Frank Michelman and Richard Goldstone: A brief Q&A

Goldstone and Michaelman '60

Goldstone and Michaelman ’60

South Africa’s constitution and Bill of Rights are relatively new, but there is already a growing body of decisions interpreting or wrestling with what they mean in specific cases or controversies. So far, what’s your assessment of how South Africa’s constitutional evolution is going?

MICHELMAN: Those engaged in comparable work elsewhere evidently think it is going very well. In a short time, the work of the South African Constitutional Court has attained a very high level of regard among constitutional jurists elsewhere, and in comparative constitutional law circles. Its decisions are closely followed and widely discussed.

My own assessment is comparable. There are at least three dimensions to look at. One is the normative content of the legal doctrines the Court is generating from the text of the Bill of Rights — whether one thinks the Court is getting it “right” in terms of results. Inevitably, that is partly a matter of “like” or “dislike” the results, and reactions will differ in regard to some controversial cases.

A second dimension is one’s sense of the level of legal and judicial professionalism manifested by the work. There is some controversy among South African Court-followers over whether the Court has done everything it might in elucidating the deeper meanings of the various bill-of-rights clauses (or rather has sometimes been willing to settle too easily for a narrowly defined and vaguely defended outcome), but I think almost everyone agrees (and I certainly would say) that the Court’s work over-all meets a high standard of judicial care and craft.

A third dimension is what one might call the pragmatic. Like all constitutional courts, this one faces the problem of keeping up its standards of legal astuteness and judicial independence, while at the same time caring for its institutional stability and security in South African political life. Some recent South African appraisals of the Court’s management of this challenge have been quite favorable and, again, I would agree. We’ll have to wait to see how strongly South Africa’s constitutional judiciary emerges from the current political turmoil.

In drafting a constitution and a bill of rights, South Africa had the benefit of learning from the experiences of older constitutional democracies. When choices were made in drafting South Africa’s documents, were they the right ones? Did South Africa take full advantage of the lessons from other constitutional democracies? Or is it too soon to tell?

MICHELMAN: One might think the biggest choice of all was the choice to include a justiciable bill of rights that a court or courts would be empowered to uphold as against the legislative and executive branches of a popularly accountable government — a choice totally opposite to South Africa’s prior constitutional history and tradition. Aside from whatever else might be said in favor of this choice (or against) it as a general matter of democratic theory, the country’s basically peaceful transition from the old order to the new probably could not have been achieved without it. The same probably holds for another important choice, that to vest final authority over all judicial interpretations and applications of the new Constitution not in the old top court but in a brand new tribunal — the Constitutional Court — that would be created and staffed with that special mission in view.

In another important choice, the drafters decided to follow Canada (and other countries) rather than the United States, in specifically providing that undoubted infringements on the rights granted by the Bill would not be invalidated if the government could satisfy a court that the infringements were “reasonable and justifiable in an open and democratic society.” The drafters had the benefit of experience produced under textual models more recent than ours, suggesting that such a “limitation” model is more or less inevitably what you will get in practice anyway, and that both transparency and judicial discipline may be substantially improved by writing it expressly into the constitutional text.

On another matter, the drafters chose (in effect) to follow Germany rather than the United States, when they provided that bill-of-rights principles should be brought to bear not just on the state’s coercive treatment of individuals and groups, but on the treatment of persons in society by each other and on reform of the law — including the common law of tort and contract — that governs private legal relations. Since it is clear that some of the oppressive spirit of the old regime had permeated the common law, this appears to have been an appropriate choice. Its implementation by the courts has so far been conducted with a good deal of sophistication, without (that I can see) incurring the evils and costs that are sometimes feared from so-called “horizontal” application of bills of rights. One might say much the same of the choice to include positive, justiciable guarantees respecting access to housing, health care, food and water, and so on, although it is still to early to say how over-all successful has been this effort to engage the judiciary in the country’s inevitable tussles over its development strategies.

Justice Goldstone, of what are you proudest in your country’s early experience in this area? Conversely, what troubles you the most?

GOLDSTONE: I am most proud of the reputation that the Constitutional Court has built in the short 13 years of its existence. This is especially so inlight of the lack of training of the South African judges in the areas of constitutional law and human rights law. Prior to 1994 we had no written constitution and a supreme Parliament. There was no power of judicial review. And, I need hardly add, no human rights culture at all. So, it was really learning on the job.

With regard to the drafting of the Constitution we were fortunate in having the advice and counsel of eminent scholars from a number of countries and especially the United States, Canada and Germany. As judges, we have also benefited much from foreign law clerks. What troubles me is the absence of sufficient education in constitutional law and human rights law in our schools. In order to build a human rights culture, it is necessary that a broad mass of the population understand the fundamental basis of these subjects. The problem is not so much a lack of political will but the very small number of qualified teachers in this area. I am hopeful that over the coming years this will be corrected.

The students in your class hail from a number of countries – not just the US and South Africa. There are several Canadians, for example. Do these various perspectives cause you think in new ways about South Africa’s post-apartheid legal structure?

GOLDSTONE: Having foreign students in the class is obviously of significant value to me as a teacher. This is especially so with regard to Canadian students – important provisions in the South African Constitution are modeled on the Canadian Charter of Rights and especially so the provisions that provide for legislative limitations of fundamental rights.

It is also my experience that comparative constitutional law, in this case using the South African Bill of Rights, provides a useful lens through which students have a fresh look at their own constitutions. They obtain important new perspectives in this way.