13 August 2011

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).