IN THE HINDU
As Albert Louise Sachs approached his car at a parking lot in Maputo, a bomb planted by South African security agents went off. His right arm was shattered and he lost vision in one eye. Two years later, as the apartheid regime faltered to a halt, an undaunted Albie Sachs returned from exile, aiding its transition to a democracy. Appointed to the Constitutional Court in 1994, Justice Sachs was instrumental in drafting the country’s Constitution. In India to deliver the Durga Das Basu Centenary lecture, he spoke to
The Hindu on the need for a visionary articulation of constitutional ideals by the higher judiciary.
Many parallels have been drawn between the freedom struggles in India and South Africa, but how influential has the Indian Constitution been in drawing up post-racial South Africa’s Constitution?
I think it is my seventh trip to India, but I have been here many more times in my imagination. India’s independence came at the end of World War II when we were at the cusp of achieving democracy too. It is no accident that the title of Mandela’s book “Long Walk to Freedom” was inspired by the words of Nehru that “there is no easy walk to freedom anywhere.” The Indian experience was inspirational in South Africa because of the historic parallels and the presence of M.K. Gandhi himself in the country. To my generation, the importance of India as a multi-faith, multi-lingual nation cannot be underestimated as a leading experience in drafting the Constitution of South Africa. There was much to learn from the emergence of a new identity after centuries of colonial oppression, not just culturally, but in terms of character. The Indian Constituent Assembly exemplified a participatory exercise that gathered inputs from the people. The Indian thinking on law also directly influenced us. Legal luminaries who visited South Africa taught us that constitution-making is not just about technique, but about human dignity, rights of people and wiping a tear from every eye.
After the apartheid regime came to an end, South Africans chose to establish a Truth & Reconciliation Commission (TRC). How did reconciliation fit within the framework of the Constitution? Did it not amount to condoning state violence despite a professed commitment to equality?
Not at all. The TRC was aimed at particularly egregious forms of racial violence that were hidden even in those days. At the same time, the commission focussed on violations committed by the African National Congress (ANC). So we tried to look at atrocities on both sides, because when South Africa emerged as a democracy, we wanted to arrive with clean hands. We wanted to denounce the philosophy of retaliation, and grant amnesty to those who came out with the truth. Police officers who had tortured civilians testified before the commission, often breaking down on television. The objective was not to let people off the hook, but relieve the people of their pain.
You were appointed by Nelson Mandela to the Constitutional Court, and your own experiences of the past were emotional and often traumatic. How influential was the historical baggage you brought to the court in deciding cases?
It is a topic that I deal with in my book, “The Strange Alchemy of Life and Law.” And my answer is: yes, of course judges are influenced by the past experiences but they do not exhibit this through obvious means. There are different ways in which they respond to the treatment received in the past. I have never been subjected to racism. In fact, I was supposed to be on the “other side” of it. But some of my colleagues at the court came with dreadful stories of discrimination. Some of them are extremely religious, while others are not. But we work with a sense that there is a constitution we made together to uphold.
You were one of the first to conceive the “three generation of rights” theory. Although endorsed in many legal systems, don’t you believe that such compartmentalisation affected an interdisciplinary understanding of rights? For instance, the Indian Constitution categorises some rights as fundamental, but leaves the vast majority of socio-economic rights to whims of the State.
I am very comfortable with the “indivisibility of rights” approach that has gained traction recently. I categorised rights because at that time policy makers had to be informed that rights were not merely civil or political. But I must say that the Indian Supreme Court has handled the issue very astutely. Your judges have said that you simply cannot have civil and political rights unless they are informed by socio-economic rights. So the second generation rights have not come through the front door, but the windows have been left open. And it makes juridical sense, because you are dealing with the rights of real human beings. When you tell a pavement dweller that his right to physical body-life cannot be taken away without due process, that’s just not enough. Life is simply more than being alive without being dead!
Through the much-celebrated decision in Home Affairs v. Fourie, you legalised same-sex unions, holding that the common law understanding of marriage was incompatible with ideals of the South African Constitution. The Delhi High Court has made similar sounds through the Naz Foundation case, but not of the same magnitude. What do you put the difference in approach down to, despite both countries having remarkably similar equality clauses?
When Naz was delivered, my email was flooded with copies of the judgment from friends! I guess the difference is in timing and technicality. The equality clause in South Africa incorporates “sexual orientation” as a ground against discrimination, and its inclusion was helped along by demands from the women’s wing of the ANC at the time of constitution-making. So the first step was to decriminalise, and then grant equal status to same-sex marriages. The Delhi High Court has done the same, and although my views on this subject are clear from Fourie, it would not be appropriate to comment further.
The Indian Supreme Court has been taking expansive steps to monitor and curb corruption in what is being referred to as a “season of scams.” With its exemplary powers, just like the Constitutional Court of South Africa, how do you see the court’s role as a moral compass for our times?
I would say that the Supreme Court of India, as in any other country, should do much more than just resolving disputes between people. Courts play an enormously significant role in representing the aspirations of a nation, telling us what it means to be an Indian in India and a South African in South Africa. It should not be through grand three-piece statements, but through an incremental way of defining how power should be exercised, what rights of citizens are and what the relationship between the government and its people should be. Judges should be great storytellers of their age, and the way you tell it through a judgment is just as important as what you decide.
Judges through the ages, like Marshall and Holmes who have gone down in history have done just this. Although it wouldn’t be fair to pick any one individual from India, I must mention Krishna Iyer, for his legal acumen and vision that was animated by ideals of the Constitution.