The Inaugural Helen Suzman Lecture 2008 The Helen Suzman Foundation seeks to promote constitutional liberal democracy and human rights. As an active member of South African civil society, The Helen Suzman Foundation contributes to debates on contemporary events and institutional challenges that form part of efforts to consolidate democracy.
The sole objective of The Helen Suzman Foundation Trust is to conduct public benefit activities in a no-profit manner by:
• Carrying out and commissioning research into political, social and economic affairs in South Africa and elsewhere in order to provide information and to stimulate debate on issues relevant to the future of democracy in South Africa.
• Publishing a journal, Focus, as a vehicle for information and comment on issues relevant to the future of democracy in South Africa;
• The arrangement of and attendance at roundtables and conferences on matters related to politics and governance in or of relevance to South Africa;
• Advocating measures designed to promote the ideals of liberal constitutional democracy in South Africa, including the improvement of race relations and the combating of any discrimination on the grounds of race, gender, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth.
• Forging relations with other actors in civil society that seek to protect liberal constitutional democracy and human rights.
Co-hosted by
The Isaac and Jessie Kaplan Centre for Jewish Studies University of Cape Town
Sponsored by
Contact Details Tel +27 11 646 0150 Fax +27 11 646 0160 Email [email protected] Website www.hsf.org.za Postal address Postnet Suite 130, Private Bag X2600, Houghton, 2041, South Africa Physical address Block A, Anerley Office Park, 7Anerley Road, Parktown, 2193, Johannesburg Press Coverage Question &Answers Professor KaderAsmal Mr ColinEglin Pannelists Mr RaenetteTaljaard Chairperson Professor MiltonShain Opening andWelcome With NthatoMotlanaatthe Alan Paton Paton Awards ceremony, 1997. Contents 23 16 9 4 3 2
page 1 page 2 Good evening. I’m Lecture, sponsored jointly Helen Suzman Annual Helen Suzman Foundation goestoan back association withthe Our Foundation andtheKaplan Milton Shain, University ofCape University Town exhibition the Kaplan Centreexhibition theKaplan mounted in2005, which Suzman. We decidedjointly of the Kaplan Centreof theKaplan at Centre for Jewish Studies Studies Centre Jewish for prominent rolefor inthefight [UCT] andit’s mypleasure [UCT] and Research atUCT. human rights and the rule of andtherule human rights soon after theexhibition to soon after recognise, through anannual traced thecareerofHelen you know, Helenplayed a lady.this extraordinary As to welcome you tothisfirst law in South Africa. Africa. law inSouth lecture, thecontributionof by the Helen Suzman by theHelenSuzman Director Director: IsaacandJessieKaplanCentreforJewishStudies(UCT) “an thosepeoplewhohave ombudsmanall novote for honorary The Kaplan CentreFoundation andtheare delightedthatshe The subject,Law andConstitutionalism,Rule of the ishugely 15 or20minutesandthenthere beaconversation will ledby Despite an enormously heavy parliamentary burden, heavyparliamentary Despite anenormously Helen Eglin a long-time opponent of apartheid andpoliticianwho Eglin along-time opponent ofapartheid Raenette Raenette Taljaard, Foundation. Director oftheHelenSuzman From careerthatspanned almostfour ofapolitical thestart Parliament, lonely. wasrelentless andoften From 1961to1974, Unfortunately, Helenisunabletobewithus, butshehassent consequences of apartheid legislation.consequences ofapartheid hermainconcern While decades, andusedthe ofapartheid theiniquity shechallenged customary law was that of perpetual minors. lawwasthatofperpetual customary Helenhad the colleague, ColinEglin. Tonight about talkfor eachofthemwill me anoteexpressing herappreciation this inaugurating for devoted decades to the struggle for the rule oflaw. therule for to thestruggle decades devoted Bothwere privilege of Parliament to expose the inhumanity of a system ofasystem ofParliamentprivilege toexposetheinhumanity privilege of witnessing the collapse of apartheid andthe ofapartheid ofwitnessingthecollapse privilege women whosestatusin African asitaffected particularly prominent in forging the South African Constitution andboth, African prominent theSouth inforging and nomemberofParliament”. agreed tohave ushostanannuallecture in hername. Ialso humancosts,and itsappalling shealso concernedherselfwith a constitutional activist lawprofessor andColin andpolitical and knowledgeable comment. Bothhave much devoted oftheir appreciation toProfessor Asmalandtoherlong-time Kader annual lecture andshe’s asked metoconvey herbestwishesand democracy.introduction ofparliamentary in two days’ revolution. time; oftheRussian theanniversary she represented anaffluentwhite constituency, shesawherselfas memberoftheProgressiveshe wastheonly Party intheHouse, againsttheNationalstruggle Party, bothwithinandoutside of resisting the apartheid government againstgreatresisting odds. theapartheid Although never failed to investigate as far as possible the often tragic tragic failedtoinvestigatenever asfarpossibletheoften againsthumanity. tobedefinedasacrime that came Her the abolition of capital punishmentandgenderthe abolitiondiscrimination, ofcapital no doubt, have much tosay on thesubjectthat hasincreasingly experienced situatedtooffer andthespeakersperfectly topical want to wish Helen well for her91stbirthday,want towishHelenwell for be will which lay withapartheid’s oflaw erosion andtherule ofcivilliberties lives to the rule oflawandconstitutionalism.lives totherule Asmalis Kader been inthespotlight. Professor MiltonShain This has heralded the start of what will bequitealengthy ofwhatwill thestart This hasheralded Africa has seen a very controversial year we inwhich hasseenavery have seen Africa Africans who have not only their legacy andtheircontribution theirlegacy whohave notonly Africans We politics have African two ofthegreat namesofSouth It truly is a great honour isagreat It truly Professor AsmalandMrColinEglin. Kader Iadmired them Parliament thatIhave thegreatest admirationfor, andaffection discussion about constitutionalism in South Africa. However,discussion Africa. aboutconstitutionalism inSouth oflaw.constitutionalism andtherule of the questions aboutwhatconstitutes raised validcriticism Suzman FoundationSuzman we decidedthatwe neededtoensure Lecture.Suzman lectures thatare Many ofyou whoobserve perspectives are not necessarily only going to focus on contemporary issues, goingon tofocus contemporary only are notnecessarily delighted afarandwasreally as ayoung from back-bencher indeed I expect them both to come from very varied analytical analytical varied very indeed Iexpectthembothtocome from has joinedusinthisendeavour. seen aNational Convention ofdemoracy, indefence called surrounding the Constitution and, indeed, we’ve recently inthem, ofnamescelebrated in thepanoply andattheHelen judiciary, we conversations have seenvarious andcontroversies veteranspeculiarabsence would havestruggle noticedacertain the two distinguishedgentlemen we have withusthisevening their opinions on mattersconstitutional andpolitical. South them bothover theyears, theirinsightsand from andtolearn tobuildastronger relationshipthat Ihad theopportunity with represented in their individual and public lives in [celebrated this to the country’s trajectory,to thecountry’s butindeedthevaluesthatthey that Helenassumedherposition among themany great South activists,named after leaders or, political former indeed, great with ushere this evening, in colleagues andtwo ofmyformer way]. We Centre happy thattheKaplan andgrateful are very Ms Raenette Taljaard tobehostingthefirstannualHelen Chairperson
