given “...the limited nature of a challenge that can be made to ICAC findings by any citizen.  As the court noted, the ICAC Act does not permit a ‘merits’ review of the findings of ICAC.”  She also noted the split decision and concluded “Serving the people of NSW was an honour and privilege which I never took for granted. I always worked my hardest to look after the welfare and interests of the people of NSW.” 

Appellate courts, the hair police and black letter law

Appellate courts are best known for their rulings in cases of great public interest or legal significance; in the former category these typically are those involving celebrities, sex or anything especially gruesome and in the latter, constitutional matters.  There are exceptions (and some appellate courts do also function in certain specialized matters as courts of first instance) and the US Supreme Court (USSC) has agreed to hear parking-ticket and other minor matters if the law under which a conviction was obtained happened in a jurisdiction where the offence was deemed one of absolute liability and an appeal not permitted.  In those matters, the court held that in the US, a legal principle existed that the state could not convict a citizen of something without granting a means of appealing the decision.  Courts of appeal also hear the quirky and bizarre and in 2022 an appeal was lodged in the Supreme Court of Japan, a young woman in Osaka Prefecture seeking to overturn a ruling from the Osaka High Court that her former high school’s rules and guidance forcing her to dye her brown hair black were lawful.

The young lady had in 2015 enrolled in a high school (operated by the prefectural government) and in the original case (decided by the Osaka District Court) she alleged teachers had at least weekly told her to dye her hair black, instructions which continued despite her explanation she was born with brown hair and it was her natural color.  In September 2016, she began refusing to go to school, her suit against the prefectural government alleging she had suffered mental stress.  In 2021, the district court ordered the prefectural government to pay ¥330,000 (US$3,100) to the former student for certain actions (such as such as removing her name from school rosters after she stopped attending) but ruled also the school’s enforcement of the hair-related regulation exceed the discretionary authority it had been granted.  The plaintiff took the case to Osaka High Court (the first appellate layer) which held that, on the basis: “a wide range of discretion must be permitted for school education in order to allow diversified educational guidance in line with individual and collective conditions”, the ruling of the district court was upheld.  The case was well publicized and attracted much public interest (and comment) and, presumably nudged, the Osaka’s Prefectural Board of Education undertook a survey of rules at high schools under their control but concluded the “compulsory black hair” rule was “necessary”, issuing a statement saying “We will meticulously explain the necessity in order to gain understanding from students’ parents”.  That didn’t please the by now bolshie (former) schoolgirl and in her appeal to the Supreme Court (the next appellate layer) claimed banning brown hair was “unconstitutional”, citing Article 13 of Japan’s Constitution, which stipulates people’s right to pursue happiness.

The case attracted the interest of Doshisha University’s Professor Kayoko Oshima (b 1959) who explained the substantive matter was more the repeated demands the girl “dye her hair black rather than the rule itself”, his point being that the purpose of the rule was to prevent the dying of hair to ensure lurid greens or blues (or, God forbid, blondes) weren’t seen and in the case of someone with natural brown hair, the ruling shouldn’t be enforced.  In other words, for these purposes there should be the legal fiction that “brown is black”, something like the “honorary white” status the Apartheid-era South African government would sometimes grant to visiting PoCs (persons of color; typically athletes or politicians).  The rule, according to the professor, was thus rational but, in certain circumstances, its enforcement was not; an example of the “unintended consequences” which sometimes occur in the application of “black letter law”.

While the matter proceed through Japan's not especially rapid civil system, news organizations began reporting other interesting rules school impose on their female students including mandating white underwear and banning pony-tails on the basis that were the nape of the neck so scandalously to be exposed, it would risk “sexually exciting” male students.  Hair color, length and pony-tails are subject obviously to visual inspection but it's not clear if the underwear dictates are enforced by the same method.  The wide publication of these rules drew much derision and in response, early in 2022, the Tokyo prefecture announced those with natural hair other than black would no longer be required to dye to conform and that underwear need no longer exclusively be white.  The Tokyo authorities took an omnibus approach to reform, announcing also that a wider range of hairstyles would be permitted including the “two-block” (short on the sides and back while long on top) which was interesting because like the also permitted bob, the risk of napes being flaunted was obviously there.  Legal observers commented it was an example of a typically Japanese attempt to be flexible yet not be seen over-turning long defended-rules.  Thus the pony-tail proscription stands even though its rationale was undermined by the new permissiveness extending to the bob; again, black letter law.  Collectively, the “draconian rules” are known in Japan asブラック校則 (buraku kosoku) (black rules) and they have existed since the 1970s when it was noted “foreign influences” were beginning to intrude, resulting in previously unknown "behavioral issues".  As well as hair color and seductive pony tails, the most rigorously policed seems to have been skirt length, particular attention devoted to detecting the devious trick of “skirt-folding”, the standard workaround for those seeking the “above-knee look”.  Knees, it would seem, are thought as potentially provocative as the naked nape of the neck.

