If courts are vigilant, democracy will be safe

Any democracy is as strong or as weak as the institutions that underpin its edifice. When democracy is subverted it is the institutional reliability of the judicial system that is dismantled first. A grand sweep of history bears testimony to these maxims. Whenever judicial independence is undermined, tyranny, chaos and then anarchy — in that order — are its inevitable corollaries.  

Various aspects of Nazi rule from 1933 to 1945 have received copious amounts of attention in the form of books, documentaries, films and a range of highly scholastic analysis. A forgotten feature, however, of that period was the systematic destruction of an independent judicial system. Before the Nazis first appropriated dominance in 1933, Adolf Hitler did not wax eloquent against the judiciary. This was due to the fact that the German legal system was both federal in character and deeply embedded in the classical Western legal tradition of an autonomous judiciary both at the base and at its pinnacle.

This ambivalence did not subterfuge the reality that the legal system as it stood constituted, especially the independence of the judiciary, was an anathema to the Nazis. Things came to a head within three weeks of Hitler being sworn in as Chancellor in what is known as the Reichstag Fire case.

Hitler had this unexpressed expectation that the judges would find a sinister and ambitious conspiracy by the Communists behind the Reichstag fire, but the judges convicted only a single communist. Outraged, Hitler leveraged the authority conceded to him in terms of the Reichstag Fire Decree to set up his own judicial system, outside the hierarchical order of the German court system and even outside the ambit of German law. These were the Sondergerichte or the Nazi special courts.

The remit of these special courts was extensive. Almost any crime that could be described as political opposition to the Nazi regime ended up before them. The most notorious of these monstrosities was the Volksgerichtshof, the People’s Court, formed in 1934 to conduct the alleged treason trials. These measures spelt the death knell of the German legal and judicial system. Even the fig leaf of feigned impartiality was ripped to shreds when Hitler addressed the judiciary in a speech in the Reichstag on April 26, 1942. Hitler said, “I expect the German legal profession to understand that the nation is not here for them but they are here for the nation... From now on, I shall intervene in these cases and remove from office those judges who evidently do not understand the demand of the hour.”

Judges in Nazi Germany were then instructed that in the event of any conflict between the Nazi Party and the law, the Nazi Party should always succeed as their objectives surmounted any notions of fair play. Interestingly, judges were the least persecuted class in Nazi Germany. Hardly anyone ended up in a concentration camp for their co-option was voluntary and prostration total. The legitimisation of Nazi atrocities using the letter of law was the rule rather than the exception.
That is why to restore the faith of people in the Axis-occupied countries in the rule of law, the Allies conducted the Nuremberg and Tokyo trials of war criminals rather than summarily execute them.

In the 1920s in Italy, Benito Mussolini propounded “the State, as conceived of and as created by Fascism”, as “a spiritual and moral fact in itself, since its political, juridical and economic organisation of the nation is a concrete thing and such an organisation must be in its origins and development a manifestation of the spirit”. Mussolini conceived and executed the template of a totalitarian state. The three branches of power, namely the executive, legislature and the judiciary, fused into one in the years of Mussolini's depravity. The blend of Mussolini’s grandiloquent braggadocio coupled with an aspiration to amalgamate ancient imperial Roman grandeur into avant-garde futurism, led to the creation of an immoral state where the rule of law was replaced by the writ of the Fascists. The philosophy of natural rights and notions of autonomy for the courts of law had no place in their scheme of things. Fascist justice was the rule of the thug sanctified by a supine judicial class. However, what took the cake was Joseph Stalin’s abuse of the judicial system to purge his rivals at one stroke. The Moscow Trials from 1936 to 1938 were the most gargantuan judicial sham in history. The only object of this kangaroo process was to exterminate the Bolshevik old guard, thereby allowing Stalin to make the state synonymous with the self.

On August 15, 1936, the official Soviet news agency reported that the Russian state prosecutor had charged Gregory Zinoviev, Leon Kamenev, I.N. Smirnov and 13 others of conspiring with the Nazi regime to assassinate seven front-ranking Soviet leaders, and the murder of one S.M. Kirov more than 18 months earlier. Nine days later on August 24, 1936, the president of the tribunal read the verdict sentencing all the defendants to death and forfeiture of all property belonging to them. Less than 24 hours later the press proclaimed that the mercy appeal of the condemned men had been vetoed by the Presidium of the Central Executive Committee of the Soviet Union and further reported the verdict has been actioned.

In less than a fortnight since the first revelation of an alleged terrorist plot, 16 men were allegedly tried and mercilessly executed after a judicial sham. Among them were names inextricably linked with the Russian revolutionary movement, the October Revolution, and the initial period of the Third International. The sentence pronounced included the directive to bring before the court on the same charges Leon Trotsky and his son L.L. Sedov. Both “Father and Son” were Stalin’s proverbial nightmare.  

Sixty-seven years later in September 2013, the National Association of Judicial Magistrates of Chile issued a statement, imploring victims of the Pinochet dictatorship to pardon the judiciary’s “wrongful omissions of its duties”. The statement candidly confessed: “Our courts’  inadmissibility and rejections of thousands of complaints — many of which were rightly filed on behalf of compatriots whose fate was never determined — the systematic refusal to investigate criminal acts perpetrated by state agents, and reluctance to personally get involved in the actions taking place in detention centres and torture, no doubt contributed to the painful imbalance of human rights during this dark period.” Furthermore, while beseeching for absolution, the magistrates catechised Chile’s Supreme Court to reflect on its own conduct during Pinochet’s 17-year-old dictatorship.

As John Philpot Curran said in Dublin on July 10, 1790, “The condition upon which God hath given liberty to man is eternal vigilance.”

The writer is a lawyer, member of Parliament and former Union information and broadcasting minister. The views expressed are personal.