INTERVIEW: Albie Sachs shares insight on constitutions ( Taipei Times )

  • Albie Sachs, 2014 Tang Prize laureate in Rule of Law
A- | A+

Albie Sachs, a former justice of the constitutional court of South Africa and winner of the first Tang Prize in Rule of Law, is known for his life-long battle for human rights against the apartheid regime in South Africa, and was one of the chief architects in the drafting of the constitution of post-apartheid South Africa. In an interview with ‘Taipei Times’ staff reporter Lii Wen on Friday in Taipei, Sachs, in light of Taiwan’s ongoing debate on constitutional reforms, emphasized the importance of public participation in constitution-making.



 Mon, May 04, 2015 ( Taipei Times )

Taipei Times: During a previous visit, you mentioned Taiwan was once notorious for its ties with the apartheid regime in South Africa. Tell us more about your views of Taiwan, especially in terms of human rights.

Albie Sachs: During the struggle days, apartheid South Africa was very isolated in the world. When they had a naval review of their ships in Simon’s Town, they would call for the fleets of the world to join them. And only two fleets joined them, from Taiwan and from Chile under [former Chilean president Augusto] Pinochet [1973 to 1990]. We didn’t have high regard for Taiwan at that stage, going out of its way to breach the international arms boycott of South Africa, sending its ships to South Africa.

Then, Taiwanese businesspeople would come to South Africa, and they would be called “honorary whites.” So there would be Chinese in South Africa that had no rights at all, but if you could show you were a Chinese businessman from Taiwan, you would be called an honorary white. We couldn’t understand how anybody with any dignity would accept that status.

At the same time, stories from Taiwan were of a very authoritarian society. With suppression of dissent, and the total picture was a negative one.

I first came to Taiwan in December 2013, at the request of the Academia Sinica. I got a very beautiful invitation, it was thoughtful, it touched on human rights, it clearly came from an academy and a culture that shared a lot of the ideals that I had, and I must say my visit here was a revelation. The extent to which people were debating issues very seriously, expressing themselves, a concern for fundamental rights, reached me.

That was followed by the Tang Prize. It was important for me the prize wasn’t from the government. South Africa used to recognize Taiwan under apartheid and a little bit afterwards. South Africa now has very cordial relations with Beijing. But this came from a civil society organization, independent of government. I think all the awardees felt the same thing.

I’m reluctant to receive a prize from any government, a government can give awards to its own people if they want to, but not for general work that you do. So again, I was received very graciously, and it included people from government in Taiwan who knew what our views were, who knew that I often supported groups fighting against the establishment, but that didn’t in any way affect the warm reception that I got.

But I also spoke at universities, I spoke at civil society groups and I found it very energizing. I was actually given a sunflower when I arrived at the airport, and I thought, “oh it’s a nice attractive flower.” I happen to like sunflowers, I didn’t realize it had so much symbolism and meaning. And I wouldn’t want to get involved in Taiwanese political activities, I’m a visitor — I listen, I learn and I don’t get involved in that way.

But I did learn about the Sunflower movement. I learned about how it’s being dealt with, I learned about the upsurge of interest in politics and, whatever one says about Taiwan, it’s not a boring society. It’s an effervescent society.

The other thing that I’ve discovered on both those trips, is in many respects, is what I call a social democracy. It’s a term not often attributed to Taiwan, but it’s got from what I can see, a very inclusive health system and a very inclusive educational system. It’s got strong public transport. And the whole idea of services being for the benefit of the people, is strongly entrenched here.

TT: What kind of role do you think Taiwan, as a relatively small nation, can play in actively promoting human rights on a global or regional scale?

Sachs: I think Taiwan can use what is seen as its disadvantages to its advantage. The fact that it’s a relatively small country, it’s compact, it’s on its own, it could become a leader, especially in Southeast Asia, a leader in terms of culture and human rights, of values, of social systems.

I was asked this morning at the simulation of the constitutional court on capital punishment, that Taiwan finds itself between the US and Japan, two powerful countries that have had a huge influence on its life, both of which still have capital punishment, different from Europe and Latin America and most of Africa. Can Taiwan strike out on its own?

I said that’s exactly why it can strike out on its own, and give inspiration to people in Japan and in the US who are opposed to capital punishment. It can become an exemplary country, not simply because of science and technology, but because of the quality of life and the core values.

I found an interest and openness here that makes it seems not just like a dream, that it’s absolutely feasible. So is open discussion and a lot of support for same-sex marriages. There’s open discussion and some support for abolition of capital punishment, it’s really saying, “we make up our own minds.”

