Political protections of fundamental rights as a means of mitigating the weaknesses of legal protections
Political protections of fundamental rights as a means of mitigating the weaknesses of legal protections.
Macquarie Law Journal, 10, 77-104.
The purpose of this paper is to highlight the important role of political protections of fundamental rights. The paper acknowledges that legal protections as a way of protecting rights against legislative encroachment, have definite strengths – in particular the court provides an determination as to the rights-compatibility of challenged legislation (whatever the consequence of such a determination may be), it offers authoritative interpretations of rights and provides a forum in which victims of (alleged) rights violations can challenge the legislation. However, at the same time, this paper points out that these strengths necessarily bring with them certain weaknesses – the political nature of rights-discourse, the focus on compatibility as a standard of protection and, perhaps most controversially, the non-democratic nature of the courts. This paper will draw on the experiences of various jurisdictions to point out how political protections play an important role in the protection of fundamental rights and, if properly designed, can operate as part of the law-making process where legal protections are least able to engage. If viewed as an inherent part of an overall commitment to the protection of rights – not as merely supplementary mechanisms developed on an ad hoc basis to aid executives and legislatures in avoiding judicial criticism – political protections can be used to retain the strengths of legal protections whilst operating to mitigate the impact (real or perceived) of the weaknesses associated with judicial review models of rights protection.
fundamental rights, bill of rights, comparative