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DESIGNING A BILL OF RIGHTS FOR A DIVERSE SOCIETY
Speech by Professor Kader Asmal, Member of the National Assembly,
Parliament of South Africa, at Chatham House, London, on
Wednesday 26 September, under the auspices of British Irish rights watch
Ladies and gentlemen, friends:
This is the second occasion within a year that I have had the pleasure of delivering a lecture at Chatham House. Last December, I spoke on the South African Constitution, the need to respect multi-culturalism, and how the constitutional order should strengthen it. Now, I am asked to speak on a topic not entirely unrelated to last December’s.
Lest any thought police in Britain think that this is another episode in a cultural offensive by the South African regime, let me disabuse them. On the first occasion, the invitation came from an academic institution. Now, the invitation was issued by British Irish Rights Watch – it is true that I have been a proud sponsor of that body – to talk on the topic of designing a Bill of Rights for a diverse society, with particular reference to Northern Ireland.
Now, I am not entirely a stranger as to how to ensure that the citizens’ rights are protected, not only against the State but also against violations by a fellow-citizen. Indeed, the whole issue of how the extent of state power can be regulated by law has been my lifelong commitment.
It is therefore an extraordinary pleasure to accept this invitation, as I studied in London, lived for nearly 30 years in Dublin, and returned home as a Mandela negotiator to play some role in the adoption of a Bill of Rights.
While in Ireland, I became a founder and chairperson of the Irish Council for Civil Liberties, a non-sectarian human rights body. Long before that though, in November 1966, at a remarkable meeting in Belfast held in the War Memorial Hall, I spoke on the need to incorporate the European Convention on Human Rights into Northern Ireland law. In Britain, this was paralleled by the initiatives taken by British parliamentarians, notably Fenner Brockway. It is remarkable to think that, if Fenner Brockway had been successful, it is possible that over 3,000 lives might have been saved in Northern Ireland. On 12 May 1971, Arthur Latham and Lord Brockway introduced identical versions of a Bill of Rights, one in the House of Commons and one in the Lords. A little later, with John Hume, there was another attempt to evoke interest in this matter, at a meeting specifically on a Bill of Rights where we both spoke.
But other events overtook this modest but important campaign. These initiatives were considered by the establishment to be anti-Stormont as they emphasized the need to deal with abuse of civil liberties and discrimination; in effect, the campaign was considered to be part of a zero-sum game.
I was astonished to find, when I looked at my library while preparing for this lecture and found a book called “Do we need a Bill of Rights?”, that in 1980 in the House of Lords Lord Hailsham remarked that there is no point having a Bill of Rights unless you have a written constitution. He also said that there was a case for having a Bill of Rights specially for Northern Ireland!
I note as an aside that, after the terrorist attacks in London in July 2005, the then Prime Minister Tony Blair said that the rules of the games had changed. If you have a Bill of Rights, the rules of the game do not change. It is tantamount to heresy for someone with enormous power to make such a suggestion.
It was some years before the debate revived in Northern Ireland. From 1985 onwards, a great deal of non-governmental activity and lobbying took place, largely led by the Committee on the Administration of Justice. Finally, the need for a Bill of Rights, and also a Human Rights Commission, was included in the Good Friday/Belfast Agreement in 1998.
But consensus has been slow in coming. Now there is a new phase of the development and there is pressure to move on quickly, with the setting up of a Round Table Forum – a gathering of political parties and civil society – which needs to complete its work by next March. When I go to Belfast later in the week, I will speak under the auspices of a Human Rights Consortium, made up of scores of bodies engaging with each other.
I provide this information as your Government has announced in July a Green Paper on the Governance of Britain, where in the vivid language of its introduction it refers to the document as a ‘first step in a national conversation’ which will embrace the whole of the United Kingdom, including Northern Ireland, at many different levels.
More specifically related to this evening’s discussion is the British Government’s clear commitment to a discussion on a Bill of Rights: the Human Rights Act, which incorporated nearly all of the European Convention on Human Rights in British law was not intended to be the ‘last word on articulating the relationship between individuals and between the State and its citizens’, it said.
This is a most significant step, as your Government intends that a national debate should take place, in which all sections of society should participate. However, you cannot wait for the debate to end in England before acting in Northern Ireland.
