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Rights and freedoms not absolute
Last week we looked at the fundamental rights and freedoms of citizens as set out in the Constitution. While these are rights which all citizens have and enjoy, they are not absolute. Your rights are subject to the rights of other individuals and in certain instances can be limited.
First, the rights in the Constitution do not affect any existing law which was in force at the time of Independence. For example, while the courts have said that the mandatory death penalty is cruel and unusual punishment, such a law is still protected because it was “saved” or existed at the time of Independence. Second, during a period of a public emergency declared by the President, regulations which are made can “suspend” certain of your rights during that period.
Thus, people may be detained for a period without charge although the Constitution gives them the right to have their detention reviewed. Third, the Constitution allows for laws to be passed which impose restrictions or are contrary in some way to the rights stated in it.
For example, your right to liberty is subject to the right of the police to arrest or detain someone suspected of committing a crime. Also, while persons have the right to the enjoyment of property, the State can impose certain taxes on it. However, to have effect, a law that is not in keeping with your constitutional rights must:
• Declare it is contrary to the rights
• Be shown to be reasonably justified in a society which respects the rights and freedoms of the individual and
• Be passed by at least a three-fifths majority in both the House of Representatives and the Senate.
A recent example of such a law passed by Parliament is the Anti-Gang Act. Further, someone affected by such a law can file a constitutional motion to strike it down. If they prove that it is not reasonably justified in a society that properly respects the rights of the individual, the court can strike down that law and declare it to have no effect.
Where the State violates any of these rights a citizen can bring a constitutional motion in the High Court for redress. The motion sets out which rights the citizen says has been breached, how it has been breached and what remedy is being sought. The person bringing the motion and any witnesses must swear affidavits setting out the evidence of the breach.
The court has many powers. It can make a declaration that a right has been infringed and call on the State to remedy the breach. It can order damages be paid. It can also make any other order to give effect to the rights. If you think your right has been breached under the Constitution you should seek legal advice immediately. Delay on your part can lead to the court not dealing with your complaint. This column is not legal advice. If you have a legal problem, you should consult a legal adviser.
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