PUCL JP Memorial Lecture
-- Mangalore, March 23, 2002.
Civil Liberties, an African perspective
- - By Z.M. Yacoob
(Justice Zakeria Mohammed
Yacoob has been a judge of the Constitutional Court, South Africa, since
He has throughout his
career defended people who were prosecuted for resisting unjust security
legislation and other oppressive legislations, particularly during apartheid
in South Africa. He represented a group of persons who came to be known
as the "Durban Six" in negotiations with the British Government
when the "Durban Six" occupied the offices of the British Consulate
in Durban during September-October 1984 as a protest against apartheid
and unjust laws in an effort to persuade the British Government to help.
He also represented their case before the Secretary General and representatives
of certain member countries of the United Nations in New York. Justice
Yacoob was part of a team that defended officials and members of the United
Democratic Front (UDF) and its affiliates on charges of treason and certain
statutory offences during the period 1985 until 1988 in a trial, which
came to be known as the "Delmas Treason Trial". He represented
the accused in the political trial, which came to be known as the "Vula"
trial involving high-ranking members of the African National Congress
during the period 1990 until 1991. Through this entire period he was very
active in the political movement against apartheid, being a member of
the underground structures of the African National Congress. He took silk
Justice Yacoob was a
member of the Technical Committee on Fundamental Rights in the multiparty
negotiating process from April to December 1993, during which period he
helped to draft Chapter 3 of the Interim Constitution of South Africa.
Immediately thereafter, as a Commissioner on the Independent Electoral
Commission, Justice Yacoob helped to plan and set up national, regional
and local structures necessary to ensure the success of the first democratic
election in South Africa. Keenly involved in community activity in South
Africa, Justice Yacoob is currently also Chancellor of the University
of Durban-Westville, and a member of the Executive Committee and National
Management Committee of the South African National Council for the Blind.
Justice Yacoob has been
playing a key role in evolving the innovative jurisprudence and the expanded
understanding of human rights that has come out of that country in recent
years. Despite being visually challenged himself, throughout his adult
life he has been involved in various struggles for social justice, human
rights, and against the apartheid regime. Following the transition to
democracy, he helped draft the South African Constitution and was involved
in planning the first democratic elections.
In 1998 Justice Yacoob
was elevated to the Constitutional Court, South Africa's highest judicial
body, superior even to their Supreme Court. Since his elevation, Justice
Yacoob has been part of some of the court's prominent judgments on social
issues. He is most famous for his judgement on housing, where he ruled
that the right to housing is a fundamental right.
Currently on a six months sabbatical form the Constitutional Court, Justice
Yacoob is visiting several sites in India to familiarize himself with
The PUCL must be congratulated for its determination and untiring effort
to keep the quest for and protection of civil liberties alive and effective
in this country. This determination is no doubt based on the understanding
that certain essential freedoms are fundamental not only to democracy
but to the very survival of humanity itself. The approach of the PUCL
to civil liberties issues underlines a crucial understanding: an understanding
which has as its base the recognition of the fundamental truth that civil
liberties is not a matter of theory alone, but can be meaningfully addressed
only as a practical issue. Indeed the existence of a freedom in theory
is a contradiction in terms. This does not mean however, that an approach
to the question of civil liberties cannot be enriched by appropriate theoretical
analysis. We will try in the course of this evening to think through some
of the more basic issues which impact on the relationship between civil
liberties and democracy, civil liberties and socio-economic rights and
civil liberties in practice. I thank the India Center for Human Rights
and Law, Mumbai for making it possible for me to be in India at this time
and for making my participation in this meeting possible.
But something must first be said about today's occasion. We owe our presence
here to J.P. Narayan (or JP as he was popularly known). The self-sacrifice
and courage that are important hallmarks of his personality remind us
of none other than our own Nelson Mandela, the first president of South
Africa, a man whose contribution to our liberation is immeasurable and
whose sense of sacrifice, legend. JP was a person of intellect, energy,
commitment, and renowned strength. These characteristics are formidable
in themselves but they, in my opinion, fail to capture the essence of
this unique human being. JP had a rare quality that made him stand qualitatively
beyond others who might have the good fortune to be blessed with all those
advantages that I have already referred to. This was an inherent selflessness,
a selflessness that included the complete absence of any desire for power
or for prestige. JP was concerned about the civil liberties and quality
of life of other human beings and he tried to advance these rights in
many ways, including the courageous exercise of the right to freedom of
speech and expression. I therefore speak here with a sense of particular
honour and humility in the hope that I will be able to contribute something
meaningful to this one hundredth anniversary of the birth of JP Narayan.
