Property and economic rights

Only now it is property (and economic) rights' turn though one could deduce from the present public ideology that safeguarding property rights (especially those of the most riches ones) is perhaps the only sense of humanity's existence. But safeguarding huge properties is not a purpose of property right, the very purpose of them is to safeguard dignified existence of every individual in the society. Provisions of the European constitution have to meet challenges of present time. Whereas in earlier times a danger was imminent that a totalitarian state would take property from an individual an so damage him, the present danger is contrary, namely that mighty individuals with their immense properties would bring the society and the state under their control. Threats of present time therefore must be also taken into consideration in the constitutional section concerning property rights.

First letter (a) of the section concerning property rights proceeds from the Universal Declaration of Human Rights whose article 17 says that everyone has the right to own property alone as well as in association with others. I completed this provision with some words. For property can not only be owned but also be used which need not necessary occur parallel. Except owning and using property should everybody also have a right to hand over his property to others, especially through a testament. I added therefore these two rights (to use property and to hand it over) to the provision adopted from the Universal Declaration. This is however not sufficient because also who owns property has its significance. We know periods in Europe's history when private property was restricted in favour of interests of a totalitarian state and its oligarchy rulers but at the present time, we can see contrary tendencies in many European countries: to prefer private property to common (state, cooperative) property's disadvantage. Therefore I add, following a pattern of the Portuguese constitution (articles 80 and 82), a sentence to this provision that safeguards the same position to all kinds of property that deserve the same protection from the society.

Likewise the letter (b) is founded on a provision of the Universal Declaration. I completely take over the second paragraph of the same article 17 prohibiting willfully to remove property from anybody. But it is necessary to complete this provision because the word “willfully” can be explained differently, apart from other things that private property is inviolable. Property can be expropriated which is a usual practice in European states and constitutions of European states commonly make it possible. I added to this letter's suggestion therefore a sentence allowing expropriation in public interest and according to the law and for a fair compensation. I leave deliberately open what a fair compensation is, it can depend on specific circumstances of time and place. I inserted also – unlike the constitution of Finland that prohibits it – words about restriction of proprietary rights in the provision concerning expropriation – it may also be necessary in public interest.

The provision of the letter (c) is a reaction to a contemporary pernicious ideology and practice concerning taxes. Holders of great and giant properties are less and less willing to share their property with the society and they hold society's claim that they pay taxes proportional to their wealth to be almost a crime against humanity and above all violation of their guaranteed right to freely have their property at disposal. It is the reason why to add a provision in the European constitution that say that obligation to pay taxes proportional to one's income and amount of property is not a violation of the right to own. It is not a completely new provision, the article 53 of the constitution of Italy speaks similarly and so I partially took over its wording.

All charts of rights protect property but almost none of them protects against property. It has been however known for thousands of years that the greater property the more influence of its holder on other people. If majority of the society shall not be leaved at the mercy of holders of great (and giant) properties, execution of property rights have to be regulated, at least on the ground of the principle “rights of one man end where rights of other one begin”, which nobody will disagree with. The constitution of the European federation, in the section concerning human rights, therefore must determine that the law shall regulate using property, namely in that way so that it is not inconsistent with public interest and in particular with rights and freedoms determined in the European constitution.

My suggestion of letter (e) determines a principle that private property cannot be without limits if it relates to public interest. Then the letter (e) is again in contradiction with present ideology according which ideally everything should be in private possession, also in cases when a property that serves interests of the whole society is the matter. But longing of private persons for enlargement of their property, not longing for doing the society a service through private property important for the society however is behind this ideology. The suggested letter (e), in fact, expands on the previous letter of my proposal which says that using property must not be inconsistent with public interest and if some property serves interests of the whole, there is public interest that mentioned property is not subordinate to interests of one private possessor. Interests of the whole will be safeguarded in the case of specific kinds of property at least by enumerating them in the constitution, e. g. by saying which of it should be property of the whole society. Provisions of some European constitutions tell what should be public property and I took them over. The Portuguese constitution speaks about public possession in the case of sea and continental water, atmosphere, mineral wealth, underground water, underground natural cavities and public roads and railways. I took it all over in my suggestion because those are the most significant kinds of public property. But it is not an exhaustive list, the Portuguese constitution also writes that other goods in public property will be given by the law. I add therefore to the stated enumeration other items. Namely I added forests and archeological and cultural objects from the constitution of Lithuania, then – from the French constitution (its preamble from 1946) – a provision that can seem rather vague yet excellently hits substance of public possession: property and enterprises that have or that may acquire the character of a public service or de facto monopoly shall become the property of the society.

The last letter of my proposal concerns not protection of property and delimitation of its use, it speaks about economic power (a power arisen from practicing economic activity) and its influence on the society. Nobody can doubt rightfulness of association of words “power” and “economy” in the present time. Already for a lot of years it has been said in public that great supranational firms have greater power than many states. But it is paradoxical that state constitutions focus in detail on “taming” political power but on the other hand, they pay only small attention to regulation of economic power or indeed pay no attention to it. The situation of present time however requires at least to lay down necessity of regulation of economic activity in a constitution as well as putting it under democratic control. It is not unknown to some constitutions. The Portuguese one speaks about subordination of economic power to democratic political power and I take it over as a very good formulation. On the other hand, subordination of economic activity to political power can raise fears that political power may misuse control over economy to subordinating the society under its own power as it was in eastern Europe in the second half of the twentieth century (though present threats are quite contrary). It is therefore necessary to state more precisely what should be aim of control of economic power from political power. The constitution of Lithuania contains an appropriate and well formulated provision in its article 46 – it says about necessity to subordinate economic activity in order that it serves the general welfare. I took over this provision into my suggestion of the European constitution, only with specification that citizens of the European Union are for whose well-being economic activity should be practiced and regulated.

