Justice is not only punishment

Says anti-Apartheid activist Albie Sachs:

by Dhaneshi Yatawara

Pic: courtesy bbc.co.uk

"If true democracy and freedom is achieved in a country, that is what a country needs," these were the sentiments expressed by South African Constitutional expert Dr. Albert Louis 'Albie' Sachs. He said 'roses and lilies will grow out of his amputated arm,' if this was achieved.

To Sachs, it was more productive to achieve democracy and freedom than to punish the man who planted the bomb in his car in 1988, while in exile in Mozambique where his right arm was amputated and he lost the sight of one eye, as a result of the blast, not to mention the painful rehabilitation period spent in England.

His work is not yet over, even today, as a retired Constitutional Court Judge, he still travels around the world trying to help heal divided societies. Sachs was in Sri Lanka recently to attend the National Law Conference 2016 organised by the Bar Association of Sri Lanka.

"Sri Lankans are changing for the better, though there is still more to do," he said while seated in the verandah of a holiday resort along the beaches of Wadduwa. He had just eaten his favourite Sri Lankan treat of 'lamprais', which he said he enjoyed.

'Excerpts...

Q: The African National Congress of South Africa a.k.a. ANC was created with the anti-apartheid Movement, which you belonged to as the main campaigner. Today, the ANC is in power and it is reported to be facing corruption charges. Is this appropriate?

A: As a former judge I will not comment on current political disputes. But my opinion is these issues are being discussed and debated within the ANC and outside in civil society.

People ask me, is this the country I was fighting for considering my past experience. My response has been - yes this is the country I was fighting for but it is not the society I was fighting for. The country has a constitution and that was the greatest achievement of my generation - the Mandela generation. These concepts are deeply entrenched in society. Our institutions are strong enough to contain the turbulence and benefit from it.

It is a lively society in South Africa. The new generation is active. When I received a Presidential Award a few years ago, people asked me what advice I could impart to the younger generation. My advice to young people was: "Don't give a hearing to the older generation such as the likes of me, instead, make up your own mind, study and learn from what we did and be creative - as we were for our generation."

There is a strong judiciary and a good culture of investigative journalism in South Africa. A lot of positive things have happened but there is a lot of inequality. There is large scale unemployment, corruption and problems relating to leadership.

'Black pain'

Q: What is the state of inter-ethnic relations in South Africa today?

A: A majority of people, who are optimistic about the future believe that there should be more cooperation, politically and socially. There are a lot of challenges and questions raised. It is healthy that the problems are debated in public. Sometimes even on social media people get violent but that has no connection to the discourse among the public. People function together, irrespective of being black, white or brown. The theme is accepted by the majority. There are debates with regard to more facilities being afforded to the Whites. These issue were titled 'Black pain' in the past, which was unacknowledged at that time. Today, literally thousands of black and white students jointly demonstrate over these problems.

Q: You have supported Sri Lanka to end the ethnic conflict. How far do you think Sri Lanka has come in its attempts to resolve it?

A: The fact that the war is over gives Sri Lanka a magnificent opportunity to examine the results of the war without the bullets flying. It is a chance to look into the eyes of the other person and calls for generosity on all sides.

I see some similarities between Sri Lanka and South Africa. The theme of unity in diversity seems to be gaining strength in Sri Lanka. Accommodation in society was the key to unity in South Africa. It is to understand the constraints and fears of others.

The other difference in Sri Lanka, is the confidence placed in the Judiciary and the Chief Justice. It was ugly and unsatisfactory before, whatever the reason and whoever was at fault. The lack of respect for the chief judicial officer for whatever reason, can create instability in the country. The current change is positive. When I was here last time, about three years ago, there was a lot of anger among the public. People spoke in a militant manner. That has changed.

It is positive because the tension with the Human Rights Council and Sri Lanka is reduced through dialogue.

Q: As a person familiar with Sri Lankan complexity, can the South African Truth Commission process work here?