This award to a writer for investigative human rights journalism reminds
us of JP by its emphasis on the importance of freedom of speech and of
the media in human rights discourse in general, and the theory and practice
of civil liberties in particular. We know that freedom of speech is regarded
as fundamental to democracy and that oppressors, since times immemorial,
have had to curb this right to facilitate and justify their repressive
conduct. But the freedom of speech and freedom of the media have even
wider implications. This is because oppressive regimes are seldom kept
in place by the curbing of the media alone. It is in the consequences
of ignoring media restrictions -- consequences mercilessly exacted by
an undemocratic regime -- that the bite truly lies.
Any act of courage that results in the publication of forbidden material
inimical to an oppressive order would almost inevitably bring the ruthless
curbing of other rights and freedoms: the detention of journalists without
trial; the banning of newspapers; the establishment of publications control
boards with wide powers, are all familiar to us. So are the sacrifices
made by journalists in many countries against almost insurmountable odds
in many societies. The courage of journalists has often played a vital
role in the restoration of democracy and is a quality that must be consistently
nurtured and preserved. This courage does not arise out of nothing but
is the result of a sense of integrity and caring. I trust that this journalism
award will remain integral to the activities of the PUCL and that it will
help in the development of those journalistic qualities, including those
of steadfast courage and sacrifice, that are consistent with a true democracy
aimed at the improvement of the quality of life of all.
This raises what I
often call the other side of the journalism coin. The media is enormously
powerful in its ability to mould thoughts, ideas, feelings, attitudes
and action. The extent and effect of this power is often unnoticed and
insidious, denied or underestimated. Its misuse either wittingly or unwittingly
can have far-reaching consequences -- consequences that can have a negative
effect on peace in society, on the improvement of the quality of life
of human beings and democracy itself. It follows that this power needs
always to be exercised with considerable care and circumspection in at
least two respects. First, there must be an understanding of the consequences
of the exercise of any freedom of expression right by the media. Second,
journalists must not exercise this power in a way that results in the
fulfillment of purposes that do not accord fully with the value base of
any democratic society. The balance between courage and care is perhaps
the most difficult area in the exercise of journalistic judgment. Any
organization for civil liberties may need to involve itself in the process
of developing guidelines to help journalists exercise power appropriately.
It is a mistake to see a union for civil liberties on the one hand and
journalists on the other as two separate entities performing different
purposes in a democracy. Civil liberties movements and journalists alike
have the obligation to preserve civil liberties in society. In this sense
civil liberties activists need journalists, for without appropriate publicity
relative to their activity, their success is likely to be limited. On
the other hand a vibrant and effective civil liberties movement is essential
to the survival of journalism, to the maintenance of the right of freedom
of speech and to the protection of other freedoms of courageous journalism.
The interrelationship between journalists and civil liberties activists
is so complete that it is difficult to envision one without the other.
In this sense every human rights journalist, every civil liberties journalist,
is an integral part of the civil liberties movement and is in truth, a
civil liberties activist. It is a mistake to suggest that a civil liberties
movement is the special preserve of lawyers. As the name of this Union
suggests, the movement must embrace people from every walk of life. I
return later to the questions of the inclusion of other rights of a civil
liberties movement and the responsibilities of the media in a democracy.
It is often said that the maintenance of civil liberties is fundamental
to a democracy. It does however sometimes help to reflect a little on
why this is so. And this occasion seems to be appropriate for this purpose.
My experience of the deprivation of civil liberties is limited to South
Africa. There, the manipulation of civil liberties was aimed at the maintenance
of an unjust, undemocratic, and exploitative order; an order in which
only the white people had the vote; an order in which more than four fifths
of the people, [African, Indian and Coloured people who are described
as black in South Africa's legislative parlance of today] had no vote;
an order in which a powerful white minority Parliament made laws binding
upon and aimed at the oppression of the majority; an order in which the
relationship between law and justice was non existent; an order which
had to be replaced by the use of all the means at the disposal of the
South African majority.