page 3 page 4 with theruleoflaw. are integrallylinked human rights equal opportunity, Simple justice, simple justice, andhumanrights. equalopportunity the These are indispensable ademocratic elements fighting of worth society andare I’m delightedandhonoured Not only did they dothat,Not didthey only isone ofLaw saidthattheRule they I don’t thinkany ofthosethingsare going tobeattainedina Rights, speltouttheindividualrights; which you had thecourts In fact, ofthosethree all featuresfor thatHelenwasfighting Human RightsCommission. You’ve had anumberoffactors concepts Helenreferred. towhich justiceandhuman Simple for.” creed; andpolitical doctrine she said: hate “I bullies; Istand for of lawentrenched, buthad extensive provisions seeingthat for citizens.ordinary The Constitution, then,rule had the not only valuesoftheConstitutionof thefounding andisentrenched of lawanditsobjectives, it, achieving for andthemechanisms on theone hand andtheConstitution andconstitutionalism on youof lawwithoutwhich would nothave benefits. thesephysical presided over by an independent judiciary to protect the rule of toprotect therule presided over by anindependentjudiciary participants at the annual Suzman Lecture. attheannualSuzman participants Iwanttosay aword about Helen, mycontribution topitch andasbackground totry attached to the rule oflawinorderfor thesebenefits toachieve attached totherule Constitution. African South ofournew among the toppriorities human rights are integrally linked with the rule oflaw, linkedwiththerule arehuman rights integrally anda hands-on politician. wasnotdoctrinaire, She notdogmatic, but society thatdoesn’tsociety oflaw, alsohave therule it’s because within society without the rule oflawhasnoprospect ofenjoying these withouttherule society creed. political straightforward didn’t She liberal have aformal before dogma. thatpeoplecame she believed saidshehad a She rights mean that rule oflawisnotanabstractconcept. meanthatrule rights Itdeals that framework thatpeoplehave theprospect ofenjoying these that framework justice,Simple equalopportunity, humanrights. ofpolitics. style theHelenSuzman to whatIcall wasa She the business of the rule oflawwasachieved.the businessofrule You hadof theBill Constitution,new of1992to1996, over theperiod puttherule the other. And itiswiththisinmindthatthearchitects ofour things. To takeitfurther, the]core oflawcomprises tenets [rule would be at risk. there oflaw isa direct So linkbetween therule specific thing.with avery Simple justice, equalopportunity, law; you Protector, had thePublic theGenderCommission, the built intotheConstitution toprotect concept. thiskey by a75%majority. thatwas oftheimportance This isindication tobeone ofthefirst Colin Eglin The firstpointIwanttomakeisthatthere were some inherent You recall, will about15years ago, how enamoured we were all You been mightsay: “Hasthere anycatch?” Above: InfrontofParliament withtheCommissionerofPolice. Human rights, are andrespect humandignity for freedom been anysnags, anyproblems?” make itsucceedornotsucceed. And sooneask: will “Have there got atlarge long way say togo thatsociety before really we can morethanthevaluesofany of liberal-democratic politically people by otherpeople. It’s thepeoplewhoare thefunctionaries probably, thecircumstances. well underall ButIthinkproblems and wholive through theConstitution that makeitwork, and almost areferendum constitution, on theirnew andwe believed has embracedthevaluesofConstitution. oftheConstitution,in terms wholive undertheConstitution the for inthatithasbeenconverted intoreality have arisen fundamental, embracing wasgoing tostart andeitherthesociety think we’ve progressed areas, incertain we’ve butIbelieve still on theConstitution. itsback thosevalues andundermine turn I those valuesandstrengthen theConstitution, oritwasgoing to there atthetime,the parties atlarge. andthevaluesofasociety the Constitution are fundamental, butinasensemore noble, tensions between theConstitution andsociety. The valuesin that itwasgoing towork likeacharm. Well, ithasworked, that thisconstitution wasseenasthemodelconstitution ofthe voted in their millions for the first time for whatwas voted thefirsttimegoingtobe intheir millionsfor world. We sawhow peoplequeuedupintheirthousandsand The second problem was Above: Helenathome. compromises andfindsome of document. didn’tThey live compromises andwe stick document ofthisnation and over theyears, peoplewill of compromise. Negotiation Constitution was negotiated, give andtake. Many ofusat and this very fact meant and thisvery one:a political thatthe it was necessary tomakethose it wasnecessary it wasasolemncompact; in it, andwholived through degreeinvolves of acertain them irksome. through thatera; be will they the concept ofthefounding that itwasthefounding that process, saidthatthere that timewhowere involved that there wasan element were compromises, butthat less enamoured by theideaof become less concernedwith by them. ButIthinkthat
page 5 page 6 and thestate.” between theparty no difference movement sees “ …aliberation Nelson MandelaandHelen. The third problem arose from thenature ofthecircumstancesThe third problem arose Another difference isthatliberationmovements, by nature,can’t over power we’re power over going to going dissolve becauseare to we theparty I have no doubt that in the course of time they will start treating start I have will nodoubtthatinthecourseoftimethey be thestate.” and thestatewas The difference between theparty comes between itandpower, andlimitsthepower atthevery elements oftheConstitution are there tobechanged. it’s So movement at that time, the African Nationalmovement atthattime, Congress [ANC], theAfrican afford opposition. totolerate You don’t have opposition when intheliberationmovement said:anybody “Well, take whenwe higher ground, wasinfact aliberationmovement andnota intensity developed intosomething developed approaching acivilwar,intensity and about. itcame in which There wasaliberationstruggle. Its ofthecompromise.in concept because sees no difference between the party andthestate.sees nodifference between theparty Idon’t think formal statestructures.formal aprocessresulted ofnegotiation. instarting Butthemajority time that it will takeitover.time thatitwill Secondly, aliberationmovement that, through largely theinitiative ofMandelaandDeKlerk, from theparties’the peopleinvaluesanditwasdifferent policies nobody’s fault. Ithinkit’s thenature ofsociety. Itwasahead of the Constitution asjustanotherlaw, that]irksome and[believe you’refor liberation. fighting You don’t it, tolerate andwhat which was the leader in the struggle andtherefore wastheleaderwhich inthestruggle had themoral blurred because it had not operated within the framework of blurred ithad withintheframework notoperated because embraced andencompassed a difference between aliberation movement withouthaving other elements, butitwas and parties of otherpolitical movement is there to take over movement andapolitical of many ofthecharacteristics of takingover power, getting political party.political Itconsisted gone through theprocess of pleased whenaConstitution power anditisn’t particularly isthataliberation party a liberationmovement. It a liberationmovement. The so ithad theconcepts and rid of apartheid and liberating andliberating ofapartheid rid number ofdifferent elements to power asaliberation the people. came Itsuddenly with the particular objective with theparticular becoming a political party,becoming apolitical and ANC are debatingamong