Forging a new legal system, the former pariah state reveals the virtues of an activist
Supreme Court.
Margaret A. Burnham
Earlier this year, at the University of Michigan Law School, a group of politicians
and legal scholars from South Africa, the United States,
and Canada gathered to consider the latest step in South Africa's transformation from
pariah state to progressive exemplar: the adoption
and implementation of a new permanent constitution. The group included the African
National Congress's Belelani Ngcuka, chair of the
Constitutional Implementation Committee; Roelf Meyer, the National Party's chief
constitutional negotiator; and Leon Wessels, deputy
chairperson of the Constitutional Assembly. The conference provided an opportunity for a
mid-journey moment of self-reflection for the
founders of South Africa's new legal system as well as an assessment of the constitution's
international significance. Margaret Burnham
participated in the conference; the article that follows is based on her presentation
there.
Present day constitution-making is a shared international effort. Strategies for how best
to reduce complex notions of individual freedom and
governance to legally enforceable declarative statements (for example, the assertion in
the South African Bill of Rights that everyone has the "right to
privacy") are freely passed around from country to country. As these concepts
criss-cross national lines, what emerges is a roving constitutional project,
in which each new constitution, while reflecting indigenous realities, echoes the terms of
other recent national charters: How should a state reconcile
the claim for group cultural rights with the equality principle? India faced that
challenge. Should a constitution extend protection for individual
rights as against non-state actors? Germany adopted an interesting solution.
But constitutions are not merely texts, embodying concepts, principles, and ideals. They
are living documents, and their life depends in no small part on
the institutions responsible for interpreting them. In South Africa, that interpretive
responsibility falls principally to a new Constitutional Court. And its
emerging practice--its attention to politics and principle--may suggest important lessons
for other democracies wrestling with the proper role of
constitutional courts in a democracy.
Constitutional Politics
South Africa recently completed its two-year constitution-making project by distributing
millions of copies, in 11 languages, of the final document--the
Constitution of the Republic of South Africa, 1996, which became the law of the land this
past January. The political negotiations that led to its
adoption were perhaps as important, certainly as perilous, as those that resulted in the
1994 elections. Cyril Ramaphosa of the African National
Congress (ANC), who was chair of the Constitutional Assembly that began its work in the
wake of the elections, says that the final product was
drafted by 40 million people; that seems an apt description of the process. To cite just
one example: When the National Party (NP) insisted that the Bill
of Rights include a "right to lockout" provision, the trade union movement
threatened to strike. Ramaphosa was addressing trade union rallies on the
lockout clause one moment, and the next fiddling with the constitutional language to eke
out a compromise. In the end, if the "right to lockout" and other
contentious provisions--among them the protection of private property and the right to
maintain same-language (in effect, Afrikaner) schools--had not
been resolved, they would have been decided by national referendum. Compromise seemed the
better course for all parties: for the NP, a referendum
would have meant losing on most of its issues; for the ANC, a referendum would have
appeared to signal failure for its Government of National Unity.
The mutual dependence of the political parties dictated constitutional compromise. The
question now is whether those concessions will hobble the
ANC's political imperative of redistributive justice. For example, land reform is
essential to meet the pressing needs of the ANC's constituency.
However, the constitution raises more questions than it answers about how to ensure
equitable land redistribution. It provides that land should be
restored to those who lost their property to apartheid's laws after 1913, but requires,
too, that the government compensate landowners whose property
is to be expropriated. Because the choice of 1913 as the cutoff year was a concession to
the opponents of land reform, most farmland is protected
from redistribution. Much of the land seized after 1913 is now industrial property, and
neither the government nor the pre-1913 owners--who now,
theoretically at least, have legal rights to the land--can really afford to compensate the
present landholders. Equally problematic, some pre-1913
owners are making claims to land that is now owned by municipalities; recognizing such
claims, as the constitution and the land reform bill appear to
dictate, would create havoc with such local economies.
In general, the compelling political need to reach agreement on the constitution meant
that the framers avoided some hard questions on which consensus
could not be achieved. The result is a constitution with open-ended clauses that now need
to be filled in. Some of that work was passed on to the
Constitutional Court, which must decide matters such as whether abortion is a protected
right. Other issues--for example, whether lockouts are
permissible--require parliamentary decision. But while Parliament has been exceedingly
slow to speak to these constitutional silences, the Constitutional
Court has been remarkably aggressive in staking out its role.
A New Court
Convened for its first sitting in February 1995, South Africa's highest court comprises 11
judges who will sit for a non-renewable 12 year term. Four of
the jurists are black and two are women. Although the constitution provides that only
eight judges need hear a matter, in practice all eleven judges hear
every case that comes before the Court.