Our experience in South Africa has been that when peace breaks out, as in Northern Ireland, then it is vital that everyone should build on it. Thus in 1993, after intense negotiations, South Africa adopted an Interim Constitution which was effectively a peace treaty between the anti-apartheid liberatory forces and the apartheid regime. This was recognized in the epilogue, which we in South Africa refer to rather inelegantly as the postamble – an unusual constitutional device, which reflected the nature of the negotiations, which described the Constitution as providing
‘a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans irrespective of colour, race, class, belief or sex.’
But co-existence is a cold if not hostile basis for people to learn to live together. The Constitution was in itself a peace treaty, and word “co-existence” reflected the end of a “hot” war, replaced by a “cold” war. We felt, as important elements in Northern Ireland also do, that a Bill of Rights debate was crucial, precisely because of the peace process which had succeeded in South Africa, but which needed to be strengthened. We already had an interim Bill of Rights (which, in 1989, black intellectuals described as “ a Bill of Rights for Whites”; it was not, but we had to make sure that this was understood) but we wanted, first, to make sure the human rights gains were solidly rooted, including sensitive matters such as socio-economic rights; second, to promote genuine agreement across political divides that human rights are for all, not just a zero sum of partisan games as they were frequently portrayed; and third, to develop a shared vision for the future and, ideally, act as a role model for other countries grappling with similar issues, whose human rights protections are far from secure in the current climate, particularly in the area of “security”, which has been used as an excuse for some of the most serious violations of human rights.
I shall therefore use the British Green Paper as the background when I refer to the South African experience, which I really believe has a resonance for Northern Ireland.
My own experience, of course, lies in the South African Constitution and the Bill of Rights which flowed from it. We built on the 1943 Bill of Rights, but in 1989 we still went through a learning process. Then, we said there needed to be one national identity in South Africa, not imposed by force of arms but through legislation, but we soon learnt that you have to accommodate one another. When the African National Congress began to draw up a draft Bill of Rights for a country struggling with the legacy of the apartheid regime, we had to tackle the challenges of how to legislate diversity and how to adjudicate difference. These issues are only now moving to the forefront in Europe.
Legitimacy
The core ingredient for any founding legal document or institution is legitimacy. Legitimacy in the case of a bill of rights derives partly from its content, and from the mechanisms it creates to establish and preserve the rights and obligations it enshrines, but much more from the process by which it is written.
Inevitably, and appropriately enough, our Constitution attracts much debate, although no-one attacks the legitimacy of the Constitution. On the contrary, the Afrikaners invoke it to protect their rights. Its creation was a real exercise in precocious democracy, with hundreds of thousands involved. Often serious objection is raised to a provision of the Constitution or a decision of the Constitutional Court. The radio talk shows will be abuzz with comment. But, crucially, the criticism is rarely directed at the notion of constitutionalism itself: the Constitution has a fundamental legitimacy. I believe – and the opinion poll evidence supports this contention – that the overwhelming majority of South Africans accept the Constitution as the legitimate founding document, and one that captured the essence of our negotiated democratic settlement.
How so? And why so? First of all, from 1994 to 1996 the Constitutional Assembly put together one of the most comprehensive exercises in public consultation that there has ever been. Given the constraints that were faced – around geography and language and scale – the exercise was not inexpensive, in terms of financial and human resources - but the staff of the Constitutional Assembly’s public outreach programme were carried by the wave of optimism in the immediate post-1994 period. It was a worthwhile investment. Millions of viewpoints were collected and collated.
Moreover, the process was a very visible one. There was a substantial advertising campaign that matched the elaborate efforts to reach every nook and cranny of our land. No doubt there were imperfections – there always are – but again I maintain that by sheer weight of endeavour, the Assembly was able to convince even the most sceptical members of our society that the new democracy was to be an inclusive one.
Of course, even the most carefully constructed message needs a good messenger. Leadership plays its part. Not only did we have President Nelson Mandela – whose commitment to national reconciliation was unequivocal, and who engendered a level of trust across all sections of our society – but we had in Cyril Ramaphosa the perfect Chairperson for the Constitutional Assembly. He too was able to convey a message of inclusiveness; he too was able to engender the necessary levels of trust, both amongst the participants in the Assembly itself but also in wider civil society.
