Group
Mr. Gauntlett, for the respondents, informed the Court that the constitutionality of section 11(1)(b) of the Racial Discrimination Prohibition Act, 1991, was to be determined on 25 April 1995 in State v Gorelick N.O. and Others. He submitted that that matter was not directly material to the outcome of the instant case and that it was inappropriate for the issue of constitutionality to be determined on a "prima facie" basis. We agree with him.
The above matters are not crucial to the determination of
this appeal. They are, however, .important because a frequent departure from counsel's, more correctly the litigants' case, may be wrongly interpreted by those who seek justice in our courts of law. It is the litigants who must be heard and not the judicial officer.
It would be wrong for judicial officers to rely for their decisions on matters not put before them by litigants neither in evidence nor oral or written submissions. Now and again a judge comes across a point not argued before him by counsel but which he thinks material to the resolution of the case. It is his duty in such a circumstance to inform counsel on both sides and to invite them to submit arguments either for or against the judge's point. It is undesirable for a Court to deliver a judgment with a substantial portion containing issues never canvassed or relied on by counsel.
To produce a wide-ranging judgment dealing with matters not only extraneous and unnecessary to the decision but which have not been argued is an exercise full of potential pitfalls and the judgment of the Court a quo has placed this Court in a difficult position. Are we to consider every opinion expressed in the judgment however unnecessary it was to the decision and say whether it accords with our own? Or can we leave such matters well alone until such time as they become necessary to decide and are fully argued? In our view, the latter course is
the proper one to take and in doing so we emphasise that it must not be thought that this Court in any way approves or endorses the many obiter opinions expressed in the judgment of the Court a- quo.
Before leaving this aspect of the appeal we consider it appropriate to refer to what was said by Bhagwati, J. (as he then was) in M.M. Pathak v Union (1978) 3 S.C.R. 334 in relation to the practise of the Supreme Court of India:
"It is the settled practice of this Court to decide no more than what is absolutely necessary for the decision of a case."
We respectfully endorse those words, particularly when applied to constitutional issues, and commend such a salutary practice to the Courts of this country. Constitutional law in particular should be developed cautiously, judiciously and pragmatically if it is to withstand the test of time.
It is proper to remember that when construing a provision in a Constitution the words used should carry their ordinary meaning and content. To read into them extraneous meanings through comparing their meaning to words used in an ordinary Act of Parliament such as the Racial Discrimination Prohibition Act results in the distortion of the meaning, in our respectful view, of Article 21(1)(a) and (2) of the Constitution.
- 11Article 21(1)(a) and (2) read:
"(1) All persons shall have the right to:
a)
freedom of speech and expression, which shall include freedom of the press and other media;
b)
freedom of thought, conscience and belief, which shall include academic freedom in institutions of higher learning;
c)
freedom to practise any religion and to manifest such practice;
e)
freedom of association, which shall include freedom to form and join associations or unions, including trade unions and political parties;
f)
withhold their labour without being exposed to criminal penalties;
(h) reside and settle in any part of Namibia;
(j) practise any profession, or carry on any occupation, trade or business.
(2) The fundamental freedoms referred to in Sub-Article (1) hereof shall be exercised subject to the law of Namibia, in so far as such law imposes reasonable restrictions on the exercise of the rights and freedoms conferred by the said Sub-Article, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of Namibia, national security, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence."
What approach then should be adopted in interpreting Art. 21(2)? Mr. Smuts, for the appellant, submitted that in interpreting the restrictions, embodied in Sub-Article
(2), to the general right in Art. 21(1) (a) the approach to be adopted was that the exceptions in Art. 21(2) are to be restrictively interpreted so that they are not applied to suppress the freedom guaranteed in Art. 21(1) that is the right to freedom of speech and expression. The restrictions should be applied only in so far as it is necessary for the specific purposes contemplated by the restrictions. This is the approach followed by the. Canadian Courts in construing section 1 of the Canadian Charter on the right of freedom of speech.
