The adversarial state

Rex van Schalkwyk is a former judge of the Supreme Court of South Africa, chair of the FMF’s Board, and chair of the FMF’s Rule of Law Board of Advisers. He is the author of three books. The first is a novel. The second, One Miracle is not Enough (1998), deals with the failures then already evident in the South African democracy. The third, Panic for Democracy (2009), deals with the equivalent failures evident for many years in the democracy of the United States. 

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This article was first published by Business Day on 28 September 2022

The adversarial state
The rule of law is the barrier that the law sets against tyranny. Tyranny is the abuse of state power.
It is abuse of this kind that the world has encountered countless times over the past two years; a practice that was initiated by the advent of a worldwide response to the covid crisis. At its commencement Klaus Schwab, the head of the World Economic Forum, heralded this conduct as the beginning of, what he called, “The Great Reset”. In practice, its immediate, and most visible manifestation was a widespread, wanton abuse of state power.
In South Africa an unaccountable body, with the sinister descriptor, ‘National Coronavirus Command Council,’ was created by executive edict. Thus empowered, the Command Council took control of the lives of the citizens; there were scenes, ridiculed by the enlightened, of uniformed policemen – duly supported by military personnel, commanding peaceful wave surfers, to hand themselves over to the authorities. Individuals, taking a dog for a walk took a similar risk of apprehension by their commanders. The country was told what it could, eat, drink, wear, but not smoke which was entirely forbidden, at least until the smugglers took over.
South Africa was not alone in this. In Australia, in the state of Victoria, a pregnant woman, dressed in her night dress, was apprehended and handcuffed, in her home, by two male policemen for the “crime” of having expressed her solidarity with a group of anti-lockdown protestors. The outrageous treatment of the Canadian Truckers by the Trudeau government, and the even worse treatment of their crowd-funding supporters, whose banking accounts were frozen, and some of whom were arrested and imprisoned, is a textbook example of state tyranny.
A singular feature of this conduct was the ongoing campaign of fear implemented by governments around the world. Voices of opposition were summarily silenced. If there was a legitimate case for locking down whole communities of healthy and risk-free people, there would have been no cause for silencing dissent.
Good or bad, the silencing of dissent is a failproof marker of tyranny.
Now that Covid has receded into the background, we have something different: the imminent collapse of nature due to the excesses of the indulgent population, responsible for anthropological climate change. Once again, fear is the instrument of compliance, and again, critics are being silenced and demeaned as “deniars”. This issue has recently taken on a paradoxical dimension: while the world is being warned of the danger of mass starvation, farmers, in jurisdictions as diverse as Holland, Sri Lanka and Denmark, are being threatened, by their respective governments, with extinction.
Upon the apparent pretext of the urgent necessity of ridding the world of nitrogen emissions, the Dutch farmers have been given a timetable: depending upon location, farmers are commanded to reduce their cattle herds by up to 90% by the year 2030 – the year when, according to the UN Commission on Climate Change, everything will happen! This will, of course, bankrupt the farmers and they have done the logical thing. En masse, they have taken their tractors and sundry farming equipment to the streets and highways of Holland, but the government has remained undeterred. A similar event in Sri Lanka unseated the government. In the meantime, in the US, Bill Gates, who has had much to say on the merits of vaccination, has become the largest single owner of farmland, with the financial behemoth, Blackrock, not far behind. Are the traditional farmers, who have managed successfully, to feed the world until now, to be replaced by finance?
There is something unusual, if not to say, sinister, afoot. Recall the poster that was distributed by the World Economic Forum with the picture of a smiling youth, and the byline: “You will own nothing, and you will be happy”.
These are only some examples of democratic governments acting tyrannically. Events of this kind have prompted Scottish archeologist, historian and commentator, Neil Oliver, to observe: “The governments are legislating against us”. It is useful to recall that tyranny is never very far away. Thomas Jefferson observed that, “The price of freedom is eternal vigilance”.
The leaders of political movements, like the leaders of revolutions, are inconstant characters. Robespierre was of a liberal disposition and even accommodated the idea of a limited regency before he was intoxicated by power. He, and the inaptly named Saint-Just, instituted the Reign of Terror to create a nation of “virtuous people”; a virtue of which they were to be the authors. They both died under the instrument of terror that they had created before they had the opportunity to test their theory.
What does the rule of law have to say about all of this? Fortunately, it has much to say. However, the misfortune is that it seldom has the opportunity to speak its verdict. There are many reasons for this, including popular apathy, but the jurisprudential question is the one with which we should be concerned.
Courts have a reluctance to intervene in executive and legislative powers for fear of being seen as “activist” or “populist”. Also, there is the separation of powers doctrine, whereby the three branches of government are held to be separate, the one not interfering in the affairs of the other. This salutary principle has its origin in constitutional law, and not in the rule of law. It cannot be applied by the constitutional law to neutralize the rule of law in its vigilance against the forces of tyranny. Where tyranny is encountered it must be defeated, by the courts, which have a duty to uphold the law.

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