DR. MALAN'S CRISIS
CRISIS is clearly not too strong a word to use when the Prime Minister is announcing his intention of defying the Supreme Court, when political demonstrations in different provinces of the Union are resulting in disorder and bloodshed and when ominous predictions of civil war are being openly bandied. That is all the more reason why comment in this country on the South African situation should be governed by a recognition that that situation is South Africa's own affair, and that nothing would be more bitterly resented by South African Nationalists than moral homilies penned, not always on the basis of full understanding, by censorious critics in Lon- don. The first step is to master the facts. Dr. Malan last year brought in a measure, the Separate Representation of Voters Bill, designed to deprive the Coloured People in the Cape Province of the franchise which they enjoyed before the South Africa Act was passed in 1909, and which was confirmed to them by a clause in the Constitution embodied in the Act, providing that there should be no change affecting the Coloured Peoples' political rights unless approved by a two-thirds majority of the total number of members of the two Houses of Parliament in a joint sitting. Dr. Malan's Bill was passed by simple, not two-thirds majorities, in the two Houses sitting, not together but separately. Its legality was challenged by the Supreme Court and it was last week affirmed to be invalid by a unanimous vote of that body, with whom it lies, as in the United States, to interpret the Constitution. Dr Malan, challenging the Supreme Court's decision, now announces the introduction of legislation which will have the effect of subor- dinating the Court to the Legislature.
There are a number of tangled issues here which it is neces- sary to sort out. To begin with, the Separate Representation of Voters Act had nothing directly to do with apartheid. The latter policy concerns all non-European races, but mainly the seven-and-a-half million black Bantu. The Cape Coloured community are not black; they are the result of mixed marriages between Europeans, Bantu, Hottentots, Indians, Malays and others; they are usually well educated, and many of them are better qualified to exercise the franchise intelligently than many whites. But however strong the disapprobation that Dr. Malan's apartheid Act has aroused, it does not of necessity follow that because he was wrong over that he cannot be right over the Coloured Voters. That is the issue that has to be dis- passionately examined—though in fact the immediate question is not whether the separate Representation Act is morally justified, or whether the Supreme Court's declaration that it is unconstitutional is legally unassailable, but whether the resolve of the Prime Minister tO pass legislation nullifying the Court's verdict can be defended.
On certain aspects of the question there is no room for doubts. The wording of the so-called entrenched clauses of the Constitution, papticularly of Clause 152, is explicit; the Coloured Voters can only be deprived of their privilege by a two-thirds majority of the two Houses. Dr. Malan himself has never attempted to put any other interpretation on Clause 152; his argument, which the Supreme Court has rejected, is that the Constitution was in some way abrogated or superseded by the Statute of Westminster, ratified by the Union of South Africa in 1934, which made South Africa a sovereign independent State. There is no case whatever for the contention, which would in any case have no legal relevance, that the South African Con- ' stitution was "imposed" on the Union by a British Act of Parlia- ment. The Constitution was framed in South Africa by South Africans at a national convention in 1908 and 1909, and embodied, virtually as that convention left it, in the South Africa Act passed by the Imperial Parliament in 1909. That was at that time the only procedure possible, and it is not immaterial that when the Union Parliament debated the Statute of Westminster both the party leaders, General Hertzog and General Smuts, agreed that the entrenched clauses of the 1909 Act remained intact. The new Act is part and parcel of Dr. Malan's purpose to fortify white supremacy, first and foremost Afrikaans supremacy, in South Africa. It is a clear departure from the policy of earlier Nationalist leaders.
Dr. Malan no doubt believed he was on firm ground in bring- ing in the Separate Representation of Voters Act. He had con- sulted the Downing Professor of the Laws of England at Cam- bridge, who declared that since the adoplion of the Statute of Westminster the Union Parliament was perfectly free to amend or abolish the entrenched clauses by ordinary Parliamentary procedure, which is what Dr. Malan now proposes to do. Professor Wade's judgement is, of course, no more than coun- sel's opinion, but it does to some extent acquit the Prime Minister of acting in a spirit of pure irresponsibility and political opportunism. But the deadlock remains. If the entrenched clauses are abolished or modified by simple majori- ties in both Houses the validity of that decision will no doubt be challenged at once before the Supreme Court, which must necessarily declare it invalid. There is no legal way out of the difficulty except for Dr. Malan to secure at the next General Election the necessary majorities to enable him to amend the Constitution constitutionally. And of that there is no visible prospect. At the last election the Nationalists actually secured only a minority of the popular vote, though successes in a number of the smaller constituencies gave them their majority in the House of Assembly. The chance of securing a two- thirds majority is negligible. The Government at present commands eighty-five votes in the House against seventy-four. If the Coloured Voters were disfranchised its position would be considerably stronger, for the Coloured Voters habitually oppose the Nationalist Party. That, no doubt, is the reason why Dr. Malan wants to disfranchise them.
The conflict precipitated by the Prime Minister's determin- ation to disregard the Supreme Court will be bitter, and the issues will no doubt be intentionally and unintentionally con- fused. Defending the Government in the Senate on Tuesday, Dr. Verwoerd, Minister of Native Affairs, opposed the authority of the people, acting through Parliament, to the authority of the Courts. But the real conflict is between Parliament and the Constitution, which is the framework within which and under which Parliament works. It is the safeguard of the rights of the individual, in this case of a particular class of voters, and there is ground for the assertion that if that safeguard is removed the door to complete totalitarianism stands open. The fear of that in South Africa is real. Dr. Malan's policies .have provoked the fierce animosity first of the mass of African natives and now of the much smaller but politically significant body of Coloured Voters. Much more serious for the Prime Minister is the growing and well-organised opposition of a substantial section of the white population to his measures.
The Torch Commando movement, created by his namesake, another Malan, who gained distinction in the war as an airman, is gathering strength daily, and the accession to it in the last week or two of more than one general till lately holding high command in the Union Army has made a considerable impres- sion. Senator Heaton Nicholls, well-known in London as a former High Commissioner, said in the Senate debate on Tuesday that the Government's proposals threatened the country with revolution. There lies the supreme danger, and it cannot be taken lightly. If the Government stops every safety-valve something must explode. A written constitution is something above party. If a party Government defies that basic principle either its defiance must be acquiesced in, or the conflict must be carried outside Parliament. It is certain that in South Africa it will not be acquiesced in. The consequences of the alternative must be grave. Dr. Malan will do well to meditate on them deeply. His choice, if he is animated by statesmanship rather than partisanship, is between accepting the Court's ruling after all and dissolving Parliament and seeking the necessary majority in the constituencies. As has been said, he is not likely to get it. In that case the Coloured People's franchise will remain. It has done Dr. Malan no harm. Even with it he has got the simple majority which serves for all ordinary purposes. A Prime Minister who insists on going beyond that is inviting a conflagration.
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