Section 1 of the Canadian Charter provides:
"1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
In construing this section Dickson, C.J.C. said in Regina v Oakes, (1986) 26 DLR (4th) at 224 - 226.
"It is important to observe at the outset that s. 1 has two functions: first, it constitutionally guarantees the rights and freedoms set out in the provisions which follow; and, secondly, it states explicitly the exclusive justificatory criteria (outside of s. 3 3 of the Charter) against which limitations on those rights and freedoms must be measured. Accordingly, any s. 1 inquiry must be premised on an understanding that the impugned limit violates constitutional rights and freedoms rights and freedoms which are part of the supreme law of Canada. As Madam Justice Wilson stated in Re Singh and Minister of Employment & Immigration and 6 other appeals (1985), 17 D.L.R. (4th) 422 at p. 468, [1985] 1 S.C.R. 177 at p.
- 13 -
218, 58 N.R. l: f... it is important to remember that the courts are conducting this inquiry in light of a commitment to uphold the rights and freedoms set out in the other sections of the Charter?.
A second contextual element of interpretation of s. 1 is provided by the words 'free and democratic society1. Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right of freedom must be shown, despite its effect, to be reasonable and demonstrably justified.
The rights and freedoms guaranteed by the Charter are not, however, absolute. It may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realisation of collective goals of fundamental importance. For this reason, s. 1 provides criteria of justification for limits on the rights and freedoms guaranteed by the Charter. These criteria impose a stringent standard of justification, especially when understood in terms of the two contextual considerations discussed above, namely, the violation of a constitutionally guaranteed right or freedom and the fundamental principles of a free and democratic society."
Art. 21(1) (a) has limitations. The Court has to ask whether those limits are reasonable. The limitations are set out in Art. 21(2). Freedoms shall be exercised in accordance with the law of Namibia only if that law imposes reasonable restrictions on the exercise of the rights and freedoms entrenched in Art. 21(1)(a). The
restrictions must be necessary in a democratic society. Not only must they be necessary in a democratic society they must also be required in the interests of the sovereignty and integrity of Namibia, national security, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to commit an offence. Limitations are imposed in order that the rights enshrined in the Constitution should not interfere with the rights and freedoms of others and with Namibia.
Mr. Smuts submitted that these limitations must be reasonable. In this regard the principles of proportionality enunciated by the Indian Supreme Court, the European Court of Human Rights, the Canadian Courts and the United States Supreme Court are expressed in the Namibian Constitution by the requirement that such restrictions must be reasonable.
In R v Oakes (1986) 26 DLR (4th) 200 at 227; 24 CCC (3d) 321 at 348 Dickson C.J.C. said:
"... once a sufficiently significant objective is recognised, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves 'a form of proportionality test': R v Big M. Drug Mart Ltd, supra. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational
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considerations. In short, they must be rationally connected to the objective. Secondly, the means, even if rationally connected to the objective in this first sense, should impair 'as little as possible' the right or freedom in question: R v Big M. Drug Mart Ltd., supra. Thirdly, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of 'sufficient importance1.
With respect to the third component, it is clear that the general effect of any measure impugned under s. 1 will be the infringement of a right or freedom guaranteed by the Charter; this is the reason why resort to s. 1 is necessary. The inquiry into effects must, however, go further. A wide range of rights and freedoms are guaranteed by the Charter, and an almost infinite number of factual situations may arise in respect of these. Some limits on rights and freedoms protected by the Charter will be more serious than others in terms of the nature of the right or freedom violated, the extent of the violation and the degree to which the measures which impose the limit trench upon the integral principles of a free and democratic society. Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society."
The Court, in assessing the extent of the limitations to rights and freedoms, must be guided by the values and principles that are essential to a free and democratic society which respects the inherent dignity of the human person, equality, non-discrimination, social justice and other such values. "The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or
freedom must be shown, despite its effect, to be reasonable and demonstrably justified." Per Dickson C.J.C. in R. v Oakes. supra. at 225.
