legislation disregards all procedural safeguards against arbitrary arrests and
prolonged detention considering also that for under POTA, a person can be
detained indefinitely at the will of the law enforcement and executive
officers. They thus implored for the petition to be granted with costs.
In reply, Mr Nyakiha, learned State Attorney invited us to take note of
a significant difference on how fundamental rights and fundamental duties
are dealt with under Part III of the Constitution as opposed to other
Constitutions including that of India which separately deal with the two
distinct components under Part III and Part IVA of the Indian Constitution.
He said, by placing the basic rights under one Part, the Constitution
has symbolic expression of constitutionally recognizing co-existence of the
individual human being and society as well as co-existence of rights and
duties of an individual and the society. Both rights and duties under Chapter
III of the Constitution must be read in unison and not in isolation as they
complete each other. However, he stressed that, in effect, co-existence of
individuals and the society and of the rights and duties of individuals on one
hand and the collective or communitarian rights and duties of the society on
t
the other, means that the rights and duties of individuals are limited by the
rights and duties of the society and vice versa, hence, the provisions of
articles 29(5) and 30(1) of the Constitution which provide that:
"29(5) For the purposes of the better enjoyment by all persons
of the rights and freedoms specified in this Constitution, every
person shall so conduct himself and his affairs as not to prejudice
the rights and freedom of others or the public interests".
"30(1) The rights and freedoms whose basic content have been
set out in this Constitution shall not be exercised by any person
in such a manner as to occasion the infringement or termination
of the rights and freedoms of others or the public interest."
Page 7 of 37
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