themselves. We’re debating. all We are shoot Zuma.” andkillfor That is a direct violation of almost Executive Committee ofaruling, say: “We party majority will this country andwe’re going tothis country take power.” over One ofthegood thingsaboutPolokwane —andthere may be But intheMbekiyears we do findacentralisationofpower, less Mandela, withhisiconic approach andhisinclusiveness, tolife every conceptevery and principle in the Constitution, and certainly a theMbekiera.did during democracy. You myway; going outof are to we liberate say: “Get movement rather than a formal political party. political thanaformal movement rather of theera During opposition parties whohad thearroganceopposition parties totakeover power in So So those were the problems, and I think we overcame them are debatingamong themselves, the Africans South Suddenly theANChad thisbackground ofbeingtheliberation So Cape Town. you had So aclash, inasense, ofpersonalities, and all of this came toahead atPolokwane. ofthiscame all illustrations of what I mean by this. Members of the National is under siege to a considerablevery extent. give I’ll you a few something has gone a little bit haywire, and our Constitution to a considerablevery extent, but I think right at the moment you don’t of anessentialpart say isthatopposition isactually take the way the party inpower tounseatorunravel the tried take theway theparty tooppositiontolerance thanyou shouldhave. You have to only very few of these characteristics became dominant orprominent. became ofthesecharacteristics few very looking at ourselves throughlooking at ourselves amuch morethanwe openprism bad things aswell —isthatit’sdebate. openedupthepolitical era. during theMbeki prism thanwedid a muchmoreopen ourselves through We arelookingat
page 7 page 8 Then in —andthisisanarea whereParliament Iknow Helen And there so I believe are signalsflashing; warning Ibelieve ItsoundsalittlebitlikeStalin.Africa. And finally, amore issue: political Speaker of whenthe Broadcasting submit Corporation; supinely when they African who stands Zuma.” inthewayof the When members of a ruling Parliament becomes theNationalparty, ofapolitical Chairman declares that there is only one centre of power in South Africa thatthere one centredeclares isonly Africa ofpower inSouth can beremovedcan by Parliament; thenIsay ourConstitution itself constitutional todoso, right toremove thePresident orrecall meekly when the bosses of the party takeaction, whenthebossesofparty meekly withoutany of the people and to abolish the Scorpions; when they sit back of thepeopleandtoabolishScorpions;sitback whenthey South Africa will survive inspiteofthisprocess that’s taking survive will Africa South Constitution, inthatsense, isbeingattacked. place at the moment, butIdon’t thinkwe shouldjustsitback. I party call the judges of the courts counter-revolutionaries, when and thatistheparty, thisdoesn’t soundlikepeopleinSouth party, ofthemajority and whentheSecretary-General who are taking place, and they call for a special deal for their leader in is also the Chairman of the South African Communist Party, African oftheSouth is alsotheChairman is underattack. ofMPs strong —when themajority feelings of herself hasvery for alongfor time. it’s for andIbelieve fighting Itwasworth worth respect of charges that have been laid against him, then I say the think people fought for the rule oflaw, therule for think peoplefought ourConstitution asitis, must whothey appointtotheboard oftheSouth the party to represent thepeopleandtoensure government by thepeople party,the majority oftheConstitution whointerms are elected they hold mass demonstrations outside the courts while trials violation of the concept of the rule oflaw:violation oftheconcept “We oftherule will crush anybody working tokeepitinplace. who waselectedby Parliament oftheConstitution andinterms todefythewishes arewhen they toldby thebossesofparty under theConstitution, are whenthey toldby comply weakly of Zuma.” stands intheway anybody who “We willcrush — anindependent, unitary, constitutional democratic state. And finally, when we were upaconstitution askedtodraw Why have we here? arrived Why The French have thewill general I’m delightedtobehere New Zealand orinIsrael,New Zealand don’t they constitutions. have written Rights will notbindParliament;Rights will itadvises theParliament. In Parliament assovereign we would because undotheawfulness Universal Declaration ofHumanRights.Universal Declaration And then, ofcourse, Many ofusdidn’t ofRights Bill know abouttheextraordinary constitution, sowe drewupspecialconstitutional documents mostly — and with a background of opposition support for for —andwithabackground ofopposition support mostly of thepeopleexpressed inelections, andnothingmust come of commentators andpractitioners istouncongeal, andtolook of votes for all withoutdistinctionof votes all ofraceorcolourinany for in1941.of ChurchillandRoosevelt Itwasprecocious; ittalked of the social engineering ofapartheid,of thesocialengineering toacquire [came our Suzman. takeamuch Iwill more legalapproach, I’m notbecause So how isitthatwe,So — withadeepsuspicion ofthejudiciary Sovereignty wastobelong tothepeople,Sovereignty tobeexercised Constitution]? produced ofRightsdocument, aBill of andsaidthattheBill [drawn upby [drawn totheAtlantic theANCin]1943inreply Charter guidelines were very important because they gave the rise to a gave they therise because important guidelines were very [because] people’s[because] state. powera one-party waseffectively This at the political aspects.at thepolitical a lawyer, lawiscongealed butbecause politics, andthefunction have aConstitutional Court. The British, aslast as recently year, in theANC1980s, we refused todothat, we enjoined past,in theapartheid as you know; were they hangingjudges form, ofequalpaywork for women for andmen. Itwas really remarkable,really andtalkedaboutaParliament thatbelongs relating to guidelines for a democratic South Africa, andthese Africa, relating South ademocratic toguidelinesfor the constitutional right of the South African people. African Wethe constitutionalofSouth right were to everyone. That in1943,ever longrightshad before human hadn’t judiciary covered African itselfwith glory the South through onelegislature. central Itwasthefirsttime we had theFreedom Charter, ofthepeople. thesovereignty for under great pressure from the American government for the government for theAmerican under great pressure from kind ofownership ofadifferent view.clear And they were very liberation movement gave upthewholeidea ofpeople’s power, before that because they donothave they aConstitution;before thatbecause don’t they been encompassed by liberationmovements, five years before the Professor Kader Asmal and pay my tribute toHelen andpay mytribute
