Fundamental and Basic Rights Prof Justin O Frosini

Fundamental and Basic Rights Prof. Justin O. Frosini

JOHN LOCKE A 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 • 1 st 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.

• 2 nd 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. (…)

• 3 rd generation: Portuguese Constitution (1976), South African Constitution (1996)

Portoguese Constitution. 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.

4 th 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 Constitution Article 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: ITALY Article 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.