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Salient. Victoria University Student Newspaper. Volume 33 No. 14. 1970


The Act of Athens described the Rule of Law as springing 'from the rights of the individual developed through history in the age-old struggle of mankind for freedom; which rights include freedom of speech, press, worship, assembly and association and the right to free elections to the end that laws are enacted by the duly elected representatives of the people and afford equal protection to all'."

(International Commission of Jurists, Athens, 1955)

"The rule of law is preferable to that of any individual... He who bids the law rule may be deemed to bid God and reason alone rule, but he who bids a man rule adds an element of the beast, for desire is as a wild beast and passion perverts the minds of rulers, even when they are the best of men. The law is reason unaffected by desire".

(Aristotle, Politics, III, 16)

"We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government, laying its foundation on such principles, and organising its powers in such form, as to them shall seem most likely to effect their safety and happiness."

(The Declaration of Independence, July 4th, 1776)

One of the functions of a lawyer in society is to be the effective and, if necessary, the vociferous guardian of the fundamental liberties of the subject. The lawyer who fails to carry out this duty fails in his public obligations to uphold the highest ideals of his profession. In the International Commission of Jurists booklet on "The Erosion of the Rule of Law in South Africa" published in 1968, the introduction states in regard to the independence of the judiciary in South Africa: "Statutes and cases cited (in the booklet) illustrate two things, the first a steady and increasing interference with the judiciary by the legislature: more and more frequently legislative enactments provide that the exercise of its powers over the lives of individuals and organisations by the executive shall not be challenged or questioned in a Court of law .... particularly so in the fields of African affairs and security legislation .... Secondly, the cases cited in which the judiciary is called on to interpret and apply a number of statutes which clearly violate basic principles of the Rule of Law indicate that it is not sufficient that Judges should remain formally independent and free from direct pressure or influence by the executive. It is essential too that they should maintain their spiritual independence; their devotion to the Rule of Law and the liberty of the subject should take precedence over their support for a political or social system Unfortunately, the decisions cited illustrate that this is no longer generally the case in South Africa, In spite of a number of courageous decisions at first instance, the overall impression is of a judiciary as 'establishment-minded as the executive, prepared to adopt an interpretation that will facilitate the executive's task rather than defend the liberty of the subject and uphold the Rule of Law."

In South Africa today, when so many inroads are being made into the fundamental liberties of the individual and the Rule of Law is being seriously eroded, we should bear in mind what happened a generation or two ago when lawyers failed to carry out their duties and when the security of the State was considered to be of paramount importance: when the interest of the State was considered to outweigh the importance of the individual and his fundamental liberties.

Lawyers must draw attention to the dire threat to the liberty of the subject whenever and wherever it exists, and in doing so, should refer to what happened in Germany from 1 933 until the end of the Third Reich.

Mr. Joel Carlson, is International Commission of Jurists (ICT) Observer in South Africa, and was also Observer for the International Press Institute During the Gandar Trial. A Friend and Colleague of Nelson Mandela During their Academic Careers. Mr. Carlson is an Acknowledged Expert on African Affairs.

On the 28th February, 1933, the new Chancellor of Germany. Adolf Hitler, induced President Hindenburg to sign an "Emergency Decree" of the "protection of the people and the State" (Article 48 of the Weimar Constitution). Adolf Hitler was anxious to act "lawfully and constitutionally" Indeed, he acted "lawfully and Constitutionally" throughout his stay in power by merely suspending the Weimar Constitution (the first democratic constitution Germany had known). He then acted by promulgating decrees under the Enabling Act.

The night before the Emergency Decree was introduced, was February 27th. 1933, when Hitler and his gangsters engineered the Reichstag fire. The following morning Hitler was at pains to convince President Hindenburg of the threat of a communist revolution. He maintained that the security of the State, (a phrase so familiar to South Africans today), was threatened by the communists who were subverting the authority of the State and the law Of course, as so often happens, these threat are more political trickery than truth.

Hitler successfully convinced President Hindenberg to sign the Emergency Decree. As a result all civil liberties were suspended. Thereafter the decree remained in force throughout the Nazi era, which lasted fifteen years Every four years, however, the Reichstag met and renewed his emergency powers by "the Enabling Act" It is interesting to note that the Reichstag when it met held no debates after February 28th. 1933. It met in session to hear Hitler's address, to applaud him and to give the usual "we thank the Minister" acclamations. (The communists had already been arrested or excluded from the Reichstag ) Hitler in fact never even bothered to call the cabinet together and no cabinet meeting was ever convened after February. 1933 and his success in March 5th election of 1933. Hitler. Hesse, Bormann. Goebbels, Goering, Himmler and the other Nazi gangsters ruled by "Promulgating Decrees" In South Africa the State President is given powers of legislation in African areas equal to those of Parliament and he may make, amend, alter or repeal the Common Law or any Statute Law a power to legislate by "Presidential Proclamation"

Using the authority bestowed on him. Hitler immediately set about destroying his opposition. Their organisations were infiltrated and then members were banned, detained, sent to concentration camps and executed. Furthermore. Hitler unified the State and regimented the country's institutions, its culture and its organisations All individual freedom was suppressed step by step. The law for Reconstruction of the Reich enabled Hitler to suppress or dissolve Trade Unions. Political parties 'voluntarily dissolved and on July 14th, 1933 only the Nazi Party remained lawful.

In South Africa leaders of unpopular Trade Unions have been banned, detailed and their organisations infiltrated. With the passing of the Improper Interference Bill 51. of 1968, the Liberal Party in South Africa voluntarily dissolved itself The A.N.C. the P.A.C. and the Communist Party had already been outlawed under the suppression of Communism Act.