page 9 page 10 Constitution. they violatethe kill”, andofcourse, about “weshootto the statements one whoopposed After all,Iwasthe We talkaboutconstitutional Africa supremacy;why? South find yourself in,I’m so myhandsaboutattacks wringing not constitutionalism, oflaw, rule andtheseparationof democracy development wasn’t one, atactical itwasanunderstandingof multiculturalism, you how can have because amulticultural mentions that. have they beenfighting Inothercountries Constitution. And Iaskedotherstojoininthiswholestruggle powers. are still absolutely necessary in whatever kindofsituation inwhatever you necessary are absolutely still against verbal attacks on attacks theConstitution.against verbal is attacked, butyou must have some vague notion of ‘Britishness’. , shoot to andofcourse, kill” statements about“we violatethe they touseanoverburdened if you havesociety “Muslimterrorists” this shouldbeintheConstitution. Butastruggle, andvigilance, that; ofamovement, itwasthebasicdecency andofpeople, that situation. African the South embraced wereThe basicprinciples that are takingplace. all, After Iwastheone whoopposedthe they’re fightingagainst multiculturalism; are they repudiating wars about cultural languageswars aboutcultural and religions. InEurope, was amulticultural society, amulti-religious society. Nobody loaded phrasethere? Something’s gone wrong; multiculturalism The ideatherefore isto replace I’m proud thatsixcases very But tonight I should talk only But tonight Ishouldtalkonly constitution, andshouldlimit course, constitutionalism. discrimination ondiscrimination grounds upintheConstitutionalcame process.democratic Without of sexualorientation. There Constitutionalism istheidea Court thatthere istobeno Court Constitution. Ineverything parliamentary sovereignty sovereignty parliamentary about the rule oflawand,about therule of anything, right? tothosepowersitself entirely awritten its powers from in life, vigilanceisabsolutely set outintheConstitution. struggle, you don’t achieve that government should derive that government shouldderive that struggle is part ofthe ispart that struggle those lawyers whobelieves andIamone of necessary was no struggle in support of insupport was nostruggle ofthe with thesovereignty “Icon” iswrong; he’s ahumanbeing. Heunderstoodthepolitics — andhow doyou uncongeal it?Byhisown behaviourandby That is especially important for theANCtosay. important That isespecially I remember You see, accepted. slowly constitutions are very Ilived in That was profoundly important.Court.” Thatwasprofoundly the Constitution as part of theirconsciousness?”And theletters of aspart the Constitution violatingrights?” are myconstitutional Iwrote think they So Ireland for nearly 30years andIrememberIreland coming avagrant nearly for thatourconstitutional supremacyis important I thinkit’s very It can’t beEnglishness, thePrime because Ministerisfrom But tolook atthisissue: theConstitution isthesupreme law flowed into the newspaper supporting myview.flowed supporting intothenewspaper Butittakesa essential toourdevelopment asarobust constitutional state. couldn’t exercise [your to]socialintercourse right withothers, documents, and dignity. butoffreedom, liberty Ithinkthemost mustn’t oftheConstitution. have semi-detachedview Itmust be majority of us never enjoyed. ofusnever majority Now aperson would thinkthat me, tovote, —theright ofmovement, everything freedom the of theConstitution. How hemust uncongeal theConstitution inconsistentof thestateandanything withthatisinvalid. Scotland, isn’t hehasto invent about theirBritishness he?So States, shouldchange theelection where theUnitedStates “I accept the decisions of Constitutional Constitutional thedecisionsof going accept on tosay: television “I in1999. case pharmaceutical issueitwas, technical Avery and “When did the Irish adopt adopt intheIrish didtheIrish saying:an article Times “When ofpower.a basicdistribution We treat MrMandela asanicon. advised, become therefore cannot bill thepharmaceutical and thatisaviolation ofyour todignity. own right Ithink So also basedon some values—nottheoffoundation a wonderful development that we elevate dignity,a wonderful development thatwe elevate thevast which he said he accepted the ruling wholeheartedly.he saidaccepted theruling of The moral valueinourConstitutiontodignity. istheright important For system for thePresident, for system don’t. butthey The ideaofelectors right tomarry,right fromright todignity. the —flows everything It’s the ideaofBritishness, For they? will us, multiculturalism is things, inthe whentheIrishandScots West won’t support to meone day in1968, theIrish Constitution 30years after theConstitution,that istosupport you mustn’t qualifyit. You said[Presidentthe Constitutional Court Mandela]wasbadly case involved the firsttechnical President Mandela; the important. that’s very the citizens, goodintheUnited illustration andwe seeavery was adopted, police houndingme, are andhesaid: don’t “The you theConstitution commitment because provides wholehearted whites never enjoyed dignity in South Africa either, Africa enjoyedwhites never inSouth dignity you because law. And MrMandelaappeared onthatnight, television and lot of time for constitutions ofthepsychelot oftimefor of tobecome part college without a majority college withoutamajority electors. againand So of popularsovereignty. Now, others didn’t theidea support of votes. Hamilton andthe So letmejustfinishup on So Constitution thenyou must a division ofpowers inthe intheelectorate a majority thefounding about] because in the South African context. African in theSouth have someone tointerpret likethat.have asystem to undemocratic it’s basically so thepeoplehad tovote for ofthepeople;sovereignty fathers had adislikeofthe that. interesting That’s very to say, ofcourse, ifyou have this ideaofconstitutionalism don’tthey changeit, although the President waselectedwith didn’tthey thepeople, trust voting thePresident for [came
page 11 page 12 majority in1994. get atwo-thirds the ANCdidn’t pleased was very 1994 wasthathe Mr Mandelasaidin African writers still refer to this superannuated English writer writer English superannuated this to refer still writers African We were the first country in the Commonwealth to say that we that say to We Commonwealth inthe were thefirstcountry London a long time ago, and I still don’t understand how South ago, don’t time South how long still a I and understand London If a rule didn’t exist, then the government could not perform perform not didn’t could rule a government If exist, the then It’s tiedupwiththenextconcept, of law. oftherule rule The University, who will retire next year. So people who are suitable year.University, suitable next are retire who will people who So called AV called Dicey. if For simply: Dicey, meant law of rule the body, external body, legislature third a the whether judge would only, but in other areas of life too. And so we had to have — too. have only,to life had of we so areas And other in but of law is something that I was brought up in as a student in in student a as in up brought was I that something is law of Court where not only lawyers, but even academics would be be would academics lawyers, even only but not where Court again it’s a very difficult thing to swallow — a system where an where system a — swallow to thing difficult very a it’s again a function. So for him, the technical process was the most most the was process him, for technical function. a the So Wits from it. to academics appointed WeBritish the of one had Constitutional a them. had have we But countries 60 about interpreted byinterpreted acourt, itisaproper rule. and body rule-making the by passed properly rule a was it important.is very are cases our because glory with Africa South covered has institution must act in accordance with the law. the with accordance in act Now, must institution is this procedural. For state it? Dicey, entirely The was law of rule the how topasslegislation, beabletointerpret and would a court Wasbody? thing. rule-making Wasimportant the by passed it for the posts will be appointed. The Constitutional Court Court appointed. be Constitutional will The posts the for jurisdiction has added so much; not on the equality principle principle equality the on much; not so added has jurisdiction the Constitution. Ithinkthatthe ideaofconstitutionalism So world. small, the A of young parts other in quoted being now the rule-making body acting in accordance with the big rule as