Family rights

In previous sections concerning basic rights, I strove to take over as much convenient provisions from the Universal Declaration of Human Rights as possible – for it is a basic document dedicated to human rights from which other documents (international conventions, regulations of constitutions) are derivated and provisions of which are brief, nevertheless apposite and having their validity to this day although they require additions sometimes. Alike in this post concerning family rights, I take over four provisions of the Universal Declarations and add to them three other provisions relating to rights of children (that is a topic importance of which increased since 1945). I want make a remark in addition that this circle of rights could be incorporated into social rights but I set them aside separately.

The first provision, labeled under the letter (a), is taken over from the paragraph 3, article 16 of the Universal Declaration. It is an appropriate introductory provision, it speaks about family as a fundamental unit of society. I believe that it is not necessary to add something to it.

The second provision is taken by me also from the article 16 of the Universal Declaration, now from its first paragraph. It says that men and women, if they are adult, have a right to marry and to found a family without any discrimination and that both have the same rights in establishing the marriage and at it dissolution. It is also almost pointless to add something to this provision: it guarantees that nobody is denied to establish family (as it occurred in dictatorial states) and guarantees equal rights to men and women who used to be disadvantaged earlier. Reading this provision it occurred to me that its wording offers no specific attitude to a question of same-sex marriages that has been often solved in various parts of the world just through constitutional regulations (mostly by ban on such marriages). It is possible that the wording taken over from the Universal Declaration (that did not take existence of such marriage into account) would appear insufficiently preventing same-sex marriages in eyes of their dissenters but I believe that a European constitution should be open for both possibilities in this question and that the matter should be concluded either in the member states separately or in the concrete political practice in the course of existence of the European federation.

My suggestion of the following provision – the letter (c) – is again literally taken over from the Universal Declaration, from its article 16, paragraph 2. According to it marriage shall be founded only with the free and full consent of both spouses. It is again a provision to that anything can hardly be added – it is expression of liberty of every person to decide whether it wants enter into marriage or not and with whom.

The following letter (d) of my suggestion is the prime provision that concerns children. This provision is still (literally) taken from the Universal Declaration (from the article 25, paragraph 2). According to this provision extramarital children should have equal rights as children born in marriage. But the provision specifies not what rights belong to both groups of children (the rest of the second paragraph of the article 25, not taken over by me, speaks about special care and assistance that belongs to childhood which is also unspecified). By that reason and because more attention is paid to children rights since 1945, I completed the previous provision with with three other suggestions that are absent in the Universal Declaration. Two of these provisions come from the Charter of Fundamental Rights of the European Union which manifests that rights of a child are fairly well expressed in it which somewhat contrasts with not very proper protection of social rights in it.

The suggestion of letter (e) is literally taken over from the Charter of Rights, from the first paragraph of the article 24. It says that children have a right to care necessary for their well-being and to free expression of their view.

I took over (as the letter (g)) also the third paragraph of the same article 24 of the Charter of Rights that determines rights of a child to be in touch with both parents unless it is contrary to interests of it. This provision can be understood in two ways: on the one hand as a common appeal that a child should grow with both parents, on the other hand as an appeal that a child should be enabled to keep touch with both parents after they have divorced. I comprehended it in the second sense, so I completed it with one more provision:
Suggestion of the letter (f) is literally taken from the constitution of Portugal (article 36, paragraph 6). It says that children cannot be separated from their parents save that the parents meet not obligations towards them and that the separation must be based on a judicial decision. These specifications are absent in the Charter of Right, even though the third paragraph of its article 24 had the same meaning as the quoted provision of the Portuguese constitution.

That is all what I wanted to involve in the section of familial rights. I will publish its specific constitutional wording after publishing remaining three groups of rights, namely property rights, cultural rights and concluding section about enforcing the rights.

Social rights

Only now I am to deal with social rights – but it means not that they are little important. On the contrary, they belong to the most important ones which the present time needs. The capitalism – though many people would deny see it in this way – got now in such phase that social rights acknowledged earlier as self-evident are more and more decreased (literally “cut”) in favour of (alleged) needs of the economy and its growth. Some think yet that the economy is a tool to provide for needs of people but most people (and politicians especially) look at the economy as kind of a machine independent on people and their needs, as if people had to adapt themselves to the economy and not the economy to the needs of people. Economy is actually today almost only a name for supranational corporations and big financial institutions and growth of economy is in fact growth of billions in accounts of their proprietors (and shareholders) – and it is no propaganda, in the most capitalist country in the world, the United States of America, 95% of the sum of more that one trillion (1x1018) dollars by which the United States got rich in the last thirty years came in the pockets of upper 5% of their inhabitants; the same process is under way in Europe, only slower and less extensive. But social rights cannot be fulfilled by mere talking, great means are necessary but they disappear from the wide society towards its most richest part that needs (and wants) not social rights for others than itself. Social rights ad freedom and equality of people are not two different things and that is the reason why everybody who wants to defend and promote freedom and equality of people must promote and defend also social rights.