The moral questions
raised in the course of our struggle for democracy were relatively easy
to answer because of the fundamentally unjust nature of our society and
the gruesome repressive conduct engaged in by the minority to hold onto
its power. For us in South Africa therefore the issue was not whether
and the extent to which, civil liberties were important to the maintenance
of a democracy. Rather we were concerned with the gross violation of civil
liberties by a regime that had no moral authority to govern at all --
this, in order to enable it to continue exerting immoral authority. The
complete absence of any moral authority to govern rendered all the more
reprehensible the passing and implementation of unjust laws, the complete
negation of the rule of law, detentions without trial, the banning of
organizations, the restriction of individual freedoms, the violence and
the killings. All these methods, used as they were to prop up an illegitimate
regime were obviously unacceptable to the South African people. The question
as to the extent to which these methods could be used [if they could be
used at all] for the preservation of democracy did not even begin to arise.
It was not a democracy that was being preserved!
Furthermore the out-and-out
illegitimacy of the South African regime had implications for the nature
of the methods that could legitimately be used to bring about a more just
and democratic order. Until 1960, the methods used in South Africa were
concerned mainly with peaceful organizing and mobilizing, revolving mainly
around the defiance of unjust laws. When all the liberation movements
in South Africa were banned in 1960 however, it became necessary for them
to revisit their tactics and it was decided by the African National Congress
to engage in an armed struggle. This decision was difficult but did not
pose a moral dilemma of substantial proportions. The regime was illegitimate,
the majority had no vote and all legal avenues of protest were denied
by a minority with no moral authority. The fight was not against the denial
of civil liberties in the context of the existence of some form of democracy:
it was a struggle against the denial of democracy itself with the civil
liberties denial being an instrument in the achievement of a broader nefarious
Another aspect to which attention must be drawn is that it would have
been impossible for the immoral regime to hold sway without trampling
upon civil liberties in a substantial way. In other words, the wholesale
infringement of civil liberties in South Africa was not merely an instrument
in the maintenance of injustice but an essential ingredient in the process
of the subjugation of the majority of people. A struggle for civil liberties
that aimed at limiting the availability of the weapon of repression to
the regime was therefore simultaneously a struggle against the illegitimate
power of the regime and for its substantial restriction. The question
in South Africa was not whether detention without trial should be prohibited
but whether the regime was entitled to detain or imprison anyone even
if there had been a trial. That is, whether the regime had the authority
to try political offenders at all. Indeed defenses that courts appointed
by illegitimate regimes did not have that power were unsuccessfully taken
from time to time.
Despite the special
situation that existed in our country, the excesses of the apartheid regime
served well to demonstrate the importance of civil liberties in and to
a democracy. As a matter of logic, anything that was indispensable to
the maintenance of injustice could not have been consistent with the creation
or deepening of a democratic order and must have been inimical to justice
itself. It sounded to some of us at the time like a contradiction in terms
to think that the restriction of civil liberties may become necessary
in an effort to preserve democracy when democracy itself was under threat.
Those supporting this line argued that there was no room for the restriction
of civil liberty in a democracy whether for the preservation of democracy
or for any other reason that might be seen to exist. Indeed this approach
fervently advanced two attractive suppositions. The first was that any
civil liberty restriction necessarily led to the weakening of democracy.
Secondly, it was said that a democracy that needed civil liberty restriction
to support it, could in truth not be a democracy at all.
Yet others had a different
view. This view was based on the notion that a society in which there
was unrestricted freedom was impossible to achieve and that some restriction
of liberties, even civil liberties was not only inevitable but essential
to the preservation of a democracy. It is this issue that must be investigated
a little further.
Civil liberties loom
large in the South African Constitution. Two reasons for this are particularly
interesting and instructive. The first is that the minority who had become
experts in the utilization of a civil liberty restriction strategy to
thwart the will of the majority, were intent upon ensuring that the very
same strategy was not used by the majority in a democracy, to oppress
them. It was ironically those steeped in the shameful denial of civil
rights in the past who spoke loudest for their incorporation in our new
constitutional order. The response of the majority representatives to
this uncharacteristically libertarian attitude represents the second reason
for the way in which civil liberties are dealt with in South Africa today.
One would have expected the majority representatives to argue, in the
context of their past oppression, that the denial of civil rights, while
utterly unjustifiable in an undemocratic state, may to an extent be necessary
for the preservation of democracy itself. On that basis, the majority
would have been expected to have been against the inclusion of strong
civil liberty protection as part of a new democratic order. This was not
the case, however.
