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Constitutional Design

Constitutional Design

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Published by Hussain

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Published by: Hussain on Mar 16, 2010
Copyright:Attribution Non-commercial


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We noted in the previous chapter that in a democracy the rulers are notfree to do what they like. There are certain basic rules that the citizensand the government have to follow. All such rules together are calledconstitution. As the supreme law of the country, the constitution determinesthe rights of citizens, the powers of the government and how the governmentshould function.In this chapter we ask some basic questions about the constitutionaldesign of a democracy. Why do we need a constitution? How are theconstitutions drawn up? Who designs them and in what way? What arethe values that shape the constitutions in democratic states? Once aconstitution is accepted, can we make changes later as required by thechanging conditions?One recent instance of designing constitution for a democratic state isthat of the South Africa. We begin this chapter by looking at what happenedthere and how the South Africans went about this task of designing theirconstitution. Then we turn to how the Indian Constitution was made, what its foundational values are, and how it provides a good frameworkfor the conduct of citizens’ life and that of the government.
 A  A  A  A 
I have fought against white domination and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all  persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am  prepared to die.
 This was Nelson Mandela, beingtried fortreasonby the white SouthAfrican government. He and sevenother leaders were sentenced to lifeimprisonment in 1964 for daring tooppose theapartheidregime in hiscountry. He spent the next 28 yearsin South Africa’s most dreadedprison, Robben Island.
SSSSStrtrtrtrtruggle against aparuggle against aparuggle against aparuggle against aparuggle against apartheidtheidtheidtheidtheid
Apartheid was the name of a systemof racial discrimination unique toSouth Africa. The white Europeansimposed this system on SouthAfrica. During the seventeenth andeighteenth centuries, the tradingcompanies from Europe occupied it with arms and force, in the way theyoccupied India. But unlike India, alarge number of ‘whites’ had settledin South Africa and became thelocal rulers. The system of apartheid divided the people andlabelled them on the basis of theirskin colour. The native people of South Africa are black in colour. They made up about three-fourthof the population and were called‘blacks’. Besides these two groups,there were people of mixed races who were called ‘coloured’ andpeople who migrated from India. The white rulers treated all non- whites as inferiors. The non-whitesdid not have voting rights. The apartheid system wasparticularly oppressive for theblacks. They were forbidden fromliving in white areas. They could work in white areas only if they hada permit. Trains, buses, taxis,hotels, hospitals, schools andcolleges, libraries, cinema halls,theatres, beaches, swimming pools,
Sign on Durban beachin English, Afrikaansand ZuluIn English it reads:‘CITY OF DURBAN Under section 37 of the Durbanbeach by-laws, this bathingarea is reserved for the soleuse of members of thewhite race group’.
A signboard emblematic of the tense relations of theapartheid era, 1953.Nelson Mandela
   S  o  u   t   h   A   f  r   i  c  a   H   i  s   t  o  r  y   O  n   l   i  n  e   J  o   h  n   M  u   l   l  e  n ,
   W   i   k   i  p  e   d   i  a
 ,   G   N   U   F  r  e  e   D  o  c  u  m  e  n   t  a   t   i  o  n   L   i  c  e  n  s  e
public toilets, were all separate forthe whites and blacks. This wascalled segregation. They could noteven visit the churches where the whites worshipped. Blacks could notform associations or protest againstthe terrible treatment.Since 1950, the blacks, colouredand Indians fought against theapartheid system. They launchedprotest marches and strikes. TheAfrican National Congress (ANC) wasthe umbrella organisation that ledthe struggle against the policies of segregation. This included many workers’ unions and the CommunistParty. Many sensitive whites also joined the ANC to oppose apartheidand played a leading role in thisstruggle. Several countries de-nounced apartheid as unjust andracist. But the white racist govern-ment continued to rule by detain-ing, torturing and killing thousandsof black and coloured people.
Make a poster on the life and struggle of NelsonMandela.
If available, read some portions of his autobi-ography,
The Long Walk to Freedom,
in theclassroom.
TTTTTooooowwwwwararararards a neds a neds a neds a neds a new cw cw cw cw constitutiononstitutiononstitutiononstitutiononstitution
As protests and struggles againstapartheid had increased, thegovernment realised that they couldno longer keep the blacks undertheir rule through repression. The white regime changed its policies.Discriminatory laws were repealed.Ban on political parties andrestrictions on the media were lifted.After 28 years of imprisonment,Nelson Mandela walked out of the jail as a free man. Finally, at themidnight of 26 April 1994, the newnational flag of the Republic of SouthAfrica was unfurled marking thenewly born democracy in the world. The apartheid government came toan end, paving way for the formationof a multi-racial government.How did this come about? Let ushear Mandela, the first president of this new South Africa, on this extra-ordinary transition:
Historical enemies succeeded in negotiating a peaceful transition from apartheid to democracy exactly because we were prepared to accept the inherent capacity for goodness in the other. My wish is that South Africans never give up on the belief in goodness, that they cherish that faith in human beings is the cornerstone of our democracy.
After the emergence of the newdemocratic South Africa, blackleaders appealed to fellow blacks toforgive the whites for the atrocitiesthey had committed while in power. They said let us build a new SouthAfrica based on equality of all racesand men and women, on democraticvalues, social justice and humanrights. The party that ruled throughoppression and brutal killings andthe party that led the freedomstruggle sat together to draw up acommonconstitution.After two years of discussion anddebate they came out with one of thefinest constitutions the world hasever had. This constitution gave toits citizens the most extensive rightsavailable in any country. Together,they decided that in the search fora solution to the problems, nobodyshould be excluded, no one shouldbe treated as a demon. They agreedthat everybody should become partof the solution, whatever they mighthave done or represented in thepast. Thepreambleto the SouthAfrican Constitution (see page 50)sums up this spirit.
What would havehappened in South Africa if the blackmajority haddecided to takerevenge on thewhites for all theiroppression andexploitation?

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