Durbach, Andrea; Krygier, Martin (added Commentary) --- "The Many Faces of Truth" [2007] HRightsDef 6; (2007) 16(1) Human Rights Defender 12

• The Many Faces of Truth
• Commentary

The Many Faces of Truth

Andrea Durbach

This article was originally printed in the HRD, Vol 15 issue 1 2006. It is followed by commentary written for this issue by Martin Krygier.

Truth is absolute, truth is supreme, truth is never disposable in national political life (John Howard, 1995).

I grew up in a country where an edifice of power and control was meticulously woven with the tyrannous thread of words - twisted and turned to create a pattern of exclusion and oppression via a myriad of laws and regulations which ganged up together to tell the majority of my fellow citizens that they were simply unwelcome visitors in their home land. The destructive consequences of the language of the law so magnificently displayed in the statutory construction of apartheid were justified throughout South Africa’s history by its crass apologists as socially benevolent, at best and economically expedient, at worst.

The primary architect of apartheid and later its executor when he became Prime Minister in 1958, Hendrik Verwoerd - who obtained his doctorate in psychology in 1924 with the thesis ‘The Blunting of the Emotions’ - sought to legitimate apartheid, euphemistically calling it ‘separate development.’ In 1943, as a rising star of the ruling National Party, Verwoerd said:

This segregation policy, which also means protection and care for the Native in the land of the Afrikaner, but decisively rejects any attempts at equality, gives the Native an opportunity to develop what is his own, so that he can have pride and self-respect as a Native, instead of being continually humiliated as a failed and imitation white.

The ‘protection and care’ underlying separate development manifested in tens upon tens of statutes:

• The Immorality Act of 1950, which displayed the
  immorality of an impoverished and racist ideology,
  prohibited adultery, attempted adultery or related
  immoral acts (extra-marital sex) between white and
  black people (except those acts considered invisible
  as between master and servant).
  
• The Population Registration Act of 1950 which hinted
  at a simple and innocuous administrative measure, l
  ed to the creation of a national register in which
  every person’s race was recorded, based on
  prescribed classifications which dictated access to
  education, health,
  work, recreation, hospitals, park benches and
  relationships.
  
• The Group Areas Act of 1950, far from creating
• communal communities, forced physical separation between races by creating different residential areas for different races, pushing South Africans living in ‘wrong’ areas into windswept wastelands.
• The Separate Representation of Voters Act of 1951 did not herald a separate voting process for Coloured people but slowly secured their complete removal from the common voters’ roll.
• The Natives (Abolition of Passes and Co-ordination of Documents) Act of 1952 did not do away with the Pass Laws but forced black people to carry identification with them at all times - a photograph, details of place of origin, employment record, tax payments, and any encounters with the police. It was a criminal offence to fail to produce a pass when required to do so by the police.
• The Extension of University Education Act of 1959 put
  an end to black students attending white universities
  and the Bantu Homelands Citizens Act of 1970
  compelled all black people to become a citizen of
  the homeland that responded to their ethnic group,
  regardless of whether they had ever lived there, and
  removed their South African citizenship.
  

When I look back over the madness and fear created by a distortion and perversion of language, and how that language was emboldened by legal framing and legitimised and elevated a barbaric deceit to the ‘norm’, I think of those laws and that history as being reserved only for fearful minds borne of a plentiful land and a peculiar time, which the cycle of exposure and resistance, of truth and heroic forgiveness has turned inside out, never again to take hold. The expression of testimony by brave South Africans, the process of naming grotesque deeds, the visible acknowledgment by their perpetrators, stripped bare the ‘political language’ which held out for decades and co-opted and corrupted the amenable minds of white South Africa, the language, which in the words of George Orwell ‘(was) designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind’ (Orwell, 1946).

At the end of 1989, I was fortunate to gain entry to the lucky country and take up its promise of the egalitarian, tolerant democracy of abundant freedom and the fair-go, with its nonchalant disdain for authority and ostentatious manifestations of greed.

And yet over the years, while my new land has clung to proud words of promise and religiously recited the anthem of Australian values, I have witnessed our leaders and their foot-soldiers act so contrary to them. And as the new South Africa began the process of dismantling the laws that accorded apartheid some lofty legitimacy and an apparent logic, Australia began to resurrect the language of the law to cut down rights, cultivate fear, particularly of ‘other’ and emasculate truth, apparently in the name of growth, security, free choice and the national interest.