A: Our Truth Commission was set up to suit our circumstances. We borrowed a lot of ideas from Chile. There are some themes that can be transported to Sri Lanka. But cannot be copied. What is important is the theme of restorative justice. Justice is not only punishment and criminal law. There are forms of justice that deal with healing and reintegration.

I have a story. I was hospitalised after the car bomb in 1988 while I was in exile. Lying in bed, recovering, I received a note: "Comrade Albie, we will avenge you." I thought where is that going to get us? In response I said if we get democracy and freedom in South Africa, that will be my soft vengeance. On that day roses and lilies will grow out of my arms. Today we have got justice, freedom and the rule of law. For me that is much more important than imprisoning the person who planted the bomb and the blast which injured me. It gives meaning to my life and the idealism of my generation. Not everybody in South Africa would agree with me. But that was the path we took to make our constitution.

Q: Could you suggest any modified or adapted peace process that could work in Sri Lanka?

A: The systems that will be adopted should not be used for political purposes by any political party. If there is compensation included in the system then that needs to be separated from the opportunity to tell the truth. Because if a person is telling the story to get money, it will create a totally different kind of speech. If the story is being told because of the pain, that person wants to share it with the nation.

The most important fact is that the Truth Commission is not primarily a fact-finding commission. No one read the report we wrote in South Africa after the Truth Commission held its sessions. Everyone remembered what they saw on TV or heard over the radio. These are the tears and voices of the nation - the experiential side of the truth must come out.

Q: In revisiting our constitution, would you suggest that a new constitution should guarantee full equality to all ethnicities and religion, rather than giving prominence to any one religion, language or ethnicity?

A: It is a sensitive issue in Sri Lanka and my views are very strong. I would like to share the lessons learnt from South Africa. The answer lies in inclusion. Our approach in South Africa was to avoid these issues from becoming major problems. We have set up a separate commission to secure languages and cultures in South Africa and a sophisticated language policy, which respects the parity of esteem for all eleven official languages.

A prominent Christian leader from Durban approached us in 1991, when I was working with the ANC constitutional committee and by then Mandela was just released from jail and I had just returned from exile. He told us that a million people belong to his church and that they were happy to see the achievement of democracy and wished to see the constitution commence with the phrase 'in humble submission to Almighty god'.

To my thinking it was too dominating. At the same time we wanted the majority of South African people to feel comfortable with the constitution that was in the making. Democracy should not be hostile to citizens.

The preamble of the constitution started with "Nkosi Sikelel' iAfrika" ( Lord bless Africa), in respect of the fact that religion is meaningful to millions of people. Our national anthem has four languages. We sing every part of the anthem and are proud of it. Our flag has many colours and in fact is an ugly flag but we love it, because there is inclusion.

Extensive powers

Q: Part of the success of the new South Africa is the substantial devolution of power and public resources to the provinces. In the Sri Lankan context, can devolution of power to the provinces be the sole or principle means of redressing grievances of ethnic minorities?

A: It is part of our country, its history, personality and demographic composition. Ethnicity and culture are actually not written in the constitution but the powers that are given take account of them. And quite extensive powers are given to the provinces. The system is in such a manner, that the provinces do not depend totally on the central Government for monetary allocations. The amount of funds to be distributed is dealt with in the constitution. The Fiscal Commission, which was created based on the Indian Fiscal system, has to make the relevant recommendations. In the constitution, the Auditor General is protected. He or she can be chosen by a majority in Parliament and can be removed only at the end of a fixed term.

The Public Protector, a special post in the Administration is another position that protects democracy and receives protection in our constitution. It was the Public Protector who brought up the irregular spending of President Jacob Zuma's costly private residence. The Public Protector said President Zuma should pay a reasonable sum to return the money taken irregularly. The matter was taken to courts and the President accepted that he is bound by the recommendations of the Public Protector. Such positions to protect democracy are some factors Sri Lanka can consider.

These positions must be filled with non political people such as writers, dancers, faith leaders, sportsmen and women. And as people are selected with the consideration of a specific majority ( majority of Parliament). They need to act with some degree of conscientiousness, as well.