Before I will discuss individual constitutional suggestions I must comment one more thing. The European national politicians often emphasize the social role of the present European Union. It is not completely untrue but the same politicians who govern it adopt such rules that put in fact the social rights in the shade. The article 151 of the Lisbon treaty speaks about basic social rights and in the same time about competitiveness of the economy. But what competitiveness is? It is ability to compete, to pass a competition. Who should compete with whom? The European workers with the Chinese or Vietnamese ones? Or small family firms with giant supranational corporations? Or economies of singular European states with each other? Or everything this together? But every competition has its winner and its loser – how it matches up to social rights? Should a conception of social rights of united Europe be a right to everybody to be defeated in the economic competition and afterward to be rescued through a social help? I presume that it is nonsense and that social rights must guarantee that nobody or almost nobody will need to be rescued after a loss in an allegedly inevitable and necessary competition of everybody with everybody. Economy is a way how to ensure need of people, not a winner competition. Therefore the word competition must not be used in the section of the social rights, even not in the whole constitutional document at all.

Now, I will at last deal with individual social rights that should be involved in the text of the European constitution.

I opened every chapter of the section of basic rights with provisions taken from the Universal Declaration and I will not do it otherwise now. The first three letters of this suggested section almost literally agree with first three letters of the article 23 of the Universal Declaration. The first letter (a) is the same as the point one of the mentioned article 23 (right to work and just working conditions as well as to protection against unemployment), I only added “in every place of the European Union” to the words about free choice of employment.

The letter (b) speaks according to the point two of the article 23 about the right to equal pay for the same work, I added again some words, in concrete terms I stated the discrimination more precisely by the words “in particular on the basis of sex and nationality” because these two kinds of work discrimination are the most common.

The suggested letter (c) literally repeats the point three of the article 23, I added to it one complete sentence. The sentence develops the words about remuneration for work. It says that amount of the pay cannot fall under the minimal limit determined by the law. The provision about minimal pay is a very important specification of the right to just and favourable remuneration expressed in the Universal Declaration.

The provision under the letter (d) follows that is completely my suggestion and is not taken over from any constitutional text or an international treaty. It is an answer to that what happens in the field of providing with social help in Europe today. The situation is clear: governments reduce tax obligation of firms (especially of the greatest ones) and rich individuals, the firms economize on their employees at the same time, numbers of unemployed growths but states have due to their tax policy less and less money to their support (they have actually less and less money for everything), therefore there is an effort to restrict access of people to the limited amount of financial means that the governments have at their disposal. So state bodies, also job centers themselves think up various conditions on that the unemployed can obtain a social help (they must “deserve” it and so they often do some unpaid or for only symbolic remuneration in order that they are not removed from the list of them who have claim to obtain unemployment insurance. Besides, the unemployed are even followed by spies and controlled in their homes whether they deserve the help. This is frequent in some European countries and diffuses in others; besides discarding those who need it from the social help lowers official unemployment rate. So I have reacted to this development by the provision that says that everybody who without his (her) own fault cannot find a job for what he (her) has capabilities has right to worthy providing for his basic needs and its allotting or taking away must not be degrading or independent of a person's will. Every word in this reading is important and necessary if a jobless person should remain a valuable member of the society and not a sort of human waste.

The following provision of the letter (e) is again taken over by me from the Universal Declaration (article 23, point 4), it says about the right to form trade unions. I added a sentence formed according to the Portuguese constitution saying that trade unions should be independent on employers, the state and political parties.

The following suggested letter (f) continues dealing with trade unions. It is based primarily on the article 27 of the Charter of Right which determines that workers (employees) have a right to be informed about action of the management of the firm and that they have a right to defend their right by a strike. But I added also same other provisions. The first of them is taken over from the Portuguese constitution and says that trade unions or other employees unions have a right to perform control of the firm management. This provision may seem revolutionary at the present time (and no wonder, it is taken over from the revolutionary constitution) but a constitution has not a task to preserve the current condition of the society – and the present condition in this case is that possessors (and shareholders) of firms, especially the great ones, pay attention in particular to their profit and social consequences of their conduct stay in background of their interest. For example, to close a local factory or a branch of another kind, though profit-making, to dismiss all employees and to move it by its possessor to another place if more profit is awaited in the new place is considered as normal in the present time. These and similar cases ought to be prevented just by the provision about the right of the employees to control the firm management. Many will probably make an objection that firms (the greatest ones especially) will not be willing to work under such circumstances and will leave together with their job opportunities and thus this constitutional provision would contribute to growth of unemployment. My answer to it is: Is departure of firms (the greatest ones especially) abroad accompanied with loss of jobs not in progress already today when there is no constitutional provision? And how long the European society will defer to firm managers and their longing for utmost own profit? Is any reason why employers and employees cannot be partners? I pass away the answer and change slightly the subject; there is not yet the end of this letter. I added two more sentences concerning still the trade unions or other employees unions. They must have a right to defend their interests through a strike or collective bargaining, which are traditional right of workers though they are with difficulties to put into effect in the present times. The last sentence adds that the right to strike can be restricted to workers safeguarding public orders such as policemen; similar provision is in some constitutions of the European states too.

