According to the decision, since the drug was available, didn’t have a cost, and had been deemed safe for use in the private sector and in the trial locations, it didn’t make sense to limit its use so that the government could research more to see if it would have any operational problems. The drug should be made available to all health establishments in the State that had medical staff capable of administering its use.
Albie Sachs highlights that the public policy was analyzed as a whole, making it a decision that extended to the community. »We don’t favor only one person or the other who, because he or she has access to good lawyers, is able to get to the Supreme Court. In seminars, I discuss the consequences of isolated decisions regarding the right to health, destined to one person or the other, decided in some Courts, like in Colombia and in Brazil. We prefer to do it in a general fashion, benefiting everyone,« he says.
When the sentence was given, once again a deafening silence took over the chamber: »We left the courthouse and stood together for a moment in the hallway. Then, once again they broke out in overwhelming applauses. And, once again, I cried,« Albie reminisces.
Constitutional Conversation with the Legislative
Albie Sachs has a cooperative mindset about constitutional jurisdiction. »The assumption is that the three powers will hold civilized conversations instead of rude discussions. The notion of a dialogue or conversation with Parliament was embedded into the purpose of our jurisdiction,« he affirms.
Albie remembers the same-sex marriage trial. The Court should establish wording that would substitute the use of the traditional English legislation which says that it is the »union of a man and woman for life.« In her opinion, the definition should be changed to fit into Constitutional values: »marriage is the union between two people for life.«
The Court gave Parliament one year to correct the law: »The Court is given this power by the Constitution: to declare something unconstitutional and suspend the declaration of invalidity in order for the law to be corrected,« he explains, affirming that he didn’t want the Marriage Law to be considered unconstitutional just because it hadn’t been altered in time, »which would have been disastrous.« Then the ruling came that, in case no action was taken, the law would start using the term »or spouse«.
Parliament issued the Civil Union Law safeguarding the homosexual unions and abolishing the term »man and woman.«
After the process of this constitutional conversation was a success, Albie says: »involving the Legislative makes it so that we have a project for our nation. It establishes a constitutional conversation and shows that we aren’t eleven supreme beings making all the decisions.«
Abortion
On the walls of homes, trash cans, even on light posts of the streets of Cape Town there are ads for abortion clinics. Since 1996, the process has been made legal. An ad inside the train that crosses the city was quite direct: »Dr. Amos Clinic. Safe abortion. In 30 minutes. R300. Fast, and same-day results.«
In 1996, the Choice on Termination of Pregnancy Act was approved, one of the most liberal laws in the world. Any woman, any age (including underage girls), could ask for an abortion, without having to give a reason, up to the 13th week of pregnancy.
In 2005, a law came into effect that added to the ways one could have access to an abortion. This law was questioned in the Constitutional Court, which formally considered it to be unconstitutional because the Legislative hadn’t allowed for the public participation required by the Constitution. The Court gave 18 months for the Legislative to fix this mistake, allowing for public participation in the discussion of this law. The Legislative did this and, in 2008 the new law was promulgated, without the previously detected mistakes.
I asked Albie about the constitutionality of the Abortion Law. To him, the Constitution guarantees, in its Rights Declaration, the freedom for women’s reproductive rights, paving the way for laws like this one. Section 12(2)(a) of the Constitution says: »Everyone has the right to physical and psychological integrity, which includes the right of making decisions regarding reproduction.« But section 27(1)(a): »Everyone has the right to have access to services that provide medical care, including care in regards to reproduction.«
Affirmative Actions
I also commented on the recent sentence given by the Brazilian Supreme Court which defined the constitutionality of the policies on racial quotas as criteria for entering public universities. In South Africa, as is everywhere else in the world, the topic is a controversial one.
»We had policies directed towards blacks having access. Others were directed towards women having access. It so happens that in these access laws for women they started discussing whether the white women would be deprived from participating. The discussion had too many tangents,« said Albie.
Currently, South Africa is at a stage called BEE (Black Economic Empowerment) which consists of encouraging blacks into the work market, taking over professional positions and participating in the economic life of their communities.
Judicial Activism
»Once, Samuel Alito, of the United States Supreme Court, mentioned that we were practicing ›judicial activism‹. I answered: Yes! Because we have an activist constitution,« Albie Sachs says, to who »the Constitution itself assumes we have an activist Constitutional Court, engaged in finding answers based on principles implementable to the profound problems of racism, sexism, and inequality within the country.«
There is no doubt that there is a sincere celebration coming from the South-African people in regards to their 1996 Constitution. To Albie, it symbolizes »the miracle of implementing a constitutional democracy in a country destined to a racial bloodbath.«
It’s also important to clarify that it was the committed action of several defense chains on constitutional human rights that launched South Africa to a fascinating universe in regards to constitutional jurisdiction. Albie also shows this sentiment by stating that: »many thought this to be the most inhospitable place for constitutional jurisdiction, but it has shown robust, and hopefully lasting roots in some of the most advanced ideas about human dignity, equality, and freedom.«
»See you next time!«
Before leaving I ask Albie Sachs what kind of South Africa he will leave for his son, Oliver.
»To many people, nothing has changed. To me, a lot has changed. All one has to do is look at the newspapers. The criticism towards governing authorities is intense, people say whatever they want. There is incredible improvement regarding the social-economical rights. The government has been implementing varied programs, like the access to decent housing. Of course it has problems, like violence. But, undoubtedly we live in a country that is much better than it was yesterday,« he answers.
At midnight on October 12, 2009, his 15 year term in the Constitutional Court expired. He was no longer a judge. Yet, the world would continue to thirst for Albie Sachs. He didn’t become great because of the constitutional jurisdiction. He is the one who, with his own legacy and alongside his colleagues, gave dignity to the South African constitutional jurisdiction.
Albie lost his vision in one of his eyes and almost his entire right arm. Nonetheless, in him rose a fruitful heart, a powerful mind, and a body filled with energy. With his heart, he kept intact the belief that we are all equal. In his mind, brave and inspiring ideas overflow. With his energy, he travels around the world bringing his message.
»See you next time, Albie!« – I said, certain that I had just experienced one of those rare moments where one leaves a better person than he was when he came in.