This last Wednesday, Richard Goldstone
, former justice of the post-apartheid Constitutional Court of South Africa
, was an honoured guest at an in-house conference organized for staff of the Supreme Court of Canada. The Constitutional Court is South Africa's highest court on constitutional matters.
Before being appointed to the Constitutional Court, during the period of transition from apartheid to multiracial democracy, Goldstone headed a commission of inquiry into violence that proved conclusively the involvement of the police and secret services in a campaign of murder aimed at aborting the nascent peace process between the white minority government and the African National Congress. The "Goldstone Commission" supplied such solid proof of human rights abuses during the final years of the apartheid regime to justify the establishment of South Africa's Truth and Reconciliation Commission that helped ease the transition.
Goldstone is perhaps most well-known outside his home country as the first chief prosecutor of the United Nations International War Crimes Tribunals for the former Yugoslavia and Rwanda.
In his talk before us in Ottawa, Goldstone spoke of the very elaborate process of writing South Africa's new Constitution
. This included the very delicate responsibility on the part of the brand new multiracial Constitutional Court of having to certify that the constitutional text complied with the 34 constitutional principles agreed upon in advance by the negotiators of the 1994 interim constitution. At first, the Court judges, Black and White, unanimously rejected the proposed Constitution, in particular for its failure to entrench certain fundamental rights. The text was sent back to a Constitutional Assembly for amending and a new version was later unanimously certified by the Court.
Goldstone's most interesting comments about the new Constitution were related to its very extensive Bill of Rights
which includes a limitation clause that is eerily close to s. 1
of the Canadian Constitution's Charter of Rights and Freedoms and whose formulation closely resembles Canada's Oakes Test
. Apparently the Canadian Charter, among other constitutional documents, was one of the influences on South African efforts to develop a democratic constitution in the post-apartheid era.
Goldstone also answered questions about the moral quandary of sitting as a liberal human rights judge during the apartheid years. During those years, the role of courts was restricted to applying the laws of the apartheid system.
Goldstone, on the advice of friends and various legal NGOs, decided to accept a judicial appointment and to try to fight apartheid from within by finding loopholes.
For example, in 1982, he handed down a ruling that people of colour could not be ejected from a designated "white" residential area under the regime's tough residential segregation laws if they had no alternative accommodation, effectively demolishing for good a central pillar of apartheid. The relevant law from the 1950s stated that judges "may" sign an eviction order. Until Goldstone, judges had enforced segregation by reading the law as if it meant that they "must" enforce segregationist evictions, but he ruled that "may" really meant "may". That subtle thinking helped end the ability and the political will of the regime to enforce evictions.
Richard Goldstone interviews, speeches:
- Law and the Search for Justice (Institute of International Studies, UC Berkeley, April 14, 1997)
- United Nations Or Not? (BBC Radio 4, Sept. 9, 2003)
- Preventing Deadly Conflict - The Role of International Law (Joan B. Kroc Institute for Peace and Justice, University of San Diego Distinguished Lecture Series, Oct. 15, 2003)
- How International Law Strengthens New Democracies (Promoting Democracy through International Law, Carnegie Council on Ethics and International Affairs, Feb. 3, 2004)
- Top Jurist at Osgoode Symposium Critical of U.S. War on Terror (reprint by Osgoode Hall Law School of a Toronto Star article, Jan. 17, 2005)
Resources on South African law:
Labels: Supreme Court of Canada