Segregation by Design: An Analysis of Apartheid-Enabling Constitutional Provisions

Abstract

This paper is a critical examination of constitutional provisions that enable apartheid systems, with a focus on how they allow segregation and discrimination to be established and perpetuated. Despite the global condemnation of apartheid following its horrors in South Africa, similar traits are still visible across a number of jurisdictions today, notably in Israel's treatment of Palestinians and Myanmar's oppression of the Rohingya. This study investigates three of such highest laws of the land, analyzing the roles they play in legitimizing such regimes and how they are instrumentalized to sustain segregation by design. Employing a substantive and structural comparative analytical approach, the research scrutinizes the constitutions of South Africa, Israel, and Myanmar, unearthing common denominators that facilitate apartheid practices. These include the creation of identity-based citizenship conditions, provisions allowing discriminatory treatment, constraints on the political participation of marginalized groups, and the entrenchment of power that hinders reformative action. The findings reveal that apartheid-enabling provisions do not necessarily explicitly endorse segregation. Instead, they often afford broad legislative powers that can be exploited to this end, as was the case in Apartheid South Africa. Similarly, the constitutions of Israel and Myanmar offer constitutional protection to selected ethnic groups, legitimizing and institutionalizing segregation. The research concludes with the identification of at least four key elements common across the studied constitutions that contribute to the maintenance of apartheid systems: differentiated citizenship status, legitimized segregationist practices, limited political participation for certain demographics, and entrenched power structures resistant to change.