as rule big the with accordance in acting body rule-making the will have a superior court called theConstitutional Court. called court havewill asuperior Now enforce that. And, ofcourse, mentioned, the foundation mentioned,foundation the or theexecutive have worked good ideathat, asColinhas majority two-thirds a get article of the Constitution Constitution the of article in 1994. Ithinkit’s avery it’s the courts who will decide decide will who courts the it’s foundational values; it gives gives it values; foundational said in1994wasthathe requires a75%majority, you an insight into the rest of of rest the into insight an you nicest things Mr Mandela Mandela Mr things nicest very pleased the ANC didn’t ANC the pleased very the of important.One very whether theConstitution has within theirpowers and because it gives you the the you gives it because been properly amended; that’s that’s amended; properly been The notion of justification is enormously important.The notionisenormously ofjustification Isthislaw The Constitutional Court has taken the view that hastakentheview you The Constitutionalmust Court 1945 when Hitler was overthrown. I must remind you about about you remind overthrown.must I was Hitler when 1945 We find,for example, thatlaws were introduced which were not something more thanthat;something more itdealswiththemorality thelaws, of These laws were decadently decadently were the valuelaws. judgementslaws of These I remember arguing also about South Africa, when a when Africa, South about also arguing remember I Hitler legislation. Mureinik School, of Law WITS much, whom we missvery developed thisideathatanydeveloped lawthat’s passedhastobejustified. extend thefoundationaldocuments? The late Professor Etienne content. that said Ireland of Court Supreme the in judge distinguished of the laws were about confiscation of property and housing housing and property of confiscation about were laws the of of the rule of law because you oflawbecause had tolook atthesubstance,of therule the others from the United States said: theUnitedStates hold on, means law of others from therule So in South Africa the rule oflawgoes further. therule Africa inSouth DoesitinfactSo power toHitlermakelawsin1933, Ithinkitwas, andalot procedural aspectsoflawbutalsoaskquestions abouttheir precept of the rule oflaw.precept oftherule Ofcourse, view thiswasthedecadent out, laid and clearly were procedures procedures,these and procedure that was laid down. But then Professor Jaffe and and Jaffe down.Professor laid then was But that procedure place in1945was: were theselawsvalid?Ifyou taketheDicey and deprivation of citizenship rights. So the debate that took took that debate the rights. So citizenship of deprivation and in debate big a was there because argument interesting very a at thesametime, oftheindividualmust thebasicrights be is justified, look andthatiswhy attechnical cannot only one has todo?Inotherwords, theprocess isimportant, butalso, oflawmust takeintoaccount,in therule thelegality, notonly immoral. You could not use the word “law” to describe the the immoral. You word describe to the “law” use not could freedom. founding principles,founding aminiConstitution. calls one which writer something todo, effectively, withwhat, properly, the government justified to meet the particular constitutional provisions,justified tomeettheparticular which justified? He alaw works underwhich on the wholeprinciple that, because it’s relevant to South Africa. The Nazis gave gave Nazis The Africa. South to relevant it’s that,because to be carried out. South Africa are not violating any particular any particular violating not are out.Africa South carried be to has and supported was law of rule the say must you therefore own their to reference by law the passed Africans South the view, yes, are ofcoursethey valid; were they passedby proper will notenhancethequestionwill of values anddignity, and equality legitimacy. looked humandignity, at—for andprotection equality —the law. thatisdone everything hassaid The Constitutional Court look atthecontent. of are Humanrights relevanttotherule but the context in which the rules are passed.but thecontextrules inwhich Basically, hasit “cohesion”. Idon’t understand the ruleoflaw. are relevantto Human rights English-speaking white Let mealsomention what Let can’t beimposed; must they be enormous inequalitiesin enormous means; whatare thevalues tothis other valuesgive rise multi-religious with society of Education. We inherited of Enquiry and we claimed andwe claimed of Enquiry a school system;a school itwasan a free country andwe should country a free added to that, and tolerance a wonderful Commission its education. How thendo inthe system. country Every school systems and a Coloured system; 10different African system, anIndianschool school system, anAfrikaner system dividedbysystem racialand thisextraordinary,for horrid new South African word African South new reconciliation, andthoseare religious we grounds? had So that whenIwasMinister that bindustogether? Ihad to work outwhatcohesion that, by theway. People want negotiated inamulticultural, together.the country Values the valuesthatshouldhold together,the country and, you abstractavaluesystem that theconstitutional values are thevaluesthat we shouldaspire to, tohold for hasavaluesystem world wealth. in important Itisvery be abletodoso.
page 13 page 14 principle. that important court istoviolate outside the demonstrate of judiciary. To independence must supportthe or organofstate member … every The separation of powers is very important.The separationofpowers is very American debate is this tendency tosay thePresident debateisthistendency American should Premier inthe Western taking Capedemonstratingaboutacase oppose because the Constitution has to supported initsentirety. theConstitutionoppose because hastosupported of thequestion ofconstitutionalism. ofpowers is Separation Secondly, the nature ofthegovernment inpower isvery we underthebroad come tootherissuesarising So banner Constitution thatthere says bethelegislatorswhomake shall parts of the Constitution.parts offor us, all important That’s very with totheConstitution,place 1000kilometres away iscontrary important. results Ishouldsay in the thatone oftheunfortunate independence ofjudiciary. To isto demonstrateoutsidethecourt judged by thejudiciary. organof thestateisenjoined Every that impliesina democracy. implications, serious There are very oftheConstitution parts ofmany ofustosupport the tendency oftheConstitution, theentirety that you support not, selectively, thejudiciary,to support andIagree withColin: theideaofa not mentioned intheConstitution, it’s implied, the because violate that important principle.violate thatimportant important And Ithinkitisvery we don’t approve of. It’s abenightedtendency, we which must we oftheConstitutionwhich approve ofandnototherparts laws, theexecutive be implementlawsandshall which be electedby thepeople. We discusseditatgreat length, what the memberororganofstatemust support every because The implications are very serious. areThe implications very We have representative The firstelection we therehad todoas wedidbecause wasno Whether that has served its purpose ornotisadifferent matter. its purpose thathasserved Whether I believe very much in the integrity oftheConstitution andthat much intheintegrity very I believe Otherwise theConstitution’sOtherwise shouldbemaintained integrity United States they are they havingproblems still withtheregistrationUnited States do it here too is frankly over simplifiedandshort-sighted. do ithere tooisfrankly certain functions intheeconomy,certain