The next provision (g) is taken by me from the constitution of Portugal. It says that workers have a right to their job security and that they cannot be dismissed without just cause or on the basis of conviction. Significance of this provision is obvious: to give some security to workers (employees) without which nobody can beforehand plan his life and is forced to live in uncertainty.

The following two proposed provisions are not to be found in any European state's constitution or any international agreement. They make a revolutionary impression, especially the first of them. So the letter (h) speaks about the right of workers to participate in decision about outcome of their work (more precisely that the public authorities should create conditions for it). In fact, it is extension of the provision about control of the firm management by the employees. Many would say that it is unjust to order the firm possessor how he should handle the firm's profit. But let us consider that firm's possessor would have no profit if his employees (workers) made it not through their work. An objection can emerge that the employees get already their pay (wage) and it must be enough for them. The answer to this objection is simple: the value of the possessor's profit is (usually) much higher than the value of pays paid from it and the workers thus lose the most part of their work's outcome. To decide about destiny of this part ought therefore be a just compensation of it and expression of equal relationship between employer and his employees as I wrote about it above.

The following proposed letter (i) partially continues the previous letter (h). It answers a question what shall be use of outcome of human work or in other words, where shall go the profit from economic activity. And it is a response to the development of distribution of wealth in the world of today – the development by which more and more of property concentrates in the hands of less and less narrow class of possessors; this happens also in Europe and accelerates. Anybody can hardly be found who would say it is just. The huge size of property of the most rich people points out that people's work can produce enough means that are able to fill people's needs, but in the case of their more just distribution. What exactly is the just distribution can be a subject of controversy but the principle itself is unquestionable. I expressed the principle in the words: fruits of the work should fill material, social and cultural needs of every member of the society.

The next letter (j) is literally taken from the Universal Declaration, from its article 24; it speaks about leisure time, limitation of working hours and paid holidays.

The following suggested letter (k) speaks about heightened protection at work and enumerates those who have have a right to it: women, in particular during a pregnancy and after childbirth, youthfuls, physically handicapped persons as well as those who do an extremely hard work or work under conditions that endanger health. This provision is based on the article 59 of the constitution of Portugal, slightly only rephrased by me.

A necessity to get resources for life and child care (as a part of family life) not rarely come into conflict as every woman searching a job knows. The Universal Declaration says nothing about this matter, so I approached the Charter of Rights that mentions it in the article 33. It says everything what is necessary in essence, so I took it over in my suggestion in its completeness, only without the initial reason that is inappropriate in a brief constitutional text. I only added one sentence to the provision that is more specific about the words of the paid parental leave; according to it size of social benefits in parental leave should not be less than the minimal pay. The society appreciates thereby that its new member's care is equally important as the paid work in the economy.

Also the sequent proposed letter (m) is based on a provision of the Charter of Rights. Its respective article 26 concerns right of persons with (physical) disabilities. I took it over almost literally (naturally not using a formulation “the Union recognises”).

The previous regulation concerns maybe only persons with physical disabilities, maybe persons with all disabilities, that is also those one with mental disabilities. I suppose that mental disabilities are not the same as the physical ones, so I reached the conclusion that a separate provision is needed for this case. I found an appropriate formulation in the Portuguese constitution (article 71) though it concerns both types of disabilities: citizens who are physically or mentally disabled enjoy all the rights and be subject to all the duties embodied in the Constitution, except for the exercise or performance of those for which their disablement renders them unfit. I made these words a basis of the letter (n) restricting them however only to the mentally disabled persons (instead of citizens) for the physically disabled ones are already treated by the previous regulation.

A suggestion of the letter (o) follows. It concerns the child labour and I take it literally from the article 32 (“The employment of children is prohibited. The minimum age of admission to employment may not be lower than the minimum school-leaving age”). Nothing more is necessary to add.

The letter (p) concerns persons in the opposite side of their working life. The Charter of Rights mentions the elder people and their rights in the article 25 (according it, they should lead a worthy and independent life and participate in social and cultural events. This provision should be present in the European constitution too but I add to the same provision (to my suggested letter (p)) one more important regulation. The regulation concerns a right to a subsidy paid in the age in which a man cannot work more – the Charter of Rights speaks not about this right (has a man a right to the old age pension according to the European politicians?) and as we know, in all European states constantly grows the minimal age that gives a citizen a right to receive the old age pension. But the age reaches already in some cases such values which are hardly to bearable for many people. To want that elder people work in their advanced old age is absurd not only because of both physical and mental diseases of elder people but also because employers want young and efficient emloyees rather than elder, decrepit and ill ones. It is easy to order that people should work till a great age but it is more difficult to guarantee that these people have an adequate job at all. But we should think of their right to have a rest after lifelong work rather than meditate how to reduce a time in which a man has claim to his old age pension. The federal constitution should therefore guarantee a right of everybody to stop working when powers diminish and to spend the rest of his life supported by the society.

The letter (q) deals with another important matter of human social life – a place to live. This right is largely acknowledged though in spite of it there are homeless people in the European countries. But future acknowledgment of this right – as decline of Europe will proceed – may be endangered (the Charter of Fundamental Rights and Basic Freedoms of the EU knows it not!), therefore it is necessary to guarantee the right in the federal constitutional text. I found a matching provision in the Portuguese constitution (article 65) and took it over because it aptly says all: “Everyone has the right for himself and his family to a dwelling of adequate size satisfying standards of hygiene and comfort and preserving personal and family privacy”.

