THE CONSTITUTIONAL PROTECTION OF RIGHTS

GB 40 sider The Danish Institute for drafted ”The Constitutional Protection of Human Rights” as part of its endeavour in the Middle East and North Africa.

The team that produced this brief comprises: Thomas Trier-Hansen, lawyer, Nordic Law Group Aps. , former Chairman of the Court of Greenland is the main author. Lisbeth A.N. Thonbo, Head of Department a.i.; Anders F. Buhelt, former Head of Department; Paul Dalton, Senior Adviser; Lise G. Hendriksen, Head of Section; Stéphanie Lagoutte, Senior Researcher; Bent Vase, Corporate Management Adviser to DIHR and Mazen Shaqoura improved the content and language of the document. Annali Kristiansen, Senior Adviser, DIHR, initiated and directed the process leading to the present document.

Thank you to Mohammad Abbas, Fatma Raach and Fathi Zabaarfor the Arabic version; to Bent and Valerie Kristiansen for the English version and to Abdelhamid Askri and Tangui Coulouarn for the French version of the document.

The brief has been informed and inspired by international human rights instruments and constitutions around the world. DIHR has endeavoured to ensure that all references are correct and that views expressed are as objective as possible.

Donor: the Danish Ministry of Foreign Affairs, DANIDA, via agreement ref. DIMR 104 A1-14-17.

ISBN: 978-87-91836-62-6 EAN 9788791836626

Layout: Hedda Bank Print: Handy-Print

© 2012 The Danish Institute for Human Rights

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GB 40 sider CONTENTS

1. PREFACE 4

2. INTRODUCTION 5

3. HUMAN RIGHTS – THE CONSTITUTIONAL FRAMEWORK 9 3.1. THE PREAMBLE 9 The applicability of the preamble 9 Founding religious values in a constitutional context 9 3.2. FUNDAMENTAL PRINCIPLES AND VALUES 12 The rationale for making reference to fundamental principles and values 12 The normative status of fundamental principles 12 3.3 BILL OF RIGHTS 15 The list of rights 16 Enforceability and justiciability 18 Derogations 21 Limitations 22 Changes to the list of rights 23 3.4. REMEDIES AND NATIONAL HUMAN RIGHTS MECHANISMS 24 The judiciary - its mandate, functions and powers 24 Other constitutional mechanisms 25 3.5. PRESENT AND FUTURE INTERNATIONAL HUMAN RIGHTS OBLIGATIONS 26 International instruments’ position in the national legal hierarchy 26 The effective national recognition of international instruments: the impact of monism or dualism 28

4. CONCLUSION – INTER-LINKAGE BETWEEN CONSTITUTIONAL PROTECTION AND EFFECTIVE AND EFFICIENT PROTECTION OF HUMAN RIGHTS 29

ENDNOTES 30

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GB 40 sider 1. PREFACE

In recent years, new constitutions have been ensure an effective and efficient protection of discussed, drafted and adopted in many places human rights at the domestic level. of the World. The constitutional protection of human rights is one of the core elements of The purpose of this brief is thus to highlight the these processes. In Latin America, Bolivia and fundamental elements for ensuring an effective have been at the forefront of highly and efficient protection of human rights within a participatory drafting processes. As a result, constitutional framework. It is meant to provide the new constitutions now include detailed the reader with an overview of the important catalogues of human rights and indeed a discussions that may arise in the course of further development of rights, such as the drafting, amending or analysing a constitution. recognition of the right to water. In Europe, This brief focuses on the principles of and Norway and in Asia, Nepal are currently human rights at large, remedies to human debating their constitutional frameworks rights violations and relations between national and the place to be given to human rights and international human rights law. Specific protection. issues such as citizenship, nationality or minority rights are not addressed here as these With the concentration of constitutional work areas require more thorough analysis. This in Egypt, Morocco, Tunisia and Yemen, the brief builds on extensive empirical research idea of publishing a brief on the Constitutional of constitutions, constitutional processes and Protection of Human Rights came about jurisprudence from most parts of the World. through conversations with partners in the Each chapter provides an analysis, examples Middle East and North Africa. of constitutions and spheres of discussion that should help pinpoint and address human rights The Danish Institute for Human Rights and related issues in constitutional processes. has addressed human rights protection in constitutions and law-making both through The target groups for the brief are professionals research and concrete advice since the 1990s. that work occasionally with constitutional While there will always be specificities to any processes but who are not specialists in constitution, there are also some fundamental constitutional law. conditions that should be met in order to