inpoliticsandinternational clear andpresent danger,clear andtherefore thedetention ofpeople every minority religious andnon-religious minority bodyinParliament.every system.electoral 50%women, we have nearly So we have nearly maintained, thenthere must becompromise. Idon’t believe of voters, by theway. Secondly, we proposed aConstitutional Constitution. todetainpeopleduring itwascrucial Inhiscase Government compromisesto Government toenableyou tomove forward Court. It’s intheconstitutional vitaltohave legitimacy order, grounds. Oneofthegrounds isOliver Wendell Holmes’s government. The President doesnotsitin Parliament, butis accountable atParliament toanextent. Butwe have acabinet achieved. interfered; MrMandelanever we explainedtohim as thoughitviolatessome morethatwasnot nobleprinciple it’s inamarriage, personal relations, orcollective relations. valid.in 1918wasvery For me, also, whenthere isanurgent into Parliament andthat’s list-basedPR why we had thisparty thatwe must get asmanyin Stellenbosch peopleaspossible super cabinet; three or four people especially placed to perform super cabinet; placed toperform three peopleespecially orfour should beasupercabinet: Iknow decidethingsinthe whowill ofGovernment.system Idon’t approve oftheproposal there system you could trust withtheregistration you ofvoters.system couldtrust Inthe relations. cabinet isthere.The collective responsibility that because they do it in the United States thenwe should doitintheUnitedStates they that because that compromise isabad thing. Ithinkitisnecessary, whether theConstitutionneed tobring update[itshouldbedone]. the First World War beingenemyaliens. for He saidthere wasa andpresentthere danger, isclear thenyou have toamendthe limited the Constitution beamendedundervery shouldonly the nextstep. Idon’t So thinkwe shouldregard compromise that principle. laythat peopleaccept down. whatinfact thecourts We have very famousstatement on “clear.very danger” andpresent When but thisisakindofparochial, small-townapproach, tosay background, butaslong are astheaimsofwhatwe for fought good balance. it’sbecause avery We ofa[specific] came Constitution. have toamendthe danger, thenyou clear andpresent When thereis It’s very important,It’s very therefore, I’m grateful for Helen Suzman compromise. Myown might lose the overall strengthmight losetheoverall matter, ifyou because tinker movement, trial, free andall made totheirfuture. of the rights of freedom of offreedom of therights of theConstitutional order. Constitution rose outof Constitution is an important Constitution isanimportant privileges takenawayprivileges andthat people of South Africa have Africa people ofSouth at that time necessary toallay at thattimenecessary and thatherwork andlife individual rights andnotgreatindividual rights has given us the opportunity has given ustheopportunity recognition ofcollective rights, that the structure ofthe that thestructure too much emphasis on the anxiety, [toestablish]that that. withthe tinkering So the greatest contributionthe is to discusswhatIthinkstill view would bethatthere’sview whites would nothave their with bitsandpieces, you but that can bedebated.but thatcan Itwas blacks would blacks have anassertion
page 15 page 16 Do you see us having similar Do youseeushaving I would liketo I would kickoff Constitutional Court,Constitutional and States hasinrelationto the direction of the court under under thecourt of direction debates to whattheUnited democracy, particularly appointments? we’re inaperiod where already a new government in2009 government a new with two questions.with two The CHAIRPERSON: struggling tocandidates find struggling new judicialappointmentsnew — under the jurisdiction of our of thejurisdiction under for the Constitutional Court Court theConstitutional for are bearing inmindthatwe part. existing The bench of political one. Let’s start with facing a number of imminent anumberfacing of perspective onconstitutional the appointments to thebench. that willbe makingmostof is Court the Constitutional the, perhaps, lesscontroversial a of questionismore the other retirements, willhave andwe first is more of a future afuture of first ismore
And we got a court which had a value system — the very —thevery hadAnd which avaluesystem we got acourt Assembly waselectedastheParliament,Assembly knowing it wasgoing to When the US Supreme Court invalidated Rooseveldt’s Court theUSSupreme When PROF ASMAL: Instead oforderingarecount inFlorida, gave they ittoBush, Parliament andcore andtheExecutive values. basedon clear But the Constitutional Court has a special place in the delicate hasaspecialplaceBut theConstitutional inthedelicate Court MR EGLIN: United States, openjudicialselection system, withavery ended constitution itistaskedtoprotect anddefend. Lawyers have draw uptheConstitutiondraw on behalfofthepeople, to italsotried debate. Butyes, Ithinkwe bediscussing them shouldperhaps meaning. Words don’t have objective meaning; words have [a to must beacapacity ‘second-guess’ inapositive senseboth make anissueofthat. The whole world,even Iraq, would have make thedebatemuch wider. Intheinterest ofmakingpeople on relating anything totheConstitution orthefunctions inthe open discussion. No holdswere barred. effort And thenevery openly. andIwere OneofthethingsthatKader involved in Constitution is going tobepositive. CODESA frank, wasvery andtheConstitutional Assembly got lawinterpretation, black-letter asifwords had anobjective and to the eternal discreditand totheeternal ofthelosing Democrats; didn’t they hope, therefore, Constitutional orfive thatthefour [new Court included init.included We spentlotsof your taxpayers’ to moneytrying it, butwhetherwe ornotI’m will fascinatedwiththeAmerican feel that whatever changesthere thatwhatever feel are belong tothemandare judges] will not be black-letter lawyers.judges] notbeblack-letter will Butremember, the that there is always a challenged and challenging relationship andchallenging achallenged that there isalways years ago. No doubtaboutthat. not imposedon themby otherpeople, Ithinkanopendebate variety ofmeanings,variety dependingon]incontext. variations We validated inthis way. with political appointees.with political Inourcase, we saidthatthere was made to include the public to the extent they wantedtobe thepublictoextentthey was made toinclude up with a Supreme Court thatgave theelection toBusheight Court up withaSupreme legislation on industrial codes he threatened to pack the Court legislation codeshethreatened ontheCourt industrial topack been different if, infact, hadn’tFlorida the election in been balance thattiesthethreeofgovernment. branches between theexecutive andthecourts, intheworld. everywhere bring people in; so apart from thefact thattheConstitutional peoplein;bring from soapart Questions & Answers Well, Ihopewe’re going tohave adebateabout After tenyears, After Ithinkwe needtoaccept There is a fickleness about this process in the United States it There aboutthis isafickleness process intheUnited ehv uiilSrieCmiso JSC)providedin for We Commission ( have aJudicialService JSC hearings on futureJSC hearings candidates. Constitutional Court But all of you should be writing aboutitbecause, ofyouBut all shouldbewriting intheend, the constitutional order, andwe wantacontinuation ofthecourts Commission.composition oftheJudicialService our constitution. IfIhad any power inthat, Imightchangethe own party. We opendiscussion andget the have tohave avery Court.of theSupreme Fortunately, down by his itwasstruck So judgesrole; play apolitical So we must beaware ofthat. It’s part of the human-rights tradition intheUnitedStates. ofthehuman-rights