The last but one letter (r) contains a suggestion of a right that is concerned by the Charter of Rights. The right refers to access to health care. The Charter of Rights says that “everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices”. This wording is however not exhaustive and causes some questions. The most important of them is how extent the guaranteed health care should be. Should one understand it that all of the medical science are accessible to everybody or the right guarantees that everybody will obtain at least some medical treatment (in quality and extend according to one's wallet)? The wording admits both interpretations. It is therefore necessary to add some words to the wording of the Charter of Rights. So I added the word “equal” before the words “right of access” and the word “necessary” before the words “health care”, just behind them then the words “paid from the public health insurance regardless of his wealth status”. The words about national laws and practices have been omitted by me. Some of these principles are to found in some European constitutions, for example the Czech or Portuguese one, that speak about the public health insurance. However, I did not finished by inserting some words in the Charter of Rights' text. Moreover, I added one another sentence that should clarify signification of the preceding words: the society should strive for full health of every person.

It was not usual in my suggestions of other groups of rights that I wrote conclusions to them in a form of another constitutional provision. But the social rights are more specific in this regard because I believe that many enumerated social rights are not considered essential and necessary. But it is misunderstanding. It has been spoken about democracy oft but only to give a right to vote to the citizens in not sufficient to build democracy – people without a job or even homeless people go to the polls not and care about public questions not as well because their main concern is to survive. Precondition for democracy simply are socially confident citizens as dignified members of the society and a clear conclusion emerges from it: no democracy can exist without social rights. So my suggestion of the concluding letter (s) reads: “The public authority should guarantee access to the enumerated social rights to everybody and their realization. Without full realization of social rights nobody can be a fully valuable member of the society.”

Supplement to the preamble

I am preparing the section about social rights now and doing it I have arrived at an opinion that the social thinking and activity must be one of the most important part of the project of unification of Europe; and I think the same also about an ecological endeavour. And I realized at the same time that I emphasized these two themes less than they need. Their importance is so great that they have to be emphasized among basic objectives fo the European unification. The palce where the main objectives are expressed is the preamble of the constitution. So I changed its wording which I had written earlier by adding some words concerning the social and ecological field of the European unity. First two words read mutual solidarity and both solidarity among individual states or regions of Europe and solidarity inside the individual members or groups of society can be understand by it. Other added words are through social justice and I added them to the proclamation about promoting common welfare; for otherwise than by social justice it is impossible to provide the common welfare. The last added words speak about preserving natural environment through the permanent union. Thus, the modified preamble reads now as follows (the added words are marked by underline):

We, the people of Europe,

conscious of prior division and dissensions sequent on it;
conscious of prior tyrannies which brought about the worst suffering and destruction in history;
striving therefore for a permanent union
that will ensure peace, democracy, mutual solidarity,
that will ensure liberty for its people,
that will promote the common welfare through social justice,
that will preserve its diversity,
that will preserve natural environment,

adopt this Constitution of the European Union.

P. S. I changed analogously also the respective post published earlier.

Political rights

Political rights belong to the group of the most important rights guaranteed by a constitution because the political rights decide about nature of the society and thus about possibility to assert all other rights.

In Europe, political rights are traditionally linked together with the idea of democracy which we not only should head for but which has been fulfilled already. The opinion prevails that a considerable part of Europe is democratic and only small improvements can be achieved in this field and that future duration of democracy in most part of Europe is guaranteed. Such conclusion can be made at least after having a look in the Charter of the Fundamental Rights of the EU: although it brings some praiseworthy principles relating to effectiveness of public administration but otherwise, it is silent about basic political rights of citizens (called citizens' rights in the Charter of Rights) and it rely on their observing by the member states as if the civic rights were absolutely self-evident. But that is a great mistake. The civic rights are not self-evident for ever – as the living standard goes down, jobs decrease, unemployment grows, social rights have been restricted in present Europe, simultaneously grow of various forms of intolerance and anti-democratic opinions occurs, even in the “middle stream” of politics, e. g. an opinion that the right to vote should be restricted. Another example of illusion of perfection of democracy in Europe is the fate of now the most poor country in Europe, Greece. According to the criteria put on a democratic state, Greece was (is) a full democratic state – that criterion is a fully free possibility to elect one's representatives in the state bodies (only in the parliament in fact); it is considered as a sufficient sign of existing democracy and is not closer examined how much the people have a possibility to really decide about public matters through electing its representatives. The citizens of Greece could “fully” democratically elect their representatives (I write “fully” in the quotation marks because the people elects not the executive power, the decisive power in the state in the present time (it make also laws!)) but their elected representatives acted in the way that they brought the Greek state to decay by their action. But it can hardly be said that just decay of their state is what the people of Greece demanded through its voted representatives. The same can be said about political conditions in Iceland (in the past tense already), Ireland, Spain and a round of other European states, not speaking about Mexico, the United States of America, Argentina (also in the past tense here) and other formally democratic states outside Europe. Democracy is assessed purely formally everywhere here as a right of everybody to vote in the parliament. Such assessment is really only formal and testifies not much to democracy. Though there were no real choice of candidates, universal and equal right to vote existed even in the Soviet Union under Stalin, Khrushchev, Brezhnev as in democratic states in present Europe. To cast one's ballot paper in a ballot box is a very imperfect way how to influence public events.