Above all, he was successful in convincing people that this was not a victor-takes-all scenario, in which the ANC would stamp only its view of life upon the new constitutional dispensation, and in which victor would vanquish the former oppressor. Indeed, we – the ANC – made many significant concessions during the final constitutional negotiations, especially on the Bill of Rights. Now we have a 70% majority, but we did not insist on getting our way. I never thought I would hear myself say this, but it is the judges who are the guardians of the Constitution; we leave it to them.
Mr. Ramaphosa oversaw the process with a delicate hand, taking advantage of the array of local and international constitutional experts, and developing formal and informal processes for resolving disputes and for unlocking blockages. Clearly, visionary leadership is needed on all sides, and this applies to all countries, including, most importantly, Northern Ireland.
Of course we must be careful not to mythologize when we look back at the past. Indeed, as I have argued before, it is the construction of our society on the basis of a shared vision of the future, rather than on any mythologizing of our past, that best guarantees a peaceful, just, multicultural society in which each is offered the best chance of flourishing and fulfillment.
And that includes the recent past – in this case that extraordinary period in the early nineties when we able to snatch a peaceful transition to democracy from the jaws of a far more violent and bloody path.
A constitution/bill of rights is not a matter for mandarins or lawyers, is an innately political document. If, as the British political scientist Adrian Leftwich of the University of York, asserts in answer to the question ‘what is politics?’ it is “the process by which decisions about the allocation of resources are made”, then a Constitution is a profoundly political document and fundamental to politics. This is why the separation of powers is so important, and why I now embrace the role of the judiciary.
And political compromises had to be made during the drafting process, sometimes in secret. There were some long nights and, yes, some smoke-filled rooms. There were some extraordinarily sensitive areas to deal with. I recall one particular instance, relating to the fact that in South Africa we have 11 official languages. At 2 am one morning, after some hours of fraught and inconclusive discussion, I had a flash of inspiration, and proposed adopting a phrase from the Irish Constitution, “parity of esteem” – now found in Section 6 of our Constitution. There comes a moment when the politician’s role emerges: to negotiate and balance the various vested interests at stake. But we could only do this because the overall process was regarded as transparent and the main process so inclusive.
The outcome was a Constitution that both speaks of the past and to the future. It guarantees civil and political rights (known as first-generation rights) and holds out the realisation of social and economic rights (second generation rights). These civil/political and economic/ social rights are, I should add, inextricably linked, you cannot separate the two. They embody what US President Thomas Roosevelt once characterised as the freedom from fear and the freedom from want. Those who drafted the great international covenants from which modern human rights laws derive understood that a human being who is hungry or lacks basic amenities such as water is not always able to exercise her right to vote.
My great favourite of a poet, Shelley, once wrote that freedom is bread on a comely table spread. But a famous book rightly warns us that ‘man does not live by bread alone’. Politics and a human rights dimension must reconcile these two attitudes.
Our Constitution promises protection of the rights which best guarantee our freedom to be individuals, unlike any other, but also the rights we enjoy only in and through our communities – that protect our enjoyment of the society of those like ourselves.
I must emphasise that those of us who had fought against apartheid and who were subsequently involved in the multiparty negotiations that led to the enactment of the Constitution and, especially, the Bill of Rights, were determined to fashion a founding document that enabled South Africans to participate in and enjoy, in every sense, their diverse communities. This continued a tradition which had seen the Freedom Charter declare that ‘South Africa belongs to all those who live in it, black and white’ (a phrase now found in the preamble to the Constitution) and that all South Africans had the right to their own languages and to develop their own cultures and customs.
Let me turn to what has happened since the adoption of our final constitution in 1996 and to the present day, and to what the lessons are for Northern Ireland and possibly the United Kingdom. Much though I would like to, I am not proposing to examine the core values that animate our constitution: human dignity, equality, freedom, non-racism and non-sexism. These values animate our discussion about national identity. They provide the basis for a common citizenship. We do not talk of South African values, but the values of the Constitution. We recognize as you do that everyone has multiple identities, and we do not believe that anyone has to be forced into an elusive common, single identity.
There is a great deal to be said about other topics too, but let me limit myself to three: public participation; social transformation; and the enforcement and protection of rights. And in so doing, let me add that I am doing so with the theme of legitimacy still very much in mind as a driving principle that must continue to inform our approach to the interpretation and understanding of constitutionalism.
