The trend in recent years has been towards strengthening the role and supremacy of the constitution in law and government. Increasingly, notions such as the "sovereignty of parliament" are being superseded by the idea that there should be a single supreme law that governs everyone. Even Britain, the home of the "sovereignty of parliament" concept, with its supposed "unwritten constitution", has now incorporated the European Convention on Human Rights into its domestic law as a type of Bill of Rights. The United States, by contrast, has a long history of constitutional rule. The first amendment to the US Constitution famously provides that "Congress shall make no law abridging the freedom of speech, or of the press" - in other words the supreme law is set above the legislature.
More generally, older constitutions that provide a general protection of freedom of expression are now understood to encompass freedom of the media and a right to freedom of information, two of the most relevant aspects where media and elections are concerned.
The South African Constitution (1996), in its Section 16 on freedom of expression, represents some of the most progressive modern constitutional thinking on media freedom:
(1) Everyone has the right to freedom of expression, which includes - (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to - (a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
The exceptions in Section 16(2) echo those in Article 20 of the International Covenant on Civil and Political Rights.
When a strong constitutional protection of freedom of expression is introduced, a government may conduct an audit of existing laws to determine whether they conform to the constitution. Any that do not will have to be repealed or amended to bring them into line with the constitution.
But in many instances, such an audit does not take place. The constitutionality of existing laws will then only be tested by litigation when the government tries to apply a law that may be outdated. It is in these circumstances that the existence of an independent judiciary that is prepared to enforce the constitutional protection of rights becomes especially important.
Under most constitutions, the right to freedom of expression may be suspended or "derogated from" in certain exceptional circumstances. According to international standards, this should only be when there is a lawfully declared state of emergency. The suspension of rights should only be for the duration of a genuine emergency threatening the life of the nation.