Victims of civil
rights violations understood the nature and consequences of these violations
and realized that the wholesale violation of these rights could not be
sustained in a democracy. There was therefore agreement that civil rights
should be incorporated into our democratic order in a meaningful way.
Accordingly there was unanimity in the South African constitution- making
process that strong civil liberty protection would be included in our
Bill of Rights. In this way civil liberty protection became integral to
our constitutional value system and to democracy as we perceived it. Their
inclusion represents a unanimous qualification of majoritarianism.
Democracy was not initially concerned with civil liberties or human rights.
It was concerned rather with the substitution of a dictator seen to act
in his own interest with majority representative government, that is a
government that will act in the interests and for the benefit of the majority.
Early forms of democracy made no room for the caring of the weak or the
vulnerable, for the creation of an egalitarian society or for respect
to be given to certain universally accepted human rights. The acceptance
of these principles came later and really constituted a qualification
of majority rule. In terms of this later- developed societal consensus,
the majority could no longer decide the fate of a society regardless of
the consequences to vulnerable minorities, or to weak and vulnerable people.
Democracy began to mean something more than the influence of the majority
over minorities. Democratically elected leaders were said to have obligations
that went beyond organizing society for the benefit of majorities.
This thinking is concretely reflected in the South African Constitution.
Its Bill of Rights can only be amended if a majority of seventy-five percent
of the elected representatives of the people support it. Ordinarily, a
simple majority would have been enough for constitutional amendments but
societal recognition of the importance of certain rights results in the
setting up of higher thresholds. There is no reason why the passage of
time would not result in the increase of that threshold. Nor is there
any reason to deny the possibility that at some time in the future there
may be certain fundamentals that could be regarded by society as being
totally beyond amendment. It must be noted here that the Indian Supreme
Court has already held that some structural provisions of the Constitution
of India may never be capable of amendment. Suffice it to say though that
the protection of civil liberties in a Bill of Rights really amounts to
a concession that there are certain values and precepts that are so important
to society that they should remain in existence even if an ordinary majority
believes that they should be removed.
It is perhaps useful
to investigate the limits of the power of the majority contended for here
from a practical perspective. If one accepts that three hundred and fifty
five million people in India [only 36.5 percent of the population] lives
below the poverty datum line [I understand that this is a controversial
statistic], any government interested only in securing the vote of the
majority to remain in power could legitimately ignore the plight of these
people altogether and continue to retain power. This would be so unless
the majority was of the view that the minority should be catered for as
well. To quote another example [perhaps an unrealistic one] even ninety
nine percent of the population could not decide with moral validity that
an infinitesimal percentage of the population should be killed for no
particular reason and without further ado. The acceptance of the notion
of human rights or civil liberties means that the power of any majority
can neither be unlimited nor concerned with the well being of that majority
alone, without regard to minorities and vulnerable people.
The South African Constitution can again be useful for illustrative purposes.
The equality clause [see Annexure A] prohibits direct
or indirect discrimination by the state or by anyone on a number of grounds
including disability and sexual orientation. I choose these two grounds
only because gays and lesbians as well as disabled people do constitute
vulnerable minorities in societies. Their protection cannot be undone
by any decision by an ordinary majority, regardless of how strongly that
majority might feel either about the immorality of every sexual act other
than heterosexuality, or about their jobs not being threatened by the
rights of disabled people. Section 16 of the Constitution guarantees freedom
of speech. Significantly our Constitution does not limit that freedom
only to the expression and communication of ideas and thoughts with which
the majority is comfortable. The protection [it must be remembered that
this is a classic civil liberty protection] is meaningful only if it relates
to ideas other than those acceptable to the majority. If a democratic
society cannot protect the right of human beings to express ideas that
are not only unacceptable but morally offensive to majorities, it is perhaps
worth a little less than the paper upon which it is written. The real
point of the freedom of speech protection is to ensure that vulnerable
minorities are not unduly trampled upon by inconsiderate majorities.
The same holds true for the fair trial rights in our Constitution. Despite
the rising crime rate in some parts of the third world including South
Africa, those accused of crime do represent a vulnerable minority. The
right to freedom of religion is no exception to this rule. There is no
need to guarantee that freedom for religions practiced by large numbers
of people in any society. The very fact that the vast majority of people
practice a particular religion in a country is sufficient protection.
