The New York Times

Monday, August 23, 1999

ABROAD AT HOME

By ANTHONY LEWIS

A Culture of Rights

Johannesburg - One of the most remarkable institutions in post-apartheid South Africa is the Constitutional Court, created to enforce the rules of the new democracy. In its courtroom the other day there was an argument that threw dramatic light on the way this country, and the world, has changed.

The case was this. South African immigration law provides that a foreign "spouse" of someone here may be admitted as an immigrant. Gay and lesbian individuals and organizations challenged the law's constitutionality, arguing that it discriminated against same-sex couples who were committed partners but could not legally marry.

The new South African Constitution includes a sweeping Bill of Rights. It forbids discrimination on grounds, among others, of race, gender, religion, "marital status" or "sexual orientation."

Arguing for the Government, Essop Patel urged the court to uphold the immigration law despite those constitutional guarantees. He said the concept of sovereignty gave Parliament plenary power over immigration.

"Can the immigration law be inconsistent with the Constitution?" the court's president, Arthur Chaskalson, asked. Mr. Patel struggled to escape that and similar questions but finally answered, "No."

If there was discrimination, Mr. Patel said, it was allowable as a way for the state to protect the institution of the family. "Aren't you protecting stereotypes," Justice Laurie Ackermann asked, of what sexual relations and family should be?

"What is really needed in this country," Mr. Patel said, "is a law recognizing domestic partnerships." He asked the court to give Parliament time to act. The judges asked how much time. He could not say.

Counsel for those challenging the law, Wim Trengove, was asked by the judges what they should do if they agreed with him that it was unconstitutionally discriminatory. Should they strike down the benefit for alien spouses? Or read into the statute a like advantage for same-sex partners? What about unmarried heterosexual couples?

Mr. Trengove said the court should confine itself to this complaint and read into the law a benefit for homosexual life partners. Members of the court expressed concern that that might put them in too legislative a role.

One notable aspect of the argument was the understanding, respectful view that everyone took of homosexuality. South African society, black and white, was in the past deeply homophobic. But even the Government's lawyer spoke critically of "homophobia." And an editorial about the case in a conservative newspaper, The Citizen, mocked objections to same-sex relationships and even marriages.

Even more striking -- profoundly so -- was the commitment of the judges and lawyers to the very process of constitutional law. For not long ago the idea that a South African government would submit itself to the decisions of a court on issues of civil rights and liberties was unimaginable.

Until 1994 South Africa had no written constitution. Judges were bound to enforce whatever Parliament enacted. And the apartheid Government turned law into a mechanism of oppression.

So the scene in that courtroom was a world turned upside-down. Everyone accepted the principle of judicial review.

Everyone was comfortable with the idea that judges should have the last word on what the Government can and cannot do.

From an authoritarian country, South Africa has become one concerned with individual rights. Someone near the top of the Government said to me, "After what we suffered, we want a culture of rights."

In looking to a Bill of Rights and judges to enforce it, South Africa is part of an international trend. In this argument, the lawyers and judges discussed cases in Canada, Europe and Australia.

There is some talk here of combining the Constitutional Court with the longstanding appeals court for non-constitutional issues. Perhaps someday there should be a single court of last resort. But for now only the Constitutional Court has the legitimacy to build the legal foundation of the new South Africa.

All segments of society seem to have confidence in the Constitutional Court. Its membership is diverse. Five of 11 judges are black, 6 white. Two are women. One is blind. They include professors and practitioners. Together, they are trying to do in a few years what American judges have done over 200: bring a constitution to life.