Fundamental and Basic Rights

Prof. Justin O. Frosini

JOHN LOCKEA civilised state is founded upon a

social contract between the State and its citizens

whereby

the citizens for the protection of their property hand over power to their government (e.g. the monopoly of

coercive force) in return for the guarantee of certain rights.

JOHN RAWLS

The first principle

in this social contract

is a system

of equal basic rights

RONALD DWORKIN

There is a need to protect “unpopular” rights of minorities

within the State:“Trump” rights which,

whatever the popular view within the State,

needed to be protected to preserve basic human dignity

Rights may come into conflict.

E.g.:

1. A using his freedom of expression to incite racial hatred against a group to

which B is a member

2. A claim by A to freedom of expression may be diluted by the purpose for which the claim is made, e.g. selling hard-core

pornography for commercial gain

THE AIM OF ANY CONSTITUTION (WRITTEN OR UNWRITTEN) IS TO STRIKE A BALANCE

BETWEEN AN INDIVIDUAL’S FREEDOM TO DO WHATEVER

HE/SHE WANTS AND THE LEGAL RESTRICTIONS IMPOSED UPON THAT FREEDOM

FOR THE PROTECTION OF SOCIETY AS A WHOLE

Entitlement of Rights

• UNIVERSAL

e.g.: right to life,

freedom of speech

• SPECIAL

e.g.: right to maternity,

linguistic rights

Generation of Rights

• 1st generation:

e.g.:

Statuto Albertino (1848)

Prussian Constitution (1850)

Prussian Constitution -1850-

Art 5 All personal freedoms are guaranteed.

Art 6 All homes are unassailable.

Art 9 Property is sacred.

Art 12 The freedom of religious believes and the formation

of religious organizations is guaranteed.

Art 20 Science and its instruction are free.

Art 27 Every Prussian has the right to express free his thoughts verbally, written, printed and in picture.

Art 70 Every Prussian has with the age of 25 the right to vote.

• 2nd generation.

e.g.:

Constitution of French IV Republic,

in particular Preamble (1946)

Italian Constitution (1948)

Italian Constitution - 1948 -Article 38 [Welfare](1) All citizens unable to work and lacking the resources necessary for

their existence shall be entitled to private and social assistance.

(2) Workers shall be entitled to adequate insurance for their needs in case of accident, illness, disability, old age, and involuntary unemployment.

(3) Disabled and handicapped persons shall be entitled to education and vocational training.

(4) The responsibilities laid down in this article shall be entrusted to public bodies and institutions established or supplemented by the State.

(…)

• 3rd generation:

Portuguese Constitution (1976),

South African Constitution (1996)

Article 35 (Use of Data Processing)

(1) Without prejudice to the provisions of the law on State secrecy and justice secrecy, all citizens have the right of access to the data contained in automated data records and files concerning them as well as the right to be informed of the use for which they are intended; they are entitled to request that the contents thereof be corrected and brought up to date.

(2) Access to personal data records or files are forbidden for purposes of getting information relating to third parties as well as for the interconnection of these files, save in exceptional cases as provided for in the law and in Article 18.

(3) Data processing may not be used in regard to information concerning a person's philosophical or political convictions, party or trade union affiliations, religious beliefs, or private life, except in the case of non-identifiable data for statistical purposes.

Portoguese Constitution.

4th generation:

E.g.:

Constitution of Argentina

Constitution of Argentina -1998 -

Section 41  []• (1) All inhabitants are entitled to the right to a healthy

and balanced environment fit for human development in order that productive activities shall meet present needs without endangering those of future generations; and shall have the duty to preserve it. As a first priority, environmental damage shall bring about the obligation to repair it according to law.

• (2) The authorities shall provide for the protection of this right, the rational use of natural resources, the preservation of the natural and cultural heritage and of the biological diversity, and shall also provide for environmental information and education.(…)

Freedom of Association

“You can choose your friends, but you cannot choose your family”

Freedom of association is tempered by legal restrictions

There are certain categories of people that the State wishes to prevent you from associating with for better running of

society in general

e.g.1: Italian ConstitutionArticle 18 [Freedom of Association]

• (1) Citizens shall have the right to form associations freely without authorization for aims not forbidden to individuals by the criminal law (A).

• (2) Secret associations (B), and those which pursue political aims, even indirectly, by means of organizations of a military character (C), shall be forbidden.

e.g. 2: United Kingdom

According to the Public Order Act 1936 special restrictions apply

to associating

with

quasi-military organization which have political objectives

e.g. 3: United States

• Amendment I [1791 - Religion, Speech, Press, Assembly, Petition]Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Freedom of meeting

e.g. 1: ITALYArticle 17 [Right of Assembly]

(1) Citizens shall have the right to assemble peaceably and unarmed.

(2) For meetings, including those held in places to which the public has free access, no previous notice shall be required.

(3) For meetings held in public places previous notice must be given to the authorities, who may forbid them only for proven reasons of security or public safety.

e.g. 2: Belgium

Article 26 [Assembly]

(1) Belgians have the right to gather peaceably

and without arms, in conformity with the laws that

regulate the exercise of this right, without

submitting it to prior authorization.

(2) This provision does not apply to open air

meetings, which are entirely subject to police

regulations.

e.g. 3: South Africa

• Section 17

Assembly, demonstration, picket

and petition

Everyone has the right, peacefully

and unarmed, to assemble, to

demonstrate, to picket and to present

petitions.