What Is the Difference Between an Absolute and a Qualified Right?

The Basic Rights in the Constitution are not all of the same strength. Division 3 is deliberately divided, and knowing which subdivision a right sits in tells you immediately what a government must prove to limit it.

Subdivision B — Fundamental Rights

Sections 35 to 41. These are not expressed as subject to section 38 at all:

• s 35 — right to life
• s 36 — freedom from inhuman treatment
• s 37 — protection of the law
• ss 38–40 — the machinery for qualifying the rights in Subdivision C, and the position of emergency laws
• s 41 — proscribed acts

Section 36 is the clearest example of an absolute right. It contains no qualification, no exception and no proviso: no person shall be submitted to torture, or to treatment or punishment that is cruel or otherwise inhuman or inconsistent with respect for the inherent dignity of the human person. There is no lawful way to do that to anybody.

Section 35 is differently structured: it prohibits intentional deprivation of life except in the tightly defined circumstances the section itself lists. The exceptions are internal to the right, not conferred by a later restricting law.

Subdivision C — Qualified Rights

Sections 42 to 56 — liberty of the person, freedom from forced labour, freedom from arbitrary search and entry, freedom of conscience, expression, assembly and association, employment, privacy, and the special rights of citizens. Each is expressed as subject to regulation or restriction by a law that complies with section 38 (and, for some, by laws imposing restrictions on non-citizens or reasonable restrictions on public office-holders).

The section 38 test — every element required

The formal requirements are not technicalities. A statute that restricts a qualified right but does not say so on its face, does not identify the right, or was not certified as passed by an absolute majority, has not met section 38 — whatever its merits.

Section 39 — what “reasonably justifiable” means

Section 39(1) fixes the time of assessment: the question is determined in the light of the circumstances obtaining at the time the decision on the question is made — not at the time the law was passed. A restriction that was justifiable in 1978 may not be today.

Section 39(2) reserves the declaration to the Supreme Court or the National Court (or another court prescribed by Act), and adds a rule with real consequences: unless the court is satisfied that the law was never so justifiable, the declaration operates as a repeal of the law as at the date of the declaration — that is, prospectively.

Section 39(3) then lists what a court may consider, and the list is remarkably open. It includes the Constitution generally and especially the National Goals and Basic Social Obligations; the Charter of the United Nations; the Universal Declaration of Human Rights and other UN General Assembly instruments; the European Convention on Human Rights and its Protocols and other international human rights instruments; judgments and opinions of the International Court of Justice and the European human rights institutions; previous laws, practices and decisions in the country and in other countries; the Final Report of the Constitutional Planning Committee of 13 August 1974; declarations of the International Commission of Jurists; and any other material the court considers relevant.

Section 40 — emergency laws

Nothing in Part III invalidates an emergency law as defined in Part X. But so far as consistent with their purposes and terms, such laws shall be interpreted and applied so as not to affect or derogate a right or freedom more than is reasonably necessary to deal with the emergency and matters arising out of it — and only so far as reasonably justifiable in a democratic society. See rights during a declared emergency.