A new judicial era

By Arvind Sivaramakrishnan

RECENTLY, THE Law faculty at the Southampton University, England, hosted their former colleague, Mr. Justice Albie Sachs of the Constitutional Court of South Africa. Mr. Sachs, famous for the battle against apartheid and victim of a bomb attack in which he lost an arm and an eye, was there to deliver the fifth annual lecture in honour of the former Southampton Public Law Professor Gabriele Ganz.

Mr. Sachs showed forcefully the impact on ordinary people's lives of constitutional judgments and the ways in which serious philosophic issues arise in the cases they bring to court. Yet he himself has not always supported the idea of justiciable rights. Before he took the chair at the Mondlane University, Maputo, in 1977, he held that judges, who are overwhelmingly drawn from highly privileged strata of society, would serve only the interests of established wealth and power.

In the terrible Mozambique civil war, however, Mr. Sachs saw that dissent was treated as subversion, and that it therefore went underground and was exploited by neighbouring states. He also saw that the poorest and most helpless were those who most needed and wanted the law applied to all. The poor had no contacts or connections, and could not telephone ministers or officers to get friends released from arbitrary arrest or detention, could not seek redress for abuses of power and could not find out what happened to loved ones who disappeared.

That showed Mr. Sachs a central connection between democracy and rights: in a society divided by huge inequalities, the majority - the poor - would accept the idea of fundamental rights if the principle of one person, one vote was protected; similarly the minority, the wealthy, would accept one person, one vote if fundamental rights were protected.

The core question here is that of human dignity, and the South African Constitution contains just such a right as well as the social and economic rights which are notably absent from other Constitutions. The court has taken this overriding requirement so seriously that it has inaugurated ``a new era of judicial involvement in policy questions where fundamental questions of human dignity must be addressed''. No fiddly case law here, no time-barred leave to apply for judicial review - all liable to be swept aside by a new statute anyway - and no sophistical defences of the powerful, but instead only the unflinching opening of the court's doors to ``any who are marginalised by any abuse of power''.

The court routinely draws upon rulings from several other states' constitutional courts, not as binding precedents but as guidelines on issues of very great importance to the ordinary people. Among the rulings consulted are those of the United States, Germany, Australia and Canada. The Canadian judgments are particularly clear and practical; they ``establish rights, protect them against retrogression and provide a platform for further development''.

The South African court's powers are extensive; according to one of its judges, ``the mischief against which a Bill of Rights was aimed was a whole constitutional order''. The court can strike down a statute and declare official action unconstitutional; it can also give Parliament time to revise the given statute (in the U.K., a statute declared incompatible with the Human Rights Act 1998 will remain in force until Parliament revises it). This even requires the South African court to read words into a statute while the revision is drafted; provided the intentions and the means are clear, the court will fill a gap rather than strike down the statute. As Mr. Sachs said, the world does not fall and the practice makes sense.

The court's judgments have been very tough and have consistently ordered that policy be implemented to fulfil the requirement of human dignity. In the case of Grootboom, the court upheld the rights of destitute squatters to occupy land set aside for the South African programme of low-cost housing; it further ruled that the state had not done enough to protect those involved whose condition prevented them from enjoying any other rights, and that the officials involved were to take reasonable measures, such as providing materials for temporary shelter, in order to uphold human dignity. In Hoffman, the ruling was that the South African Airways had violated the Bill of Rights by refusing to employ a HIV-positive candidate as a cabin attendant; commercial considerations were not to override fundamental rights. Even Mr. Nelson Mandela as President had two proclamations struck down by the court on procedural grounds after he had unilaterally invalidated legislation left over from the racist predecessor state. (The President's acceptance of the decision by a court he had himself inaugurated six months earlier set a significant example to the whole country.) In another case, the court interpreted the Bill of Rights to hold that a white plaintiff whose water supply was stopped for non-payment was a beneficiary of previous racial discrimination while poorer - black - recipients of subsidised water were being brought into a culture of payment, in effect of shared citizenship.

In other cases, the court has ruled, for example, that having to hide sexual orientation constitutes an infringement of rights; Mr. Sachs added, ``If we can't handle difference, we are finished''. In Boesak, the court will consider whether the appeals court has erred in relying on a letter which was not put in evidence and in using the defendant's silence to uphold conviction. In Medcash, on financial aid for the large number of cases involving injury and death on the roads, the court will rule whether the unavailability of relief during appeal abrogates the right to further trial.

The court has ruled on further - equally troubled - areas of South African life. It has even seen fit to restrict the constitutional right to bail where the suspects have long criminal records; in this, the judges have relied upon the fact that some of the poorest communities have courageously handed over some very dangerous people to the police.

Out of these urgent cases have arisen some cautious limitations on the Bill of Rights; the court has accepted that some measures which intrude upon basic rights may not be unconstitutional but that they must be justified. This is a move from a culture of authority to one of justification - of all such measures it must be asked whether they are constitutionally justifiable in an open, democratic and equitable society.

That raises issues of great philosophic importance, which Mr. Sachs holds are central to the problems in the ordinary people's lives. Courts that deal with issues of basic rights must be prepared to develop a theory of what it means to be a human being; and they will have to do this in the context of pressing practical problems.

Mr. Sachs has shown that the South African Constitutional Court, with its openness to other jurisprudences, its unique combination of judges, practitioners and law professors, and its courage in standing up to abuses of power both private and public, has an enormous amount to teach all of us.

(The writer is Lecturer in Politics and Law at Taunton's College, Southampton.)

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