Some liberal judges and others would like to increase reliance on (or at least respectful attention to) foreign law in interpreting our own Constitution and laws.
Here’s a “precedent” from South Africa that could have interesting implications here. I wonder what liberals think of it.
IN A decision that could have wide-ranging implications for employment equity in SA, an arbitration court has ruled that Africans should take precedence over other previously disadvantaged groups in securing jobs.
The Arbitration Court, sitting in Bellville on Wednesday, ruled that state power utility Eskom had acted correctly in appointing an African engineer in place of a more qualified coloured engineer, Leon Christiaans. This was because the other candidate had been more disadvantaged than Christiaans by past discriminatory laws and practices.
Christiaans had applied for the promotion and, after it was given to a black colleague, trade union Solidarity took up his case.
Solidarity claimed that Eskom had committed an unfair labour practice and had discriminated unfairly.
Piet van Staden, who presided over the matter, disagreed, saying Eskom did not discriminate against Christiaans in not appointing him, nor did it commit an unfair labour practice.
If the precedent of last week’s arbitration ruling is followed in the implementation of affirmative action by companies in the private sector, African candidates could be deemed more deserving of affirmative action posts than coloureds, Indians, white females and even the disabled.
This is a departure from the practice of affirmative action as envisioned in the Employment Equity Act, which defines coloureds, Indians, white women and disabled individuals as falling under the “designated groups” along with Africans.
According to the act, “designated groups” means black people, women and people with disabilities. The act uses the term “black people” generically to describe Africans, coloureds and Indians, making it politically and legally difficult to discriminate further within these groups.
While employers are not required by the equity law to discriminate in favour of Africans, the ruling could in future be cited as a precedent that offers them legal cover in cases where they would like to give preference to Africans over the other groups.
How long will it be before the NAACP or some similar group urges that we follow this precedent and send Hispanics (legal or otherwise) to the back of the preference bus? But if we do that, shouldn’t we also prefer American blacks over foreign blacks (thus reducing the number of blacks at many selective schools, as pointed out here)? And, as long as we’re going down that road, shouldn’t blacker blacks be preferred over lighter-skinned blacks?
At least this issue in South Africa is refreshingly free of cant about “diversity.”
Am I correct that according to the government of South Africa, the designation “African” refers not to your citizenship nor to place of birth nor to your ancestry, but rather to your race?
“How long will it be before the NAACP or some similar group urges that we follow this precedent and send Hispanics (legal or otherwise) to the back of the preference bus?”
How would the argument go?
Frankly, SA might be onto something. I never understood why most of the preferred minorities are preferred anyway. Hispanics? They’re just immigrants, and their history in this country is no different than that of other groups. White women? Give me a break. Gays? Really now. These groups have been added just to give some heft to the AA side of the argument.
If I had my way, I’d get rid of AA, or, failing that, restrict it to blacks of American descent that extends to pre civil war days, and the disabled. Either that, or just means test the whole thing.
“Either that, or just means test the whole thing.”
Hooray!