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, and then a vast and varied amount of subgroups within that number. What about the majority of Shiites and Sunny Muslims within that group, and so on. It should be argued that access to rights is based upon a number of normative, social, political and cultural eligibilities. Using the objective standard of “the reasonable person”, in Australia this is said to be “The man on the Bondi Tram” it is possible to start constructing an argument about which rights are to be assigned to which people, or rather the eligibility of people to have certain rights applied to them. For example the idea of death as punishment for apostasy, which is implied in the Koran could be argued to be a right under both Sharia law and under Article 18 of the UDHR which says:

Everyone has the right to freedom of thought, conscience and religion… and freedom… to manifest his religion or belief…

But Article 18 also says:

this right includes freedom to change his religion or belief.

It must be argued that no “reasonable” person could agree to death, the death penalty is abolished in Australia and Article 18 mandates the right to change religion, therefore, even though the concept of that right might exist, they would not be eligible to the application of this right in Australia for societal, policy and religious reasons and a democratic consensus by the people.

Reading a speech by Justice Michael Kirby he said:

There is a tension, even a contradiction, between democracy and protection of fundamental human rights. The tension arises because, if human rights are truly “fundamental”, even democracy should not be able to override them. In this sense, fundamental human rights impose a check on democracy, and deliberately so.

The idea of a “fundamental” set of human rights is a great idea and arguably exists in the philosophical realm of human rights as something to strive toward; however it must be argued that the application of these rights across the world would take on all different shapes and colours based upon social mores and context within the society. As it says in Melbourne University Law Review:

It is a myth that rights are ‘absolute trumps’ over majority preferences, aspirations or desires. In fact, most rights are not absolute. Under human rights instruments, rights are balanced against and limited by other protected rights, and other non-protected values and communal needs. A plurality of values is accommodated, not just rights. Moreover, in jurisdictions with human rights instruments that adopt an institutional dialogue model, the specific balance of the pluralistic values is assessed from a plurality of institutional perspectives – usually the executive, the legislative and the judicial.

When is it OK to limit democracy in favour of human rights? It could be argued that during war, genocide or other international atrocities it may be permitted for a democracy to act in an un-democratic way. For example, conscription and forced military service, frozen assets and restrictions on the free movement of peoples.

Another argument for a limit placed on democracy came about in the Northern Territory Intervention by the Howard Government in 2008. To enable them to implement this intervention they had to suspend the Racial Discrimination Actto allow this to occur. Allegedly, the rights of vulnerable members in those societies, namely women and especially children, needed protecting so much that the government had to suspend a racism act to enable this to happen. It would have to be strongly argued that this is in fact a racist action, bearing in mind that it would have been an illegal action under the Act. The idea of a government suspending a certain law to enable them to breach that law seems to be a very dubious and un-democratic thing to do.

In conclusion it must be argued that in some instances there may be some cause to limit the democratic process to all or certain members of society to enable the government to do some things of national importance. It should be argued that these instances are in fact extremely rare and the opposite is far more common. As society dictates, the will of the normative majority seems to supersede the application of rights to some members of the community, some of the time.

However, it could also be argued the opposite way, in that because the consensus of the public overrides the application of some human rights, if these rights are to be implemented, that the executive or legislature would have to ignore the will of the majority to get them passed. It should be argued that this is a strong case for limiting democracy to promote human rights, but it must be pointed out that this is in fact an action which very seldom happens.