The Fundamental Rights Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

FUNDAMENTAL RIGHTS

A right is a claim given upon a person or class of persons which entitles them to be treated a certain and when this right is not adhered to, it can be demanded and even taken action against in order to fulfil that right. Fundamental rights are essential rights that are given to each human being. Most modern democratic country with a written constitution has fundamental rights enshrined in their constitution. Examples of fundamental rights are rights such as the right to life or the freedom of religion. These rights are construed as the most basic rights each human being is to be given in order to have a just and harmonious society. The right to life is the number one fundamental right declaring a person’s right to live. It illustrates the compassion and the importance a person’s life is. This right prevents genocide, homicide or any type of killing of another human being and protects that life of a person.

The Sahifah Madinah was the first Islamic Constitution in the world and was drafted by the Prophet himself thus the regulations of the constitution was based purely on the principles of Islamic law and contains the essence of Islam which is moderation and tolerance. With the help of the first Islamic constitution, the different ethnic groups of the migrants from Mekkah and the locals of Madinah were able to live together in a peaceful society. Human rights are protected under the Sahifah Madinah as can be seen under various clauses of the constitution. The Sahifah Madinah did not expressly provide a clause which declares a person’s right to life. Instead, as can be seen under clause 22 of the said constitution is a prohibition of help or refuge to any murderer. Although it is not expressly provided for, this clause indicated that a person’s right to life is protected because it prohibits the protection of murderers.

Furthermore, clause 16 ordained equality to its members and protected them against any form of oppression. Equality in the eyes of the law is essential because it prevents a certain class of person from being neglected and it prevents a person from being subjected to cruelty. By imposing a clause which confers the right of equality, it allows all persons to be treated equally before the law regardless of age, gender, race or class in society. The right to equality is embedded is most constitutions such as Malaysia’s Constitution under Article 8.

Under the Australian Constitution, there are no express fundamental rights given because human rights in Australia are protected in several different ways. It remains as one of the few countries in the world without a Bill of Rights to protect fundamental rights under a single document. This means that rights in Australia are neither indisputable nor inviolable. Rights in Australia can either be found in the Constitution- which only has five rights that is expressly provided for. Next, rights could be inferred by virtue of common law or legislation however, rights that are protected and restricted by acts of government can essentially be removed by acts of government as well. There are no provisions such as the provision in the Sahifah Madinah which states that every person is equal before the law under the Australian Constitution. Instead, several provisions that were enacted restricts equality and places certain races above another race.

There are five explicit rights given in the Australian Constitution which are the right to vote under Section 41, the protection against acquisition of property on unjust terms under Section 51, the right to a trial by a jury under Section 80, the freedom of religion under Section 116 and the prohibition of discrimination on the basis of state of residency under Section 117. However, in recent years, the Australian High Court has declared additional rights for individuals may be implied through the language and structure of the Constitution. In the year 1992, the Court decided that Australia’s form of parliamentary democracy necessarily requires a degree of freedom for individuals to discuss and debate political issues which also means, the freedom of expression is present in the Australian Constitution [1] . This case discussed section 7 and section 24 where members of senate and the house of representatives be directly chosen by the people and by referring to its implicit meaning, the courts came up with the above implicit right given by the constitution.

As mentioned above, the rights conferred by the Australian Constitution does not place importance on fundamental human liberties instead are concerned more about the political rights of its citizens such as the right to vote. Although the Universal Declaration of Human Rights was voted in favour of by Australia, a person’s fundamental right may be infringed if there was an act passed by government which would supersede the treaty. Furthermore, the Universal Declaration of Human Rights is viewed as a list of objectives to be pursued by governments and is not part of binding international law. It could also be seen as a guideline of the highest human rights obligation that should be upheld but are not compulsory to be upheld.

One similarity between the Australian constitution and Sahifah Madinah is that it protects the freedom of religion which is a very important fundamental right in a multi-cultural, multi-religious society. Madinah was formed through the migration of Muslims from Mecca to escape the oppression from the Quraishy Meccans which then lead to the treaty that united the Muslims and Jewish society of Yathrib to form a new independent state called Madinah or also known as the State of the Prophet. The Australian Constitution similarly, explicitly gives the freedom of religion to its citizens under Section 80. Clause 25 of the Sahifah Madinah provides its citizens the freedom of religion. Each individual is allowed to practice their respective religions and will not be oppressed because of their religion nor will they be forced to embrace Islam.