Ai Nishida San (b 1992) as she is (left) and as her school decided history would remember her (left).

Interestingly, high-tech Japanese school administrators have proved that even if the day comes when they can no longer make black hair compulsorily, with a little judicious digital editing, retrospectively they can make it seem as if uniformity is maintained.  In 2021, one student circulated a “before & after” pair of images, one her school photograph in untouched form (left), the other as it appeared in her school’s yearbook (right), the latter with hair in an acceptably shiny black.  Commenting on the editing, the former student said the message conveyed by the practice was it “…enforces the idea that black straight hair, a stereotypically Japanese look, is right”, the obvious implication being anything else is wrong and thus un-Japanese.  Her school had actually been accommodating, telling her that because it was her natural color, she was exempt the attention of the hair police and she thought little more about it until she received her 2007 yearbook when she realized she had been rendered “more Japanese”.  Ai Nishida San called the school’s actions “racist” and while, in the narrow technical sense, it might be more correct to suggest the motives were “racialist”, it’s certainly either and hardly in the spirit of the submission Japan’s delegation to the Paris Peace Conference (1919-1920) made, arguing for racial equality to be recognized as one of the core concepts underpinning international relations in the post-war (which turned out to be the inter-war) era.

Corrupt

Corrupt (pronounced kuh-ruhpt)

(1) Guilty of dishonest practices, as bribery; lacking integrity; crooked; willing to act dishonestly for personal gain; willing to make or take bribes; morally degenerate.

(2) Debased in character; depraved; perverted; wicked; evil.

(3) Of a text, made inferior by errors or alterations.

(4) Something infected or tainted; decayed; putrid; contaminated.

(5) In digital storage (1) stored data that contains errors related to the format or file integrity; a storage device with such errors.

(6) To destroy the integrity of; cause to be dishonest, disloyal, etc, especially by coercion, bribery or other forms of inducement.

(7) Morally to lower in standard; to debase or pervert.

(8) To alter a language, text, etc for the worse (depending on context either by the tone of the content or to render it non-original); to debase.

To mar or spoil something; to infect, contaminate or taint.

To make putrid or putrescent (technically an archaic use but there’s much overlap of meaning in the way terms are used).

(11) In digital storage, introduce errors in stored data when saving, transmitting, or retrieving (technically possible also in dynamic data such as memory).

(12) In English Law, to subject (an attainted person) to corruption of blood (historic use only).

(13) In law (in some jurisdictions) a finding which courts or tribunals can hand down describing certain conduct.

1300–1350: From the Middle English verb corrupten (debased in character), from the Middle French corrupt, from the Old French corropt (unhealthy, corrupt; uncouth (of language)) from the Latin corruptus (rotten, spoiled, decayed, corrupted (and the past participle of corrumpō & corrumpere (to destroy, ruin, injure, spoil (figuratively “corrupt, seduce, bribe” (and literally “break to pieces”)), the construct being cor- (assimilated here as an intensive prefix) + rup- (a variant stem of rumpere (to break into pieces), from a nasalized form of the primitive Indo-European runp- (to break), source also of the Sanskrit rupya- (to suffer from a stomach-ache) and the Old English reofan (to break, tear)) + -tus (the past participle suffix).  The alternative spellings corrumpt, corrump & corroupt are effectively all extinct although dictionaries sometimes list them variously as obsolete, archaic or rare.  Corrupt and corrupted are verbs & adjectives (both used informally by IT nerds as a noun, sometimes with a choice adjective), corruptedness, corruption, corruptible, corruptness, corrupter & corruptor are nouns, corruptest is a verb & adjective, corruptive is an adjective, corrupting is a verb and corruptedly, corruptively & corruptly are adverbs; the most common noun plural is corruptions.  Forms (hyphenated and not) such as incorruptible, non-corrupt, over-corrupt, non-corrupt, pre-corrupt & un-corrupt etc are created as needed.

The verb corrupt in the mid-fourteenth century existed in the sense of “deprave morally, pervert from good to bad which later in the 1300s extended to “contaminate, impair the purity of; seduce or violate (a woman); debase or render impure (a language) by alterations or innovations; influence by a bribe or other wrong motive", reflecting generally the senses of the Latin corruptus.  The meanings “decomposing, putrid, spoiled”, “changed for the worse, debased by admixture or alteration (of texts, language etc) and “guilty of dishonesty involving bribery" all emerged in the late fourteenth century.  The noun corruption was from the mid-fourteenth century corrupcioun which was used of material things, especially dead bodies (human & animal) to convey “act of becoming putrid, dissolution; decay”.  It was applied also to matter of the soul and morality, it being an era when the Church was much concerned with “spiritual contamination, depravity & wickedness”.  The form was from the Latin corruptionem (nominative corruptio) (a corruption, spoiling, seducing; a corrupt condition), the noun of action from the past-participle stem of corrumpere (to destroy; spoil (and figuratively “corrupt, seduce, bribe”.  The use as a synonym for “putrid matter” dates from the late 1300s while as applied to those holding public office being tainted by “bribery or other depraving influence” it was first noted in the early 1400.  The specific technical definition of “a corrupt form of a word” came into use in the 1690s.  The adjective corruptible (subject to decay or putrefaction, perishable) was from either the Old French corroptible or directly from Late Latin corruptibilis (liable to decay, corruptible), from the past-participle stem of corrumpere (to destroy; spoil (and figuratively “corrupt, seduce, bribe”.  In fourteenth century English, it applied first to objects and by the mid fifteenth to those “susceptible of being changed for the worse, tending to moral corruption.  The more blatant sense of “open to bribery” appears in the 1670s.