Minority religions and beliefs need to be protected even if they appear
to be unacceptable to majorities.
Civil liberties clauses in a constitution represent a qualification of
majoritarianism. At one level, they can be said to have been entrenched
for the protection of minorities and those who are vulnerable including
women, the disabled, holders of minority opinion, those who challenge
minority exclusion and oppression, those on trial for crimes as well as
religious minorities. These groups are different from each other but they
are all undoubtedly either vulnerable or minorities. Their protection
is vital to the majorities and the strong, essential to society as a whole
and reflective of the conviction that we as human beings have gone beyond
what is referred to as "the law of the jungle" or "the
survival of the fittest."
But this protection cannot be unlimited. The South African Constitution
like its Canadian counterpart makes provisions for the limitation of all
rights contained in the Bill of Rights [see Section 36 as contained in
Annexure B] but the state may limit these rights
only by a law of general application and only if the limitation is justifiable
in an open and democratic society based on dignity, equality and freedom.
This provision expressly recognizes that no liberty, including one classified
as a civil liberty, is limitless. It will be seen that this section embraces
a particular conception of democracy, a conception which is not just a
function of the right to vote into office those who will govern. A democracy
not based on dignity or equality or freedom will simply not qualify. This
is reflective of a growing universal trend that does not define democracy
in terms merely of the right to vote every five years.
The question likely to face the South African Constitutional Court and
other courts is the extent to which classic civil remedies can be limited
for the sake of the preservation of democracy itself. I think it is reasonably
clear that democracy in this context does not simply mean the will of
the majority, nor does it countenance the oppression of minorities by
majorities. Unfortunately, this perspective does not make the answer to
the question any easier. There are some circumstances in which an over-limitation
of civil liberties would be prejudicial to the majority and to democracy
and be unacceptable on that ground. Fair trial rights are an example.
Their limitation would mean that every person in society would run the
risk of being convicted for an offence which she has not committed. On
the other hand the detention of a person alleged to have committed an
offence for the purpose of ensuring attendance at the trial is generally
thought to be right.
The lack of controversy in relation to these examples is, I would suggest,
the result of the fact that the instinct of self-preservation is so strong
in all human beings. But it is this very instinct that gives rise to almost
irresoluble controversy in other circumstances. Tension about the extent
of the limitation of civil liberties usually arises when there is an effort
at their manipulation to attain one political end, to frustrate the achievement
of another, to pre-empt the debate concerning a controversial point of
view which could be right, to oppress minorities, to undermine the claims
of minorities and vulnerable people or to frustrate civil and political
movements not acceptable to the majority. It is perhaps in the object
of the limitation of civil liberties that the beginning of the answer
as to whether the limitation is appropriate may be found. The question
will therefore always be whether the limitation of a civil right is intended
to and has the effect of preserving and protecting an all embracing value
system that caters for the vulnerable and minorities side by side with
the maintenance of a facilitative environment for most of its people.
If it does there can be little or no objection to the limitation. If on
the other hand, the protection of civil liberties is limited or manipulated
for the purpose of advancing a narrower sectarian interest, even if that
interest conforms with the beliefs of the majority of the people, it may
not be acceptable.
What has been said so far implies that an all-embracing value system can
be made applicable in a society, whether most people in that society accept
that value system or not. If this were true, civil liberties movements
could consist of divining intellectuals who determine this value system
without regard to the feelings and attitudes of people in society. This
issue is important for practical purposes and concerns the relationship
between civil liberties, civil liberties movements and the people, and
is discussed in the final section of this paper.
Civil Liberties and Socio-Economic Rights
It will be remembered that the negotiators of the new South African constitutional
order were unanimous about the inclusion of civil liberty protection within
it. This does not mean however, that there was no dispute at all about
the content of the Bill of Rights. The political minority representatives,
while insistent about the inclusion of civil and political rights in the
new Constitution, argued vehemently against the inclusion of socio-economic
rights within it. The argument was that socio-economic rights are really
a matter of policy and that their inclusion in a constitution was both
unnecessary and unhelpful. The majority representatives understood that
there was some difference between socio-economic rights on the one hand
and civil and political rights on the other but were of the firm view
that civil and political rights without any obligation being placed upon
government to improve the quality of life of the majority of South Africans
would be empty and hollow. This understanding by the majority representatives
was, in my view, a direct consequence of the struggle for democracy. That
struggle was not for civil and political rights alone: it was aimed at
the improvement of the quality of life of the majority of South Africans.