Clause 25 of Sahifah Madinah grants the freedom of religion, stating that "the Jews have their religion and the Muslims have theirs." Prophet Muhammad is of course no moral relativist or, for that matter, secular. He is God’s Prophet, seeing God in all aspects of life. The model of life he presents is spiritual, a model under which human beings are constantly conscious of God, devoted to God, and live and die for God. And the religion of Islam that the Prophet transmitted to the humanity contained no flaws. Despite this absolute confidence in the truth of Islam, the Medina Constitution, made in the midst of God’s revelations to the Prophet, does not establish a self-righteous State, compelling its citizens to adhere to the official religion of Islam. And despite the Prophet’s openly expressed belief that the Divine Torah has been altered, the Medina Constitution nonetheless frames a Free State under which Jews are free to practice their religion as they believe it. This normative freedom to practice one’s religion as one believes it, and even if it is contrary to Muslim beliefs, demonstrates the highest possible form of religious tolerance. The Medina Constitution refutes theories that insist that only secularism can protect religious freedom.

Under the Australian Constitution, section 25 excludes aborigines from voting. This shows that the aborigines in Australia aren’t given equal rights compared to other citizens. All citizens should be given the right to choose their ruler. This section allows states to disqualify certain races from voting. This section has not been repealed to this day and illustrates how the minority Aborigines is treated as unequal. In contrast to the Sahifah Madinah which provides under clause 37(a) that all matters should be consulted in all matters. This clause and the practice during the time of the Prophet and the Sahabah did not exclude a certain class of person during consultation. Every class of person will be represented to protect each individual’s rights. True to its own provisions, nothing in the Sahifah was done in prejudice and thus conforms to its clause 16 of equality.

Instead of a Bill of Rights (which Australia did not have), the framers sought to give the new federal Parliament the power to pass racially discriminatory laws. This is clearly demonstrated by the drafting of certain provisions. For example, the Constitution, as drafted in 1901, said little about Indigenous peoples, but what it did say was entirely negative. Section 51(26) of the Australian Constitution provides that Parliament may make special laws to regulate people of any race. This means that special laws could be implemented to restrict the rights of certain races. Edmund Burton the first Premier of Australia commented on this section by saying that the power was necessary to "regulate the affairs of the people of coloured or inferior races who are in the commonwealth" [2] . Section 51(26) the races power, was inserted into the Constitution to allow the Commonwealth to take away the liberty and rights of sections of the community on account of their race. This exemplifies inequality and the prejudice against the minorities. The section was intended to enable the Commonwealth to pass laws restricting such migrant labourers such as the Chinese and Kanakas. J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (1901), observed: "It enables the Parliament to deal with the people of any alien race after they have entered the Commonwealth; to localise them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came." There were delegates, however, at the 1898 Convention against the use of legislative power to deal specifically with alien races.

The scope of section 51(26), amended in the 1967 referendum, was first considered in Koowarta v Bjelke-Petersen [3] . In that case, five judges rejected the Commonwealth argument that the Act was valid under section 51(26). They held that the Racial Discrimination Act 1984 protected all races and not any one particular race, and thus was not a "special law" for "the people of any race". John Koowarta, the plaintiff, was an Aboriginal Australian man, a member of the Wik nation. The Wik peoples were the Indigenous inhabitants of the Aurukun region of the Cape York Peninsula. In 1974, Koowarta and a number of other stockmen planned to purchase the Archer River cattle station, which covered much of the Wik peoples' traditional homeland, using funds provided by the Aboriginal Land Fund Commission. They approached Remington Rand, an American businessman who owned the station by way of a pastoral lease, who agreed to sell the lease to them. In February 1976, the Commission made a contract to purchase the property, but before the sale could be completed, it was blocked by the Government of Queensland.

Joh Bjelke-Petersen, the Premier of Queensland at the time, did not approve of the sale, because he did not believe that Aboriginal people should be able to acquire large areas of land, a view which was reflected in official cabinet policy. As such, he had directed the Queensland Minister of Lands not to approve the sale. Koowarta initially made a complaint to the Human Rights and Equal Opportunity Commission, on the basis that blocking the sale was discriminatory. The Commission upheld Koowarta's complaint, but the Queensland Government appealed to the Supreme Court of Queensland. The Queensland Government also brought a separate action against the Government of Australia, arguing that they had no power to pass the Racial Discrimination Act, and as such, the case was moved to the High Court.

