You’ll recall the advice from Justice Ginsberg:
“I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights (and) had an independent judiciary. It really is, I think, a great piece of work that was done. “
Well, let’s look at that Constitution’s Bill of Rights.
“Everyone is equal before the law and has the right to equal protection and benefit of the law.”
Straightforward, adamantine assertions of bedrock truths. Can’t go wrong. The very next line:
“Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.”
So much for equality; that was fast. Subsection 3:
“The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. “
Doesn’t this seem to contradict the previous notion? Don’t worry; here’s subsection 5.
“Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”
The judges – Olympian-minded magestrates, all – would never say it was fair unless it really was, of course. So don’t worry. Let’s move on to the Environment section of the Bill of Rights. Edited for clarity:
“Everyone has the right . . . to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that . . . secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”
Again, it’s a model of clarity and precision; can’t see how it would result in anything but lots and lots of justifiable social development. If there are any head-scratching moments where these finely-crafted laws don’t spell out the obvious answer, there are other sources one can use:
- When interpreting the Bill of Rights, a court, tribunal or forum
- must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
- must consider international law; and
- may consider foreign law.
It goes on and on, spelling out this and that in minute detail, but they managed to cover everything. This exemplary document was adopted in 1996.
It’s only had 16 amendments so far.