Former Judge Michael Kirby defines democracy in Australia as:
[a] sophisticated form of government that implies the general capacity 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 defense 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 defend is a fundamental element of a democracy.
What are human rights”? It must be argued that human rights are a mere concept, intangible ideals, principles 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 clear difference between the concept of human rights and the interpretation and application of human rights in a social context.
Interpretation of our human rights can be derived from the UDHR, other human rights treaties, and subsequently our own state and federal laws. However, the language used in these instruments is intentionally left vague and ambiguous to allow different meanings of the words to be inferred. As time passes and the nature of a normative society changes, values, deviant and moral actions change, the law slowly changes to adapt to the change in society. Drinking alcohol and driving is a good contemporary example of this. When speaking of the Constitution, Judge Kirby says:
Words [of the Constitution] they take their color with the change of circumstances and attitudes
Then we can 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 the right to freedom of expression in article 12:
Everyone has the right to freedom of opinion and expression; This right includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any medium and regardless of borders.
But does that mean that we can say what we want, where we want? It would have to be argued that we do not, as several laws have been enacted to stop “Hate speech“Y”defamationIt must be argued that this is a policy consideration and a formal mechanism of social control. This illustrates how human rights in their purest form are restricted when applied in a social context. Anti-terrorism legislation in Australia and elsewhere. everyone has apparently trampled on human rights with arguably deplorable and undemocratic notions like pre-trial detention and the abandonment of due process of law. However, it must be argued that this type of legislation is a reaction to a real or perceived problem in preserving public safety. One wonders if this is an acceptable trade. It was Benjamin Franklyn who wrote:
Those who can give up essential freedom to get a little temporary security deserve neither freedom nor security..
Is it necessary to restrict the democratic voting rights of offenders in prison? It must be argued that the democratic right of the citizens of a country to have an opinion in the electoral process is a fundamental pillar of democracy and without it the country would not be a democracy. The Constitution Law This implies in s7 and s24 that the Senate and the House of Representatives are:
directly chosen by the people
It must be argued that the limits of this democratic process to certain members of society have been placed due to policy considerations involving social normative ideals. The “moral panic“incited in the press, fear and ignorance of the entire prison / rehab process is a contributing factor.
It must be argued that the concept of eligibility it is very important in the application of human rights in a democracy. Prisoners, for example, do not have the right to vote, they do not have the right to liberty, etc. Basically, they have lost the ability to have those rights applied to them in certain circumstances for the sake of social order, punishment and protection. Does this concept of eligibility limit democracy? It must be argued that an action that benefits the majority of the people and is supported by the majority of the people it is a democratic action. As Justice Kirby says in the initial definition, democracy is the ability of the will of the majority to prevail.
What is it “the majority“? Most of any group is a complex and difficult question. There is the actual number of eligible voters, and then a large and varied number of subgroups within that number. What about the majority of sunny Shiites and Muslims within? that group, and so on. It should be argued that access to rights is based on a set of normative, social, political and cultural requirements. Using the objective standard of “reasonable person“In Australia they say this is”The man from the Bondi Tram ” It is possible to begin to build an argument about what rights are assigned to which people, or rather, people’s eligibility for certain rights to apply to them. For example, it could be argued that the idea of death as punishment for apostasy, which is implicit in the Qur’an, is a right under both Sharia law and article 18 of the UDHR, which says:
Everyone has the right to freedom of thought, conscience and religion … and freedom … to manifest their religion or beliefs …
Purpose Article 18 also says:
this right includes the freedom to change religion or belief.
It must be argued that no “reasonable“a person could accept death, the death penalty is abolished in Australia and article 18 establishes the right to change religion, therefore, even if the concept of that right could exist, they would not be eligible for the application of this right in Australia for social, political and religious reasons and a democratic consensus of the people.
Reading a speech by Judge Michael Kirby, he said:
There is a tension, even a contradiction, between democracy and the protection of fundamental human rights. The tension arises because, if human rights are truly “fundamental”, not even democracy should be able to nullify them. In this sense, fundamental human rights impose a brake on democracy, and deliberately.
The idea of a “fundamental“The set of human rights is a great idea and arguably exists in the philosophical realm of human rights as something to strive for; however, it must be argued that the application of these rights around the world would take different forms and colors based on customs and context within society As stated in Melbourne University Law Review:
It is a myth that rights are “absolute triumphs” over the preferences, aspirations or desires of the majority. In fact, most rights are not absolute. Under human rights instruments, rights are balanced and limited to other protected rights and other unprotected values and community needs. A plurality of values is accommodated, not just rights. In jurisdictions with human rights instruments that adopt a model of institutional dialogue, the specific balance of pluralistic values is evaluated from a greater plurality of institutional perspectives, generally the executive, legislative and judicial.
When is it okay to limit democracy in favor of human rights? It could be argued that during war, genocide or other international atrocities a democracy can be allowed to act antidemocratic. For example, compulsory military service and forced military service, frozen assets, and restrictions on the free movement of people.
Another argument in favor of a limit imposed on democracy emerged in the Howard government’s 2008 Intervention of the Northern Territory. To allow them to implement this intervention, they had to suspend the Racial discrimination lawto allow this to happen. Apparently, the rights of vulnerable members of those societies, namely women and especially children, needed so much protection that the government had to suspend an act of racism for 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 law. The idea that a government suspends a certain law to allow them to violate it seems to be something very doubtful and not very democratic.
In conclusion, it must be argued that in some cases there may be some reason to limit the democratic process to all or some members of the society to allow the government to do some things of national importance. It must be argued that these cases are, in fact, extremely rare and the reverse is much more common. As society dictates, the will of the normative majority seems to replace the application of rights to some members of the community, on some occasions.
However, it could also be argued in the opposite way, since because the consensus of the public overrides the application of some human rights, if these rights are to be implemented, the executive or the legislature would have to ignore the will of the majority of bring them in. It must 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 that rarely occurs.