In Commonwealth v Tasmania [4] (Tasmanian Dam Case), justices Brennan and Deane supported the argument of Justice Murphy in Koowarta that the 1967 referendum, in bringing Aboriginals within the reach of the "races" power, did so in such a way that the power can be used only for their benefit. In 1978, the Hydro-Electric Commission, then a body owned by the Tasmanian government, proposed the construction of a hydro-electric dam on the Franklin River, in Tasmania's rugged south-west region. The dam would have flooded the Franklin River. In June 1981 the Labour state government created the Wild Rivers National Park in an attempt to protect the river. In May 1982, a Liberal state government was elected which supported the dam.

The federal government at the time, also Liberal (under Malcolm Fraser), made offers of compensation to Tasmania, however they were not successful in stopping the dam's construction. [5] In November 1982, UNESCO declared the Franklin area a World heritage site. During the federal election of 1983, the Labour party under Bob Hawke had promised to intervene and prevent construction of the dam. After winning the election, the Labour government passed the World Heritage Properties Conservation Act 1983, which, in conjunction with the National Parks and Wildlife Conservation Act 1975 enabled them to prohibit clearing, excavation and other activities within the Tasmanian Wilderness World heritage area. The Tasmanian government challenged these actions, arguing that the Australian Constitution gave no authority to the federal government to make such regulations. In May and June 1983, both governments put their case to the High Court of Australia.

The case ended the HEC’s plans to construct more hydro-electric dams in Tasmania, and indeed there have been few plans for dams in Australia since. The legal debate over the extent of the "external affairs" power continued for a decade in a series of cases in the High Court in which the wide view of the external affairs power prevailed. It is now firmly established that under section 51(xxix) of the Australian Constitution the Australian Government has the power to enact legislation that is reasonably capable of being considered appropriate and adapted to fulfil Australia’s international legal obligations. Due to the large number of international obligations that Australia has accepted under international treaties, the external affairs power in section 51(xxix) gives the Australian Government a very wide constitutional power to make laws on many subjects, including protecting the environment.

In a report delivered to the Australian Prime Minister on 19 January 2012, it was recommended that a referendum be held for the repeal of s 51(26). The report also proposed the insertion of a new section 51A which would permit the Parliament to make laws "with respect to Aboriginal and Torres Strait Islander people.

The Sahifah Madinah does not confer certain rights to certain people only. In fact all persons are treated equal. Both the Muslims and the non-Muslims would be subjected to punishment if they had committed a crime towards another. The constitution of Madinah did not favour the Muslims over the non-Muslims. Although human rights are not particularly protected under the Australian Constitution, federal legislation protecting human rights had been enacted. For example; the Racial Discrimination Act 1975, Sex Discrimination Act 1984 and Age Discrimination Act 2004.

In comparing the very nature of both constitutions, the Australian constitution demonstrates no equality with section 25 and among others. In contrast, Sahifah Madinah is adamant on implicating equality before the law for each citizen and protecting their rights are citizens and as human beings. Islam practices the law of retaliation- an eye for an eye, a tooth for a tooth. This can be seen through the implementation of Qisas law where a man who takes a life, will have his life taken from him. The implementation of Qisas law in Islam shows that it favours equality in whereby when one does a certain crime towards another, he will receive the same punishment. No person is excluded from this law or any law under the Quran. Be a man or a woman, or person from different economic stature or a person of different posts in the government; all are subjected to the same laws. Constitution of Madinah states equality in clauses it is noteworthy that the Sahifah ordained equality to its members and protected them against oppression by clause 16. Another important principle of just governance is that no quarter is given to an injustice or wrong-doing. In the Charter, this is stated in Clause 47.

Prior to the referendum in 1967, section 127 of the Australian Constitution made it unlawful to include aboriginal natives when counting the number of people of the commonwealth. This exemplifies racial discrimination by the Australian Constitution. There was virtually no reference to the Aboriginal people of Australia during the Convention Debates on the race power. Indeed, they were expressly excluded from the coverage of that power so that the States could retain legislative power with respect to them. The oddity is that a beneficial amendment was grafted on, in 1967, to a provision originally conceived as supporting adversely discriminatory laws.

