The BRICS alliance seeks to find a “new way” to attain progress and development for its roughly 3 billion people.
The promise by the US and Europe that if a country adopts their models of multi-party democracy, a better life for all would follow, has not come about over the past seven decades.
How do the constitutions in the BRICS member states try to guarantee and implement the right to equality?
Brazil’s isonometric inequality
Brazil’s constitution of 1988 promises to build a free and just society by eradicating poverty and substandard living conditions, reducing social and regional inequalities, and promoting the well-being of all without prejudice.
Article 5 guarantees: “All persons are equal before the law, without any distinction whatsoever, Brazilians and foreigners residing in the country being ensured of inviolability of the right to life, to liberty, to equality, to security and to property.”
Article 7 prohibits any difference in wages, in the performance of duties and in hiring criteria by reason of sex, age, colour or marital status and any distinction between manual, technical, and intellectual work or among the respective professionals; and guarantees equal rights for workers with a permanent employment bond and “sporadic” workers.
Article 5 also guarantees “equality before the law”. Differentiation is considered permissible only if it is made to achieve “relative” or “material” equality, in so far as the differentiation serves a “reasonable objective”, and is “proportionate” to the attainment of such an objective. Brazilian courts refer to the ancient Greek concept of isonomy/ isonomia whereby “equality before the law” is given an equalising and anti-elitist meaning.
Russian egalitarian function
The most powerful ever Communist Party of the Soviet Union was forbidden by an Act of Parliament on 29 August 1991, followed by the adoption of the new Russian Federation Constitution of 1993. In 1998, Russia was bound by the European Convention on Human Rights.
The equality clause in Article 19 of the new Russian constitution is a traditional anti-discrimination guarantee. However, as a guarantee against the abuse of power, the Russian Constitutional Court has ruled many times over that “equality” requires the legislature to make laws certain, clear and unambiguous.
The Russian Constitutional Court’s quest to curb administrative arbitrariness invokes the commitment in the preamble of the constitution to “faith in goodness and fairness”.
Equality as social justice in India In a way similarly to Russia, the term ‘justice’ in the preamble of the Indian constitution of 1949 is read by the courts to embrace three distinct forms of “justice”, ie social, economic and political; each secured through various provisions of Fundamental Rights and Directive Principles.
In Sadhuram v Pulin (AIR 1984 SC 1471), the Supreme Court of India ruled that as between two parties, if a deal is made with one party without serious detriment to the other, the court would lean in favour of the weaker section of society.
The judiciary has frequently given practical shape to social justice through allowing affirmative governmental actions to be held to include compensatory justice as well as distributive justice, to ensure that community resources are more equitably and justly shared among all classes of citizens.
Socialist legality in China
The pillars of the classic concept of socialist legality in China is the rule in Article 6 of its 2004 constitution whereby “the system of socialist public ownership supersedes the system of exploitation of man by man; it applies the principle of ‘from each according to his ability, to each according to his work’”.
Article 33 determines: “Every citizen is entitled to the rights and at the same time must perform the duties prescribed by the constitution and the law.”
Socialist legality in China seeks to overcome the opportunistic abuse of individual rights and freedoms to the detriment of society at large. By countering “excessive liberalism”, socialist legality seems to counter the excesses of power that are bedevilling development and progress in Africa.
China prefers a material understanding of equality, as opposed to formal or procedural equality. Affirmative action and reverse discrimination policies originate in this tradition. In the past, in an extreme application of that principle, for instance, children of intellectual parents were barred from studying, so as to counter the perpetuation of privilege across generations.
GDP and inequality in BRICS
According to World Bank figures, China in 2013 had a GDP per year and capita that was nearly the same as that of South Africa, just under $7 000 (R93 000).
But unlike South Africa, China had already then fulfilled the most important socio-economic rights for nearly 100% of its population, as regards provision of personal security, food, water, housing, electric energy, health care, education, employment, retirement provision and transport.
In 2017, China’s GDP per year and capita grew to $8.126, where it stands very close to that of Russia with $8.655 and Brazil with $8.649. However, South Africa’s GDP by 2017 had fallen far below the BRICS ceiling, down to $5.105.
At the same time, the Gini index for inequality (differential between wealthiest and poorest) accelerated to a value of 76 in South Africa.
A Gini index of 76 is the worst level within BRICS, where China scores 42.2, Russia 37.7, and Brazil 51.3. India, with the lowest GDP of BRICS ($1.706 per capita and year), has the best Gini index of 35.1. South Africa’s index of 76 is not only the worst in BRICS, but also for all OECD countries, and even globally.
Inequality in South Africa
It comes as a shock that South Africa is today the world champion of inequality. This is so despite a most extensive set of social, economic and cultural rights in its 1996 constitution.
The reason is possibly that South Africa’s equality clause in Article 9 is in essence only an old-fashioned prohibition of discrimination provision.
The Constitutional Court judgment in the 2000 Grootboom case is cheered wrongly. It failed to give a progressive interpretation to the equality clause.
It reduced the right to equality to a right “to share poverty equally”. It ruled that equality would grant merely a right of equal access to whatever social and economic provisions may or may not exist.
Learning from BRICS
South Africa could learn much from the BRICS constitutional experiences in achieving equality. For a start, we need to accept that equality is the foundation of human dignity. Substantive, in addition to procedural equality, is the modern measure of a just and democratic society.
It is the foremost goal of the state to guarantee ‘equality of opportunity’ as well as ‘equality of results or outcomes’. An increasingly equal distribution of social goods requires effective, cost effective and quality-controlled management of resources.
The BRICS nations have made vast progress in introducing eGovernment, ePayment and eAdministration systems that are by nature incorruptible. South Africa does not have to reinvent them.
It will suffice to work together with the BRICS partners beyond this 10th BRICS Summit on embracing and implementing the progress that the others have already made.
* Thomashausen is an Attorney-at-Law and Professor emeritus of International Law at Unisa