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GB 40 sider 2. INTRODUCTION

A state based on rule of law1 is characterized The constitutional framework plays an important by foreseeability, accessibility, accountability, role to that effect by regulating the relationship separation of powers, as well as recognition between the various branches of government and protection of rights of every person. as well as the powers and functions of these, Consequently, rule of law is fundamental for ensuring an appropriate balance between the fulfilment of human rights. the state and the people, and regulating the relationship between domestic and . The con­stitution is rightly regarded as the supreme law of the land.2

The has defined rule of law as: “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to THE HIERARCHY OF LAWS laws that are publicly promulgated, equally • The highest level of law is the Constitution. enforced and independently adjudicated, and • The second layer in the hierarchy of laws which are consistent with international human consists of procedural, organic, and sub­ rights norms and standards. It requires, as stantive laws that must all derive from the well, measures to ensure adherence to the Constitution. principles of supremacy of law, equality before • The third layer consists of sub-decrees and the law, accountability to the law, fairness bylaws, which must derive from the above- in the application of the law, separation of mentioned laws within the second layer of powers, participation in decision-making, the hierarchy of laws. legal certainty, avoidance of arbitrariness and • All administrative decisions must have basis procedural and legal transparency” in law or in a sub-decree founded in law, if The rule of law and transitional justice in they are to have implications on the rights of conflict and post-conflict societies, report the individual. of the Secretary-General, 23 August 2004 • According to the hierarchy of laws an inferior (United Nations S/2004/616). law must always conform to a superior law.

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As the supreme law of the land, the constitution Today, national constitutional human rights places certain limits on the sovereignty of the frameworks vary from a few states without a Parliament and in many cases defines the set of written constitution per se10, to states with a values of that country. limited set of freedoms and rights enshrined in the constitutions11 and to a large number Historically the concept of human rights of states with comprehensive bills of rights12 has, in general terms, developed from incorporated into the constitution.13 being a few procedural guarantees against arbitrary interference from the authorities and guarantees of certain freedoms3, into an internationally inspired framework for ensuring and promoting the rights of a person or group CONVENTIONS of persons as well as protecting against • A convention is a result of a drafting and interference from the state or other actors.4 negotiation process. • Once the final text is formulated, the More recently some constitutions, often due convention is adopted with the consent of to the domestic political agenda, also contain all the states participating in its drafting or a type of obligation upon the state to ensure sometimes by a vote at the conclusion of an basic social services to the people.5 international conference. • The consent of the state to be bound may Since the beginning of the 20th century, be expressed by signature, exchange of human rights have become intensively instruments constituting a treaty, ratification, internationalized. While the national acceptance, approval or accession, or by any constitutional rights and freedoms initially other means if so agreed. influenced the international agenda,6 the • A state may sign a convention subject creation of the United Nations and the adoption to ratification, acceptance or approval. of the Universal Declaration of Human Rights Consequently, the state is not internationally (UDHR) have been fundamental and an bound by the convention. inspiration for many post World War II national • A state that has signed a convention subject constitutional processes all over the world. The to ratification etc. is still internationally United Nations covenants on Civil and Political, obliged to refrain from acts which would and Economic, Social and Cultural Rights7, the defeat the object and purpose of a convention regional human rights instruments8 and the until it has made its intention clear not to various thematic human rights conventions have become a party to the convention. later supplemented the UDHR as a source of • The internal effect of the ratification depends inspiration when drafting national constitutions.9 on the legal system of the ratifying state.