Indeed, as I have already said, the denial of civil liberties was no more
than a necessary instrument aimed at facilitating a more fundamental,
a more heinous denial. It was for this reason that socio-economic rights
were included in the South African Constitution.
The inclusion of these rights was in effect a practical manifestation
of a theoretical position which had gained more than just a little credence
in the human rights discourse of the time. The thesis being advanced with
great force and authority was that all rights [civil and political or
first generation, socio-economic or second generation, and environmental
or third generation] were in fact indivisible and interrelated. None of
these categories of rights could ever be said to be more or less important
than others and it was inappropriate, in the circumstances, to speak of
a hierarchy of fundamental rights. All rights were fundamental and equally
important. At the risk of overstatement it might be as well to say that
a human being without clothes, food, water or work could hardly be said
to have inherent dignity which is both respected and protected. A human
being in that position would ordinarily not even begin to care whether
she was dead or alive, let alone whether her civil liberties are respected.
Indeed death might seem a much more welcome prospect than a murky dark
existence on the fringes of life itself.
I would urge that this theoretical position be accepted as correct. It
is based on a compelling and complete logic, is comprehensible and applicable
in practice and is consistent with the experience of struggle. The correctness
of this position leads to the inevitable conclusion that civil liberties
cannot exist independently of socio-economic rights. Indeed, S.R. Sankaran
who delivered the 2001 JP Memorial Address agrees with my interpretation
of an important message contained in the paper he presented on that occasion
-- that the eradication of poverty represents the ultimate realization
of civil liberty.
It can however not be correct that civil liberties can legitimately claim
a place of special importance in any perceived hierarchy of human rights.
It may be true that civil liberties may be more or less important in a
specific context. In a country in which the minimal level of socio-economic
rights is at the same level as the poverty datum line for example, civil
liberties may be very significant if a particular party in government
chooses to incapacitate the opposition by jailing its leaders without
cause or on a basis that is fabricated. But there can be no question of
the relative importance of civil liberties independently of and outside
Nor can it be said with justification on the other hand that socio-economic
rights are more important than civil liberties. The notion that civil
liberties may be sacrificed or limited to improve the socio-economic condition
of people does not seem to be supported by history. This is not surprising.
It is logically difficult to conceive of a situation in which there can
be a meaningful link between the limitation of civil liberties and the
enhancement of socio-economic rights. There is a general level at which
a political leadership often adopts a public position to the effect that
to allow civil liberties would frustrate society's standards and destroy
its very foundations. That however is an argument that must be dealt with
at another level. Suffice it to say here, that any relegation of civil
liberties in the name of the enhancement of socio-economic rights or any
suggestion that the enhancement of socio-economic rights requires the
curbing of civil liberties must be treated with caution, even suspicion.
The proposition that civil and political rights and socio-economic rights
are interrelated and interdependent, leads us to another conceptual inquiry.
We need to question whether the distinction between civil liberties on
the one hand and socio-economic rights on the other has any meaningful
basis. The time may have come to consider whether the definition of civil
liberties itself must perhaps be extended to cover all human rights. Indeed,
the achievement of substantive equality and the expansion of socio-economic
rights leads to more empowerment which in turn gives rise to a more palpable
If it is true that civil rights and socio-economic rights are part of
a single integrated package [and I would suggest it is], it must follow
that there is little basis for an absolute distinction between organizations
that aim at the achievement and protection of human rights in general
on the one hand and those organizations that are exclusively concerned
with the violations of civil liberties on the other. Competition between
these categories of organizations cannot have a truly positive effect.
This is because of the interrelationship between civil liberties in particular
and human rights in general. There can be no debate that a civil liberty
is a human right.
