States of Emergency - Centre for Policy Alternatives

Permissible restrictions on these rights are set out in Article 15 for
various purposes including national security, public order,
protection of public health and morality, the protection of the
rights and freedoms of others, the interests of racial and religious
harmony or the national economy, or of meeting the just
requirements of the general welfare of a democratic society. Not
all rights are subject to the same restrictions and Article 15
enumerates the restrictions as may be imposed on discrete rights.
All restrictions must be prescribed by law, and in respect of
restrictions made in the interests of national security and public
order, ‘law’ includes emergency regulations.
Article 10 (freedom of thought and conscience), Article 11
(prohibition of torture), Article 13 (3) (right to be heard at a fair
trial by a competent court, with or without legal representation)
and Article 13 (4) (right to due process and fair trial prior to
imposition of punishment, but excluding pre‐trial detention) are
not subject to any restriction by Article 15, and are thereby to be
considered absolute and non‐derogable rights.
The rights that may be restricted by law in terms of Articles 15 (1)
and (7) in the interests of national security and public order are as
follows: presumption of innocence, criminal burden of proof and
retroactive penal sanctions (Articles 13 (5) and (6)); equality
before the law and non‐discrimination (Article 12); ordinary
procedure for arrests and judicial sanction for detention (Articles
13 (1) and (2)); rights to freedom of expression, assembly,
association, movement, occupation, religion, culture and language
(Article 14).
The justiciability of the fundamental rights set out in Chapter III is
limited to their infringement or imminent infringement by
executive and administrative action (Article 17). The remedy for
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