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International human rights instruments do not violations. Lack of respect for the constitutional dictate how State Parties should implement values, rights, and enforcement mechanisms the rights covered by the instruments. However, may often go hand in hand with the presence the State Parties are obliged to respect and of authoritarian regimes, absence of rule of law, ensure the rights effectively and in good faith lack of accountability, scarcity of resources and according to their international obligations, cf. low public awareness about rights and duties in article 26 of the Vienna Convention on the Law a particular country. of Treaties.14 The brief analyses the main prerequisites within In theory, the optimal protection of human the constitutional framework that is likely to rights is to insert a list of human rights optimize the protection of human rights at guarantees into the constitution. This national level.17 Consequently, the brief focuses recognition at constitutional level ensures that on human rights as guiding principles and all branches of government are bound by the core values as part of a national policy and rights in their actions, and that legislation shall identity, the character of human rights, the respect these rights due to the constitution’s available national remedies and human rights hierarchal supremacy. mechanisms and the relationship to relevant international human rights instruments and Furthermore, it will automatically foster systems. more public support for the human rights enumerated in the constitution, if their inclusion Chapter 3 covers three elements: The is a result of a participatory constitutional constitutional framework’s relevance for process and adopted by the people through a granting human rights effectiveness and national referendum.15 Such inclusion also fits efficiency, examples from other constitutions into the notion of a constitution, whereby it is a and finally a set of points to be addressed binding legal document (with the force of law) through discussion. These spheres of discussion by which a society organizes a government are intended to guide the evaluation of an for itself, defines and limits its powers, and existing or the drafting of a new constitution. prescribes the relations of its various organs inter se, and with the people.16 Finally, Chapter 4 of the brief discusses further the inter-linkage between constitutional In practice, however, there is no guarantee protection and effective and efficient protection that the constitutional recognition of human of human rights. rights by itself leads to a reduction in human rights violations in a country or provides more The analysis contains frequent references to effective protection against human rights a number of national constitutions. Some of

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the constitutions referred to are from countries with similar legal, political, cultural or historical contexts to those countries in the Middle East and North Africa where constitutional reform processes are now underway. Others illustrate particular issues that are likely to arise in the context of these processes. Some of the constitutions were developed in countries in transition18 or in countries with a young democracy,19 others in the Middle East.20 Finally, some have been selected due to their origin in civil law systems, since many of the countries in the Middle East and North Africa are based on the civil law rather than the common law system.21

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THE CONSTITUTIONAL FRAMEWORK

3.1. THE PREAMBLE states that the preamble is an integral part of the Constitution.26 A preamble usually contains introductory remarks to the constitution. Sometimes the FOUNDING RELIGIOUS VALUES IN A preamble is just a few words; sometimes it is a CONSTITUTIONAL CONTEXT resume of historical facts, an explanation or a In countries with a strong consciousness confirmation of a set of values. regarding the religious foundation of the nation, the preamble may refer to a specific THE APPLICABILITY OF THE PREAMBLE religion as one of the core values of the State.27 Many constitutions make a general reference The recognition of a specific religion as a state in the preamble to values such as respect for religion in the constitution is not uncommon human rights, human dignity, rule of law, social either.28 justice, equality and democracy.22 Although the preamble might be seen as a non-binding Some constitutions do not make any reference declaration, its potential for binding impact to a specific religion, but instead recognize should not be underestimated. religious diversity in the preamble.29 Other constitutions are based upon the principle In some instances, the preamble may contain of secularism and recognise the freedom of reference to national human rights laws or religion of all individuals.30 The Constitution of international human rights standards.23 By Turkey emphasizes explicitly the principle of virtue of this reference, the national courts may secularism. However its bill of rights includes set aside domestic legislation contravening the right of everyone to freedom of conscience, such human rights standards if they are religious belief and conviction. The separation identifiable.24 On other occasions, a preamble of state and religion in the Constitution of has been used as a guideline for interpretation Turkey may be regarded as a guarantee of the or as a value to be observed by the branches freedom of belief and religion of everyone. of government.25 The Constitution of Morocco