Most Australians are secure in the knowledge that their basic rights are well protected and that the rule of law is firmly entrenched in the political culture. However, while middle class white Australians has little to fear from oppressive laws; this is not the correct indicator. What matters is how they treat the vulnerable in the community, such as the poor with little or no economic power, or people living in rural areas with dwindling access to basic services. Examined from this perspective, their human rights record is not strong. There have been many instances since federation, including up to the present day, in which minority groups in the Australian community have suffered violations of their fundamental rights due to action by Australian governments. In formulating the words of section 117, Henry Higgins, one of the early members of the High Court, argued that it ‘would allow Sir John Forrest [the Premier of Western Australia]…to have his law with regard to Asiatics not being able to obtain miners’ rights in Western Australia. There is no discrimination there based on residence or citizenship; it is simply based upon colour and race.’

For example, over most of the 20th century, Aboriginal children (the ‘Stolen Generations’) were forcibly taken from their family for adoption or to be placed into institutions. In the 1997 report of the Human Rights and Equal Opportunity Commission, Bringing Them Home [6] , it was found that: ‘Nationally we can conclude with confidence that between one in three and one in ten Indigenous children were forcibly removed from their families and communities in the period from approximately 1910 until 1970’. It is possible to point to many other examples, such as the White Australia policy that governed Australian immigration practices, where human rights have been violated due to racist or otherwise inappropriate policies.

Section 51(xxxi) of the Constitution authorises the Commonwealth Parliament to make laws with respect to: the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws; This has been taken as imposing a just terms requirement in respect of any compulsory acquisition by the Commonwealth of property belonging to the State or to a person. There is a complicated case law which attaches to this provision. It extends to a very wide range of property interests described by Sir Owen Dixon in the Bank Nationalisation Case [7] as "innominate and anomalous interests …". A law which extinguishes a property right may bear the character of a law with respect to the acquisition of property.

In February 2009, the Court held by majority that the just terms guarantee extended beyond the States into the Territories and, in particular, the Northern Territory of Australia. In so doing it overturned the 1969 decision Teori Tau v The Commonwealth [8] . In this case, the High Court held that Constitution section 51(xxxi) (the acqusition of property on just terms guarantee) did not operate to restrict section 122 (the territories power). The latter was a "full and plenary" power allowing the Commonwealth to legislate for a territory on any subject matter, unconstrained by any constitutional restriction (including especially just terms on acquisition of property by the Commonwealth) applicable to the federation (from which the territories were seen to be excluded or "disjoined").

As a result, the just terms guarantee applied to the acquisition of property rights conferred upon indigenous people under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). This was a finding of some significance although public reporting of the decision focussed upon the Court's rejection of a challenge to the validity of statutes supporting the Northern Territory intervention.

The Constitution of Medina establishes the importance of consent and cooperation for governance. According to this compact Muslims and non-Muslims are equal citizens of the Islamic state, with identical rights and duties. Communities with different religious orientations enjoy religious autonomy. Which essentially is wider in scope than the modern idea of religious freedom. The constitution of Medina established a pluralistic state -- a community of communities. It promised equal security to all and all were equal in the eyes of the law. The principles of equality, consensual governance and pluralism are beautifully enmeshed in the compact of Medina.

FORMATION OF GOVERNMENT

Both Constitutions mentions on the formation of government. The Australian constitution emphasises more of this political aspect rather than fundamental liberties. This can be seen through the construction of the constitution itself whereby the majority of the constitution are provisions on the formation of government. On the other hand, the constitution of Madinah placed more important on the fundamental liberties of the people. It does mention of the formation of government under one clause only. This is stated in Clause 37(a) where the principle of statecraft is consultation with the people in all matters. Unlike in modern democratic polity, the voice of the people, vox populi, regardless of whether that voice represents right and truth or not, is given the highest value. This is a basic flaw in Western democracy.

The form of government of Australia at the national level corresponds largely with the British democratic tradition. The federal legislature consists of a House of Representatives of 147 members representing individual electorates in all States and Territories and elected on a preferential voting system, and a Senate consisting of 12 representatives from each State and two from each Territory elected through proportional representation. The party with the majority in the House of Representatives provides a ministry from its members in the House of Representatives and the Senate, with the Prime Minister traditionally coming from the House of Representatives. Membership in the House of Representatives is divided between two major groupings, the Australian Labour Party and a coalition of the Liberal Party and the rural based National Party. Elections must be held every three years, but may be held more frequently with the consent of the Governor- General.

