29 December 2010

Equality among people and the most basic personal freedoms

The first article dedicated directly to the constitution's text about the human rights must logically concern what has to be fulfilled in the first place – namely life and personal freedom of every individual human.

Every charter of human rights has to begin with a statement that all right that itself enumerates are valid for all people without any exception. If it was not, if all human rights were not valid for all, it would mean that only some people could enjoy them; but it would be needless to draw up whatever charters of rights in that case because rights would be employed only by them who would be enough strong to be able to fight them out for themselves. And Roman poet Ovid already (and certainly somebody before him) asserted that “Laws were made lest the stronger might become all-powerful.” The text of the Chapter two of the European federation's constitution (Chapter one – Preamble, Chapter two – Basic rights, Chapter three – Competencies) must therefore begin with corroboration of equality of all humans. In conformity with my previous assertion that I will follow in particular the Universal Declaration's text, I consider as the best to completely take over its first statement which grants, except of equity of all humans, also innate freedom to everybody and asks that all humans act to each other as brothers (“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”). The Charter of Fundamental Rights of the EU (further sometimes denoted by me as the Charter of (Fundamental) Rights) which would come into consideration as a main pattern in case of creating the European federation's constitution contains a similar statement but more brief and weaker in particular, namely that all are equal before the law – but it is not wholly the same, just because the Universal Declaration mentions the equality before the law too; for equality before the law relates to political rights, people however should be equal to one another not only by political rights but in all condition (except of individual skills and qualities, naturally). The Charter of Rights considers not equality of all humans as its most significant provision because it begins with another one (which puts stress on human dignity and which however is mentioned in the Universal Declaration too).

I consider entirely appropriate also to take over the first paragraph of the article two of the Declaration which specifies how the mentioned equality among humans is meant, namely what circumstances have not to impede its applying. I added sexual orientation to the text of the Universal Declaration (that reads in the original wording “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”) among inadmissible obstacles for human's equality because it was perceived just as a matter of morality in the year 1945 and therefore it could not appear in the Declaration; similarly I added physical handicap and nationality for these two conditions are used as a reason to violate human rights also today and they were neglected after the World War II (the nationality is however indicated in the article two of the Declaration).

The article two was entitled by me “Right to life, personal freedom and security” and it is actually just slight paraphrase of the article three of the Universal Declaration which grants to the man just these three attributes and which I take over in the text of proposal of the European federal constitution: “Everyone has the right to life, liberty and security of person.” The Charter of Rights expresses the same right but it splits it in two provisions – the article two of the first chapter and the article six of the second chapter.

The next my provision of the article two concerns inadmissibility of the death penalty that proceeds from the European view on this matter; it concurs with the article two of the first head of the Charter of Rights.

The following provision is taken over by me again from the Universal Declaration where it reads: “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” I replaced only the slave trade with trade in people that is a more general idea and I incorporated thus the provision of the article five of the Charter of Rights (“Trafficking in human beings is prohibited.”) in the text of my proposal. A add also the provision prohibiting compulsory labour of the same article of the Charter to the same letter of the article two of the European constitution's proposal.

I placed two provisions that are present neither in the Universal Declaration nor in the Charter of Rights under the letter (d). These provisions speak that obligations can be inflicted on anybody only by the law and (which is similar) that nobody may be compelled to do anything which is not imposed upon him by the law. These are very important rights protecting against wanton intrusion on acting of persons and I took them over from the constitutions of the Czech republic and Poland.

The basis of the other constitutional provision was for me the following provision of the Universal Declaration: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” (This is a classical provision that as a rule has been cited in state constitutions and various international conventions.) I made it only more concrete by the words saying that the torture is allowed to be neither psychical nor physical (the text of the Italian constitution speaking about prohibition of psychical and physical violence against persons (article 13)).

The last provision of the article two of my proposal corresponds to the article three of the Charter of Rights where psychical and physical integrity of a human is discussed and it is manifest from the text of the article that prohibition of medical operations made without approval of the respective person has been meant with it. It without any doubt refers above all to medical crimes committed by the Nazi dictatorship as well as communist dictatorships and therefore also some other documents (among European constitutions for example the Polish constitution or the constitution of Portugal) mention prohibition of interfering in human integrity and I have used them for formulation of the constitutional proposition. The article three of the Charter of Rights has served to me only in its first paragraph that I used, its remaining parts (those about eugenic practices and cloning) will be used by me in another text later (treating freedom of scientific research).

In the next post, I will discuss rights to judicial protection, the whole wording of this part of the proposed federal constitution will not be presented until a last article dealing with human rights will be published by me here.