It is unlikely that a government would restrict a civil liberty without
a purpose. Moreover, it is even less likely that a government would do
so unless it is perceived to be necessary for the achievement of a purpose
regarded as sufficiently important to warrant that limitation at least
to some extent. To put it simply, governments do not restrict civil liberties
for the fun of it. They generally do so in relation to people or organizations
that are engaged in a struggle to achieve some change in government policy
or some improvement in the quality of life of people. In other words,
the victims of civil liberty violations are usually people fighting for
human rights at a broader level. An absolute distinction between civil
liberty and human rights organizations would tend to deny this link. It
may be that some people would be more interested in preventing civil liberty
violations while not being too concerned with the redress of other human
rights violations. These people would be more comfortable with civil liberties
groups. This means that it may be inappropriate in certain circumstances
to merge civil liberty and human right organizations into one and to deny
that there is some difference between them. But there appears to be no
basis upon which the interrelationship between the two categories of organizations
can ever be negated. Nor can I at this stage see a basis on which it can
be suggested that either civil liberties organizations or human rights
organizations are more important than the other of them in a sort of hierarchy.
One or other of the categories may be more important in a particular context.
But that is as far as we can go in an evaluation of relative importance.
I would suggest that it is indispensable to the success of both categories
of mobilizations that they work in cooperation in an atmosphere of mutual
respect, continuous consultation, and a realistic understanding of their
Civil Liberties and the People
Although it is true that current definitions of democracy emphasize that
democracy means more than just: "let the will of the majority be
done", it does not follow that the people may be ignored. The truth
is that if the all-embracing value bases referred to earlier are acceptable
only to a few right thinking people they will never become a reality.
In that case there will always be a gap between the understanding of intellectuals
on the one hand and the people on the other about what society requires.
The greater this gap, the less likely it is that society would respect
civil liberties. It is therefore vital for civil liberties movements to
bridge this gap. We were lucky in South Africa because the need for strong
civil liberty protection was agreed to by the representatives of all.
Bridging the divide between the perceptions of people and requirements
of the law may therefore be a little easier in South Africa.
The gap cannot be bridged however if civil liberties movements consist
of lawyers alone. The work of a civil liberties movement cannot be restricted
to arguing civil liberties cases in a court. Civil liberty and its importance
can never be reinforced in society by court orders alone. In fact, the
necessity of resorting to repeated court action is an indicator that civil
liberty awareness in society is at a very low level. Nor is it enough
for constitutions to proclaim civil liberties and for laws to be enacted
which safeguard them.
An effective civil liberties movement is a movement of the people and
it is necessary to investigate how such a movement may be developed. The
problem is that all movements including political parties aim at mobilizing
sectors of the people towards their cause and in order to justify their
position. We have the obligation to ensure that people do not fall victim
to such manipulation and that we continue to present a wider perspective;
a perspective which is not aimed at particular sectarian interests or
at furthering a political agenda or at developing a particular power base.
Some of the more obvious techniques employed by those intending to further
sectarian interests must receive some attention.
When the crime rate is high, politicians often campaign on the basis that
this is the result of the grant of too many civil liberties. The answer
they say is to restrict these liberties. Moreover, political parties begin
to use the rising crime rate as a means of increasing the number of votes
they have and for denigrating their opponents. They begin to compete with
each other and literally fall over each other in their eagerness to promise
crime control and order in society by limiting civil liberties. In this
process, civil liberty becomes a football in the political power game.
If civil liberties movements remain silent in the face of these developments,
they become accomplices in the destruction of civil liberties. Our duty
is to continue to deepen understanding of civil liberties amongst the
people in our society by using every method we conceivably can. An understanding
by most people in society that civil liberties do not exist merely for
the protection of the vulnerable in society but for the protection of
all of us and for the protection of democracy itself is the only sure
bulwark against their political manipulation. We need to develop a campaign
to deepen this understanding, a campaign which involves the education
of people, a sustained campaign.
I have often heard while in India that so-called western democracy does
not work here. The reason usually given for this is that many of the people
who vote are so poor and so ignorant that candidates who are so inclined
are able to acquire political support which may not be genuine. They suggest
that some form of qualified franchise in which fewer people have the vote
might be the answer. This kind of proposal is inimical to civil liberties
because the right to vote is the most basic of civil rights. If it is
true, however, that illiteracy and poverty create the opportunity for
anti-democratic vote management, work aimed at the reduction and ultimate
elimination of this tendency is fundamental to any civil liberties movement.
I would suggest that voter education at the most basic level would not
only be a laudable part of any civil liberty movement programme but would
be indispensable to it. A democratic process in which political leaders
truly represent the people of the country is essential to the maintenance
of civil liberties.