It has been often forgotten today what the (Greek by origin) term “democracy” means. Democracy literally is rule of the people, but let us ask ourselves whether casting papers with names of applicants for political offices in ballot boxes is the rule of the people. In the European states that were under the rule of the communist dictatorships in the second half of the 20th century, there were a term “people's democracy”. It was a cynical term that according to the ideology ruling in those countries was to express that there were true democracy in the “socialist” countries as opposed to the capitalist states (from the linguistic point of view, “people's democracy” is a pleonasm of course) although that so worshiped people had absolutely no possibilities to influence public events. But let us realize that a similar term exists in the democratic states of the western Europe (and of the eastern Europe since 1990): representative democracy. I ask however: can democracy have an attribute? If democracy means “rule of the people”, what means if attributes “people's” or “representative” is added? If “people's democracy” was to signify rule of the (true) people, “representative democracy” then signifies rule of the representatives? No theorist will probably agree with this but is it not just so in practice? Is democracy not considered in Europe (and outside Europe) to be a right of the people to elect those who will rule over it (and not to rule itself over it)? I assume that just in this way democracy is regarded, a question however arises then – whether such practice really fulfill the sense of the word “democracy”, namely rule of the people. But whatever handling with words is, the present situation in Europe shows that a traditional interpretation of democracy fails because it is able less and less to fill the true will of the people in the public space. In the communist dictatorships of the eastern Europe, the rulers referred to the interests of the people, they however ruled in that way to maintain their personal (collective) power. In the democratic states of present Europe, the elected public figures as a rule refer to interests of the people as well but they “rule” in order to meet the interests of the “markets” (in fact great firms (especially multinational corporations) and banks and their possessors). If I can compare pretending democracy in the communist dictatorships with applying democracy in the present states considered generally as democratic, the condition of democracy is without a doubt bad in the democratic states.

The Charter of Fundamental Rights of the EU guarantees not even basic political rights (why it guarantees only free election in the European parliament and is silent about other elections?) therefore it is necessary to write such principles that are absent in the Charter of Rights and that respond to ominous state of democracy in Europe of today as well as re-evaluate the term of democracy. If I repeatedly emphasize the literal meaning of the Greek word democracy, my idea is naturally not to return to the state of democracy that was in ancient Athens under Pericles. But emphasis on the principle that representatives of the people are who follow its will not who rule over it must be newly laid in present Europe.

The first provision of my suggestion of the constitutional text about political rights is based by me on the article 21 of the Universal Declaration which speaks about a right to participate in government of one's own country. But I did not take it over literally; the mentioned article speaks about the right to participate in government directly or through free elected representatives. But this formulation can lead to an argumentation that the right to participate in government of one's state is sufficiently exhausted by a possibility to elect the representatives (or in other words by the ritual of the election) and that the direct government of public matters is not necessary to fulfilling the written provision. Therefore I modified the formulation to “both directly and through free elected representatives” so that it is clear that the people has a right to both of them, not only one. This is however not the whole first provision. I added also other sentences that put the words of the first sentence more precisely. The second sentence says that the right to vote of every citizen is equal and can be restricted only by age – it is a basic right and has to be expressly guaranteed. The third sentence develops the citizens' right to decide about public matters directly: it says that the people has a free right to decide itself which matters it will decide directly about and which matters it entrust to its representatives. It is not automatic at all today and though I do not have a knowledge about applying referenda/plebiscites in various European states I will not be far from truth if I write that there are various restrictions on applying them, apart from other things, in a form of lists of matters which the people must not decide directly about (or matters which only it can decide about). But it is completely absurd, it is entirely inconsistent with the literal meaning of the term “democracy” itself as a rule of the people (the representatives of the people can decide about extent of the rule of the people?) and is inconsistent with provisions of all European constitutions saying that the state power originates from the people (not from the representatives of the people). An objection has been often raised that there are many expert questions and therefore “experts” must decide (about them) – but it is only a pretext. It is no more the end of the 18th century or the half of the 19th century now, the present citizens are educated and all objections against their direct deciding are only insincere attempts to keep deciding about the most important matters in the hands of a narrow and in fact privileged class of the society. In addition, deciding of the people about itself is more acceptable than deciding of professional representatives about it because politicians who decide about fate of the people seldom take consequences of their decisions upon themselves. And words saying that only the representatives of the people can protect the people from errors of itself are also wrong.

