International Covenant on Civil and Human Rights

The International Covenant on Civil and Political Rights is a comprehensive international human rights instrument providing protection against arbitrary arrest, detention, abuse, humiliation, discrimination, public expression of opinion, fair trial, and other rights consistent with the universal human rights declarations. Among its many provisions, the covenant establishes the rights to peacefully assemble and petition for change of government, the right to freedom of speech and other expression, right to peaceful protest and demonstrations, the right to fair trial, the right to national defense, and right to privacy. In addition, it provides protection against torture and ill-treatment, the right to work, and other worker protections. It also establishes the right to an effective remedy when one’s rights are violated by state or another actor. The Covenant bans discrimination based on race, gender, religion, age, disability, or any other basis, and requires that laws comply with the rights defined in the Universal Declaration of Human Rights.

Although the Covenant was created after Apartheid era, there have been repeated calls for its improvement across many countries, including South Africa. The calls for a just and effective political prisoner’s bill are on the rise, demanding that the government fulfill its obligations under the International Covenant on Civil and Political Rights. It has also called for an end to racial discrimination and violence in the country. Some of these demands have been highlighted in the preamble of the draft declaration.

These demands were met by the government of the Republic of South Africa in its National Human Rights Commission (HRC) report for the year ending March 2021. Although the report did not refer to the Covenant’s provisions on economic development, it provided the background information on the Covenant and its relation to the main article of the Constitution. It was also reported that the draft declaration was being discussed at various stages during the preparation of the Constitutional Process. Therefore, it follows that the inclusion of the covenant in the Constitution could not have been foreseen at any stage of the process.

The inclusion of the covenant as a substantive provision within the Constitution may have been foreseen and therefore was not incorporated in the draft. There are two reasons why the inclusion of the covenant should have been foreseen. Firstly, there is a likelihood that the government would adopt the covenant as a necessary evil to achieve its goals of economic and social transformation. Secondly, some of the measures taken by the government to implement the covenant could conflict with the human rights contained in the covenant. For example, it could be argued that the banning ofracial discrimination and the granting of benefits to handicapped people based on ability oreness measures intended to implement the provisions of the covenant.

Although the drafters of the constitution included the covenant as an appropriate means to protect the rights set out in the article 1 of the constitution, they failed to take into consideration other provisions of the constitution that are intended to impede the implementation of the covenant. For example, the forerunner of the article 1 of the covenant, Shri Nirmali Ayub Khan, had included in the original text of the constitution, a clause that explicitly permitted the imposition of laws providing for the reservation of rights set out in the covenant, without reference to the provisions of the penal code. It was in this context that the government adopted the pre-eminent clause in the amended Constitution, namely, “no law whatsoever respecting any religion except that which is practiced for money, goods or credit”. This clause, when coupled with the preclusion in article 1 of the Constitution that no person can be deprived of his or her property without compensation, effectively rendered the covenant obsolete. In light of both these facts, it is not surprising that the drafters of the Constitution included the covenant as an additional provision, albeit a very broad one, to ensure that the right to freedom of religion enjoyed by the Indian citizens under the guarantee of the Constitution is not restricted.

While the drafting of the Constitution has been placed beyond reproach, the failure to incorporate the Covenant in the Constitution presents a serious lacuna in the protection afforded to the rights set out in the Constitution. Article 21 of the Covenant provides that no tax shall be levied against any community or individual and the same shall be construed as relating to income taxation. The inclusion of a covenant in the Constitution is therefore doubly significant when one considers that the framers of the Constitution expressly avoided including any reference to a tax in their document. Given the fact that the provision does not mention any rate of taxation and that the governments of many countries have implemented taxes on religions (such as Islam), it is surprising that the United States government has not been able to incorporate the covenant in its own text. The fact that the drafters of the Constitution included a reference to taxes in the preamble of the Constitution, despite the fact that no direct taxation of religions has been implemented, indicates that the drafters assumed that their position was implicit in the Constitution itself, but they did include a reference to the tax in the clauses relating to powers conferred upon the States and the formulation of legislative bodies.

The lack of a reference to a tax in the Constitution is not surprising. For, the drafters knew well that the provision for religious freedom in the Constitution would be interpreted by the courts in terms of taxes that would fall on the parties involved in those cases and that the framers knew very little about taxation in modern terms. Religious persons had been subjected to various forms of taxation throughout the years and were often considered to be engaged in conduct that violated some of the moral principles of the Constitution. The problem with taxing individuals based on their religious beliefs is that a tax based on religious beliefs is inherently suspect. If one believes that a tax is required by the teachings of the Constitution then why is the tax itself required? And, given that the government has not been able to provide a guarantee of religious freedom, the consequences of a tax on religious persons are likely to always result in tension between the government and the religion it represents.

Apart from these difficulties, there is also the less obvious difficulty of interpreting the covenant in its present conditions. For, the drafters of the covenant did not include a reference to the need for laws of equalisation in their text. Laws of equalisation are widely regarded as necessary to ensure that all citizens enjoy equal access to opportunities in the domestic market without discrimination on the basis of race, gender, or occupation. It also reserves the right to ensure that the enjoyment of the rights set out in the domestic laws of a country are not restricted by other foreign laws that conflict with domestic legislation.