part a Republican court intheUnitedStates, court a Republican andwe hopethat seems. You know, Bushproposedlawyer hisprivate asamember ofwomen theirownin rights tochoose abortion, whobelieves should be writing about what kind of court we want. aboutwhatkind ofcourt should bewriting judges are theguardians ofRightsandthewhole oftheBill retire President sothenew couldappointsomeone whobelieves together oftheconstitutional indefence system. ofyou All that we have, representing many different traditions, butcoming these kinds of human-rights issues;these kindsofhuman-rights come tobe thatsocialrights trade unions toexistinaconstitutional have aright order, andin therefore thatone judge, whoisnow 87 years old, soon will background andvaluesofthecandidates, asyou sawin recent We’ve political seenanumber of and constitutionalism. Equally, are about ornotwe whether and constitutionalism by and constitutionalism events, includingpotentially we’ve seenthenotionof CHAIRPERSON: constitutionalism emerging as emerging constitutionalism you notbelieve are thatwe having them feature quite so themfeature having imperilling the rule of law law of therule imperilling prominently? quite themto so for feature political space, orisitnatural inthe are asthey prominently theConstitution imperilling that have raised questions judicially activistrulings, the National Convention. Do mobilisingfactorthe key within
page 17 page 18 Constitution. elements ofthe of theessential Parliament isone Front, left: Walter Stanford, Harry Lawrence, Boris Wilson, Jan Steytler, Helen Suzman, Colin Eglin, Owen Owen Eglin, Colin Suzman, Helen Steytler, Jan Wilson, Boris Lawrence, Harry Stanford, Townley-Williams. Back, left: RaySwart, ClivevanRyneveld, JohnCope, Zachde Beer,Walter RonaldButcher. left: Front, But IthinkthedebateaboutwhetherConstitution is MR EGLIN: constitutional expectations. becoming will outone report Our constructive, ofseeingthat apointofview andlook atitfrom constitutionally orientated issues than there have been for a very issuesthan there orientated have avery beenfor constitutionally compromises wasathree-tierofgovernment: system national, open debateon constitutionalism, astohow theConstitution of constitutional issuesthatdon’t belong toaone orother of thecivilservices. itis, Whatever Ithinktheseare thekind one oftheessentialelementsConstitution. Oneofthe are. andyouof thesedays seewhatourviews will Ithinkit’s political party,political belong tothepeopleasawhole. really they So provincial andlocal. justwantedtwo tiers, Others andIsee good thatdiscussion takesplace, Parliament because is a panel of experts toseewhetherParliament islivinguptothe a panelofexperts is functioning. Iwould hopethatthedebatecouldbe it wasdealingwithspecificissueswithintheConstitution at functioning properly istakingplace.functioning properly Ihappentobesittingon the Constitution improved. iseithermaintainedand/oreven the moment. ButIthinkthatthere shouldbeacontinuing there have beenmore roundtables andpublicdiscussions on the more openthe debateis, thebetter. Ithinkinthepastyear there isnow amove tohave two tierswithaconsolidated list used theword constitutionalism assuch. AsIunderstandit, long time, continue. andIhopethatwill I’m notsure thattheNational Convention What I’m —toanswer saying yourWhat question —isthatyou can’t much attacksisreporting?” worse onbabies thanthisNGO How can PROF ASMAL: I agree withColin, we shouldbetalking much more. There For example, thePolice how can seen Commissioner say: “I’ve Beyond ‘constitutionalism’ andits system it’s thecourt More fundamentally, justicedelayed isjusticedenied. How can constitutionalism, ofmeaning. it’s empty Itmeans nothingtoa could explain such grotesquecould explainsuch delays? peopletobenefit The only an ordinary murder inCape case an ordinary Town takeeightmonths when are thatyou wishtoprotect, andtowhatextentare core they inherent, itdoesn’t inpeople’s meananything lives. we What functioning thatwe shouldbelooking atcritically, than rather should bedoingisaskingwhatthevaluesofConstitution shouldn’t besacred cows inaconstitutional state. Remember, thatare lawyers.from It’s preposterous. run a national campaign on anationalconstitutionalism; campaign run it’s abstract, it’s there are that novastmattersoflegalinvolvement orcomplexity presumption enshrined ofinnocence— the constitutionally you say that, asapublicservant? the courts oflaw.the courts have arole sectorsofsociety inbuilding Other values, thatwe andwhatthenature wantto isofthesociety ofpeople.vast majority Idon’t wanttoenterintodebateas to which cannot be selectively invoked; beselectively cannot which toeveryone. it must apply whether theNational Convention wasvalidornot. when enforcing theConstitution, on depend]only [we cannot build in South Africa. Africa. build inSouth Nobody can run a campaign on acampaign Nobodyrun can Parliament askedustodoan Polokwane —you know, BP deciding features inourlives country.freedom There is date, [hasbeenignored]. All only country in the world that intheworld country only of press; itisenormously our democracy, tobring Constitution], thatitgoes going too far. Now [thereport anybody hasaccusedanybody meof Polokwane,and after are the and AP, before Polokwane a constitutional order inour an enormous disgracethat an enormous investigation ofthesebodies, has theChapter9bodies. And important. Then we are the it goes toofar. has] sunkwithouttrace. It’s so we produced a250-page strengthen theChapter9 something tosupplement too far. It’s thefirsttime think thatit’s [the tooliberal now — both sidesinvolved lastyear.report Both sides at these proposals are made to the Chapter9bodiesupto bodies, but bothsidesbelieve
page 19 page 20 That’s whatI mean, that you And thatiswhy the And thenwe realise we are son; whatdoyou thinkwill any ideology… associated with party political,not Rights, non- Council ofHuman South African I wouldlikea happen to heisinprison?” himif have abeautiful 18-year-old My test always is,My testalways whenI constitutionalism is really must never take human-rights must takehuman-rights never Council ofHumanRights, go around askingpeopleto issues for granted.issues for try Always associated withany ideology, areas of rights for everyone.areas for ofrights see theresults of that. soft on prisoners, soft tosay: “You sense thatwe must expandthe to refer themtoyourself and no longer soft on prisoners.no longer soft register say andthey we are matter.not aparty-political I non-party political,non-party not would like a South African African would likeaSouth last pointImakeisthat but where peoplewould a feel Asmal, does the after-Polokwane ruling alliance take the National For MrEglin, myquestionisbackward-looking: what, onthewish- Democratic Revolution seriously, who is the revolution aimed against, Institute of International Affairs.for International Institute Myquestionisboththe of Constitutional Rights. I think it would be remiss of me if I did not and why is it necessary for a party in power to pursue a revolution? election? was not included in the compromise that was made between the majority of South Africans, attheCODESA SouthAfricans, of meetings?majority of the disbandment of the Scorpions. I If can start with Professor majority that the ANC has had in the past is reduced in the next inthepast next hashad isreduced thattheANC majority National Party from theother,National Party from andbothwere looking for, let’s congratulate Professor Asmal for making public his reasons for slip recently, because nobody asked him at the time, that he resigned speakers. Goingto Colin Eglin’s point thatare about thesafeguards MR PAUL HOFFMAN: MR EGLIN: DR. KATHRYN STURMAN: parties that were represented, which actually represented the vast from Parliament because he was not prepared to vote in favour be entrenched or further consolidated if the very overwhelming overwhelming consolidated thevery orfurther be if entrenched built intomajority theConstitution, atwo-thirds thatthresholdof list of the party that you the representedlist party of in negotiations,the constitutional detail. That wasthenature ofthe reasonable amountofcomfort many years ago. confident thatourposition would Itwasfairly resigning from Parliament. Those of you who don’t know, he let it to change theConstitution: will doyouthinkthattheConstitution CODESA in that the ANC was coming from oneCODESA sideandthe inthattheANCwascoming from say, anacceptable compromise, andmuch ofthatcompromise was around whattheMoltenoCommission suggested many, be in the framework ofthecompromise ingeneral,be intheframework butnotin I was in a reasonably fortunate position at I wasinareasonably fortunate