Use of the argument that the curtailment of civil liberties is essential
to the maintenance of democracy itself must receive some attention. The
first point to be made in this connection is that the mere fact that someone
says that the limitation of civil liberty is necessary for that purpose
does not make it so. It is always necessary to examine every such claim
with great care. Secondly, a distinction must always be made between the
maintenance of democracy on the one hand and support for a particular
political cause on the other. The two are quite often rolled into one.
These arguments can be beneficial to those who use them only if the people
accept them; only if the people equate a sectarian tendency with democracy.
Again, any civil liberties movement can succeed only if it carries the
people along with it.
Who are the people? I have already said that a civil liberties movement
cannot consist of lawyers alone. It must be all embracing and true to
democracy. All civil liberties movements must include and be representative
of women, workers, businessmen, the disabled, and other significant sectors
of society. In the context of India in particular, the importance of the
appropriate representation and participation of women, dalits, Christians,
Muslims and all other minorities and vulnerable people can never be over
emphasized. Indeed the absence of or lack of meaningful participation
by any of these important sectors represents a weakness in the civil liberties
movement not only in degree or quantity but qualitatively and in substance.
Although this paper started on the note that true democracy is really
a qualification of majoritarianism and that democracy means more than
just the will of the majority, the proposition appears to be an oversimplification
in the final analysis. This is because the acceptance by the people of
a value base that is antithetical to sectarianism, that respects human
beings, that is not based on the survival of the fittest and not premised
on the oppression of minorities and the vulnerable is fundamental to the
development of a civil liberties culture and not inimical to change in
existing relationships. The creation of this culture is the responsibility
of all of us and, in particular, the responsibility of the media to which
I now return.
This responsibility has received particular emphasis in the South African
Constitution in the way in which the freedom of speech and freedom of
media clause is conceptualized. This right, like all other rights, can
be limited by a law which complies with the provisions of Section 26 which
I have referred to earlier. However, Section 16 (2) reads as follows:
(2) The right in subsection (1) does not extend to -- (a) propaganda for
war; (b) incitement of imminent violence; or advocacy of hatred that is
based on race, ethnicity, gender or religion, and that constitutes incitement
to cause harm.
This subsection defines and limits the operation of the freedom of speech
clause. Our Constitution offers no protection to hate speech based on
race, religion or ethnicity. It is obvious that the media cannot espouse
these negative sentiments. But there is a positive duty which arises out
of this. The duty of the media to project minority ideas and beliefs,
to protect civil liberties, and, above all, be a medium through which
the people of the world may be educated and begin to understand that democracy
means more than just self benefit. It is in this hope that I warmly congratulate
Rani George of Malayala Manorama, and Reji Joseph of Rashtra Deepika,
the recipients of the award in the sure knowledge that they will carry
the civil liberties message wherever they work, that they will become
civil liberties activists and that they will leave no stone unturned to
prevent the media from becoming inimical to democracy and to the rights
of the weak and the vulnerable.
I express the hope that the PUCL becomes a true people's movement, a movement
aided by the media, a movement which would ensure the protection of civil
liberties and a movement that protects human beings from political manipulation
by ensuring that democracy is understood, cherished and advanced by all.
Annexure A: Sec. 9 Equality
- Everyone is equal
before the law and has the right to equal protection and benefit of
- Equality includes
the full and equal enjoyment of all rights and freedoms. To promote
the achievement of equality, legislative and other measures designed
to protect or advance persons, or categories of persons, disadvantaged
by unfair discrimination may be taken.
- The state may
not unfairly discriminate directly or indirectly against anyone on one
or more grounds, including race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief, culture, language and birth.
- No person may
unfairly discriminate directly or indirectly against anyone on one or
more grounds in terms of Subsection (3). National legislation must be
enacted to prevent or prohibit unfair discrimination.
on one or more of the grounds listed in Subsection (3) is unfair unless
it is established that the discrimination is fair.
B: Sec. 36 Limitation of rights
- The rights in
the Bill of Rights may be limited only in terms of law of general application
to the extent that the limitation is reasonable and justifiable in an
open and democratic society based on human dignity, equality and freedom,
taking into account all relevant factors, including -- (a) the nature
of the right; (b) the importance of the purpose of the limitation; (c)
the nature and extent of the limitation; (d) the relation between the
limitation and its purpose; and (e) less restrictive means to achieve
- Except as provided
in subsection (1) or in any other provision of the Constitution, no
law may limit any right entrenched in the Bill of Rights