Boris Johnson, hair by Ms Kelly Jo Dodge MBE.

Corruption is probably a permanent part of politics although it does ebb and flow and exists in different forms in different places.  In the UK, the honors system with its intricate hierarchy and consequent determination on one’s place in the pecking order on the Order of Precedence has real world consequences such as determining whether one sits at dinners with the eldest son of a duke or finds one’s self relegated to a table with the surviving wife of a deceased baronet.  Under some prime-ministers the system was famously corrupt and while things improved in the nineteenth century, under David Lloyd George (1863–1945; UK prime-minister 1916-1922) honors were effectively for sale in a truly scandalous way.  None of his successors were anywhere near as bad although Harold Wilson’s (1916–1995; UK prime minister 1964-1970 & 1974-1976) resignation honors list attracted much comment and did his reputation no good but in recent years it’s been relatively quiet on the honors front.  That was until the resignation list of Boris Johnson (b 1964; UK prime-minister 2019-2022) was published.  It included some names which were unknown to all but a handful of political insiders and many others which were controversial for their own reasons but at the bottom of the list was one entry which all agreed was well deserved: Ms Kelly Jo Dodge, for 27 years the parliamentary hairdresser, was created a Member of the Most Excellent Order of the British Empire (MBE) for parliamentary service.  In those decades, she can have faced few challenges more onerous than Boris Johnson’s hair yet never once failed to make it an extraordinary example in the (actually technically difficult) “not one hair in place” style.

A corrupted fattie

Corrupt, a drug addict and a failure: The Führer and the Reichsmarschall at Carinhall, next to a stature of a beast of the field.  Hitler once told a visitor; “You should visit Göring at Carinhall, a sight worth seeing.”

Hermann Göring (1893–1946; leading Nazi 1922-1945 and Reichsmarschall 1940-1945) was under few illusions about the sentence he would receive from the International Military Tribunal (IMT) at the first Nuremberg Trial (1945-1946) and resented only the method of execution prescribed was to be "hanged by the neck until dead".  Göring thought that fit only for common criminals and as Germany's highest ranked soldier, he deserved the honor of a firing squad; the death of a gentleman.  In the end, he found his own way to elude the noose but history has anyway judged him harshly as richly deserving the gallows.  He heard many bad things said of him at the trial, most of it true and much of it said by his fellow defendants but the statement which most disappointed him was that Adolf Hitler (1889-1945; Führer (leader) and German head of government 1933-1945 & head of state 1934-1945) had condemned him as “corrupt, a drug addict and a failure”.  Once that was publicized, he knew there would be no romantic legend to grow after his execution and his hope that in fifty years there would be statutes of him all over Germany was futile.  In fairness, even in that he’d been a realist, telling the prison psychologist the statutes might be “…small ones maybe, but one in every home”.  Hitler had of course been right; Göring was corrupt, a drug addict and a failure but that could have been said of many of his paladins and countless others in the lower layers of what was essentially a corrupted, gangster-run state.

Corruption is of course though something bad and corrosive to the state but other people's corruption in other states can be helpful.  In 1940, after the fall of France, the British were genuinely alarmed Spain might enter the war on the side of the Axis, tempted by the return of the Rock of Gibraltar and the acquisition of colonial territory in North Africa.  London was right to be concerned because the loss of Gibraltar would have threatened not only the Royal Navy's ability to operate in the Mediterranean but also the very presence of the British in North African and even the supply of oil from the Middle East, vital to the conduct of the war.  Indeed, the "Mediterranean strategy" was supported strongly by German naval strategists and had it successfully been executed, it would have become much more difficult for the British to continue the war.  Contrary to the assertions of some, Adolf Hitler (1889-1945; Führer (leader) and German head of government 1933-1945 & head of state 1934-1945) did understand the enormous strategic advantage which would be achieved by the taking of Gibraltar which would have been a relatively simple undertaking but to do so was possible only with Spanish cooperation, the Germans lacking the naval forces to effect a seaborne invasion.  Hitler did in 1940 meet with the Spanish leader Generalissimo Francisco Franco (1892-1975; Caudillo of Spain 1939-1975) in an attempt to entice his entry into the conflict and even after the Battle of Britain, Hitler would still have preferred peace with the British rather than their defeat, the ongoing existence of the British Empire better suited to his post-war (ie after victory over the USSR) visions. 