“...our Prime Minister saw fit to dismiss the very existence of the ‘stolen generations’ and so neatly avoid any moral culpability of his nation for the legacy carried by victims of racist removal policies which continue to diminish the lives of indigenous families and communities and scar our political, social and economic landscape.”

The gains of the High Court’s judgment in Wik in 1996 were negated with amendments to the Native Title Act which effectively wound back the notion of co-existence, licensing governments to racially discriminate against the interests of Indigenous peoples, once again elevating the property rights of non-Indigenous Australians. Political leaders rationalised this erosion of Indigenous rights as being in the interests of economic development and ‘certainty’ and determined that the right of native title holders to have any real say in decisions affecting their country, was not in the national interest.

Encouraged by the findings of Justice O’Loughlin in the case of Stolen Generations members Lorna Cubillo and Peter Gunner that they had suffered severely ‘as a result of the actions of many men and women who thought of themselves as well-meaning and well intentioned’ (Cubillo and Gunner v Commonwealth of Australia), our Prime Minister saw fit to dismiss the very existence of the ‘stolen generations’ and so neatly avoid any moral culpability of his nation for the legacy carried by victims of racist removal policies which continue to diminish the lives of Indigenous families and communities and scar our political, social and economic landscape. Anthropologist Professor WEH Stanner observed in 1964 that it was perhaps difficult for those well-meaning men and women to see that those misguided intentions were racist and ‘fundamentally dictatorial’ (Van Krieken, 2001).

Our dictatorial benevolence might have extended to Indigenous Australians but it found scant application in relation to those we have more recently marked as other. When the Victorian Council for Civil Liberties and lawyers came together to act pro bono for the desperate 438 asylum seekers rescued by the Tampa from a sinking ferry in the Indian Ocean, Justice French of the Federal Court described the lawyers as ‘giving voices to those who are perforce voiceless and, on their behalf, to hold the Executive accountable for the lawfulness of its actions’ (Victorian Council for Civil Liberties v MIMIA). Our Attorney General, Phillip Ruddock, on the other hand, characterised the intervention as ‘promoting unlawful activity’ (Marr and Wilkinson, 2003). And he went on to fuel antagonism towards the judicial arm of government describing the courts which released lawful refugees from detention as ‘too generous, adding to the perception that Australia was a soft touch’ (Marr and Wilkinson, 2003). The Prime Minister thundered support for this view with his self-important catch-cry that the Government, not the courts, shall ‘decide who comes to this country and the circumstances in which they come’ (Marr and Wilkinson, 2003). Evidently, those circumstances encompass fraudulent businessmen with seedy histories and large caches of cash destined for the coffers of the Australian Liberal party.

But our Prime Minister did show an even-handedness when appointing Air Marshal Angus Houston as the new Defence Force Chief, despite Houston’s active contradiction of the Government’s line on the children-overboard fiasco. Prime Minister Howard in defence of what seemed a politically curious appointment, said that his Government was not in the practice of penalising people for ‘telling the truth’ - perhaps a back-handed acknowledgment of his Government’s deceit in the sordid affair.

“Our failure to investigate, to doubt, to question and so, to come to a truth, will allow this nation to continue its relaxed and comfortable
slide towards authoritarianism.”

Australian Police Commissioner Mick Kelty, however, did not warrant similar handling by the Prime Minister when the Commissioner suggested a link between the Madrid bombings and Spain’s participation in the war on Iraq, the natural corollary being that Australia was also a potential target because of its support for the US led coalition. Commissioner Kelty’s comments reflected what every terrorism analyst, defence, intelligence and international security research agency (including one of the world’s leading and longestablished independent research institutes, Chatham House) has argued and demonstrated – that Australia’s profile has been raised as a terrorist target because we are a willing, unthinking and sycophantic ally of a willing coalition that led an illegal attack on Iraq.

The messenger was shot at and Commissioner Kelty swiftly withdrew his comments. But rather than pay heed to what the man responsible for Australia’s security and leaders of Australian Muslim communities have to say, rather than concentrate our resources and intelligence on addressing our unsophisticated and wholly inadequate infrastructure – such as airports and transport networks and simpleton roll-call evacuation plans - our Government scripted an armoury of anti-terrorism legislation which boasts sweeping powers of search and arrest, bannings, interrogation and detention, without reference to the checks and balances endemic to a system of justice founded on democratic rights and values.

