Resumo

VENTER, Francois. Constitutional propriety in the 21st century. Tydskr. geesteswet. [online]. 2020, vol.60, n.3, pp.579-595. ISSN 2224-7912.  http://dx.doi.org/10.17159/2224-7912/2020/v60n3a2.

South African legal history is "modern": the Dutch brought the 17th-century European Renaissance to Southern Africa. North-Atlantic cultural arrogance and the rationalisation of political and economic immorality were an integral part of Western liberalism even up to World War II. When South Africa achieved statehood in 1910, it was founded upon the 19th-century colonial ethos. In 1948 the dual dream of the Afrikaners (liberation from the British yoke and securing their survival as a minority) blinded them from recognising the global implications of the American-sponsored liberal humanism, leading to the establishment of the United Nations (UN) and the institutionalisation of the notion of universal human rights. Following the end of WWII, numerous former colonies and dependencies obtained their independence from European states and the USSR, quadrupling the membership of the UN within a few decades. By the 1990s, liberal-democratic constitutionalism had crystallised as a range of interrelated elements, establishing the norm for good governance and economic success under North-Atlantic hegemony (see Table 1). When State President FW de Klerk announced the radical historical turning point in the history ofSouth Africa on 2 February 1990, the question was what would be "just, right and fair" in a hugely complicated situation. Although some constitutionalist elements had at the time been present in South African law, a liberal-democratic culture of human rights and constitutionalism did not exist. Nevertheless, to achieve the desired change, the ANC, as the only organisation capable of mobilising a political majority, was an unavoidable component of the political equation, despite having just emerged from at least three decades of Marxist/ Leninist indoctrination as a client of the collapsed USSR. What had to be clear for all to see, was that compromises had to be made, which could neither include continued racial separation nor take the form of a socialist revolution. Constitutionally, the most attractive available model on which the political compromises could be built, was liberal constitutionalism as it was exemplified in particular in the post-war constitutions of Germany and Canada. Ironically, now, three decades later, it is becoming increasingly clear that liberal constitutionalism has globally entered a crisis phase, unable to counter populism, extremist politics, digital ubiquity or the inhumane conduct of states such as China, Russia and various Middle-Eastern countries. The reasons for the crisis are complex, but it is suggested that they include the following: the foundational thinking underpinning liberal democracy is steadily losing its cogency; this loss of persuasiveness is fortified by factors such as exponential population growth and globalisation; and the lack of cogency of the foundations of liberal democracy, such as the fictional social contract, the nation state and natural law. Liberalism as civil religion, based on self-sufficient individualism, has become impotent in the face of the challenges faced by humanity in the 21st century. When the ANC got the opportunity to use its parliamentary majority to steer the writing of the "final" Constitution in 1995/96, it superimposed particular elements of socialism on the constitutionalism of the 1993 Constitution, including centralised presidential powers, the qualification of property rights, egalitarian standards of justice and the justification of selective discrimination in, for example, labour relations and state procurement. These were the first steps indicative of mere pragmatism on the part of the ANC when it acceded in 1993 to support the introduction of constitutionalism. Subsequently, on the level of social indoctrination, the elastic notion of "transformation" was canonised with the express purpose of promoting the interests of the "proletarian" (black) masses as policy imperative to turn colonial history against the (white) "bourgeoisie". Supported by parliamentary legislation adopted since 1998, patently socialist policies have systematically been introduced, including the "transformational" regulation of labour, (unconstitutional) "cadre deployment" at all levels of state employment, the virtual nationalisation of water rights, mineral rights and marine resources, enforced annexation of private business interests by means of "black economic empowerment", state control over the legal professions and higher education, the growing dependency of at least one third of the population on state social grants, the ongoing preparations for the nationalisation of the health sector and the constitutional empowerment of expropriation without compensation. Despite these indicators, the ANC, probably under the intellectual guidance of the intelligentsia concentrated in its alliance partner, the SACP, strategically does not openly characterise its policies as "socialist", but even in its third decade in government, illogically maintains that it still is a revolutionary liberation movement. There are no obvious solutions to the worldwide crisis of constitutionalism. The illiberal constitutionalism of, for example, China - a virtual dictatorship with a population apparently unperturbed by comprehensive state incursions on individual privacy in exchange for personal wealth - may be perceived by some to be a solution. Such a system, however, stands in complete contradiction to Western notions of constitutionalism. A response to what would be constitutionally just and fair from a Christian perspective requires recognition that real justice is not man-made, but a divine gift. In the hands ofhumanity, optimal constitutional justice may be pursued not on liberal, rationalistic or socialist foundations, but based on reciprocity, which is the time-honoured intuitive golden rule predating Jesus s propounding thereof as doing unto others as you would wish them to do unto you. In the end, one may find solace in the truth that history is not dependent on the seven or eight billion presumably autonomous denizens of earth holding widely divergent worldviews, but is exclusively in the hands of the sovereign Creator.

Palavras-chave : Constitutional law; democracy; liberalism; socialism; transformation; rule of law; constitutionalism; populism; globalisation; China; human rights; colonialism.

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