The Führer and the Caudillo at the French railway station in Hendaye, near the Spanish–French border, 23 October 1940.

Franco however was a professional soldier and knew Britain remained an undefeated, dangerous foe and one able to draw on the resources both of her empire and (increasingly) assistance from the US and regarded a victory by the Axis as by no means guaranteed.  Additionally, after a bloody civil war which had waged for four years, the Spanish economy was in no state to wage war and better than most, Franco knew his military was antiquated and unable to sustain operations against a well equipped enemy for even days.  Like many with combat experience, the generalissimo also thought war a ghastly, hateful business best avoided and Hitler left the long meeting after being unable to meet the extraordinary list of conditions demanded to secure Spanish support, declaring he'd "sooner have three teeth pulled than go through that again".  Franco was a practical man who had kept his options open and probably, like the Duce (Benito Mussolini (1883-1945; Duce (leader) & prime-minister of Italy 1922-1943)) would have committed Spain to the cause had a German victory seemed assured.  British spies in Madrid and Lisbon soon understood that and to be sure, the diplomatic arsenal of the UK's ambassador to Madrid, Sir Samuel Hoare (1880-1959), was strengthened with money, the exchequer's investment applied to bribing Spanish generals, admirals and other notables to ensure the forces of peace prevailed.  Surprising neither his friends or enemies, "slippery Sam" proved adept at the dark arts of disinformation, bribery and back-channel deals required to corrupt and although his engaging (if unreliable) memoirs were vague about the details, documents provided by his staff suggest he made payments in the millions at a time a million sterling was a lot of money.  By 1944, the state of the war made it obvious any threat of Spanish belligerency was gone and he returned to London.

The dreaded corrupted FAT

Dating from the mid-1970s, the file allocation table (FAT) is a data structure used by a number of file systems to index and manage the files on storage devices.  First associated with 8 inch (200 mm) floppy diskettes, it became familiar to users when introduced by Microsoft in the early days of PC (personal computer) operating systems (OS) and was used on the precursors to the PC-DOS & MS-DOS OSs which dominated the market during the 1980s.  Over the years there have been a number of implementations, the best known of which are FAT12, FAT16 & FAT32, the evolution essentially to handle the increasing storage capacity of media and the need to interact with enhancements to OSs to accommodate increasing complexities such as longer file names, additional file attributes and special files like sub-directories (now familiar as folders which technically are files which can store other files).

A FAT is almost always stored on the host device itself and is an index in the form of a database which consists of a table with records of information about each file and directory in the file system.  What a FAT does is provide a mapping between the logical file system and the physical location of data on the storage medium so it can be thought of as an address book.  Technically, the FAT keeps track of which clusters (the mechanism by which the data is stored) on the device are linked to each file and directory and this includes unused clusters so a user can determine what free space remains available.  Ultimately, it’s the FAT which maintains a record of the links between the clusters which form a file's data chain and the metadata associated with each file, such as its attributes, creation & modification timestamps, file size etc.  In the same way that when reading a database a user is actually interacting primarily with the index, it’s the FAT which locates the clusters associated with a request to load (or view, delete etc) a file and determine their sequence, enabling efficient read and write operations.  The size, structure and complexity of FATs grew as the capacity of floppy diskettes and then hard disks expanded but the limitations of the approach were well-understood and modern operating systems have increasingly adopted more advanced file systems like NTFS (New Technology File System) or exFAT (Extended File Allocation Table) although FAT remains widely used especially on lower capacity and removable devices (USB drives, memory cards et al), the main attraction being the wide cross-platform compatibility.

A corrupted image (JPEG) of Lindsay Lohan.  Files can be corrupted yet appear as correct entries in the FAT and conversely, a corrupted fat will usually contain may uncorrupted files; the files are content and the FAT an index.

The ominous sounding corrupted FAT is a generalized term which references errors in a FAT’s data structure.  There are DBAs (database administrators) who insist all databases are in a constant state of corruption to some degree and when a FAT becomes corrupted, it means that the data has become inconsistent or damaged and this can be induced by system crashes, improper shutdowns, power failures, malware or physical damage to the media.  The consequences can be minor and quickly rectified with no loss of data or varying degrees of the catastrophic (a highly nuanced word among IT nerds) which may result in the loss of one or more files or folders or be indicative of the unrecoverable failure of the storage media.  Modern OSs include tools which can be used to attempt to fix corrupted FATs and when these prove ineffective, there are more intricate third-party products which can operate at a lower level but where the reported corruption is a symptom of hardware failure, such errors often prove terminal, thus the importance of data (and system) backups.

