A Declaration or Bill of Rights
Most modern constitutions have a Declaration or Bill of Rights setting out
fundamental rights and freedoms that are specially protected by the constitution.
Declarations of Rights have a long history. English-speaking people regard their first
as the Magna Carta of 1215, while the French look to the Declaration of the Rights of
Man and of the Citizen, which was adopted at the beginning of the French Revolution
in 1789. The practice of including a statement on rights in constitutions became
prevalent after the UN General Assembly adopted the Universal Declaration of
Human Rights in 1948. The first constitution in this country to have a declaration of
rights was the short-lived 1961 Constitution, and thereafter all our subsequent
constitutions have contained one.
Why have a Declaration or Bill of Rights?
The purpose of a Declaration or Bill of Rights is to protect the rights of citizens and
ordinary people living in the country. Although generally these rights must not be
overridden by the government, some have to be qualified. Rights cannot always be
absolute – they may have to be limited to allow the government to govern effectively
in the interests of all its citizens, and some have to be balanced with the rights of
others. But it is important that any limitations on the rights that are protected by a
Declaration or Bill of Rights should be spelt out. Hence a Declaration or Bill of Rights
also has to set out clearly, unambiguously, specifically and not in general terms the
ways in which a government may legitimately limit the rights of its citizens and how
they are to be balanced with the rights of others.
Should a Declaration or Bill of Rights be Enforceable?
If people are to be protected against oppression or undue interference by
governments, the rights contained in a Declaration or Bill of Rights must be
enforceable. They are usually enforced through court challenges to laws which
violate them. For example, media practitioners have successfully challenged some of
the provisions of AIPPA. Sometimes, however, the challenge may be directed at an
executive action rather than a law – e.g. the conduct of the police in prohibiting a
meeting. And sometimes the challenge can be directed at people other than the
Government or its agents: for example if an employer breaches an employee’s
constitutional right to fair treatment, then the right can invoked against the
employer. Whatever the precise way in which a Declaration or Bill of Rights can be
enforced, it must be enforceable. If a Declaration or Bill of Rights is “non-justiciable”
[that is, if courts cannot strike down laws and actions that contravene it] then it
would serve no purpose whatsoever.
What Rights Should be Protected by a Declaration of Rights?
General considerations
Originally, only civil and political rights and freedoms — for example, the right to a
fair trial and freedom of expression and association — were protected by
constitutional declarations of rights. Social, economic and cultural rights such as the
right to education and the right to work, were not usually so protected, though some
constitutions have included them in a statement of principles to guide government
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