Fundamental rights are usually defined as rights that cannot, under the majority of circumstances, be taken from a citizen. These rights are often listed in a country’s constitution to protect citizens from rights abuses.

Constitutions establish the relationship between the state and the individual. They outline the responsibilities of individuals to the state, but they also make clear rules about which areas the government does not have the authority to interfere in. Constitutions often protect “basic rights” such as freedom of expression, freedom of religious worship, freedom of assembly and freedom of movement.

‘Fundamental rights’ are protected from political interference through legal enforcement by an independent judiciary. These rights are often included in a bill of rights whose amendment procedures are more rigorous than other rights. Fundamental rights cannot be limited or overridden by laws created by the legislature because they are a part of the constitution. As a result, resolving disputes about whether these rights are being violated is a judicial, and not a political issue.

Constitutional limitations on fundamental rights, for example, to limit the rights to freedom of expression in order to prevent hate speech, should be expressed as legal standards in the constitution. If they are not, the consequence (using hate speech as an example) may risk allowing partisan politicians to make the electoral field uneven by deciding what hate speech is while curtailing freedom of expression, most likely of their opponents.

Fundamental Rights in Different Countries

Many constitutions have sections on fundamental rights but the kinds of rights that they protect (or don’t protect) can be very different. For example, almost all liberal democracies protect the rights of free speech and association. More socialist countries such as Sweden protect labor laws and the right to social security.

In Germany, the democratic constitution makes “anti-democratic” activity illegal. This means that the state can ban political parties that it sees as being “against” democracy. In a similar way, the South African Constitution limits freedom of expression by banning the “advocacy of hatred that is based on race, ethnicity, gender, or religion, that could lead to violence.”

Emergency Powers

In times of national crises, it is usually the responsibility of the executive to provide leadership. It is therefore common for constitutions to give the right to “emergency powers” when confronted by crises such as war, natural disasters, terrorist threats and civil disorder. Emergency powers usually mean that all decision making power goes to the executive and that fundamental rights are temporarily limited or cancelled. Supporters of emergency powers say they are necessary to maintain stability and make decisions quickly in times of national crisis. However, the power

to declare a “state of emergency” and to impose executive rule has often been abused by governments who want to increase their power.

Examples of Emergency Powers in Use

Germany

Adolf Hitler came to power in 1933 by misusing emergency powers to give all government power to the executive. Once in power, Hitler made so many authoritarian reforms that the Constitution (and all the citizens’ rights that it protected) was cancelled.

After this experience, the current German constitution has been designed to be “Hitler-proof”. It guarantees that no act of the executive, legislative or judicial branch of government can change or cancel the 19 basic civil rights and liberties written in the constitution. It also guarantees the federal, democratic and welfare state features of the political system so that a dictatorship can never happen again.

India

President Indira Gandhi used emergency powers from 1975 to 1977. During the 1970s, Gandhi’s party was becoming less and less popular. Riots and strikes spread throughout India, and the President faced decreasing support, accusations of corruption, and calls to step down. Gandhi suspended the Constitution by declaring emergency rule. Gandhi limited civil liberties, censored the press, banned opposition parties, and jailed over 100,000 political opponents.

Limiting Emergency Powers

There is always a danger that emergency powers can be abused. In emergencies, the executive gets extensive powers of law-making and is able to suspend or place restrictions on human rights, which would otherwise not be permitted. It is not possible to dispense with emergency powers altogether, for there can be occasions (whether as a result of natural disasters or armed conflict) when special powers become necessary. But it is important to clearly state in the constitution the rules governing the declaration of emergencies and the use of special powers.

The abuse of powers can be minimized in the following ways:

• By prescribing the only reasons for which an emergency can be declared

• By requiring parliamentary approval within a short period of the declaration of the emergency and for renewals (perhaps with escalating majorities), power in parliament to end the emergency

• By prohibiting derogations from specified rights; and by providing courts or other independent institutions access to review the use of powers and appropriate remedies.

Case study: Martial Law in the Constitution of the Philippines The source of the authority to declare martial law was found in article VII, section 10 (2) of the 1935 constitution. This states in part that ‘(I)n case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.’ The 1987 constitution introduced a number of significant checks on the exercise of this power. First, the grounds for the suspension of the writ or the declaration of martial law are now limited to actual invasion and rebellion through the removal of the phrase ‘or imminent danger thereof’. Second, the initial suspension or declaration cannot exceed a period of 60 days. In addition, Congress may revoke a suspension or declaration by a vote of at least a majority of both houses voting jointly. This revocation by Congress cannot be set aside by the president. Third, only Congress may extend the proclamation or suspension beyond the initial 60 days period upon a similar vote of at least a majority of both houses voting jointly, upon the initiative of the president. Fourth, the Supreme Court may review the sufficiency of the factual basis of the proclamation or suspension in an appropriate proceeding filed by any citizen, which must be decided within thirty days from its filing. Fifth, the constitution now expressly provides that a state of martial law does not suspend the operation of the constitution nor supplant the functioning of the civil courts or legislative assemblies nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function nor automatically suspend the privilege of the writ. Finally, the suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offences inherent in or directly connected with invasion. Any person detained or arrested for these offences must be judicially charged within three days; otherwise he or she must be released. Source: Philippine Democracy Assessment – Rule of Law and Access to Justice (IDEA)