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By Nazarul Islam, Copy Edited By Vijaylakshmi Nadar TIO: Given such circumstances, democracy likes to swing wildly— oftentimes. as strong, or as fragile, as the institutions that underpin its edifice. When democracy is subverted, it is the institutional reliability of the judicial system, that is compromised first. Perhaps a slow sweep of history will furnish testimony to these maxims. Whenever judicial independence is undermined, tyranny, chaos, and then anarchy, in that order, are its inevitable derivatives!
A forgotten feature, however, of bygone Germany’s Nazi period, had been the systematic destruction of its independent judicial system.
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The German legal system was both Federal in character and deeply embedded in the classical Western legal tradition of an autonomous judiciary. The reality that glittered from it, was — the legal system as it stood, had been constituted in a manner—-in which, the independence of the judiciary, was particularly, a pariah to the victorious party (the Nazis, in this case).
Like almost all freshly elected leaders, Hitler had also immersed himself in his euphoric bubble, which boasted of his unexpressed expectation: that the judges must ‘hunt’ a sinister and ambitious conspiracy by the Communists, behind the Reichstag ‘notorious’ fire. Unfortunately, the judges could only convict a single communist, for the ‘sinister’ crime!
Then, the autocrat in the leader set in. Outraged, Hitler had leveraged the authority conceded to him in terms of the Reichstag, 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 events had marked the creation of Nazi special courts.
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Almost any ‘crime’ that could be described as political opposition to the Nazi regime, ended up before these courts. The most notorious of these monstrosities were the People’s Court, formed in 1934 to conduct the alleged treason trials. Such measures had only spelled the death knell, for the German legal and judicial system.
Judges in Nazi Germany were then instructed that in the event of any conflict between the Nazi Party and Law, the Nazi Party should always be allowed to 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 legitimization of Nazi atrocities using the letter of law was the rule rather than the exception.
Again, this also proved to be another harbinger for change. In the 1920s in Italy, Benito 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 aspiration, to amalgamate ancient imperial roman grandeur—had 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.
And, again, on 15 August 1936, the official Soviet news agency had 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.
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Nine days later on 24 August 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 twenty-four hours later the press had officially 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 named inextricably linked with the Russian revolutionary movement, the October Revolution, and the initial period of the Third International.
The sentence pronounced had 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.
And fast forward in another domain of this planet…Sixty-seven years later on 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 centers and torture, no doubt contributed to the painful imbalance of human rights during this dark period’.
Furthermore while beseeching for absolution, the magistrates catechized Chile’s Supreme Court to reflect on their own conduct, during Pinochet’s 17-year-old dictatorship.
Earlier, this year in India’s recently held elections, the Party of Narendra Modi, the BJP, won sweepingly. In less than 90 days, the freshly elected Prime Minister had abrogated Article 370, of the Constitution—claimed by his followers, to be politically correct, yet lacking in purely legal and moral dimensions. The worst casualty had been the freedom of the press, the media and of course the judicial system…..just as the Party of Nazis conducted their affairs in 1936.
And, now matters are already starting to get out of hand. As matters reach unmanageable levels, an overconfident Hindutva bubble is also threatening to engulf the traditional institutions of India’s democracy.
Historically, India has stoutly defended attempts to weaken its institutions, which they have proudly built in seven decades. Freedom is proudly valued, and liberty is cherished at all levels in this part of the world.
We must not forget that the condition upon which God has given liberty to man—happens to be eternal vigilance. May democracy survive with our vigilance of institutions, we have developed over the decades!