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| Title: | The Constitutional Court's approach to international law and its method of interpretation in the 'Amnesty decision': intellectual honesty or political expediency? |
| Author: | Motala, Ziyad |
| Year: | 1996 |
| Periodical: | South African Yearbook of International Law |
| Volume: | 21 |
| Pages: | 29-59 |
| Language: | English |
| Geographic term: | South Africa |
| Subjects: | international criminal law amnesty offences against human rights |
| Abstract: | The 1996 South African Constitutional Court decision in Azanian Peoples Organization (Azapo) and others v President of the Republic of South Africa and others on the validity of the Promotion of National Unity and Reconciliation Act, 1995 raises a number of constitutional law issues. In the 'Amnesty decision', the Constitutional Court ruled that until and unless public international law has been adopted by the legislature, it is not part of the constitution. This is at variance with its treatment of the role of international law in other cases. The court also failed to adhere to its earlier approach of requiring a balancing test where there is a limitation of a fundamental right. Its decision to equate the postamble with the fundamental rights in Chapter 3 suggests that protection of fundamental rights is subjective. The court's interpretation of the postamble is also at variance with its earlier findings where it held that courts should promote a generous interpretation of the constitution which accords the full benefits of human rights protection. Where the court referred to international law, it presented a selective picture which resulted in a distorted view of the use of amnesty under international law. It failed to recognize that international law imposes an obligation on all States to punish perpetrators of crimes against humanity whether committed within their own territory or in that of another State, regardless of whether the crime is committed in a war or nonwar situation. Notes, ref. |