The grey area between corruption and "just politics"

As an adjective, corrupt is used somewhat casually to refer to individuals or institutions thought to have engaged in practices leading to personal gain of some sort (not necessarily financial) which are either morally dubious or actually unlawful and a corrupt politician is the usual example, a corrupted politician presumably one who was once honest but tempted.  The synonyms of corrupt are notoriously difficult to isolate within set parameters, perhaps because politicians have been so involved in framing the definitions in a way which seems rarely to encompass anything they do, however corrupt it may to many appear.  The word dishonest for example obviously includes those who steal stuff but is also used of those who merely lie and there are circumstances in which both might be unlawful but wouldn’t generally to thought corrupt conduct except by the most morally fastidious.  The way politicians have structured the boundaries of acceptable conduct is that it’s possible to be venal in the sense of selling patronage as long as the consideration doesn’t literally end up as the equivalent of cash in the pocket although such benefits can be gained as long as there’s some degree of abstraction between the steps.

Once were happy: Gladys Berejiklian and Daryl Maguire, smiling.

In Australia, news the New South Wales (NSW) Independent Commission against Corruption (ICAC) had handed down a finding that former premier Gladys Berejiklian (b 1970; NSW Premier (Liberal) 2017-2021) had acted corruptly was of course interesting but mystifying to many was that despite that, the commission made no recommendation that criminal charges be considered.  It transpired that was because the evidence Ms Berejiklian was required to provide to the ICAC wouldn’t be admissible in a court because there, the rules of evidence are different and a defendant can’t be compelled to provide an answer which might be self-incriminating.  In other words a politician can be forced to tell the truth when before the ICAC but not before a court when charged.  That’s an aspect of the common law’s adversarial system which has been much criticized but it’s one of the doctrines which underpins Western law where there is a presumption of innocence and the onus of proof of guilt beyond reasonable doubt lies with the prosecution.  Still, what unfolded before the ICAC revealed that Ms Berejiklian seems at the least to have engaged in acts of Billigung (looking the other way to establish a defense of “plausible deniability”).  How corrupt that will be regarded by people will depend on this and that and the reaction of many politicians was to focus on the ICAC’s statement that criminal charges would not be pursed because of a lack of admissible evidence as proof that if there’s no conviction, then there’s no corruption.  Politicians have little interest in the bar being raised.  They were less forgiving of her former boyfriend (with whom she may or not have been in a "relationship" and if one did exist it may or may not have been "serious"), former fellow parliamentarian Daryl Maguire (b 1959, MLA (Liberal) for Wagga Wagga 1999-2018).  Despite legal proceedings against Mr Maguire being afoot, none of his former colleagues seemed reluctant to suggest he was anything but guilty as sin so for those who note such things the comparative is “more corrupt” and the superlative “most corrupt”, both preferable to the clumsy alternatives “corrupter” & “corruptest”.

The release of the ICAC’s findings came a couple of days before the newly created federal equivalent (the National Anti-Corruption Commission (NACC)) commenced operation.  Although the need for such a body had be discussed for decades, it was during the time the government was headed by Scott Morrison (b 1968; Australian prime-minister 2018-2022) that even many doubters were persuaded one would be a good idea.  Mr Morrison’s background was in marketing, three word slogans and other vulgarities so it surprised few a vulgarian government emerged but what was so shocking was that the pork-barreling and partisan allocation of resources became so blatant with only the most perfunctory attempts to hide the trail.  Such conduct was of course not new but it’s doubtful if before it had been attempted at such scale and within Mr Morrison’s world-view the internal logic was perfect.  His intellectual horizons defined by fundamentalist Christianity and mercantilism, his view appeared to be that only those who voted (or might be induced to vote) for the Liberal & National Parties were those who deserved to be part of the customer loyalty scheme that was government spending.  This tied in nicely with the idea those who accept Jesus Christ as the savior getting to go to Heaven, all others condemned to an eternity in Hell.  Not all simplicities are elegant.

As things stand, such an attitude to public finance (ie treating as much spending as possible as party re-election funds) is not unlawful and to most politicians (at least any with some reasonable prospect of sitting on the treasury benches) should not be thought “corrupt”; it’s just “politics” and in NSW, in 1992 it was confirmed that what is “just politics” has quite a vista.  Then the ICAC handed down findings against then premier Nick Greiner (b 1947; NSW (Liberal) premier 1988-1992) over the matter of him using the offer of a taxpayer funded position to an independent member of parliament as an inducement to resign, the advantage being the seat might be won by the Liberal party in the consequent by-election.  As the ICAC noted, Mr Greiner had not acted unlawfully nor considered himself to be acting corruptly but that had been the result.  Indeed, none doubted it would never have occurred to Mr Greiner that doing something that was “just politics” and had been thus for centuries could be considered corrupt although remarkably, he did subsequently concede he was “technically corrupt” (not an admission which seems to have appealed to Ms Berejiklian).  The ICAC’s finding against Mr Greiner was subsequently overturned by the NSW Court of Appeal.

