Limitations on Fundamental Rights The Declaration of Rights in our present Constitution proceeds by setting out each right, then a long list of exceptions where the right is either limited or is declared to be inapplicable. This has been criticised on the ground that the Constitution gives rights with one hand and then takes them away with the other. The approach adopted by the South African constitution avoids this criticism: it has a general clause allowing the rights to be limited so long as the limitation is justifiable in an open and democratic society based on human dignity, equality and freedom. Should all the rights be subject to limitation? The draft constitution produced by the Law Society lists certain rights that cannot be limited, namely the right to life, the right not to be tortured or enslaved and the right to equality. A provision along these lines would not be necessary if there is a general limitation clause similar to the one in the South African constitution, because a law which allowed slavery, for example, could not be regarded as justifiable in an open and democratic society. Democracy and a Declaration of Rights Although a declaration of rights is a feature of most modern democratic constitutions, in one sense it is undemocratic in that it restricts the power of a democratically-elected government to pass laws overriding those rights and usually gives unelected judges the power to invalidate democratically-enacted laws which contravene the declaration of rights. The point is not a valid one, however. Democracy consists of more than the holding of free and fair elections, and encompasses such concepts as tolerance and respect for the rights of others. A government which rides roughshod over the fundamental rights of its people is not democratic, even if it was elected by a majority of the people. The point does, however, illustrate one important factor that must be borne in mind when drafting a declaration of rights. The declaration must be comprehensive enough to protect the fundamental rights of individuals, but it must not be so restrictive that it inhibits the power of a democratically-elected government to govern the country properly. If it is unduly restrictive, the government may seek ways to amend it or, failing that, may try to circumvent it by unconstitutional means. Final Observation We must guard against putting a meaningless declaration of rights into our new constitution. A well-crafted declaration of rights can make even the most despotic régime look warm-hearted and caring. The Rhodesian Constitution of 1969, for example, had a declaration of rights similar to the one in our present Constitution, but it was non-justiciable [that is, courts could not strike down laws that contravened it, and the government was free to enact whatever repressive laws it chose]. Also, without a government that respects its people and observes the rule of law, and without an independent and impartial judiciary, a declaration of rights, however fine sounding, is worse than useless. ___________________________ 24