It Is Necessary to Place Limits on Democracy in Order to Promote Human Rights?
Ex Justice Michael Kirby defines democracy in Australia as:
[a] sophisticated form of government which involves the general ability of the will of the majority to prevail but in a legal and social context in which the rights of vulnerable minorities are respected and defended
It must be argued that this succinct statement illustrates, expressly and implicitly, the potential for an inextricable relationship between democracy and human rights. The defending of human rights can only exist within a democracy, and conversely, the ability of anyone to raise their hand and claim a human right to be defended is a fundamental element of a democracy.
What are “human rights”? It must be argued that human rights are a mere concept, intangible ideals, principals within the realm of philosophy. The Universal Declaration of Human Rights says:
All human beings are born free and equal in dignity and rights
It must be argued that there is a distinct difference between the concept of human rights and the interpretation and application of human rights in a social context.
The interpretation of our human rights can be derived from the UDHR, other HR treaties and subsequently our own state and federal laws. However the language used in these instruments is left intentionally vague and ambiguous to allow different meanings to be inferred from the words. As time progresses and the nature of a normative society changes, values, deviant and moral actions change, the law changes slowly after to accommodate for the change in society. Drinking alcohol and driving is a good contemporary example of this. When talking about The Constitution Justice Kirby says:
The words [of the Constitution] take on their colour with the change in circumstance and attitudes
So we are able to apply the concept of rights to our society through the judicial and legislative processes, which are the checks and balances within a democratic system. For example, we have a right to free speech at Article 12:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
But does that mean we are allowed to say anything we want, wherever we want? It would have to be argued that we do not as various pieces of legislation have been enacted to stop “hate speech” and “defamation”. This must be argued to be a policy consideration and a formal social control mechanism. This illustrates how human rights in their purest form have restrictions put on them when applied in a social context. Anti-Terrorism legislation in Australia and across the world has seemingly trampled over human rights with arguably deplorable and undemocratic notions such as preventative detention and the abandonment of due process of law. However it should be argued that this type of legislation is a reaction to a real or perceived problem to preserve public safety. The question has to be asked if this is an acceptable trade. It was Benjamin Franklyn who wrote:
They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.
Is it necessary to restrict the democratic voting rights of offenders in prison? It must be argued that the democratic right of citizens of a country to have their say in the election process is a fundamental cornerstone of democracy and without it the country wouldn’t be a democracy. The Constitution Act implies this at s7 and s24 that the Senate and the House of Representatives be:
directly chosen by the people
It should be argued that the limits of this democratic process to certain members of society have been placed because of policy considerations involving social normative ideals. The “moral panic” drummed up in the press, fear and ignorance of the whole prison / rehabilitation process is a contributing factor.
It must be argued that the concept of eligibility is very important in the application of human rights in a democracy. Prisoners for example, are not eligible to vote, not eligible to liberty and so on. They have essentially lost the ability for those rights to be applied to them under certain circumstances for the sake of social order, punishment and protection. Does this concept of eligibility limit democracy? It should be argued that an action that is for the benefit of the majority of people and backed by the majority of people is a democratic action. As Justice Kirby says in the opening definition, democracy is the ability of the will of the majority to prevail.
What is “the majority”? The majority of any group is a complex and difficult question. There is the actual number of eligible voters, …