So the essence of the problem is just what corruption is.  What the public see as corrupt, politicians regard as “just politics” which, in a practical sense, can be reduced to “what you can get away with” and was rationalized by Ms Berejiklian in an answer to a question by the ICAC about pork-barrelling: "Everybody does it".  Of course that's correct and the differences between politicians are of extent and the ability to conceal but her tu quoque (translated literally as "thou also" and latterly as "you also"; translation in the vernacular is something like "you did it too") defense could be cited by all.  The mechanism of a NACC has potential and already both sides of politics are indicating they intend to use it against their political enemies so it should be amusing for those who enjoy politics as theatre although, unfortunately, the politicians who framed the legislation made sure public hearings would be rare.  One might suspect they want it to be successful but not too successful.  Still, the revelations of the last ten years have provided some scope for the NACC to try to make the accepted understanding of corruption something more aligned with the public’s perception.  Anomalies like a minister’s “partner” being a “partner” for purposes of qualifying for free overseas travel (business class air travel, luxury hotels, lavish dinners etc) yet not be defined a “partner” for purposes of disclosing things which might give rise to a possible conflict of interest for the minister is an example of the sort of thing where standardization might improve confidence.  It probably should be conceded that corruption can’t be codified in the way the speed limits for a nation’s highways can but it’s one of those things that one knows when one sees it and if the NACC can nudge the politicians’ behavior a bit in the direction of public expectation, it’ll be a worthy institution.  On a happier note, Mr Greiner went on to enjoy a lucrative corporate career and Ms Berejiklian (currently with telco Optus) is predicted to follow in his tracks although suggestions posted on social media she'd been offered a partnership at PwC (PricewaterhouseCoopers International Limited) on the basis of her experience making her a "perfect fit for the company" are thought mischievous rather than malicious.

Billigung

Billigung (pronounced bill-a-ghin)

(1) To approve.

(2) To acquiesce.

(3) Tacitly to accept; not to oppose.

(4) "Looking the other way" from something one would not wish to admit knowledge of; a means of creating a defense of plausible deniability; a self-denial of knowledge.

1300s: A Modern German form from the Old High German billīh (appropriate), from the Proto-Germanic biliz (merciful, kind, decent, fair), the variant being Billigung (approval; acceptance), the construct being billig(en) +‎ -ung (from the Middle High German -ung & -unge, from the Old High German -unga, from the Proto-Germanic -ungō; it was used to forms nouns from verbs, usually describing either an event in which an action is carried out, or the result of that action).  The third-person singular & simple present tense is billigt, the past tense is billigte, the past participle is gebilligt and the auxiliary haben.  In German, bein a noun there's always an initial capital but when used in English as a general descriptor (sepecially in a legal context), it usually all in lower-case.  Billigung is a noun and in German, there's no plural form although in English-language texts it might appear as "billigungs" for the sake of clarity. 

When wishing not to know, look the other way

The German Billigung is not so much hard to translate as able to be translated in a number of senses; context is everything.  The way it is used to mean “looking away; avoiding specific knowledge of something which one knows or suspects is happening” was clarified in 1977.  Albert Speer (1905-1981, Reich Minister for Armaments 1942-1945), the convicted war criminal, had always denied any knowledge of the holocaust and was displeased when sent the English translation of a profile to be published in Die Zeit magazine in which Billigung had been rendered as his “...tacit consent...” of the final solution.  This he corrected, explaining Billigung in this context meant “looking away”.  This meant he averted his gaze from the worst crime of the criminal régime he served in order to be able to deny he knew of it.  Speer, predictably, was able to summon a word to explain this too: Ahnumg (the sensing of something without quite knowing exactly what).  He did at least concede the implication of his translation “...is as grave…” as the original, one biographer noting that had Speer said as much at his trial “…he would have been hanged.”  Other historians and some lawyers disagreed with that but it was an assertion the author was unable to pursue.  When she tried to nudge Speer a little further, pointing out that for one to look away from something, one must first know it's there, he didn’t deny what he’d earlier said but added they “…must never speak of it again".  The moment passed and within weeks he would be dead, dying "on the job" in police slang.  Some have noted the feeling Speer conveyed of always somehow longing to confess his knowledge of the holocaust.  He so often came so close to admitting he knew what he'd always denied, as if the last great act of his life would have been to admit worst of the the guilt he convinced himself (and some others) he'd evaded when the International Military Tribunal (IMT) at the first Nuremberg  Trial (1945-1946) convicted him of war crimes & crimes against humanity (counts 3 & 4) and sentenced him to twenty years imprisonment.

Albert Speer in conversation with his lawyer Dr Hans Flächsner (1896-dod unrecorded) and a legal associate, Nuremburg, 1945.

