S. Africa's constitution becomes highest authority 'This is a new legal order'

THE BALTIMORE SUN

JOHANNESBURG, South Africa -- Nelson Mandela said that the last time he was in court was to hear whether he would be sentenced to death for sabotage.

"Luckily for myself and my colleagues, we were not," he said.

South Africa's president, who spent 27 years in jail as a result of that last court appearance, was speaking yesterday at the opening of the country's Constitutional Court, the newest foundation stone of democratic South Africa.

The 11-member court is to have the final word on constitutional matters, and its opening session marked a fundamental change in the way South Africa is governed, by giving ultimate authority for the first time to the country's constitution, not its Parliament.

The court is scheduled today to take up its first order of business -- determining whether capital punishment is legal under a constitution guaranteeing the right to life.

"This is a new legal order," said court President Arthur Chaskalson. "Previously, the validity of laws passed by Parliament could not be challenged. The job of the court was to enforce the laws, no matter how unjust [they] might be."

Many countries have followed the example of the United States by guaranteeing fundamental rights in a constitution that was above the dictates of majority rule. But "South Africa moved in the other direction," said Mr. Chaskalson, a noted lawyer who was part of Mr. Mandela's defense team in his 1964 trial.

"That time is over now," he said. "The constitution guarantees that the rights of people are supreme."

The 11-member court include four nonwhites; two of the jurists are women. Oaths of office were taken in English, Afrikaans, Zulu, Xhosa and Northern Sotho, five of the country's 11 official languages.

"It is not fully representative of the country, but it is a remarkable, diverse group," said Albie Sachs, one of the judges. As he took his oath, he raised the stump of his right arm. The rest was blown off by a bomb in a 1988 assassination attempt.

"For the first time, law and justice are together," said Mr. Sachs, who spent 25 years in exile in Mozambique and Great Britain. "Before, law fought justice, a battle that literally tore some of us apart."

Indeed, yesterday's ceremony was a reunion of South Africa's human rights fraternity, a gathering of people who had fought for the individual rights denied by apartheid.

Richard Goldstone, another member of the court, welcomed the transfer of power to the judiciary.

"It was a problem knowing that the Parliament could override any thing the judiciary did," he said. "But that was not the most frustrating thing for a judge. That was having to apply such unjust laws."

Mr. Goldstone is chief prosecutor for the United Nations' Yugoslav War Crimes Tribunal.

But Mr. Mandela was the figure around whom the dignitaries crowded in the court's temporary chambers in a Johannesburg office building.

"South Africans did not establish this court to be another rubber stamp," he said. "We expect you to be creative and independent.

"Yours is the most noble task that can fall to any legal person. In the last resort, the guarantees of fundamental legal rights and freedoms lie in your hands."

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