South Africa and the Rule of Law

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South Africa and the Rule of Law A' South Africa and the Rule of Law INTERNATIONAL COMMISSION OF JURISTS GENEVA 1960 The International Commission of Jurists is a non-govemmental organization which has Consultative Status, Category “ B ” , with the United Nations Eco­ nomie and Social Council. The Commission seeks to foster understanding of and respect for the Rule of Law. The Members of the Commission are : JOSEPH T. THORSON Président of the Exchequer Court of Canada (Honorary Président) VIVIAN BOSE Former Judge of the Supreme Court of India (Président) PER T. FEDERSPIEL Président of the Council of Europe; Member of (Vice-President) the Danish Parliament; Barrister-at-Law, Copen- hagen JOSÉ T. NABUCO Member of the Bar of Rio de Janeiro, Brazil (Vice-President) SIR ADETOKUNBO A. ADEMOLA Chief Justice of Nigeria ARTURO A. ALAFRIZ Président of the Fédération of Bar Associations of the Philippines GIUSEPPE BETTIOL Member of the Italian Parliament; Professor of Law at the University of Padua DUDLEY B. BONSAL Immediate Past Président of the Association of the Bar of the City of New York, USA PHILIPPE N. BOULOS Governor of Beirut; former Minister of Justice of Lebanon J. J. CARBAJAL VICTORICA Attorney-at-Law; Professor of Public Law at the University of Montevideo, Uruguay; former Minister U CHAN HTOON Judge of the Supreme Court of the Union of Burma A. J. M. VAN DAL Attorney-at-Law at the Supreme Court of the Netherlands SIR OWEN DIXON Chief Justice of Australia ISAAC FORSTER Procureur Général of the Republic of Sénégal OSVALDO ILLANES BENITEZ Judge of the Supreme Court of Chile RUDOLF KATZ Vice-President of the Fédéral Constitutional Court of Germany JEAN KRÉHER Advocate at the Court of Appeal, Paris, France AXEL HENRIK MUNKTELL Member of the Swedish Parliament; Professor of Law at the University of Uppsala PAUL-MAURICE ORBAN Professor of Law at the University of Ghent; former Minister; former Senator STEFAN OSUSKY Former Minister of Czechoslovakia to Great Britain and France; former Member of the Czechoslovak Government LORD SHAWCROSS Former Attorney-General of England BENJAMIN R. SHUTE Attorney-at-Law, New York KOTARO TANAKA Chief Justice of Japan PURSHOTTAM TRIKAMDAS Senior Advocate of the Supreme Court of India; Secretary, Indian Bar Association; sometime Secretary to Mahatma Gandhi H. B. TYABJI Barrister-at-Law, Karachi, Pakistan; former Judge of the Chief Court of the Sind Secretary-General : JEAN-FLAVIEN LALIVE, Member of the Geneva Bar, former First Secretary of the International Court of Justice Administrative Secretary : EDWARD S. KOZERA Former Lecturer in Government, Columbia University INTERNATIONAL COMMISSION OF JURISTS, 6, RUE DU MONT-DE-SION, GENEVA, SWITZERLAND South Africa and the Rule of Law INTERNATIONAL COMMISSION OF JURISTS GENEYA 1960 ♦ CONTENTS Foreword............................................................................................... 5 U nion of South Africa Map of South A fr ic a ............................................................. 10 The Land and the P e o p le .................................................... 11 Chronology of Events............................................................ 14 Introduction....................................................................................... 19 I Racial Classification.......................................................... 21 II MOVEMENT AND RESIDENCE A. Freedom o f Movement and Residence...................... 27 B. Im m igration..................................................................... 37 III Work and Trade U n i o n s ................................................. 39 IV Rights and Freedoms A. Political Rights................................................................. 46 B. Repression of O p p osition ........................................... 49 C. Restrictions on Political A sso c ia tio n ...................... 52 D. Territorial R ights............................................................ 53 V Marriage.................................................................................... 56 VI Equality before the La w ................................................. 59 VII ArBITRARY ARREST AND DETENTION................................ 64 VIII Freedom of Opinion and Expression............................ 70 IX Peaceful A ssembly and Asso ciatio n........................... 74 X Ed u c a t io n ............................................................................... 76 XI South West A f r ic a .............................................................. 83 i Conclusion........................................................................................... 