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The recognition of a specific religion as a state The relationship between constitutional religion may result in certain challenges in supremacy and any officially recognized relation to the status of other religions and religion is always a complex issue. may have a bearing upon the protection, promotion and fulfilment of human rights. In the case of Islam, Intisar A. Rabb distinguishes Most importantly, the predominant position of a between three sets of constitutionalisation of religion in a constitution and a state must never Islamic law:31 prevent the freedom of religion of persons • Dominant constitutionalisation – where a belonging to other religions: Discrimination constitution explicitly incorporates Islamic based on religion must be prohibited. law as the supreme law of the land (Example: Iran, where jurists effectively control the A state religion may also have an adverse government and interpretive legal decisions); impact on human rights if religious texts and • Delegated constitutionalisation - where their interpretation by religious authorities are a constitution incorporates Islamic law seen as legal sources of law that may prevail but delegates its articulation to the jurists over human rights in the event of a conflict of (Example: the Gulf Arab states, where norms. Religious texts (and their interpretation) interpretive authority over Islamic family law in as a source of law may have some shortcomings particular is vested in the classes of jurists); in relation to the rule of law principle: A rule • Coordinated constitutionalisation – where a derived from religious authorities might not be con­stitution incorporates Islamic law, laws foreseeable and accessible and is potentially of democratic processes, and liberal norms, subject to inconsistent interpretation. In placing them all on equal footing (Example: the same way, the recognition of religious Egypt and Morocco, where the government authorities as the primary source of law may and inter­pretive decision-makers have devised have an adverse impact on the constitutional schemes of differing relationships with the protection of human rights if the constitution is jurists). subject to religious authorities in the event of a conflict, in which religious authorities are placed Some constitutions of Muslim countries above the constitution in the hierarchy of laws. refer to Islam as a religion: The Constitution of Afghanistan states that no law shall In all situations, the constitutional recognition contravene the tenets and provisions of the of the freedom of belief and religion of all and holy religion of Islam in Afghanistan (article the prohibition of discrimination on the basis of 3). The Constitution appears here to refer to religion is a paramount guarantee against the Islam as a religion and not as Islamic law. Other possible negative impact of a state religion or constitutions refer to the Islamic as a the predominance of a religion in one country. principal source or main source of legislation