Let me summarize the argument briefly, at the outset. For a bill of rights to succeed, it must have a fundamental legitimacy. The rule of law, the authority of government, can only be entrenched and respected if there is sufficient legitimacy. That is especially true of diverse societies, which is what most countries in Europe are now.
As I have mentioned in the first part of this speech, this base level of legitimacy has to be established during the drafting and negotiation process. All sections of society must be able to trust the process and, thereby, trust the decisions that determine the form and content of the constitution.
Then, for a bill of rights to be able to sustain its fundamental legitimacy it must continue to respect the principle of public participation. It must provide not just a framework but the impetus for the document’s over-riding purpose, which in our case is “social transformation” (a phrase that I will attempt to elucidate in just a minute).
Lastly, for it to retain its legitimacy and its ‘fitness for purpose’, it must be enforceable. The mechanisms and institutions of enforcement must in turn have a robust legitimacy and the power – the political wherewithal – to protect and promote the rights enshrined in the constitution.
Public Participation
The South African constitution contains many references to participation. It is clear that we were attempting to articulate a different and perhaps quite radical vision of a working democracy in which the people would not transmit their power and authority to elected leaders for the duration of a term of parliament – the old exposition of representative democracy – but were instead to be provided with many opportunities to “converse” with government as the laws and policies were made. In other words, the notion of democracy as a five-yearly episodic process is replaced by that of a dynamic, on-going and persistent two-way dialogue between the government and the governed.
Our Constitutional Court was itself a very important departure from the anglo-saxon approach to judicial settlement, though in fact there are now constitutional courts in over 80 countries. I consider it vital to the satisfactory protection of basic human rights, and the Court has, in two recent cases, affirmed this view. It over-turned two sets of government decisions for serious procedural failures, which, the court said, had denied people their constitutionally protected right to participate in the legislative process.
In the one case, Doctors for Life[1], it was successfully argued that parliament had failed to fulfill its duty to “facilitate public participation”. Describing the right as a ‘programmatic right’, Justice Ngcobo, writing for the majority, said that the right to political participation (beyond the vote) was not a new concept but one embedded within both international and especially African culture. The Magna Carta, for example, allowed for a right to petition to seek redress. In African society, the idea of the ‘imbizo’ or ‘lekgotla’ or ‘bosberaad’ is well established as a culture of decision-making by and in communities, permitting everyone to have a voice.
Moreover, as Ngcobo J reasoned, the historical context in which community involvement in decision-making in the struggle against apartheid was not merely expedient but was a deliberate construction – to contrast against the non-inclusiveness of Apartheid government: “The people developed the concept of people’s power as an alternative to the undemocratic system of apartheid” (at para 112 of the judgment).
As is his wont, Justice Albie Sachs, in a supporting judgment, added his own rhetorical flourish, which is pertinent to my subject:
“A vibrant democracy has a qualitative and not just a quantitative dimension. Deliberation and dialogue go hand in hand. This is part of the tolerance and civility that characterize the respect for diversity the constitution demands. Indeed, public involvement may be of special importance for those whose strongly-held views have to cede to majority opinion in the legislature. Minority groups should feel that even if their concerns are not strongly represented they continue to be part of the body politic with the full civic dignity that goes with citizenship in a constitutional democracy”.
Participation in the process of making the law is an essential part of constitutional democracy. Executive convenience and a pliant parliament should not displace this democratic dimension of consultation. If you want to embed the concept of a Bill of Rights in the psyche of the people, there must be participation.
Social Transformation
But, to turn to the second topic – social transformation – it is clear that in unfurling its wares, a bill of rights must be seen to be true to its over-arching purpose. The totality of rights must be embedded in the Constitution. However, one must accept that while we may be able to identify certain characteristics and rights that have a truly universal content, the specific hierarchy of aims and ambitions may vary from society to society. What may be of vital importance to Northern Ireland may be different to South Africa, although there are sufficient similarities in our pasts to suggest that comparison is not an idle exercise.
Apartheid not only denied people a right to vote, it denied them a right to dignity. It denied black South Africans any possibility of getting a decent education – a striking contrast to what happened in Eastern Europe by the way, where, for all the manifest faults of communism, children were at least educated. Often too they were deprived of any chance of acquiring the skills to play an active part in our economy. As Minister of Education between 1999 and 2004 I saw at first hand how deep and damaging the legacy of apartheid is in this regard.
