User:Htonl/bill of rights rewrite

Rights

The rights enumerated in the chapter are:

• Section 9: the right to equality before the law and freedom from discrimination. Prohibited grounds of discrimination include race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
• Section 10: the right to human dignity.
• Section 11: the right to life, which has been held to prohibit capital punishment, but does not prohibit abortion.
• Section 12: the right to freedom and security of the person, including protection against arbitrary detention and detention without trial, the right to be protected against violence, freedom from torture, freedom from cruel, inhuman or degrading punishment, the right to bodily integrity, and reproductive rights.
• Section 13: freedom from slavery, servitude or forced labour.
• Section 14: the right to privacy, including protection against search and seizure, and the privacy of correspondence.
• Section 15: freedom of thought and freedom of religion.
• Section 16: freedom of speech and expression, including freedom of the press and academic freedom. Explicitly excluded are propaganda for war, incitement to violence and hate speech.
• Section 17: freedom of assembly and the right to protest.
• Section 18: freedom of association.
• Section 19: the right to vote and universal adult suffrage; the right to stand for public office; the right to free, fair and regular elections; and the right to form, join and campaign for a political party.
• Section 20: no citizen may be deprived of citizenship.
• Section 21: freedom of movement, including the right to leave South Africa, the right of citizens to a passport and the right to enter South Africa.
• Section 22: the right to choose a trade, occupation or profession, although these may be regulated by law.
• Section 23: labour rights, including the right to unionise and the right to strike.
• Section 24: the right to a healthy environment and the right to have the environment protected.
• Section 25: the right to property, limited in that property may only be expropriated under a law of general application (not arbitrarily), for a public purpose and with the payment of compensation.
• Section 27: the rights to food, water, health care and social assistance, which the state must progressively realise within the limits of its resources.
• Section 28: children's rights, including the right to a name and nationality, the right to family or parental care, the right to a basic standard of living, the right to be protected from maltreatment and abuse, the protection from inappropriate child labour, the right not to be detained except as a last resort, the paramountcy of the best interests of the child and the right to an independent lawyer in court cases involving the child, and the prohibition of the military use of children.
• Section 29: the right to education, including a universal right to basic education.
• Section 30: the right to use the language of one's choice and to participate in the cultural life of one's choice.
• Section 31: the right of cultural, religious or linguistic communities to enjoy their culture, practise their religion and use their language.
• Section 32: the right of access to information, including all information held by the government.
• Section 33: the right to justice in administrative action by the government.
• Section 34: the right of access to the courts.
• Section 35: the rights of arrested, detained and accused people, including the right to silence, protection against self-incrimination, the right to counsel and legal aid, the right to a fair trial, the presumption of innocence and the prohibition of double jeopardy and ex post facto crimes.

Application

The Bill of Rights has both "vertical" application, protecting the individual against government action, and "horizontal" application, protecting the individual against actions of other private parties. As the government draws its authority and legitimacy from the Constitution, it is naturally subject to its provisions, including the Bill of Rights. This is provided for by section 8(1), which states that "The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state." This includes all three spheres of government: national, provincial and municipal. The term "organ of state", which is defined elsewhere in the Constitution, also includes any organisation which exercises a function in terms of the constitution or legislation.

Private parties are also bound by the Bill of Rights, but to a lesser extent; section 8(2) states that "A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right."

The Bill of rights is applied in two different ways: "direct", in which laws and actions are tested against the provisions of the Bill of Rights; and "indirect", in which the values of the Bill of Rights are applied to develop or interpret statutory law and common law. The applicability of the bill is subject to limitations of place and time, and limitations on who may benefit from the rights; in particular certain rights are available only to citizens, and juristic persons do not have the full spectrum of rights that apply to natural persons.

Enforcement

Jurisdiction and standing. Ripeness and mootness. Remedies.

Interpretation

Purposive and generous interpretation. "Open and democratic society." International and foreign law.

Limitations

General limitation clause. Specific limitations. States of emergency.