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such as Egypt,32 Qatar, Kuwait and Bahrain.33 For example, the Constitution of Morocco in its Article 2 of the states that preamble states that it is a sovereign Muslim Islam is the official religion of the State and is state and that pre-eminence given to the a foundation source of legislation: “No law may Muslim religion within the national ‘reference be enacted that contradicts the established frame’ is on an equal footing with the values of provisions of Islam”. Intisar A. Rabb has the Moroccan people of openness, moderation, claimed that the translation of this provision tolerance and dialogue for the mutual from the Iraqi constitution into English may understanding of all cultures and peoples of have contributed to some misunderstandings. the world. She argues that the text reads: “No law can be passed that contradicts Islam’s settled [legal] The relationship between constitutionally rules [or settled Islamic (legal) rules] (thawabit protected rights and religious values is not ahkam al-Islam).” Consequently it is Islamic only a question in relation to Islam, but to any Law that is incorporated and not the religion of religion. Islam per se.34 For instance, the preamble of the Constitution Article 2 of the Constitution of Iraq reads on: of Ireland emphasizes that “in the name of the “B. No law may be enacted that contradicts Most Holy Trinity, from Whom is all authority the principles of democracy. C. No law may and to Whom, as our final end, all actions both be enacted that contradicts the rights and of men and States must be referred, We, the basic freedoms stipulated in this Constitution.” people of Ireland, humbly acknowledging all Therefore the Constitution of Iraq appears to our obligations to our Divine Lord, Jesus Christ, place Islamic principles (or Law), democratic Who sustained our fathers through centuries principles and fundamental rights and of trial…” In a number of cases this preamble freedoms on an equal footing.35 has been applied by the Supreme Court of Ireland in determining the constitutionality of Instituting Islamic law as the principal bills and laws that have interfered with e.g. the source of law in a country may result in the right to privacy. In some cases, the Supreme discriminatory treatment of non-Muslim Court has rejected claims of unconstitutionality individuals living in that country. It could be on the ground that the bill/law in question was argued that by recognizing Islamic law as a guarding the Catholic principles and in light of source of law on an equal footing with other these principles the interference with the right sources, the assumption of primacy of one of to privacy was permissible.36 In these cases, the sources of law over the other is reduced and Catholic principles have been considered as the supremacy of the constitution is likewise having supremacy over human rights. However, reconfirmed. it has also been noted by the Irish Supreme

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Court that the Irish people could change the 3.2. FUNDAMENTAL PRINCIPLES AND Constitution if Catholic principles should cease VALUES to precede.37 THE RATIONALE FOR MAKING REFERENCE TO The impact of incorporating various forms FUNDAMENTAL PRINCIPLES AND VALUES of reference to religion into the preamble or A general reference to respect for human fundamental principles on the protection, dignity, human rights, rule of law and respect and promotion of constitutional democracy has been included in many national anchored rights and freedoms in States varies constitutions through the incorporation of a set in the light of the interpretation of different of fundamental principles, guiding principles, constitutions. However, potential conflicts founding provisions, fundamental values etc.38 between religious values and human rights can be solved fairly and transparently in a society These general references stress the inter- based upon the principle of the rule of law. linkages between rule of law, democracy and human rights as well as the fact that the state SPHERE OF DISCUSSION should both respect human rights and actively • Is the constitution regarded as the supreme ensure the enjoyment of such rights. The law of the land? fundamental principles are often regarded as • What is the legal effect of the preamble ‘national ambitions’ and imperative in policy- according to the national legal traditions making, decision-making or any other state when determining the constitutionality of action as well as for national co-existence. legislation, actions or omissions? • Should specific human rights be explicitly THE NORMATIVE STATUS OF mentioned in the preamble, i.e. by reference FUNDAMENTAL PRINCIPLES to national or international instruments? Normally, constitutions incorporate the set of • Should the preamble make a general principles and values into the aim and duty of reference to human rights? the state in general terms,39 or into the various • Should the preamble make reference to the provisions determining the mandate and religious foundation of the state and what are functions of the branches of government.40 the consequences of so doing? • How is foreseeability and respect for the Others are more detailed in their approach.41 hierarchy of laws ensured if a religious The Constitution of Malawi, for instance, authority is considered a legal source? contains a set of principles for national policy. The principles are directory in nature (that is not directly binding or justiciable) but courts are entitled to have regard to them in interpreting