Yet, it is interesting that although the right to a basic education is enshrined in section 29 of our bill of rights, as Deputy Chief Justice Moseneke has commented recently, no case has yet reached the Constitutional Court seeking to enforce the right.
However, this right is not described in our constitution as an “access right” like the right of access to water or health, which depend on their progressive realization. During my tenure as Minister of Education I used this reference to what I call a peremptory right to ensure a greater allocation of resources, especially in relation to infrastructure. Thus such rights can be politically invoked for good purposes.
However, the main socio-economic cases that have arrived at the doors of the court have concerned housing and health, but especially the former – which is hardly surprising given the fact that millions of my compatriots continue to live in squalid conditions. The details of the cases are not material here, save to observe that the court has been faced by the very demanding assignment of reviewing whether and to what extent the government is meeting its obligation to “progressively realize” its obligation to provide for access to adequate housing and whether, in so conducting this act of scrutiny, the court is willing to detect, identify and articulate a notion of a ‘minimum core’ to the right.
In the three main cases – Grootboom, Modderklip and most recently, City of Johannesburg – the government’s approach to so-called informal settlements has been subject to the scrutiny of justification – a concept of paramount importance to the realization of a human rights culture.
In approaching its onerous task, the Constitutional Court has by and large adopted the test of reasonableness as its guiding tool for interpretation. This has attracted criticism from those who would like to see a more assertive court. I do not think it is fair to say that the court has been overly deferential to the executive or the legislature. For example, the court overturned (in 2003) the government’s approach to the most politically charged issue of the day – its policy on anti-retroviral drugs for HIV positive mothers. On the other hand it has rightly been concerned not to overstep the line that divides its role from that of the elected government; it is rightly concerned about, and sensitive to, the democratic legitimacy issues involved in drawing this very thin line.
Such separation of powers is vitally important in recognizing the limits to executive, legislative and judicial powers. We have substituted the supremacy of the Bill of Rights and the Constitution for the tired but dangerous approach of parliamentary sovereignty which in effect means the application of executive power.
In the housing cases, the court has often had to fashion creatively crafted remedies – a vital and underestimated aspect of the work of a constitutional court. If the bill of rights is to be respected and upheld, then it has to be interpreted and orders made in a manner that work in practice. This, too, is significant for its legitimacy.
Much as constitutional courts around the world have had to learn a new language for interpreting equality – what the Justice L’Heureux-Dube, a member of the Canadian Supreme Court has described as the evolution of the vocabulary of constitutional interpretation – so too for socio-economic rights the court must learn a new way of doing things.
Much admired, rightly, as it is for its intellectual integrity, the South African constitutional court has had to climb a steep learning curve. Whereas its remedy for the problem posed by an informal settlement, including children who were without adequate shelter, in Grootboom, cannot be said to have been effective, in Modderklip, the Court arrived at an order that was as common sense and practical as it was, in legal terms, creative and unusual.
A large group of homeless people had settled on a farmer’s land. He wanted them off and got an order. The police would not – or could not – enforce it. He had property rights. The ‘trespassers’ had the right to access adequate housing. But the local municipality was declining to rise to the challenge of meeting its obligation to provide it. The court ordered that the state pay the land owner an amount that compensated him for the loss of land. He got a satisfactory remedy; the people were able to remain in their far-from-perfect yet better-than-nothing informal homes; and, the state was – albeit by court order – able to meet its constitutional obligation.
For the traveling people in Ireland, the gypsies in the UK and now increasingly the homeless in these islands the South African provision in our Bill of rights could ensure that one of the most important elements of dignity – a roof above your head – could be vindicated in spite of the indifference of the majority.
The South African cases cited have given rise to difficult matters of interpretation and jurisprudence; they represent the coalface of contemporary human rights enforcement and a dynamic opportunity for the bill of rights to contribute to the mediation of interests at stake in Leftwich’s political process of allocating resources in a complex, unequal and diverse society.
The Green Paper seems to reject, surprisingly in such an early discussion document, any notion of economic and social rights, as this ‘would involve a significant shift from Parliament to the judiciary in making decisions about public spending and, at least implicitly, levels of taxation’. Apart from the fact that at present these are the very matters on which the executive is the only real authority, the Green Paper approach ignores the indivisibility of the first and second generation of rights. If these rights are excluded from a Bill of Rights, you will be throwing a rope of sand to a drowning man, as the Indian Supreme Court once put it.