The great American Judge, Justice Brandies, described in moving language the value of freedom of expression. He describes the values which Namibian society centuries after the American revolution cherishes and died for. He wrote:
"Those who won our independence believed that the final end of the State was to make men free to develop their faculties; . . . they believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people... They recognised the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law - the argument of force in its worst form. Recognising the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed."
See Whitney v California. 274 US 375 - 76 (1927) and Law and Justice - Democracy and Free speech by Lord Lester at
The Namibian Constitution in Article 22 recognises the importance of and the need to protect the essential content of rights. The legislation providing for limitations should "not be aimed at a particular individual and it should specify the ascertainable extent of such limitation and identify the Article or Articles hereof on which authority to enact such limitation is claimed to rest".
The right to freedom of speech is found in the constitutions of many countries. It is internationally recognised. Many courts in many lands have interpreted human rights provisions pertaining to the right of freedom of speech. Both Mr. Smuts and Mr. Gauntlett invited us, in order to derive some assistance in the interpretation of Article 21(1) (a) and (2) of the Namibian Constitution, to have regard to the interpretation of similar provisions in international human rights instruments and their national constitutions. It is with this intention that we look at Article 19 of the Indian Constitution. We do so because it is similar in many respects to Article 21(1)(a) and (2). Article 19 reads:
"19. Protection of certain rights regarding freedom of speech, etc. -(1) All citizens shall have the right -
(a) to freedom of speech and expression; ...
(2)
Nothing in sub-clause (a) of clause
(1) shall affect the operation of
any existing law, or prevent the
- 18 -(1) shall affect the operation of
any existing law, or prevent the
State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence."
H.M.S. Seervai in his book Constitutional Law of India (3rd ed.) Vol. 1 at 481 para 10.16 says of Article 19:
"Thus freedom of speech does not mean the freedom to say whatever one likes, but freedom of speech subject to the laws of libel, sedition, blasphemy and the like. ... In India, the well-recognised limitations on rights embodied in Art. 19(1)(a) to (g) are expressly incorporated in Art. 19(2) to (6) . The rights represent the claims of the individual, the limitations protect the claims of other individuals and claims of society or the State; to say that the rights are fundamental and the limitations are not is to destroy the balance which Art. 19 was designed to achieve. To say this is not to belittle those rights but only to say that the rights are not absolute and can be enjoyed only in an orderly society."
On the question of reasonableness the Indian Supreme Court expressed itself as follows:
"It is important in this context to bear in mind that the test of reasonableness, whereever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their
- 19 -
own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable."
See Madras v V.G. Row (1952) SCR 597 at 607 Seervai op cit 482 and authorities referred to by him as having cited the above text with approval.
EUROPE:
The European Convention for the Protection of Human Rights and Fundamental Freedoms is a regional human rights instrument.
Section 10, although worded differently, is in many ways similar to Article 21(1) (a) and (2). It provides as follows:
"10(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or
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penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
The European Court of Human Rights' approach to the interpretation of Article 10 is that Sub-Article (1) protects the freedom entrenched in the Sub-Article while Sub-Article (2) is a restriction to the freedom in Sub-Article (1) but that that restriction must be narrowly or strictly interpreted. This is perhaps different from the approach of other Courts, the European Court holds that in interpreting Article 10 no criteria other than those mentioned in Sub-Article (2) of Article 10 may form the basis of any restriction on the protected right. And of the sections from other countries dealing with freedom of speech and expression which we have considered it is only Article 10(2) which like Article 21(2) of the Namibian Constitution which says restrictions must be "necessary in a democratic society".
The Namibian Constitution requires in Article 22 that legislation prescribing limitations to any fundamental rights shall not be aimed at a particular individual and it requires that such legislation shall be specific and identify the Article or Articles on which authority to enact such limitation is claimed. Article 22 provides:
"22. Whenever or wherever in terms of this Constitution the limitation of any fundamental rights or freedoms contemplated by this Chapter is authorised, any law providing for such limitation shall:
a)
be of general application, shall not negate the essential content thereof, and shall not be aimed at a particular individual;