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and applying any of the provisions of the The Constitutional Court of Colombia held constitution or of any law or in determining that changes to a pension scheme violated the the validity of decisions of the executive and rights of retired persons. In determining the in the interpretation of the provisions of the matter, the court made extensive reference to constitution.42 the fundamental principles of the constitution and in particular emphasized that: The Constitution of Sierra Leone of 1991, with subsequent amendments, includes a number “Colombia is a social rule of law state of fundamental principles similar to those in accordance with article 1 of the in the Constution of Malawi. However, it also Constitution. Among other things, this stresses that the provisions contained in that material definition implies that the chapter do not confer legal rights and are traditional state or the state ruled by law not enforceable in any court of law, but the now has a special, inherent characteristic principles contained therein must nevertheless which is exactly its social nature. At be fundamental in the governance of the state, the same time, this nature leads to the and it must be the duty of parliament to apply conclusion that the human being is more these principles in law making.43 important than the state since the state is at the service of the human being.”45 The fundamental principles may also have some importance when national courts or other The South African Constitutional Court adjudicating bodies interpret laws and decide recognized the concept of ubuntu as a the matters before them. In that sense, the fundamental value in South Africa.46 The principles have more or less the same status as “outstanding feature of ubuntu in a community the preamble. If the constitutional text makes sense is the value it puts on life and human reference to another legal text (a convention, dignity. The dominant theme of the culture a national instrument etc.), the normative is that the life of another person is at least as basis for the fundamental principles is clearly valuable as one’s own. Respect for the dignity established.44 If not, the fundamental principles of every person is integral to this concept.”47 In themselves would usually not be regarded as the light of this argument, amongst others, the legal norms as such. death penalty was found unconstitutional.

Although fundamental principles are not actual norms, a court may in some jurisdictions refer explicitly to the imperative (that is, ‘binding’) nature of the fundamental principles in determining the constitutionality of the matter before it.

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resources, pastures, ecology and environment. The Court concluded that to: “Generally, ubuntu translates as humaneness. In its most fundamental sense, it translates “…ensure the attainment of the as and morality. Metaphorically constitutional goal of the protection and it expresses itself in umuntu ngumuntu improvement of the natural wealth and ngabantu, describing the significance of group environment and of the safeguarding solidarity on survival issues so central to the of the forests, the lakes, the rivers and survival of communities. While it envelops the the wildlife and to protect the people key values of group solidarity, compassion, inhabiting the vulnerable areas from the respect, human dignity, conformity to basic hazardous consequences of the arbitrary norms and collective unity, in its fundamental exercise of the power of granting mining sense it denotes humanity and morality. leases and of indiscriminate operation Its spirit emphasises respect for human of the mines on the strength of such dignity, marking a shift from confrontation to leases without due regard to their life, conciliation”, Constitutional Court of South liberty and property, the court will be Africa, CCT3/94, S v Makwanyane and Another, left with no alternative but to intervene para. 308. effectively by issuing appropriate writs, orders and directions including the direction as to the closure of the mines, the operation whereof is proving to be The includes a set of hazardous and the total prohibition of directive principles. A directive principle the grant or renewal of mining leases imposes upon the state an obligation to ensure till the Government evolves a long-term that the directive principle is incorporated into plan based on a scientific study with a state policies. Consequently, the principle view to regulating the exploitation of the does not as such give the individual an minerals in the State without detriment to enforceable right. These principles were for the environment, the ecology, the natural a long time regarded as unenforceable by wealth and resources and the local the Constitutional/Supreme Court of India. population.”48 However, the Court appears to have moved away from this approach. In a judgment from The directive principles became essential in 1987, the petitioner sought cancellation of understanding and interpreting the content and a mining lease for excavation of limestone meaning of fundamental rights enlisted in the granted in favour of a mining company as Constitution of India.49 it posed a danger to adjoining land, water