Wouldn’t it be fantastic if Taiwan becomes noted, not because they are siding with dictators in different parts of the world, just the opposite. But because they’re there with Latin America, it’s not just Europe, by the way, Latin America and parts of North America and much of Africa. And now, among the first countries in this region to take a stand. I think it would be seen as a pathbreaker and a leader.

TT: A recurring discourse in Asia is that human rights or democratic values are difficult to achieve before a nation reaches a high level of economic development. The argument might be more commonly used in China, but perhaps shared among some Taiwanese as well. How would you respond to such “economic arguments” against democracy?

Sachs: We had a lot of economic development under apartheid, and a huge amount of oppression. We actually feel that sensitivity to human rights actually promotes economic development. It promotes intelligence, creativity — it’s actually a boom, the two are not in conflict.

We have socioeconomic rights actually in our constitution. Sometimes people turn the argument around and say socioeconomic rights should only be in constitutions in poor countries, somehow to enable the poor to lift themselves up. And I said, no, in wealthy countries it should be easier to enforce socioeconomic rights. The cost is less, the stress on resources is less.

I just think that these arguments tend to be really self-serving, and usually the pretext for justifying forms of dictatorship and oppression.

In South Africa we used to say, we don’t want bread without freedom, we don’t want freedom without bread, we want bread and freedom. Now, to add something on the cultural level: bread and freedom, and roses. Not just things, not just material things and not just liberty, but roses. It’s texture, meaning, creativity. It’s drama, surprise, terror, joy.

TT: Taiwan is in the process of revising its Constitution. Activists are proposing an elaborate process in which the public is invited to participate in the reforms. What is your view on the importance of public participation in constitutional reform?

Sachs: We had enormous consultation with the public through our parties at the first phase. At the second phase, parliament itself went out, it invited participation. We got 11 million responses from the public. We used television extensively; we had a program called Future Imperfect [hosted by Judge Dennis Davis].

Sometimes, issues were put to the people, asking them to respond. Do you want a presidential, parliamentary or prime-ministerial system? Things like that. We had theme committees that dealt with different aspects of the constitution. They were concerned with the people.

My one friend went out to speak to farm workers and he said it was wonderful. They were pointing to the interim constitution [of 1993] and taking it out of their pockets. And they said, “We don’t have homes, we are badly paid, we are insulted, but we do have dignity.” And they took the constitution out of their pocket.

So that was one of the reasons why our constitution has the prestige it has now. It’s not just you get a better result consulting people. People think it’s their constitution, they’ve been involved. They had a say in it, and so they would defend it.

TT: What are the ways in which a nation’s constitution can address or facilitate transitional justice? Should principles of transitional justice be explicitly written into the constitution?

Sachs: Certainly in our case there was nothing in the constitutional text about transitional justice. I was giving a talk in London when elections were pending, and I got a fax saying there’s a crisis involving the generals and other people from security.

They didn’t threaten a coup, they said they would simply resign their commissions, and go to another country. They defended the democratic process, they knew of plans to sabotage it and they would risk their lives to protect it — but not if they were going to go to jail in exchange.

And that’s just when I recommended, using the truth commission, to be linked to amnesty, and you could get amnesty for truth. In any event, our constitution was amended at the last minute to include a post-amble committing an amnesty with a view to dealing with the untold injustices of the past. Not in the spirit of vengeance and retaliation, but in the spirit of reconciliation and ubuntu.

That was in the constitution, and that allowed for the setting up of a truth and reconciliation commission. If that hadn’t been there, it might have been impossible.

On the other hand, there might be forms of dealing with the past that don’t involve absolving people for crimes that they committed. So that wouldn’t require constitutional change.

But I think the constitution is dealing with the soul and spirit of the nation. If there’s something that strikes at the spirit of the nation in a profound way, one would expect a constitution to open the way at least, in examining it.

TT: You witnessed the birth of the new constitution of Kenya and possibly some other countries. Do you see any emerging trends in the writing of new constitutions?

Sachs: Certainly in Africa, I think the three great rudiments that seem to be enduring, are South Africa, Kenya and Tunisia. Tunisia seems to be ongoing. And what marks them is that they’re really participatory, they have a balance between the political leaders and professors, technical people; they are not fighting for particular parties. They are fighting for certain values, and getting the nation involved, feeling involved.

Many of the other constitutions for Africa were crafted in Lancaster House in London by experts. They achieved an immediate purpose, convenience, but they couldn’t last long. They didn’t last well.