Looking the other way.

In what he described as a “...leadership failure...", former Australian cricket captain Steve Smith (b 1989) has admitted he "didn't want to know about it" when he became aware “something” was being planned after seeing team mates in a dressing room discussion.  Their talks he witnessed were about ball-tampering, a form of cheating which came to be known as sandpapergate.  Billigung is one of those useful German creations (zeitgeist, schadenfreude et al) which in one word conveys what might in English take a dozen or more.  Operating somewhere on the spectrum of plausible deniability, Billigung is where someone hears of or perhaps “senses” something of which they’d prefer there be no admissible evidence of their knowledge; they “look the other way”.

Gladys Berejiklian (b 1970; Premier (Liberal) of New South Wales 2017-2021) & Daryl Maguire (b 1959, MLA (Liberal) for Wagga Wagga 1999-2018).

For some, Billigung might have come to mind when pondering the recording of a telephone call between then New South Wales (Australia) Premier Gladys Berejiklian and Daryl Maguire, another member of the same parliament with whom she was in an intimate relationship, a man forced to resign as an MP as a result of an (ongoing)  investigation by the NSW Independent Commission against Corruption (ICAC) for allegedly using his political influence in business activities.  Of interest was the premier’s use of the phrase "I don't need to know about that bit" when the former member began to tell her some details of his dubious deals.  To that pertinent observation, Mr Maguire replied "No, you don't".  The suggestion is the premier failed to declare a conflict of interest when dealing with the allocation of taxpayer funds which would be to the benefit of her then lover.  The words used by the then premier: "I don't need to know about that bit" may be compared with how Speer described his response in mid-1944 to being warned by a friend "never, under any circumstances" "to accept an invitation to inspect a concentration camp in Upper Silesia".  Speer's friend explained that at that place he'd "...seen something there which he was not permitted to describe and moreover could not describe".  Having received what he claimed was his first knowledge of Auschwitz, Speer asked no questions of anyone, later admitting: "I did not want to know what was happening there".  That was what he later called Billigung.     

At the time the recording was made public, the former premier denied any wrongdoing beyond having appalling taste in men.  Apart from the men in her life (and not a few women would ruefully admit to having "had a Daryl"), she probably was unlucky.  Billigung has long been a part of that essential tactic of political survival: "plausible deniability".  Actually, as practiced these days, because standards of accountability seem to have declined a bit, denials needs no longer be plausible, just not actually disproven by a publicly available audio tape or film clip.  Others, beyond NSW, might be taking interest, especially those south of the border intimately involved in party machines who, apparently for decades, didn't notice certain things going on around them.     

On 1 October 2021, the NSW ICAC announced certain investigations into the former premier's conduct in office.  Specifically, ICAC is focusing on the period between 2012-2018 and her her involvement in the circumstances in which public money was given to a shooting club and a conservatorium of music and whether that conduct was “...liable to allow or encourage the occurrence of corrupt conduct by Mr Maguire”.  The ICAC will explore whether the conduct constituted a “breach of public trust” by placing the former premier in a position where a conflict of interest existed between her public duties and private interests “...as a person who was in a personal relationship” with Mr Maguire.  The commission will also investigate whether she failed to report what could be defined as reasonable suspicions that “...concerned or may concern corrupt conduct in relation to the conduct of Mr Maguire”.  As a point of law, the ICAC is concerned with actual substantive conduct and conflicts of interest.  It is not the test of "apprehended bias" applied to the judiciary where judgements can be set aside if a court finds there could have been a "reasonable perception" of bias or conflict of interest in some way involving a judge.  To the ICAC, any degree of perception, reasonable or not, is not relevant, their findings must be based on actual conduct.

On 1 October 2021, Berejiklian announced her resignation from both the premiership and the legislative assembly.  There are critics of the NSW ICAC who oppose the public hearings and feel its rules permit an exercise of powers rather too much like the Court of Star Chamber which they say it too closely resembles.  However, the former premier can reflect that unlike the IMT at Nuremberg, neither the Star Chamber nor the ICAC were vested with capital jurisdiction so there’s that.

Dieselgate and implausible deniability

Former Audi CEO Rupert Stadler (b 1963, right) with his lawyers Ulrike Thole-Groll (left) & Thilo Pfordte (centre) during his trial, Munich District Court, May 2023.