However, the main point is that the government is being kept on its toes; civil society organizations can continue to probe and help ensure that government remains loyal to the transformatory mandate that it has been given. On that there can be no doubt: as the opinion poll evidence of one organization, Idasa, gathered by its Afrobarometer project, shows: South Africans expect democracy to deliver a better life in material terms. In other words – and there are obvious barely concealed messages of warning to note here – they expect, not unreasonably, that the right to vote will turn out to be more than a chimera, but a pathway to a life in which food can be put on the family table, over which a proper roof provides shelter from sun and rain alike, and where their children if not they themselves will have a reasonable prospect of gainful employment.
This is what we mean by ‘social transformation’. And my point is simple, as our court has persistently said in its judgments, when interpreting the bill of rights it must never lose sight of the fact that the underlying purpose of the constitution is a transformatory one. If it were to be disloyal to this, it would, as it clearly recognizes, lose the hard-won legitimacy of its drafters.
Enforcement
Lastly, enforcement, and I speak here with the issues very much at the front of my mind as I have recently completed my work as chairperson of a special ad hoc committee of parliament that was established to review the bodies of constitutional protection established in chapter 9 of our constitution – including the Human Rights Commission, the Gender Commission, the Public Protector and a Commission established to help reassure minorities about their language, religion and other cultural choices, as well as the Independent Electoral Commission and the Auditor-General.
Although it might be regarded as a fairly technical review, I am especially proud of the report that has emerged from a careful process of listening to the many stakeholders and scrutinizing the record and performance of the various bodies. I am happy because this is the nitty-gritty of constitutionalism: if we get it right, and the reforms that follow are effective, we will do a great deal to ensure that for the next generation – for our children and grandchildren – the vision of constitutional democracy, of human rights and multiculturalism is properly protected and promoted.
At the root of my committee’s inquiry, was the desire to ensure that the various bodies would not only function optimally, making efficient use of inevitably constrained human and financial resources, but would also have the political power to withstand attack. Sadly, the history of mankind suggests that one should always plan with the worst case scenario in mind and not the best. It is not, of course, easy to legislate this. All one can do is design the institutions in such a way that their independence will be difficult to tamper with. Otherwise, their legitimacy will be diluted and they will lose the trust of all social groups, and not just the minority groups whose protection is an important part of their mandate.
Our Committee found that in many but not all of these bodies there was not enough professionalism, efficiency or receptiveness to peoples’ needs; and there was too much duplication.
In other words, these institutions are a vital part of delivering a bill of rights for a diverse society. I know that Britain is currently busy re-ordering its equivalent bodies. There is much to be learnt from each other and I hope that in the next two years, there will be a generous stream of traffic in both directions – from South Africa to these islands and back the other way, to share lessons and experience. Warning: Governments may be happy with these bodies, but Ministers are not as they do not appreciate that these bodies provide a countervailing source of power, especially in investigations.
Finally, on the topic of enforcement, the rule of law is crucial to all of this. Rights on paper are worth nothing if they can not be enforced. We are fortunate to have a strong court system and that while the question of judicial ethics is one that we have begun to consider because we can not afford to be complacent, we can say with a degree of confidence that our judiciary is one that will determine cases on the merits and the merits alone, this in a country where race was enshrined previously in the apartheid constitution.
The question of how the judges are selected is, therefore, pivotal. We have a Judicial Services Commission. I commend it to you. It meets in public and holds interviews for new appointments to the high court, the supreme court of appeal and the constitutional court. If you are ever in Cape Town when it is sitting, then I recommend the Vineyard Hotel’s conference room, with its appropriately large glass windows through which the sun shines, metaphorically adding to the sense of transparency that now accompanies our appointment process. All the political parties, big and small, are involved in this process. Though the transformation of the bench is as controversial as every area of life in South Africa, including the selection of national sporting teams, again I feel confident in saying that there is a high degree of legitimacy in the process and the outcomes.
Of course, governments like to have a safe pair of hands in the judiciary, but even in your system they do not always succeed!
In Conclusion:
Experience around the world has shown that Bills of Rights vary in the degree of their success in direct proportion to their ability to meet certain universally-applicable criteria, which can be summarized as follows:
· ownership
· access to courts
· relevance
· protection of minority rights
· entrenchment
· enforcement
· flexibility
· limitation clauses
· security and states of emergency.