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The Colombian, South African and Indian 3.3 BILL OF RIGHTS decisions are evidence of a value-based While the preamble and/or the fundamental approach to constitutional interpretation that principles sections of a constitution reflect effectively contributes to the protection of ambitions and overall values, the bill of rights human rights.50 articulates the values into legal principles or rules.51 SPHERE OF DISCUSSION • Should the constitution include a set of The character of the rights enumerated in the fundamental principles/values? constitution may vary from a few fundamental • What is the applicability of fundamental freedoms to a large number of civil, political, principles/values according to the national economic, social, cultural, environmental rights legal traditions when determining the for both individuals and groups. Some of the constitutionality of legislation, actions or rights are formulated more vaguely than others, omissions? and some are subject to limitations. Some • Should the fundamental principles/values rights cannot be derogated from: They are make reference to specific human rights or absolute. The list of rights may only be changed contain a general reference to human rights? through a special legislative process, which is • Should the statement of fundamental a process subject to stricter requirements than principles / values be directory or mandatory the usual legislative process. in nature? • To what extent should courts be entitled to THE LIST OF RIGHTS refer to these fundamental principles / values There is no clear picture of an international when determining the constitutionality of law or national model for the set of rights that a and / or the rights / obligations of individuals constitution must guarantee. Traditionally the and the State in petitions coming before it for rights covered by many constitutions were the determination? political and civil rights and freedoms.52 Today the number of rights has been extended to a wide-ranging catalogue of rights often inspired by the International Bill of Human Rights and other international and regional conventions.

Nevertheless, a referral to or an adoption of globally or regionally recognized rights may not be sufficient in order to achieve an effective constitutional protection. The rights shall be founded in the reality of the particular nation

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and reflect the ambitions and concerns of that nation. Consequently, the drafting and national hearing (stakeholder) processes are of particular The International Bill of Human Rights importance when designing a bill of rights. consists of the Universal Declaration of Human Rights, the UN Covenant on Civil and Political Over the past few decades, various states Rights and the UN Covenant on Economic, have undertaken constitutional drafting or Social and Cultural Rights as well as their revision processes for different reasons: New Optional Protocols. democratization processes, constitutional reforms in order to make the constitution reflect a new national agenda53, or an ambition to strengthen democratic institutions, rule of of the Constitution of India was adopted in law and human rights.54 November 1949.

Generally speaking, states that adopt a The rights enumerated in the various comprehensive list of human rights in their constitutions have traditionally been primarily constitution today take their point of departure civil and political rights and freedoms.59 In in the international human rights instruments recent decades an increasing number of new or adopted since the establishment of the revised constitutions have included economic, United Nations, and most prominently the social and cultural rights – albeit in different International Bill of Human Rights.55 forms and sometimes only to a very limited extent.60 Furthermore, rights such as the right When India became independent in 1947, to a clean environment and collective rights the Constituent Assembly of India had the are also recognized in an increasing number of responsibility of drafting a constitution. From constitutions.61 the very start, the intention was to include a list of fundamental rights as well a set of directive Some constitutions also grant rights that reflect principles.56 India found its inspiration in the Bill their specific history and are not explicitly of Rights of England (1689), the Constitution known from other constitutions or international of The United States of America (1787), the instruments. French Declaration of the Rights of Man (1789) and the Constitution of Ireland (1937)57 as well For instance, article 43 of the Constitution of as in the work of the United Nations in drafting Malawi contains a codification of the common the Universal Declaration of Human Rights.58 law principle of natural justice (No person shall Interestingly the Declaration was adopted in be condemned unheard) giving the principle December 1948 and the third and final draft constitutional status. Mindful of the fact that

