Restrictions On Rights
In countries which have bills of rights there is a basic statement of freedoms subject to permitted abridgment of such freedoms. Freedoms are restricted in the public interest on grounds of national security, to preserve public order, to protect public health, to maintain moral standards, to secure due recognition and respect for the rights and freedoms of others or to meet the just requirements of the general welfare of a democratic society. The United States Supreme Court has over the years qualified the rights in the constitution. Any statement of rights is not absolute and must of necessity be subject to limitations on the above lines. The right of free speech and expression does not extend to sedition, slander, defamation and obscenity. The principle of equality before the law cannot deny a legislature the power to classify persons for legislative purposes and to legislate affecting them, provided that the classification is not arbitrary and is based on a real and substantial distinction bearing a reasonable and just relation to the objects sought to be achieved. Thus the legislature could enact legislation regulating the activities of money lenders. This would amount to a singling out of money lenders and would be prima facie in conflict with the principle of equality before the law. But provided the classification is reasonable and there is a legitimate object to be achieved the legislation would nonetheless be valid. The above are instances of legitimate restrictions of rights. They are intended to illustrate that no right available to an individual or group is or can be absolute. This seems obvious but is often not appreciated.
The Clash Of Rights
The reality that human rights are not absolute, and are subject to reasonable restrictions, does not mean that the rights can be arbitrarily curtailed according to legislative or bureaucratic discretion. The manner in which restrictions are to be determined and imposed and the criteria which apply to the formulation of restrictions are crucial. If human rights are to be meaningful they cannot be subject to crude majoritarian dictates. What distinguishes a human right from any other right is that a human right is available to and enforceable by a minority, however small, even against the wishes of a majority. If human rights were to become subject to ordinary parliamentary control they would be no different from any other statutory right which parliament is free to confer and withdraw at its pleasure. The restriction of human rights is therefore a crucial and delicate question. They cannot be based on ideological perceptions of parliamentarians, bureaucrats or the Human Rights Commission but must be grounded on objectively ascertained and comprehended criteria.
An article in the National Times, week ending 25 August, 1979, referred to "the right to march demonstrations" and by way of example: "Senator George Georges was gaoled yet again for upholding the principle of the right to democratic protest in Brisbane streets". What are these rights? There is no absolute right to democratic protest or to march. There are rights of speech and expression and assembly. But these rights are subject to limitations. The right to freedom of association must be exercised so as not to interfere with the rights of others to move about the streets or go about their business. Where there is a clash of rights, methods must be devised through rational analysis, political avenues and the courts so that the rights of all parties could be exercised so as not to inconvenience each other. If this is not possible (as it often is not) there must be a compromise or one must be restricted and give way to the other.
The clash of rights is a factor which the United States courts and citizens are very familiar with. An example of a conflict of rights is where the right of free expression of the press to coverage of news stories may clash with the right of an accused in a criminal case not to be prejudiced by adverse publicity of allegations made against him prior to trial or in a pre-trial hearing.
American journalists generally would not show such an obvious lack of understanding of the basic principles underlying fundamental rights as is demonstrated by the above quotation. The above article is just one of numerous examples in contemporary Australia where so called rights are claimed without reference to conflicting rights and basic common sense.
Exaltation Of Particular Rights
One of the real problems in the human rights arena today is the failure by the Human Rights Commission and many who profess to be concerned about human rights to appreciate that human rights are complementary to each other. The pursuit of one particular right without regard to others is self defeating and destructive of the overall framework of rights which is essential to the operation of specific rights. Human rights activists overlook this dimension. Some rights such as the right to equality of persons before the law, freedom of speech and freedom of person and property are more important than other rights. If one right must prevail over another a rational basis must be provided. This involves an examination of the two rights, an evaluation of the importance of each and the context within which they operate.