I’m the Director of the Centre for I am from the South African theSouthAfrican I amfrom “We can’t winany constituencies; alist.” going are for we Thatisthe ANC, had mewhatthey wantedtotell justsaidthey andthey Alex vanBreda of theNational Party andEssopPahad ofthe clause; you’re going to beParliament outof you if don’t toe theparty think theNational Party Butwhathe winanyconstituencies.” can AlexvanBredaline.” said: “We listbecausedon’t we wantaparty compromise thatdidn’t pleaseme, andIwasn’t toit. party constituencies ornot, you would have thesamenumber. Butone election had to result inproportionality. whetheryou had So of beingthrown outaltogether. Those were compromises. Two member. The otherwasthequestion ofwhether you shouldhave gentlemen came, whips, bothofthemwere chief whatIcall people electingrepresentatives directly, orwhetheryou go on the agreed. And Essopsaid, “We’re going to scrap theanti-defection able to expel them if they didn’table toexpelthemifthey behave, andtheotherone said: according totheirconscience in Parliament withouttherisk system,a constituency peopletovote itshouldbepossiblefor happen to somebody if he left his party —notleft, hisparty happen tosomebody ifheleft butceased it wasablankon theorder paper. That wasaboutwhat would forgot was, ofcourse, consideration wasthat thattheoverriding system andtheanti-defectionclause.system OnewasClause43(b); in coming together. Butone of thecompromises —well, it you shouldallowpeople, nottodefect, butthatonce you have to beamember. And itdoesn’t meantosay ifheresigns — that one had, whereas the others might have less felt comfortable wanted strong control over theirmemberstothepointofbeing we shouldhave adirect election andsecondly, we that believed wasn’t acompromise, itwasforced on one —wastheelectoral list system and merely vote theparty. andmerely for list system We strongly fairly felt because he may be thrown out of the party andalsoceasetobea hemay bethrownbecause outoftheparty The interesting thing about the ANC was still imbuedwith ANC wasstill ANC hashad thepower, or In other words, if you are For aconsiderabletimethe done so. AsI’ve known it, and might wanttochangeit. of theConstitution and pervade isthatthey of view Constitutions in fact aren’t Constitution. Constitution, andexcept on practical reason,practical including general agreement thatit provisions. isWhat important actually pervades the whole a short chapter in the book; it agreement. as itwasagreed to. Inother amendment impacts on the amending some other element about that a legal from point and therefore we’re notgoing invariable; have they to it can be shown that the should bechanged, thatinfact in thatlight, andthatwhile founding provisions, then it applies only to the founding the Constitution shouldnot oftheConstitutionthe spirit not mattersthey’ve technical the numbers, tochangethe that thewholeofsociety time. There couldbea very the three-quarter majority the wholeConstitution. to changeitwhenthere is the percentages are there that theConstitution isseen to changeit. Iamhoping the power, it’s notanordinary three-quarter majority is that when IwasinParliament, the would have to apply. It looks words, got althoughthey’ve law; it’s asolemncompact be changedunlessthere isthat timeto be changedfrom
page 21 page 22 The important thinghere is that The important we have not overgot the old Democratic Revolution was the decolonisation of South Africa. Africa. Revolution was thedecolonisationDemocratic ofSouth PROF ASMAL: I believe thattheNationalI believe Revolution isan Democratic Quorums are very important. are very IthinkColinisright,Quorums though. But thesafeguardgetting wasthattheANChad difficulty Polokwane, orbefore Polokwane, atStellenbosch, tolay down Parliament proposed courts done more injusticeto different nuance. questions witha perhaps question toexplore some majority oftwo-thirds only,majority right? more power system. toadminister thewholecourt Itwasan factorsmotivated by whohave sufficientstrength particular at outdated, ofourwork outmodeddescription inademocracy, of the courts would ofJustice have givenof thecourts theDepartment Support for theConstitution for imbued, isstill Support andIthinkit’s our Secondly, say, asyou quiterightly couldinfact they have brought give aconcrete recent example about these changes because these courts bills would bills require thesecourts a about thesechangesbecause additional reason whyoftheConstitution the principles are very aprogressivealways parliament. beagroup Itcan ofpeople is parliament an assertive intervention ofthePresidentintervention thatwithdrewthosebills. has largely displaced theNDRandenjoyshas largely greater legitimacy. constitutional as isasenseoftranscending statethat important independence ofthejudiciary in response toPaul Hoffman’s function toensure that this endures and outlastsusall. system of how we vote along racial lines and that is crucially an ofhow wesystem vote along raciallinesandthatis crucially theConstitutionalfor order; that’s therevolution. The National requisite majority intoParliament.requisite majority can’t they Sometimes get the quorum —that’s agoodthe quorum protection, by theway, against the rules. it’s now. notsomething So new The restructuring than any otherproposal, so laws being passed too rapidly withunintendedconsequences.laws beingpassedtoorapidly let’s get rid of this myth that let’s ofthismyth get rid because what’sbecause therevolution for? The real revolution issupport bills thatwouldbills have Let me Let That’s myanswer; itmight get The ideaof National And that iswhy Ithink we Democratic Revolution isnowDemocratic I wantedtosay theANCwas I thinkthattheoutdated me into terrible trouble,me intoterrible but elections. It’s acompromise, movement, butitcontests gives young peoplethewrong agent now. a political party,a political butitstill one.an artificial When Idrew should remove these outdated idea. You doterrible can irrelevant now. “Revolution” harmful, they’re butpolitically says theANCisliberation says then, you know, I’m afree notions. things for arevolution,things for notso? notions are notoffensive or then. up the rule book oftheANC,up therule Press Coverage
page 23 page 24 “I respect the institution of Parliament, for properly used it is the premier forum of the land, both for the dissemination of alternative policies and for the preservation of values pertaining to civilized, democratic countries… It is a major channel whereby one can elicit valuable information and it provides the opportunity for a direct means of confrontation with the government of the day”
Parliament, 18 May 1989