The Senate is more diverse in its membership. The two major groupings provide the majority of members. However, the Australian Democrats, and recently other minor parties, have held the balance of power for most of the past 20 years. If the Government fails to command a majority in the House of Representatives it must ask the Governor-General to authorise an election or resign. It need not, however, command a majority in the Senate. Senators are generally elected for six-year terms. Each Minister of State is responsible to Parliament for the operation of a department, in some cases jointly with other ministers. The amalgamation of departments in the past decade has resulted in the assignment of responsibilities in the larger departments to a portfolio minister, assisted by one or more ministers within the same portfolio. There are many statutory agencies, corporations, tribunals and commissions in the federal public sector, all responsible to particular ministers. Australia is one of the few countries to adopt compulsory voting at the national and state level and to have a permanent electoral commission charged with overseeing fair elections and regular redistribution of the boundaries of electorates for the House of Representatives. This ensures, as nearly as practicable, the same number of electors in each electorate. The Australian Electoral Commission also administers public funding provisions for registered political parties and eligible independents.

Under the Prophet’s governance during the construction of Sahifah Madinah, the main source of ruling was from the Quran and thus every decision made had to be in light of Islamic law. The principles of Syura or Consultation was also adopted in the form of governance. Every decision would be made based on consultation in order to protect every person’s rights. The Australian Constitution is similar in a way that the Australian Government requires a referendum to be done before making changes to the Constitution. They are binding polls usually used to alter the Constitution of the Commonwealth or a state or territory.

In Australia, national referendums are polls held to approve Parliament-proposed changes to the Australian Constitution. Voting in a referendum is compulsory for those on the electoral roll, in the same way that it is compulsory to vote in an Australian general election. As of 2012, 44 referendums have been held, of which only 8 have been carried. The Constitution specifies (Section 128) that alterations to itself cannot be made without a referendum. A bill containing the amendment must first be passed by both houses of parliament or, in certain limited circumstances, by only one house of parliament. If the bill has only been passed in one house, the Governor-General must, under the 'deadlock provision' of section 128, then decide whether or not to submit the referendum to the people. By convention, this is done on the advice of the Prime Minister. Since the Prime Minister normally controls the House of Representatives, the effect of this convention is to make it virtually impossible for a referendum to be put to the people if approved by the Senate, but not the House.

In 1974, four proposals were put to the people by the Whitlam government without the support of the Senate. Two of the four proposals had been twice rejected by the Senate, a third had been rejected once and failed to pass a second time, the fourth had been twice amended by the Senate. If the bill to alter the Constitution is approved by both houses or satisfies the deadlock provision, the bill is submitted to the electors for approval. If the bill is approved by an absolute majority of both houses, the constitution provides that it must be submitted to the electors within 2 to 6 months of passage. There is no similar time limitation if the bill is approved by one House of the Commonwealth Parliament only. In order to pass a referendum, the bill must ordinarily achieve a double majority: a majority of those voting throughout the country, as well as separate majorities in each of a majority of states (4 of 6).

In certain circumstances; where any state or states are affected by a referendum then, a majority of voters in those states must also agree to the change. This is often referred to as the "triple majority" rule. Prior to the 1977 referendum, residents within the Northern Territory (NT) and the Australian Capital Territory (ACT) did not vote at referendums. Since 1977, voters in the ACT and the NT must vote in referendums; however their votes are only counted towards the national total and not against the totals of any of the states. Residents of Australia's external territories do not vote in referendums as they currently do not have separate representation in the House of Representatives. When a referendum question is carried, it is presented for the Royal Assent, given in the monarch's name by the Governor-General.

The similarities between the two constitutions come from the concept of consultation. However, when electing officials is it very different. Western civilisations use the concept of the voice of the people when choosing the leader. Which means that the people vote for who they wish to rule them. Under the sahifah madinah, the one and only ruler is the Prophet. He was chosen by God and practices and implements divine law. The Australian Constitution based its laws on common law which is man-made law, the principles change according to time and thus is not permanent nor is it flexible in its application. In applying the principles of human rights and justice from the Sahifah into the Australian Constitution, it would further help the country in developing just laws which would not oppress certain races or disregard certain races and treat every individuals equally. With that, it would supersede the myth that Australians lack human rights laws.