14 February 1995, Johannesburg
President of the Constitutional Court;
Ladies and gentleman.
The last time I appeared in court was to hear whether or not I was going to be sentenced to death. Fortunately for myself and my colleagues we were not. Today I rise not as an accused but, on behalf of behalf of the people of South Africa, to inaugurate a court South Africa has never had, a court on which hinges the future of our democracy.
It is not just a building that we inaugurate, handsome though it is. It is not a body of wise men and women that we launch on their path, important though we regard their work. It is not just our blessings that we give to their work, confident as we are in their integrity and commitment to justice. It is an institution that we establish – South Africa`s first Constitutional Court.
People come and people go. Customs, fashions, and preferences change. Yet the web of fundamental rights and justice which a nation proclaims, must not be broken. It is the task of this court to ensure that the values of freedom and equality which underlie our interim constitution – and which will surely be embodied in our final constitution – are nurtured and protected so that they may endure.
We expect you to stand on guard not only against direct assault on the principles of the constitution, but against insidious corrosion. Attacks on the basic rights of the people are invariably couched in innocent language.
We do pledge that the new Government of National Unity will never be party to the subterfuges of the past which put a humane gloss over the most iniquitous denials of our rights. We are confident that the new parliament, imbued with openness of debate and honesty of purpose, will never attempt to pass laws which oppress and divide. We believe in the constitution and the processes it has established. We are convinced that multi-party democracy and freedom of opinion have taken firm root in our country. We have no doubt that the nation is committed irreversibly to acknowledging diversity and respecting the basic rights of everyone.
Yet experience everywhere teaches that in addition to all this, special institutions are required to ensure the continuity of right and justice.
We have fought hard for the basic principles enshrined in the interim constitution. The rights and freedoms it proclaims are not simply words taken from hallowed texts in other parts of the world. They represent our endeavours, and our dreams of a free and just society.
The interim constitution, and the principles it sets out for the Constitutional Assembly, are homegrown. They took root in the soil of our own harsh experiences. They grew upwards towards the light of our own highest aspirations. We must defend them, all of us.
Our constitution rests on three fundamental pillars: Parliament, the Government, and the Constitutional Court. Each has its specific role to play. Take away or undermine any, and you weaken the whole structure. That is why your independence is guaranteed in the constitution.
One of the things one discovers when coming into office is that there is no shortage of rubber stamps. South Africans did not establish this court to be another rubber stamp. We expect you to be creative and independent. We expect you to be true to the oath you have just sworn.
Constitutionalism means that no office and no institution can be higher than the law. The highest and the most humble in the land all, without exception, owe allegiance to the same document, the same principles. It does not matter whether you are black or white, male or female, young or old; whether you speak Tswana or Afrikaans; whether you are rich or poor or ride in a smart new car or walk barefoot; whether you wear a uniform or are locked up in a cell. We all have certain basic rights, and those fundamental rights are set out in the Constitution.
The authority of government comes from the people through the Constitution. Your tasks and responsibilities, as well as your power, come to you from the people through the Constitution. The people speak through the Constitution. The Constitution enables the multiple voices of the people to be heard in an organized, articulate, meaningful and principled manner. We trust that you will find the means through your judgments to speak directly to the people.
You are a new court in every way. The process whereby you were selected was new. When we look at you, we see for the first time the many dimensions of our rich and varied country. We see a multiplicity of backgrounds and life experiences. Your tasks are new. Your powers are new. We hope that, without abandoning the many sterling virtues of legal tradition, you will find a new way of expressing the great truths of your calling. You will be dealing with the rights of millions of ordinary people. The Constitution which you will be serving is the product of their sacrifice and belief. I am sure that I am speaking for all of them when I say that the basic reasons for your decisions should be spelt out in a language that all can understand.
The success of the Constitutional Court will depend in large measure on the successful functioning of the ordinary courts. Every court, from the most isolated magistrate`s court to the Appeal Court in Bloemfontein, has a role to play. The letter and the spirit of the Constitution must permeate every aspect of justice in our country.
A particularly heavy responsibility rests on the Appellate Division, to ensure that legislation is interpreted, and that the common law and custom are developed, in the light of the principles enunciated in the Constitution. We envisage an active and fruitful partnership between the ordinary courts and the Constitutional Court.
To Judge Arthur Chaskalson and other members of the Constitutional Court let me say the following: yours is the most noble task that could fall to any legal person. In the last resort, the guarantee of the fundamental rights and freedoms for which we have fought so hard, lies in your hands. We look to you to honour the Constitution and the people it represents. We expect from you, no, demand of you, the greatest use of your wisdom, honesty and good sense – no short cuts, no easy solutions. Your work is not only lofty, it is also lonely.
In the end you have only the Constitution and your conscience on which you can rely. We look upon you to serve both without fear or favour.