The creation of a Constitutional Court vested with the power of judicial review
represented a symbolic and pragmatic break with the past. The old
South African judiciary--operating within a Westminster-style parliamentary system--was
deeply committed to the status quo, and could not be trusted
to give full meaning to the provisions of the new constitution. New judicial leadership
with broad authority was required if constitutional adjudication
was to become an effective partner in the social transformation envisioned by the
constitution. The new Constitutional Court reflects the divergent
voices of South African society, and appears to be committed to a vision of judicial
activism that can fulfill the democratic and human-rights aspirations
embodied in the constitution, often in amorphous language. Perhaps anticipating the
inevitable public disaffection that will cloud popular support for
potentially divisive democratic reforms, the Court has moved quickly to establish its
voice among the country's new political structures and engender
public support for its role.
The high court jurists were all keenly familiar with the positions of the constitution's
framers--indeed, several members of the Court served on the
ANC's constitutional committee and were leading architects of that document. Most of the
jurists (including, prominently, the black former civil rights
lawyer Pius Langa and the ANC revolutionary hero Albie Sachs) made their views on
controversial constitutional issues known to the international
community during the lengthy drafting period in writings and speeches.
In part because of this background, members of the Court seem aware of both the challenge
of securing a firm and reliable juridical foundation for the
new constitution, and of the exigencies of radical social change. Material needs are
clamoring to be met; inequities require address; and a history of
state violence must be confronted. Although it is only a little over two years old, the
Court has not hesitated to take on hard cases--those cases for
which no clearly right answer emerges either from precedent or from the constitutional
text--like the death penalty (the Court banned it), single-language
state-supported schools (also banned), and amnesty for past human-rights violators
(upheld). Hard cases challenge the enduring myth that constitutional
adjudication is, or should be, devoid of politics. They present problems of interpretation
that necessarily involve policy choices that take jurists into
uncharted and uncomfortable territory. The decision-making process in these cases disrobes
the neutral, objective, and disinterested jurist, and reveals
a political being with particular assumptions, biases, aspirations, and commitments. The
line between policy and law can be all the more difficult to
establish if, as in the South African case, those who are deciding what the Bill of Rights
requires in a given case are the same people who advocated for
a particular policy during the drafting period--for example, that the right to
"bodily integrity" protects abortion.
The Court, perhaps appreciating the interpretive challenges confronting the framer/judges,
seems to have adopted methods of interpretation that
acknowledge both the choices presented by political imperatives and the need for neutral
principles. More particularly, three interpretive anchors
emerge from the 40-odd cases the Court has decided during the last two years: the Court
has looked to foreign sources to support its decisions; it has
contextualized its decisions by discussing the political impulses that gave rise to the
constitution; and it has applied the principle of "transparency" to its
work, seeking thereby to spotlight its choices rather than hide them behind a veil of
supposed neutrality. If successful, this approach holds great promise
for other constitutional democracies seeking to reconcile the inherent indeterminacy of
rights with the strong desire for concrete, certain, and lasting
principles.
Cosmopolitanism
The Court has taken every opportunity to situate its opinions within an international
human-rights project. In virtually every decision, it has looked to
international and foreign law precedents. The Constitution itself instructs the Court to
have regard for international human-rights law. Unlike appellate
courts in the United States, the South African jurists are eager to look outside their
jurisdictions for comparable or contrasting experiences of other
states. They see themselves as internationalists who can gain from--and in turn
reinforce--the entrenchment of such international norms and the
emergence of a comparative constitutional law. In one recent case, the Court was called
upon to decide whether the Bill of Rights' guarantees of
education protected state-supported single-language schools. During the drafting period
the Afrikaner community had lobbied hard to preserve such
schools, but the textual guarantees of equal educational and cultural rights were
intentionally left open-ended in the final document. In arguing the case,
the Afrikaners asserted that the cultural integrity of their community was tied to the
right to exclude non-Afrikaans speakers from such schools; this
argument supposedly implicated broader equality principles to which the Afrikaners (kin,
here, to the white male victims of affirmative action) looked
for support. The Court rejected the argument, relying on international law principles
according to which states are not required to act affirmatively to
protect minority groups that have not been victims of past discrimination. Politically,
this result seemed right, as it would have been unseemly for the first
blow for equal education in South Africa to have been struck on behalf of the Afrikaners,
especially given the apartheid-era history of forcing all South
African students to learn Afrikaans. Though the decision lacked South African precedent,
the Court found ample guidance in international law and
practice to bolster its conclusion.
