The Judiciary In A State Of National Crisis With Special Reference To The South African Experience

Washington and Lee Law Review Volume 44 | Issue 2 Article 4 Spring 3-1-1987 The Judiciary In A State Of National Crisis With Special Reference To The South African Experience John Dugard Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Human Rights Law Commons, International Trade Law Commons, and the Jurisprudence Commons Recommended Citation John Dugard, The Judiciary In A State Of National Crisis With Special Reference To The South African Experience , 44 Wash. & Lee L. Rev. 477 (1987), https://scholarlycommons.law.wlu.edu/wlulr/ vol44/iss2/4 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact . THE JUDICIARY IN A STATE OF NATIONAL CRISISWITH SPECIAL REFERENCE TO THE SOUTH AFRICAN EXPERIENCE JoHN DUGARD* Can judges save a society in which the ruling regime has embarked upon a program involving the suppression of basic human rights and the departure from accepted principles of legality? In an exchange of views between Judge Learned Hand and Judge Jerome Frank on the role of the judiciary in such a society, Judge Hand warned: "A society so riven that the spirit of moderation is gone, no court can save." 1 To this Judge Frank replied: Judge Hand thinks it folly to believe that the courts can save democracy. Of course, they cannot. But it seems to me that here, most uncharacteristically, Judge Hand indulges in a judgment far too sweeping, one which rests on a too-sharp either-or, all or nothing, dichotomy.... Obviously, the courts cannot do the whole job. But, just as obviously, they can sometimes help to arrest evil 2 popular trends in their inception. This exchange raises the question of what judges can or should do in a "riven" society-or what I prefer to call a society in a national crisis. It matters not how the crisis has been brought about, whether by external war, civil war, political repression, racial injustice, or sectarian strife. For in all these cases, if the judiciary is permitted to operate with a substantial degree of independence, the same questions arise. Should judges assume a subordinate role and adopt a policy of judicial restraint in pursuance of the philosophy expounded by the Privy Council in 1916 that "[tihose who are responsible for the national security must be the sole judges of what the national security requires?" 3 Or should they continue to assert the basic * Professor of Law and Director of the Centre for Applied Legal Studies, University of the Witwatersrand, Johannesburg, South Africa. 1. Hand, The Contribution of an Independent Judiciary to Civilization, reprinted in TRm Spmrr oF LmERTY, Ch. 20 (1952). 2. Frank, Some Reflections on Judge Learned Hand, 24 U. Cm. L. R-v. 697-98 (1957). When he made this comment, Frank probably had the South African experience in mind, for in the same address, after making his general observation, Frank commented as follows on the absence of a bill of rights and judicial review in South Africa and on the way in which the South African legislature had "overruled" decisions of the South African Appeal Court in the early 1950's: "whether if supported by a bill of rights like ours, the South African court's decisions would have withstood the onslaughts of the regnant majority in the legislature, no one can say with certainty. But who can say that such decisions would not have done much to stem the terrifying growth of tyranny in that troubled land .... " Id. at 698. 3. The Zamora [1916] 2 A.C. 77, 107 (P.C. 1915) (per Lord Parker of Waddington). [Vol. 44:477 WASHINGTON AND LEE LAW REVIEW principles of justice and fairness that form the foundation of all civilized legal systems "to arrest evil popular trends" (in the words of Judge Jerome Frank), even if this results in a confrontation with the ruling regime? Or should they resign from office lest they be used to lend legitimacy to the regime? In this paper I shall examine what judges have generally done in a state of national crisis, and consider the jurisprudential explanations for their behavior. I shall begin by looking briefly at judges in societies other than South Africa, and then turn to the performance of judges in South Africa itself. I shall conclude by considering the options open to judges in a national crisis. Apart from the experience of Germany in the 1930s, I shall confine my comparative survey to common-law jurisdictions. I do this not only because they are the jurisdictions most familiar to me, but also because the judiciary occupies a special status in countries that have adopted the English common law. The Continental career judge, professionally close to the bureaucracy, and bound to reach some agreement with his brother judges in a majority judgment, is seldom able to display the same degree of public independence as the Anglo-American type judge, appointed from private practice and granted the right of public dissent. 4 This makes it more difficult to assess judicial responses to national crises in Continental systems. The judge appointed by a military junta has no place in the present study either, as his independence is suspect from the outset. This is illustrated by the tragic -case of Argentina.' When the military took power in 1976, it immediately appointed to the Supreme Court and Provincial High Courts new judges who were required to uphold the legal process of the military junta. Not surprisingly, these judges, with a few exceptions, acquiesced in the policy of detention and forcible abductions that resulted in the disappearance of some 9,000 people. The experience of other Latin American societies under 6 military rule is substantially similar. Some may question my failure to distinguish sharply between the American-type judge, called upon to interpret a federal constitution and pronounce on a bill of rights, and the British-type judge, who has no power to sit in judgment on legislative policy. Although there are important differences between these two judicial prototypes, these differences should not be exaggerated: the British-type judge, who serves as a model for the South African judiciary, may seriously obstruct the legislature by restrictive methods of interpretation and halt executive excesses by means of the power 4. W. FRIEDMANN, LEGAL THEORY 532 (5th ed. 1967). 5. For a full account of this tragedy, see Nunca Mds, THE REPORT OF THE ARGENTINE NATIONAL COMMISSION ON THE DISAPPEAR.ED 386-427 (1986). 6. See TORTURE IN BA.: A REPORT By THm ARCHDIOCESE OF SAO PAULO, Ch. 13 (J. Dassin ed. 1986) (translater by Jaime Wright); HUMAN RIrrs IN COLOMBIA AS PRESIDENT BARLCo BEoINS: AN AMERICA'S WATCH REPORT 37-40 (Sept. 1986); LAWYERS COMM. FOR INTERNAT'L HUMAN RIGHTS, NICARAGUA: (...truncated)