REX VAN SCHALKWYK: Rule of law is the bastion against tyranny

The rule of law is the barrier 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-19 crisis.

At its commencement, World Economic Forum head Klaus Schwab 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 SA, 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 dogs for walks took a similar risk of apprehension by their commanders. The country was told what it could eat, drink and wear, but not smoke, which was entirely forbidden, at least until the smugglers took over.

SA was not alone in this. In Australia in the state of Victoria, a pregnant woman, dressed in her nightdress, was apprehended and handcuffed, in her home, by two male policemen for the “crime” of having expressed her solidarity with a group of antilockdown protesters. The outrageous treatment of Canadian Truckers by the Trudeau government, and the even worse treatment of their crowdfunding supporters, some of whom were arrested and imprisoned and their banking accounts frozen, is a textbook example of state tyranny.

A singular feature of this conduct was the campaign of fear implemented by governments worldwide. 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 mark of tyranny. Now that Covid-19 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 “deniers”. 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 the Netherlands, Sri Lanka and Denmark are being threatened, by their respective governments, with extinction.

On the apparent pretext of the urgent necessity of ridding the world of nitrogen emissions, the Dutch farmers have been given a timetable: depending on location, farmers are commanded to reduce their cattle herds by up to 90% by  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. Yet the government has remained undeterred.

A similar event in Sri Lanka unseated the government. 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 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 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”.

Jurisprudential question

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 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 are reluctant to intervene in executive and legislative powers for fear of being seen as “activist” or “populist”. There is also 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, not in the rule of law. It cannot be applied by the constitutional law to neutralise 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.

• Van Schalkwyk, an author and former judge of the supreme court, chairs the Free Market Foundation board as well as its rule of law board of advisers. He writes in his personal capacity.