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Wednesday, April 28, 2010

A relic of Apartheid rears its ugly head in Arizona

A relic of Apartheid rears its ugly head in Arizona

One of the most despised laws in South Africa during Apartheid were the ‘Pass Laws’ which were used to ensure segregation and to severely restrict the movement of non-whites. Black South Africans were forced to carry their ‘Passes’ at all times or be subject to arrest.

The philosophy behind Apartheid was ‘separate but equal.’ In the belief that the black and white people of South Africa were so culturally divergent that they could not possibly live together peacefully. Ironically this idea was first endorsed by the United States Supreme Court in Plessy vs Ferguson in 1896 when the court ruled 7-1 that separate but equal facilities were acceptable thereby stamping a seal of approval on segregation.

In South Africa, the Apartheid regime designated certain areas as ‘black homelands’ much like the Indian Reservations in America. The difference is that in South Africa whites comprised only 20% of the population and designated only 19% of the land as black homelands, all of which was in remote less developed and less arable land. It made the Apartheid version of the map of South Africa look like a Rorschach map on steroids.

Blacks were considered ‘citizens’ of their designated tribal homeland who were ‘guest workers’ allowed to work in white areas as long as they had a valid Pass Book. The police (mostly though not exclusively white) would routinely stop blacks, demanding them to produce their Pass book. Anyone who could not produce their Pass, whether they legally posses one or not, was immediately arrested and very often shipped back to their ‘homeland’ within a day or two despite having never set foot in their designated homeland in all likelihood.

Of all the odious laws that formalized and legalized racial separation and discrimination in South Africa it was the one law that criminalized merely being black. A protest against the pass laws led to one of the ugliest events in South African history. In March 1960 the African National Congress, now the ruling party held demonstrations against the Pass law. In protest blacks gathered and publicly burned their Pass books. An otherwise peaceful protest in a black township, Sharpeville on March 21m 1960 turned violent when South African police opened fire without warning or provocation on the protest. By the time the shooting ended 69 people had died.

I grew up in South African during Apartheid and saw first hand the fear and heartache that resulted from the enforcement of these laws despite being white and part of the privileged elite. What has struck me most about the new Immigration Law in Arizona is just how clearly it reminds me of the Pass law specifically the trespassing clause.

11. Specifies that, in addition to any violation of federal law, a person is guilty of trespassing if the person is:
a) present on any public or private land in the state and
b) is not carrying his or her alien registration card or has willfully failed to register.
This clause does exactly what the Pass law did. It makes behavior that is legal by any normal standards into an illegal act. It forces the burden of proof on people who are legally entitled to reside in Arizona to have to prove their legality by carrying documents stating this. Let’s not be fooled for one minute that if the law is enforced as written will result in people being arrested for going about their daily business merely because they don’t have the correct documentation on their person at the time they are apprehended.
It is interesting that the law does not proscribe how a citizen can legally prove that they are not an illegal alien if apprehended.
There is thankfully one huge difference in the context of the two laws. There was no constitution in South Africa until after the fall of Apartheid so that any law that was passed, no matter how discriminatory, no matter how illogical, was not subject to judicial or to any other form of revue. With the luxury of hindsight, the South African constitution adopted in 1997 to replace the interim constitution adopted in 1993 was the first in the world to enshrine full equal rights for sexual orientation.
The saving grace in Arizona is that America does have a robust constitution that allows any law to be challenged on constitution grounds. While I have no legal background it does appear to me that there are a number of potential constitutional challenges to the law and that there is a strong likelihood that this laws as it is written will never become the law of Arizona.

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