The second provision of the article about the political rights, the letter (b), is formulated by me according to texts of the European states' constitutions for the most part. It has several sentences, the first says that government of public matters proceeds from the people and is based on the will of the people. Maybe it is a needless repetition of the letter (a) in other words, this provision has however its traditional place in the constitutions of the European states, therefore I took it over also into the suggestion of the European federal constitution. The second sentence follows, I took it over literally from the constitution of Romania: nobody is above the law. I suppose that there is no need of further explanation. The last sentence of this letter then refers to persons carrying out public authority; it is a provision that is not a usual part of constitutions or international conventions. This sentence say that it is duty of every person carrying out public authority to carry it out properly and conscientiously for the benefit of the people and that the person is criminally responsible for his (her) acting. This provision speaks about all who perform public authority but I do not have civil servants of lower ranks in mind first of all because their work is usually severely controlled, I have in mind politicians of the highest levels because they often are under no control (or a formal one only). The politicians themselves take cover behind so called “political responsibility” which they understand a “threat” that they will not be reelected in a next election. But they are not directly personally responsible for decisions that (may) harm citizens of their states; decisions of politicians (whether are harmful or not) are called “political” and an opinion prevails that nobody can be called to account for them. If a politician-representative of the people holding a prominent post harms the citizens whom he (formally) represents, his decision is usually designated as an “error” that simply “happens”. Responsibility of such politician ends with a fact that he is not reelected in a next election or contests a political seat not more or even leaves his post prematurely. But it is insufficient and incomprehensible if we realize that persons in management of firms in economic field have duty of care and they are punished if they do not administer entrusted property duly whereas nothing similar in the highest levels of political administration of the state. Let everybody answer himself who among the politicians of Ireland, Iceland, Greece, Spain, Portugal and others will be punished for the condition that he brought its state in. It is again necessary to repeat that representatives of the people should administer the matters of the people, not be its rulers – and in view of it, this provision is fully understandable.

The following letter (c) follows the previous one and concerns again responsibility of representatives of the people. Its first sentence says that public authority organs are responsible to the people. It may be acknowledged also today (though they are rather responsible to “the markets” in practice now) but such provision is not present in state constitutions. It is however a fundamental principle if democracy is to be fulfilled and it should not be missing in the European federal constitution. The first sentence is however a sort of an introduction to the second sentence of the suggested letter (c) that has two parts. If holders of the public power as administrators of matters of the people are responsible to the people, the people has have a concrete possibility to really draw the necessary conclusions from the mentioned responsibility. The people therefore must have a right to express its disagreement with action of its representatives and to take their posts away from them. Although the right to express disagreement with action of political bodies is acknowledged in principle (though restricted from time to time), a possibility to remove those who carry out public authority (e.g. politicians) from their offices is almost not possible if one regards not a possibility to not extend authorization to administering public matters by an election once in several years as a manifestation of this right. But if the word “democracy” is to fill the meaning rule of the people, the people must have a right to remove its representatives (this word is important) from their offices.

The provision of the letter (d) concerns a right of every citizen to hold a public office and I took it over literally from the Universal Declaration (the article 21).

The suggestion of the next provision is present in constitutions of most European states but not in their parts devoted to the basic rights. It is a provision making possible to establish autonomy on the territorial basis to the citizens – it is about municipalities above all. The suggested provision then says that all what can be perform in the area of the municipality and belongs by its consequences there should be performed by them. It is an important part of the right of the people to decide about public matters.

The provision of the letter (f) is taken over by me from the Charter of Fundamental Rights, it concerns a right to refuse the military service. I changed however one thing in it: I removed the words that this right is granted according the laws valid in individual member states. Such stipulation is however unbecoming in a federal constitution – if a federal constitution enumerates certain rights, the reason is to force all states to observe the given rights without an exception; then it is impossible that the federal constitution gives a possibility to the member states to determine conditions for asserting the rights – thus, any member state would be able to determine such conditions which would make a right guaranteed by the federal constitution in fact inapplicable; purpose of enumerating basic rights in the federal constitution would be thus refuted and besides, no other right (even in the Charter of Rights) is formulated in this way.

The letter (g) follows and it deals with the right of everybody to nationality and impossibility to deprive anyone of it. Wording of the Universal Declaration (article 15) seem sufficient to me, so I take it over literally.

The letter (h) concerns the right of asylum. The Charter of Fundamental Rights mentions the right in the article 18 but in a way not suitable for a constitutional text, besides it speaks not about a European federation which I changed in its text.

The next my provision follows the previous one and prohibits to extradite a refugee to a state where he would be endangered by cruel treatment or death. I took over its wording from the Charter of Rights (article 19), almost the same provision is however also in the constitution of Switzerland.

Experience with dictatorial regimes of the 20th century instruct us that a formal division of three branches of the state power can exist but if all power in the state is concentrated in the hands of one political party, the constitutional institutions are of no importance. Unfortunately, it manifests itself to a certain extent also in the present democratic states, decision making inside political parties has often more influence than decision of constitutional institutions which they control. It cannot be avoided wholly (only wider use of the direct decision of the people can restrict it), but it is at least necessary to restrict merging political parties and the state; therefore I added a provision taken over from the constitution of the Czech Republic saying that political parties must be separate from the state.

The letter (k) deals with the right of petition. If greater emphasis on direct decision of the people is laid, petitions will not maybe have such importance as in a purely representative system but in spite of it they will perhaps have its certain meaning. I took over wording of this letter (k) from various European constitutions with some adaptations; so the suggestion gives an individual or a group a right to submit petitions, it prohibits to cause damage to those who put forward a petition and it obliges offices to handle the petition. It prohibits also to call on to violate human rights or to interfere in decision of a court through a petition.

The suggestion of the letter (l) is a provision that is probably unknown in constitutions of states because it reacts to the trend which existed not earlier. A slogan of present ruling neoliberalism is “as minimal state as possible” and it manifests itself – among other things - in practice that institutions of public authority assign more and more of their own duties to private firms although they are (or should be) able to perform the duties themselves. It begins with engaging cleaning firms and ends by the fact that ministries assign drawing up strategic plans to private firms. Such advancement is however wasting public resources because public authority bodies are able to perform the duties more and more being handed over to private firms cheaper (a firm must have a profit, an office must not), this advancement however in particular contravenes spirit of democracy because private firms are not responsible to citizens for their activity. Therefore I consider as necessary to insert a provision in the suggestion of the European constitution that says that duties resulting from administration of public matters should perform institution of public authority subordinated to democratic control.

