Module 3: Section 4
How do we work with Fundamental Rights and Freedoms?
In this Section we build on the discussion of fundamental rights and freedoms in Section 3 by concentrating on questions of drafting to meet the requirements of a constitutional Bill or Charter of Rights (which we referred to as a Bill of Rights in this Section). However, to approach this matter solely from the standpoint of the Constitution no longer suffices. Interpretation of a Bill of Rights is increasingly influenced by the standards that are set and are constantly being developed at the international level. For many countries, State action can be formally challenged for non-compliance with human rights commitments made under multilateral treaties.
Today, those preparing domestic legislation touching on human rights need to be aware that the practice of other courts and bodies may indicate how their legislation is likely to be judged in a legal challenge. Legislative counsel have a significant responsibility for ensuring that their drafts do not run afoul of either international or domestic human rights standards that are legally binding on the State.
In this Section, the objectives of your study are to enable you to draw attention to legislative proposals or provisions that may be inconsistent with
- fundamental rights and freedoms provisions of the Constitution in your jurisdiction, or
- treaty obligations on human rights standards that your State has assumed towards individuals;
and to find ways in which such inconsistencies can be prevented.
This Section is divided into two subsections organised in terms of the following questions:
- DRAFTING UNDER A BILL OF RIGHTS
- What rights and freedoms are protected by the Constitution?
- Do the specified rights and freedoms constitute a comprehensive statement of protected rights and freedoms?
- What other matters in the Bill of Rights are of particular interest to the drafter?
- How should we deal with qualifications?
- How should we deal with derogations?
- How should we approach Bill of Rights issues?
- How should we draft legislation to fulfil a permitted qualification?
- INTERNATIONAL STANDARDS
- Where do we find the international standards on human rights?
- How do international standards affect domestic law?
- What are the implications for law-making?
- What are the implications for legislative counsel?
- How can we keep in touch with international developments?
- What international human rights treaties apply?
Studying this Section
This Section is written on the assumption that you are already reasonably familiar with the Bill of Rights provisions in the Constitution of your jurisdiction and have a general understanding of how they are interpreted. If you are not, refer to a standard text book on the subject. If you are well versed in this subject from previous work, you may be able to complete this Section fairly quickly.
In this Section, as in the previous one, activities are provided to enable you to find out or remind yourself of the position in your jurisdiction. The material on international standards may be new. This part is designed principally to heighten your awareness of this dimension and the approach that you may need to develop. The first part, on the Bill of Rights, is of greater importance and merits your close attention.
No exercises are provided since the topic does not lend itself to matters that can be dealt with in short and precise answers.