And as experts advise us that the magnitude and increasing frequency of Hurricane Katrina and others are undoubtedly a consequence of global warming or climate change, Australia tops the list of the developed world’s highest per capita greenhouse polluters and continues, with our American cousin, to resist signing the Kyoto Protocol, holding that ratification would not be in Australia’s economic interests (read, the interests of Australia’s high-energy producing industries). Any domestic responsibility to lead and collaborate with the world of nations for the global protection of our planet, seems to have lost its way to unabashed self-interest and the appeasement of industrial greed. One wonders, after watching the horrendous consequences flowing from the mix of urban devastation and government ineptitude, whether selfish minds taking stubborn steps will ever comprehend the economic impact on the national interest of an arrogant meddling with climatic forces.

I end with a return to the thesis of apartheid’s foremost Prime Minister, Hendrik Verwoerd – ’The Blunting of the Emotions’. Perhaps the blunting of emotions - the decline of curiosity, of compassion, of a thirst for truth, of anger and dissent – comes with years upon years of rhetoric under the guise of policy and law which plays with tentative notions of tolerance, freedom and egalitarianism.

We can hold our leaders responsible for the insidious confusion and dismissal of essential values up to a point. But it is the citizens of a robust democracy, such as our own, who become complicit in the decline of morality in public life, in government pandering to and exploiting ignorance and prejudice. Our failure to investigate, to doubt, to question and so, to come to a truth, will allow this nation to continue its relaxed and comfortable slide towards authoritarianism. And whether that slide is triggered by a stunted belief in our capacity to make a difference, or by fear, or lazy resignation, we become partners in a process of erosion which is difficult to stop once it has begun. And in doing so, as Goethe reminds us: ‘We are not deceived, (but) we deceive ourselves.’

A version of this article was delivered as a speech at the Writing History Festival, NSW Writers’ Centre on 24 September 2005

Andrea Durbach is Associate Professor in the Faculty of Law at UNSW and Director of the Australian Human Rights Centre. Born and educated in South Africa, she practiced as political trial lawyer and human rights advocate for 8 years before migrating to Australia in 1989. Prior to joining UNSW in 2004, she was Principal Solicitor and Director of the Public Interest Advocacy Centre in Sydney. Andrea is the author of Upington (Allen & Unwin, 1997), a book about a South African death penalty case.

References:

John Howard, ABC Radio, AM, 25 August 1995. David Marr and Marian Wilkinson (2003) Dark Victory, Allen & Unwin, at 155.

George Orwell (1946) Politics and the English Language.

Robert Van Krieken (2001) ‘Is assimilation justiciable?’ 23(2) Sydney Law

Review 23-60 at fn 133.

Cubillo and Gunner v Commonwealth of Australia (2000) 174 ALR at

para 1562.

Victorian Council for Civil Liberties v MIMIA [2001] FCA 1297; (2001) 110 FCR 452 at

548-9 para 216.

Commentary

Andrea Durbach eloquently illustrates the power of political language to ‘blunt the emotions’ of citizens, through euphemism, misdescription, fraudulent characterisation and other rhetorical sleights of mouth. Emotions thus blunted, citizens allow or even applaud horrors committed in their name against their fellows. To be sure, perpetrators of such rhetoric are playing dirty tricks. But not without help. Durbach rightly insists on the malevolent dialectic whereby tricksters depend on the complicity of those they deceive; they ‘co-opt and corrupt … amenable minds.’ She saw it happen in South Africa, believes it is happening in Australia, and warns that ultimately it is up to us to behave well and to require our leaders to do so. The points are telling, and the exhortation apt. Perhaps the recent public revulsion at the treatment of David Hicks - too little, too sentimental, and too late though it is - is a sign that someone has listened. In any event it’s worth listening. One might, however, question the ease with which South African and Australian experience is elided. Sometimes ‘parades of horribles’ can raise heat more than shed light, blur differences rather than illuminate them, flatten features rather than expose them in relief. Moral shadings and distinctions matter, however; otherwise we are doomed to that night of which Hegel wrote, in which all cows are black.

Martin Krygier is Professor of Law at UNSW and codirector of the European Law Centre. He is a Fellow of the Academy of Social Sciences of Australia and member of the AHRC Management Committee. Martin has published widely on the rule of law, post- communist transformation, law and sociology and the history of ideas. A book of his selected essays, Civil Passions, was published in July 2005.