Political rights that usually are enumerated in constitutions and other documents generally apply to individuals but people have always been joining themselves in greater groups, in particular ethnic and in newer times, national. Rights of these groups are not identical as rights of the individuals that the groups consist of and therefore it is appropriate to include such provision in the constitutional text. The first part of my suggestion says that public authority of states as well as the one of their autonomous parts protects rights of ethnic, national and language minorities, three their rights are enumerated afterwards – free development of their culture, customs and language which public authority should support. The second part of the provision (the second sentence) then prohibits that somebody suffers damage on account of affiliation with any national or ethnic minority group.

As I have already written above, the Charter of Rights concentrates rather on high-quality public administration in the field of political (citizens') right but this too is a contribution to the question of the political rights. That is the reason why I took over the first paragraph of the article 41 from the Charter of Rights which says about an everybody's right that his affair is handled impartially, properly and fast by the offices, then the letter c) from the second paragraph of the same article of the Charter about an obligation of the offices to give reasons for their decisions (I adapted both sentences in order that it relates to entire public administration, not only to bodies of the union). Further I added one more sentence to the same letter (n) of my suggestion, a sentence formulated according to the constitution of Finland, namely that everybody has a right to compensation for injustices caused by public bodies.

The last letter (o) of the suggested section about political rights relates to the principle of openness. In principle, this right is expressed by the article 42 of the Charter of Rights, wording of suggested letter (o) is however taken over by me from the Polish constitution – for it gives anybody a right to obtain information non only from public institutions but also from persons active in public administration which is a broader formulation (and besides it speaks again not about institutions of the Union but about all organs and persons of public authority generally).

Right to free movement and residence

Previous two posts that I had published belonged to the shorter ones and I will deal with a topic that demands more length. The topic of this brief post will be the right to free movement and residence.

My suggestion has only two letters, both based on the corresponding provisions of the Universal Declaration (the article 13), however completed for the purposes of the European constitution.

The first letter speaks, in accordance with the Universal Declaration, that everybody has the right to freedom of movement and free choice of his residence; I replaced only the words of the Universal Declaration about “each state” with the words about the whole territory of the European Union. By the way, the existing article 45 of the Charter of Fundamental Rights is a very similar (and in its sense the same) provision.

The second letter speaks about the right to freely move across state boundaries. Because I have already written about free movement across the member states' boundaries in other articles of proposed constitutional text, so here the text will speak about free movement across the external boundary of the European federation. The Universal Declaration which I have based this letter again on speaks about “any country” and the right to leave it and return to it again; I replaced the “any country” with the European Union, in other I followed the text of the Universal Declaration. I added to it one more sentence taken from the constitution of the Czech Republic concerning foreigners for the previous sentence of the provision refers not explicitly only to the citizens of the European Union; according to the added sentence, it is not possible to banish a foreigner except in cases prescribed by the law.

The next article will be longer and will deal with a more important topic – the political rights.

Right of assembly

This post about the right of assembly will be similarly short as the previous one about freedom of expression. I will less proceed from the Universal Declaration because it speaks about assembling and association only by two sentences in one article – I will therefore complete it with some other sentences created on the basis of other documents, namely of European states' constitutions.

My suggestion consist of four letters, the first of them quotes verbatim the first paragraph of the article 20 of the Universal Declaration which says that everybody has the right to peaceful assembly and association. But this sentence is too general and should be more specific.

The letter (b) of my suggestion reminds a provision of my previous text about freedom of expression: I wrote there that freedom of expression has to be sometimes restricted, I will write similarly about restriction of the right of assembly here. It is actually not about restriction of the right to assembly in itself but about putting conditions of holding public assemblies more precisely. If the letter (a) speaks about peaceful assembly, it is obvious that one of these conditions is maintaining public order and public security, it is moreover necessary to demand property not to be gratuitously destructed in public assemblies. These rules will come into their own in many public assemblies as various sports or cultural events and they will be effective also in assemblies of political character; abuse of these natural rules however threatens in their case (as we can see after all often also today in Europe), therefore I added the words “by fair principles” (i. e. the right can be restricted) to the possibility to restrict public assemblies – the fair principles are here to understand such principles that protect the society and are not intended as pretexts for foiling any public assembly by holders of public power (or maybe hidden economic power).

The letter (c) is expansion of the last word of the letter (a) and deals with possibilities of establishing associations. Everybody shall have a right to establish associations or join existing associations, without necessity to ask the public power for authorization as constitutions of many European states declare. Not every association can however be founded and exist, some of them can be a threat for other members of the society and for democratic arrangement of the society at all. These are in particular the associations that intend to achieve their purposes with help of weapons or associations that strive after elimination of democratic arrangement and its replacement of an authoritarian form. Establishing and existence of such associations must be denied by the European constitution.

The last letter of this brief constitutional text is based on the text of the Universal Declaration, on the second paragraph of its article 20 which says that nobody must not be compelled to be a member of any association. I added to it further a prohibition of forced participation in public assemblies.

The constitutional text of this article will be published in the end after all posts dealing with basic rights.