Finweek English Edition - - COLUMN - KADER AS­MAL

The Bill of Rights

and our Con­sti­tu­tion can’t be seen as in­stru­ments to re­vive or dis­creetly main­tain

for­mer priv­i­leges

THE TURK­ISH No­bel Lau­re­ate in lit­er­a­ture – Orhan Pa­muk, in pos­si­bly his most bril­liant novel, Mu­seum of In­no­cence – be­gins with a vivid ex­tract from Calák Salig’s note­book: “These were in­no­cent peo­ple, so in­no­cent that they thought poverty a crime that wealth would al­low them to for­get.”

What’s left un­said is that the pain of the poor wouldn’t reg­is­ter in the col­lec­tive gini co­ef­fi­cient, that ex­tra­or­di­nary method in­vented by econ­o­mists to ob­scure real lev­els of poverty, a level in which South Africa still looms very highly. So it seems to me pain and poverty are in­ex­tri­ca­bly bound to­gether but it’s sad such recog­ni­tion has failed to reach the minds of many who en­joy the priv­i­lege of wealth, with­out the moral com­mit­ment that of­ten jus­ti­fies ex­ces­sive wealth.

A few days spent in the rel­a­tive com­fort of a hos­pi­tal didn’t work the won­ders I had hoped for, as I have had a com­pre­hen­sive per­sonal in­sight now into pain over the past month. Since I’ve been an asth­matic since the age of three I’d thought I would’ve been im­mune to the kind of de­bil­i­tat­ing pain, both in its ex­tent and in­ten­sity. Out of that ex­cru­ci­at­ing ex­pe­ri­ence I’ve be­gun to give some thought to what those less for­tu­nate than I have been through.

I re­call an­other in­sight from a film by the great Span­ish film-maker Luis Bunuel, in one of his early films, Los Olvi­da­dos. The lost ones were the street chil­dren of Mex­ico City. Hunger and des­per­a­tion drive our lit­tle hero to an un­easy sleep. In this par­tic­u­lar scene, sud­denly a large leg of lamb comes down from the sky to­wards him. As he’s about to grasp it, a devil – pre­sum­ably rep­re­sent­ing the Mex­i­can so­cial sys­tem – grabs it from him.

There are mil­lions of such lost ones in the world, whose anonymity is as­sid­u­ously guarded by a po­lice force, a vast bu­reau­cracy and an un­feel­ing power sys­tem. No one re­ally cares for them, church or civil so­ci­ety, what­ever they may say in pub­lic. For me, that lack of recog­ni­tion of the lost ones vi­o­lates one of the “foun­da­tion val­ues” of SA’s Con­sti­tu­tion, a pro­vi­sion that seeks to as­sim­i­late hu­man dig­nity with the achieve­ment of equal­ity and the strength­en­ing of hu­man rights and free­dom.

If one looks at the case load of the Con­sti­tu­tional Court, it will be be­come even clearer that the right to dig­nity is the cen­tral core el­e­ment of our Con­sti­tu­tion. The court has the duty to declare as in­com­pat­i­ble those rights in­com­pat­i­ble to the Con­sti­tu­tion and it has to en­large on the right to pri­vacy, dra­mat­i­cally, which al­ready ex­ists in the Con­sti­tu­tion.

What we should try to re­cover, as I re­cover, is that those who care for our free­dom don’t iden­tify only rights for a par­tic­u­lar lan­guage or racial group or about con­sti­tu­tional pro­vi­sions in a sec­tar­ian man­ner. The Bill of Rights and our Con­sti­tu­tion can’t be seen as in­stru­ments to re­vive or dis­creetly main­tain for­mer priv­i­leges. I think of such ob­nox­ious at­tempts by the City Coun­cil, where I live, to pro­vide lava­to­ries for the poor­est of the poor. Well and good, you might say. No. The real hu­mil­i­a­tion and in­sult­ing in the ex­treme of the un­think­ing pub­lic ser­vants and the op­por­tunis­tic politi­cians who don’t con­sider it to be heart­less to the lava­tory “owner” to pro­vide ceil­ings and floors and walls, for this “build­ing” which doesn’t only con­tra­vene our Con­sti­tu­tion but ev­ery goal of the Mil­len­nium Dec­la­ra­tion.

You may have seen pho­to­graphs of el­derly fel­low South Africans us­ing those “fa­cil­i­ties” wrapped in blan­kets. These lava­to­ries vi­o­late the right to dig­nity and equal­ity. Sad, though, that this can hap­pen al­most two decades af­ter the adop­tion of our highly-praised Con­sti­tu­tion.

It seems that my old law tu­tor at the London School of Eco­nom­ics was right when he crit­i­cised some of my up­per class English fel­low stu­dents for re­fer­ring to the glory of English com­mon law. In fact, abuse of a char­ter of hu­man rights turns judge-made law into an in­stru­ment of tyranny. How­ever, or­di­nary peo­ple con­tinue to need to strug­gle to trans­late to make “a book of rights” into a doc­u­ment of real rights.


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