abhishreshthaa
Abhijeet S
Restrictions on fundamental rights must be prescribed by or under the authority of law. The European Court of Human Rights in the Sunday Times8 case set certain standards to determine whether a restriction was prescribed by law:
In the Court's opinion, the following are two of the requirements that flow from the expression 'prescribed by law'.
Firstly, the law must be adequately accessible; the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able if, need be with appropriate advice, to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.
A restriction does not satisfy the 'prescribed by law' part of the test if it is so vague that citizens cannot reasonably predict what the requirements of the law are. Such a statute or such part thereof will be void on grounds of vagueness.
Under the Malawi Act, it is an offence to import, publish, manufacture, make or produce, distribute, display, disclose with reference to any judicial proceedings, exhibit or sell, or offer for sale undesirable material The laws outlined above prohibit publications which are obscene, indecent or tend to corrupt morals. The Malawi law goes further, prohibiting a range of other material, including where it is "offensive or harmful to public morals". None of the various laws define any of these terms, leaving wide scope for interpretation. This has led to a wide range of arbitrary abuse and thus beyond the scope of 'prescribed by law'.
In ACLU v. Reno the US court held that, the constitutionality of a statute employing the word 'indecent' without further definition was found to be so "unconstitutionally vague … as to violate the First Amendment":
Indecent in this statute is an undefined word which, standing alone, offers no guidelines whatsoever as to its parameters. Interestingly, another federal crime gives a definition to indecent entirely different from that proposed in the present case [18 USC Para. 1461 states, "The term 'indecent' as used in this section includes matter of a character tending to incite arson, murder or assassination"]. While not applicable here, this example shows the indeterminate nature of the word and the need for a clear definition, particularly in a statute which infringes upon protected speech.9
In the Court's opinion, the following are two of the requirements that flow from the expression 'prescribed by law'.
Firstly, the law must be adequately accessible; the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able if, need be with appropriate advice, to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.
A restriction does not satisfy the 'prescribed by law' part of the test if it is so vague that citizens cannot reasonably predict what the requirements of the law are. Such a statute or such part thereof will be void on grounds of vagueness.
Under the Malawi Act, it is an offence to import, publish, manufacture, make or produce, distribute, display, disclose with reference to any judicial proceedings, exhibit or sell, or offer for sale undesirable material The laws outlined above prohibit publications which are obscene, indecent or tend to corrupt morals. The Malawi law goes further, prohibiting a range of other material, including where it is "offensive or harmful to public morals". None of the various laws define any of these terms, leaving wide scope for interpretation. This has led to a wide range of arbitrary abuse and thus beyond the scope of 'prescribed by law'.
In ACLU v. Reno the US court held that, the constitutionality of a statute employing the word 'indecent' without further definition was found to be so "unconstitutionally vague … as to violate the First Amendment":
Indecent in this statute is an undefined word which, standing alone, offers no guidelines whatsoever as to its parameters. Interestingly, another federal crime gives a definition to indecent entirely different from that proposed in the present case [18 USC Para. 1461 states, "The term 'indecent' as used in this section includes matter of a character tending to incite arson, murder or assassination"]. While not applicable here, this example shows the indeterminate nature of the word and the need for a clear definition, particularly in a statute which infringes upon protected speech.9