The billigung defense is still heard in German courts and if not always exculpatory, lawyers still appreciate its effectiveness in mitigation.  Rupert Stadler began his career with Audi AG (a subsidiary of the Volkswagen Group) in 1990 and between 2010-2018 was Audi’s Chief Executive Officer (CEO).  The scandal which came to be known as “dieselgate” involved companies in the Volkswagen group (and others) installing “cheat” software in diesel-powered vehicles so excessive exhaust emissions wouldn’t be detected during official testing and, after years of obfuscation, Volkswagen in 2015 admitted that was what exactly they’d done.  Civil and criminal proceedings in a number of jurisdictions ensued and thus far the fines alone have cost the group well over €34 million.  There have also been jail sentences imposed, something which presumably would have been in Herr Stadler’s thoughts when, in March 2018, Munich prosecutors named him as a suspect in their investigations.  A week later, he was arrested and held in an Augsburg prison, apparently as a precautionary move because it was claimed he was tampering with evidence by making a telephone call in which he suggested putting a witness “on leave”.  After a month, he was released on bail, subject to certain conditions.

In September 2020, Herr Stadler’s trial on charges of fraud began and for years (proceedings now take rather longer than in 1945-1946) he denied all wrongdoing until, in May 2023, he accepted a plea deal offered by Judge Stefan Weickert which would require him to admit guilt.  To date, he’s the highest-ranking executive to confess, tempted apparently by (1) the preponderance of evidence before the court which made it clear he was guilty as sin and (2) the deal limiting his punishment to a €1.1 million fine and a suspended sentence which would not see him jailed, an attractive alternative to the long term of imprisonment he otherwise faced upon conviction.  As confessions go however, it was among the more nuanced.  His lawyer read a statement saying the defendant (1) did not know that vehicles had been manipulated and buyers had been harmed, but (2) he acknowledged it was a possibility and accepted that, adding that in his case (3) there was a need for more care.  A classic piece of billigung, was the line (4) “I didn't know, but I recognized it as possible and accepted that the properties of diesel engines might not meet legal approval requirements” while the statement (5) “I have to admit the allegations overall” had an echo of Speer’s admission of “a general responsibility” while denying personal guilt.  Still, it must have conformed with the terms of the plea bargain because it was accepted by the judge.  His lawyer read the statement, apparently because he couldn’t bring himself personally to utter it but when asked by the judge if the words were his own, Herr Stadler replied (5) “Ja”.

Lindsay Lohan with Audi A5 cabriolet, Los Angeles, May 2011.  Ms Lohan apparently avoided being affected by the dieselgate scandal, all the photographs of her driving Audis have featured gasoline (petrol) powered cars.

Outside the court, his lawyer was a little more expansive, admitting her client had allowed vehicles equipped with manipulating software to remain on sale even after learning of the scam.  “In the course of addressing the diesel issue" after the revelations became public, Stadler “neglected” to inform business partners that cars with so-called defeat devices were still going on the market, meaning he was “accepting that vehicles equipped with the illegal software would go on sale” she said.  Although it may have been stating the obvious, she added Herr Stadler regretted he’d been unable to “resolve the crisis”.  The carefully composed text may however have averted another crisis, lawyers noting the cryptic nature of some of his comments might be explained by a desire not to create grounds for additional claims by consumers for financial compensation.

How that might unfold remains to be seen but on 27 June 2023 the Munich court handed down a 21 month sentence, suspended for three years, a fine of €1.1 million (US$1.2 million) also imposed; that will go to the federal government and charities, the court ruled without providing details.  Herr Stadler was the first member of the Volkswagen board member to be sentenced for his part in the scandal, the judgment coming some four years after prosecutors first laid fraud charges.  Guilty verdicts were also delivered against two former Audi executives: head of engine development Wolfgang Hatz (b 1959) and lead diesel engineer Giovanni Pamio (b 1963) who were handed suspended jail sentences of 24 months and 21 months, respectively.  Hatz was fined €400,000 (US$437,000) and Pamio €50,000 (US$55,000).  All three were guilty as sin so the verdicts were unsurprising.

Dr Angela Merkel (b 1954; chancellor of Germany 2005-2021) & Dr Martin Winterkorn (b 1947; CEO of Volkswagen AG 2007-2015).

The long-running scandal (the fines and settlements thus far ordered having cost the group some €33 billion (US$36 billion)) still has some way to run because the case against former CEO Martin Winterkorn has yet to be heard although he’s already agreed to pay VW €11.2 million (US$12.3 million) after an internal investigation found he failed properly to respond to signs the company may have been using unlawful technology which enabled its diesel engines to evade emissions testing and it's not yet clear if Dr Winterkorn will try the billigung defense.  Herr Stadler was required to pay VW €4.1 million ($US4.5 million) under terms agreed following the same investigation.  The company clearly wished to move on and in separately issued statements, Volkswagen and Audi said they were not party to Tuesday’s proceedings, which should be “viewed independently” of proceedings against the companies which had (in Germany) been finalized in 2018.  Audi seemed anxious to confirm it was now a righteous corporation, saying “Audi has made good use of the crisis as an opportunity to start over.  We have updated our systems, processes and checks to ensure compliance company-wide.”  It concluded by noting it had since “cultivated and strengthened a culture of constructive debate.”  In exchange for agreeing to pay the fines, prosecutors dropped criminal charges against Volkswagen and Audi.