To summarize what I have argued:
First and foremost, a Bill of Rights must belong to as wide a cross-section of the public as possible, including in particular those who are marginalised in society and who by definition find it more difficult to access their rights. For this reason, the process by which a Bill of Rights is drawn up is as important as the end product. The more inclusive the process, the wider will be the ownership of the Bill of Rights. A crucial measure of success for a Bill of Rights is that the majority of people in society, whatever their race, religion, ethnicity, or political or community affiliations, can say, ‘This is my Bill of Rights’.
Secondly, a Bill of Rights must be relevant to the population it protects. It must reflect their concerns and must deal with issues that matter to them fairly and equally. In other words, it must be comprehensive. It is no good dodging what to some are difficult issues, such as abortion, sexual orientation, or the conflicting rights of those who wish to parade and those through whose neighbourhoods parades pass. They must be tackled and dealt with fairly and equally.
Thirdly, it must protect the disadvantaged. Bills of Rights must recognise that minorities need protection from the majority, especially in a democracy, where minorities can always be outvoted.
Fourthly, a Bill of Rights must be capable of delivering change on the ground, not just for groups of people but also for individuals. It must enjoy a statutory basis and must contain strong enforcement mechanisms. One of the weaknesses of the Human Rights Act 1998, which gives domestic effect, in Northern Ireland and in the rest of Britain, to the rights enshrined in the European Convention, is that it omits Article 13, which provides for an effective remedy for human rights violations.
Lastly, a Bill of Rights must be capable of amendment to reflect changes for the better in society, while at the same time being protected from changes that are the result of political ideology or public panic.
In the case of Northern Ireland the status of its Bill of Rights in relation to Westminster will have to be resolved. But Northern Ireland should not have to wait for the completion of the national conversation envisaged in the Green Paper. They need to use what has emerged in Stormont recently as the basis for a rapid adoption of the Bill of Rights promised in 1998.
I wish those who are tasked with designing a Bill of Rights for Northern Ireland well. They will face many challenges, as we did in South Africa. They must devise an instrument that will protect the unpopular, as well as the law-abiding majority, allowing even the terrorist a fair trial. They must protect the freedom of expression of even those whose opinions they find obnoxious. They must respect the religious beliefs of even those who philosophies conflict with their own most deeply-held convictions. They must avoid expediency, and the inclusion of only those measures that can command the bland acceptance of the majority, looking instead to the great principles that underpin our humanity and our societies, and which can enable us to build a future that is not mired by unacceptable histories of conflict and division. Above all, they must protect minorities from majorities, by whom they can always be outvoted. Finally, they must be prepared to think, if not the unthinkable, then the previously unimaginable. They must be bold, they must face down the past and concentrate on the future, envisaging a world which is not, after all, so hard to imagine or to aspire towards: a world where our children get a good education, where there is food on the table, where there is peace and stability for everyone to enjoy and in which each can flourish and attain his or her fullest capability.
I hope that the Northern Ireland Bill of Rights will provide a beacon for everyone in Northern Ireland, in the rest of the UK, in Ireland, and indeed throughout the world. Those responsible for the Bill of Rights have the opportunity to make a reality of the wonderful Irish poet Seamus Heaney’s prophetic vision by creating a Bill of Rights where hope and history rhyme.
It seems to me that both in Britain and in Northern Ireland you are not very good at taking the longer view of your situation. You do not fully appreciate how the rest of the world still considers your settlement under the Good Friday Agreement and the subsequent consolidation of the power-sharing executive as one of the great triumphs of the human spirit.
A Citizens’ Charter of Rights, which is essentially what a Bill of Rights is, would help to build a normal society. There remains a huge agenda for change to deal with fear about the future, poverty, alienation, discrimination, and to foster a sense of national identity. So we must continue to dream and to campaign. As Ben Okri wrote:
They are only the exhausted who think
That they have arrived
At that final destination
The end of the road
With all their dreams achieved
And no new dreams to hold.
This is your task today as you seek to enrich your knowledge and understanding of the need for a Bill of Rights. It is my pleasure to remind you of it.
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[1] Doctors for Life v Speaker of National Assembly and Others. CCT 12/05.
For Peace Justice & Human Rights