At times the Court has distinguished itself by rejecting prevailing authority in favor of
its own vision of justice. In one of its early and most important
decisions, the Court declared the death penalty unlawful, thereby remitting the sentences
of 400 death-row convicts. This decision bucked public
opinion, which strongly favored capital punishment even though the ANC had long opposed
it. The Court's canvass of international and foreign law
made clear that it could have gone either way without violating conventional wisdom. But
at some risk to its own prestige, the Court opened a new road
in the global abolition campaign by adopting US Supreme Court Justice William Brennan's
dissenting view, expressed in Furman v. Georgia, that
death is an unconstitutional penalty because it treats "members of the human race as
nonhumans, as objects to be toyed with and discarded." The Court
also cited with favor opinions in Massachusetts and California courts striking down
capital punishment.
Thus has South Africa, once the subject of sanction and scorn by the international
human-rights community, begun to demonstrate the transformative
potential of human-rights norms for domestic law. It has staked out a leadership role in
the international human-rights community by defining its
individual legal persona in reference to that community.
Rights and Policy
In its opinions, South Africa's Constitutional Court has described its legal work as of a
piece with the country's social and political transformation. To
be sure, one purpose of a constitution is to distinguish legal rights from public policy,
and ensure that policy is governed by right. But a clear line
between rights and policy cannot always be constructed, and the Court refuses to pretend
otherwise. It has not eschewed making value-laden, political
choices, or sought to present its choices as legally mandatory decisions. For example, in
ruling against a victim of police torture who sought punitive
damages, the Court wrote that it was "inappropriate to use scarce resources" to
pay such damages when such resources could be "better employed in
structural and systemic ways to eliminate [the causes of police violence]."
The Court is self-reflective in defining its own role in promoting a "new culture of
respect for human rights." This role-consciousness led the Court to
conclude, in the death penalty case, that the state had to be seen as rejecting the idea
of violence as legitimate retribution. In one of the most difficult
cases to emerge thus far--a challenge brought by Steve Biko's relatives to the amnesty
provisions of the Truth and Reconciliation Bill--the Court
described at length the peril and fragility of the political moment, and the need for
creative approaches to governance during the transition. The
challenged provisions had been central to the negotiations that led to elections and a new
constitution; therefore, the Court concluded, it was
constitutional. The Court thus openly embraced the "grand project" of political
transformation, which, it wrote, "could not be achieved without a firm
and generous commitment to reconciliation and national unity." In other cases the
Court has made clear its appreciation for the class bias embedded in
law, and spoken of the need to revamp legal structures that perpetuate inequity. It has
sought to look beneath the appearance of equality in a piece of
legislation to determine what its actual impact will be upon disadvantaged groups. For
example, it struck down a law permitting civil law debtors to be
imprisoned for failure to pay. The Court observed that while it appeared to affect all
debtors equally, the law was unconstitutionally discriminatory
because wealthier debtors with access to the system could avoid its impact by declaring
bankruptcy.
Transparency
Finally, the Court has emphasized the importance of judicial "transparency." The
Court has advanced a particular vision of South Africa's political
transformation, and not shied from describing that vision. Its opinions acknowledge that
it is making political choices, and highlight the reasons for those
choices. In the case concerning same-language schools, the justices were torn between
protection for cultural minorities and the need for educational
equity. Again, this was a "hard case," generating deep public division and
difficult interpretive choices: the case called for a decision between two
equally plausible legal results. The Court discussed the bitter history of educational
segregation and apartheid-era laws requiring African schools to
instruct in Afrikaans. To accord the Afrikaner minority a constitutionally-guaranteed
right, the Court held, would merely perpetuate the inequities of the
past. It thus established that the right of cultural minorities to affirmative protection
could not spring from thin air, but rather had to be tied to past
discrimination.
New Questions
The South African constitution-making process illustrates a refreshing jurisprudence, at
once principled and pragmatic. Norms--both international and
domestic--are acknowledged and respected, but so is political context. The Court speaks
directly and clearly to its constituents within the legal system
and beyond it; its opinions are long, discursive, and argumentative. In two short years,
the Court has addressed many of the theoretical and ideological
debates in the international legal discourse. It remains to be seen if the Court will
continue to apply the teachings of international human-rights law once
its indigenous constitutional law is more firmly established. If it does, we may begin to
see a particularly compelling synthesis of universal human-rights
norms and local jurisprudence. It is likewise an open question whether the Court's
vigorous and open commitment to a progressive constitutionalism will
alienate it from those segments of the South African population that have already begun to
pull away from the Government of National Unity. Such
alienation, should it come to pass, would likely imperil South Africa's fragile peace.
Like the country, the Court stands on the "bridge to the future" that it
described in the Biko amnesty case, traversing in giant but careful steps. Safe
journey.
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