91 The U niversal D éclaration of Human Rig h t s ................... 93 Appendices A. Statement by Mr. F. Elwyn Jones, Q.C., M.P., on his Mission to South Africa on Behalf of the International Commission o f Jurists................................................................. 103 B. Draft Constitution of 1942 for the Republic of South Africa............................................................................................... 111 3 C. Administrative Scheme for the Recruitment of African Farm L a b o u r ...................................................................... 129 D. Pétition and Supporting Affidavits in the Matter between Dorkus Sadika and P. J. P o tg ie te r................................... 132 E. Pétition and Supporting Affidavits in the Matter between Maria Mahloane and Bazil F e ld t....................................... 184 F. Emergency Proclamations and Régulations...................... 206 4 FOREWORD The International Commission of Jurists présents in this Report to the international légal community the results of a thorough although not exhaustive inquiry into the problems created by the systematic application of the principle of racial séparation (apartheid)1 in the Union of South Africa. In undertaking this research, the Com­ mission was aware of the fact that its purpose could not be served by a mere study of the legality of constitutional processes that insti- tuted apartheid and continue to uphold and strengthen it in ail fields of human relations. It is not a violation of positive law that is being brought to the attention of world public opinion, but rather the spirit in which such law is made by the legislator, interpreted by the administrator and enforced by the Judge. The International Commission of Jurists counts among its pri- mary aims the promotion and defence of the Rule of Law.2 Its définition of this basic principle proceeds from the belief that : 1 K. L. Roskam, Apartheid and Discrimination (Leyden, 1960) ; at p. 98 Dr. Ros- kam points out that the term apartheid appeared for the first time in the Afri­ kaans Dictionary in 1950 where it was defined as : “ A political tendency or trend in South Africa, based on the général principles (a) of a différentiation corresponding to différences of race and/or level of civilisation, as opposed to assimilation; (b) of the maintenance and perpétuation of the individuality (identity) of the différent colour groups of which the population is composed, and of the separate development of these groups in accordance with their individual nature, traditions and capabilities, as opposed to intégration...” (English translation from the Report o f the United Nations Commission on the Racial situation in the Union o f South Africa, 1953, p. 53). 2 The International Commission of Jurists has defined the Rule of Law as follows : “ The principles, institutions and procédures, not always identical, but broadly similar, which the experience and traditions of lawyers in différent countries of the world, often having themselves varying political structures and economic background, have shown to be important to protect the indivi­ dual from arbitrary govemment and to enable him to enjoy the dignity of man. ” 5 “ the Rule of Law is a dynamic concept for the expansion and fulfilment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realised. ”3 It is readily apparent that viewed from the standpoint of the lawyers’ broad civic responsibihty the formai correctness of a légis­ lative measure does not per se assure its compliance with the Rule of Law; the absence of the social content in an Act and its incompa- tibility with the basic principles of human rights makes it devoid of those ethical and moral values that have become an indispensable corollary of légal craftsmanship and do in the final analysis set it apart from an indiscriminate exercise of power. The Commission holds that the application of the principle of apartheid which has come under scrutiny in this Report is morally reprehensible and violâtes the Rule of Law. The evil of the policy of séparation of races lies in the presumption of racial superiority translated into the deliberate infliction of an inferior way oflife on ail who are tainted by non-white skins. Not permitted to choose their own way of life, the non-white population are reduced to permanent political, social, economic and cultural inferiority. The impact of apartheid extends to virtually ail aspects of life in the Union. At church, at home, at school or university, the cinéma, on the beach, in the courts, in hospital, at the poils; in fact in ail conceivable forms of human relations a ruthless discri­ mination
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