States of Emergency - Centre for Policy Alternatives

considerations other than a principled pursuit of human rights
protection and promotion. The result is that the bill of rights
resembles a randomly cherry‐picked cluster of inchoate rights that
cannot at the conceptual level amount to a proper bill of rights
compatible with modern expectations. 328
Thus, for example, temporary policy considerations that were
relevant at the time of drafting Lind incongruous expression in the
fundamental rights chapter such as where Articles 13 (7) and 14
(2) deal with citizenship policy concerning the categories of
p e rsons fa l l i n g u n d e r t h e I n d o ‐ Ceyl o n A g re e m e n t
(Implementation) Act No. 14 of 1967.
The absence of a proper rationalisation of constitutional values is
evident elsewhere in the fundamental rights chapter as well.
Article 16 is wholly inconsistent with constitutionalism and the
central object of a constitutional bill of rights when it validates all
existing law, notwithstanding inconsistency with fundamental
rights. This negates the purpose of a constitutional bill of rights as
the principal instrument of citizens’ human rights protection,
which sets out human rights standards binding all executive action
and legislation, and which can be only restricted to the extent and
manner set out in the constitution.
6.2.2
Judicial
Protection
of
Fundamental
Rights
The jurisdiction vested in the Supreme Court under Article 126 in
the enforcement of fundamental rights was advanced as a
328
See for a discussion of the South African Bill of Rights, Halton Cheadle
& Dennis Davis, ‘Structure
of
the
Bill
of
Rights’ in Halton Cheadle, Dennis
Davis & Nicholas Haysom (2002) South
African
Constitutional
Law:
The
Bill
of
Rights
(Durban: Butterworths): Ch.31
213