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under the one party regime the Government Public Defender that is mandated to promote had often shown scant regard for this principle, their human rights.68 it made sense to the drafters of the 1993 Constitution to incorporate the principles of The Constitution of Colombia includes a natural justice into the Constitution.62 provision on access to the electromagnetic spectrum which is an inalienable and In South Africa, the issue of the right to imprescriptible public resource subject to the a language figures prominently in the management and control of the state. Equality Constitution, as a result of its repressive past.63 of opportunity is guaranteed in the access to its The equality clause in article 9 is another use within the limits determined by law. example. After apartheid, South Africa formulated a very comprehensive equality and In Cambodia, the commerce of human beings, non-discrimination clause that still appears exploitation of people in prostitution, and to be one of the most progressive national obscenity which affects the reputation of constitutional provisions as it includes explicitly women, is prohibited.69 the criteria of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, Finally in India, one of the concerns of the sexual orientation, age, disability64, religion, debates of the Constituent Assembly was conscience, belief, culture, language and birth. the rights of minorities. Consequently, the constitution reflects a combination of social In Ecuador the right of the people to live in a pluralism, secularism and protection of and healthy environment is included and special respect for minorities.70 attention is granted to the rights of nature.65 Ecuador has on several occasions experienced SPHERE OF DISCUSSION conflicts between extraction industries and • Will the constitutional drafting process local, mainly indigenous, populations about the include a broad stakeholder hearing process? protection of the environment. • Should the constitution include a bill of rights? In Turkey, several provisions reflect the legacy • If so, are there any risks in including too many of the founding father of Modern Turkey, rights? Atatürk, e.g. the principle of the protection • Is it beneficial to gain inspiration from of youth.66 As many Turks live outside Turkey, international instruments or constitutions? the Constitution also obliges the state to • Are there any issues in the national historical ensure their rights and ties with Turkey.67 In context which should be reflected in the the Constitution of Bolivia, the Bolivians who constitution? live abroad are granted access to the National

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ENFORCEABILITY AND JUSTICIABILITY “While the general approach of each Regardless of the number of rights enumerated legal system needs to be taken into in a constitution, each provision needs to be account, there is no Covenant right enforceable and justiciable. This means that which could not, in the great majority the domestic courts shall have the jurisdiction of systems, be considered to possess to enforce these provisions when the right in at least some significant justiciable question is being claimed before a court (or dimensions. It is sometimes suggested any other adjudicative body).71 Interpretation by that matters involving the allocation of domestic courts is likely to result in a dynamic resources should be left to the political application of the constitutional provisions over authorities rather than the courts. the course of time. While the respective competences of the various branches of government In general, the civil and political rights must be respected, it is appropriate to have been regarded as both enforceable acknowledge that courts are generally and justiciable, whereas the justiciability of already involved in a considerable economic, social and cultural rights has been range of matters which have important questioned. For a court to decide a matter, resource implications. The adoption of the rule in question has to be rather precise a rigid classification of economic, social and leave no question about who is the duty- and cultural rights which puts them, by bearer or the right-holder.72 Consequently, the definition, beyond the reach of the courts argument against the justiciability of economic, would thus be arbitrary and incompatible social and cultural rights has often been that with the principle that the two sets such rights are impossible to adjudicate as they of human rights are indivisible and are primarily aspirational or political goals to be interdependent. It would also drastically achieved progressively. They are dependent on curtail the capacity of the courts to domestically available resources, and judicial protect the rights of the most vulnerable adjudication would interfere with difficult and disadvantaged groups in society.”73 political decisions of how to distribute possible scarce resources. Nowadays, the claim that economic, social and cultural rights are not justiciable is However, to dismiss the enforceability and challenged and generally in the process of justiciability of economic, social and cultural being abandoned. National courts increasingly rights per se without attempting to examine assess the contents of these rights and in 2008 the contents and scope of the right in question, the UN adopted an Optional Protocol to the would be wrong. In 1998, the UN Committee International Covenant on Economic, Social on Economic, Social and Cultural Rights stated and Cultural Rights allowing the State Parties that: to recognise the competence of the Committee

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on Economic Social and Cultural Rights to is whether or not the provision lays down a consider complaints from individuals.74 The sufficient rule by means of which the right Protocol is seen as a confirmation of the or purpose which it gives or is intended to justiciability of economic, social and cultural accomplish may be determined, enjoyed, rights. or protected without the aid of legislative enactment. If the provision lays down a Furthermore, human rights provisions must be sufficient rule, it speaks for the entire people self-executing in order to be directly applicable. and is self-executing.”75 It is for the courts (or any other judicative body) to determine whether a right is self-executing. However case law from the various con­ If the right is clear and specific the courts are stitutional or supreme courts around the world likely to recognise it as self-executing and indicates that even constitutional provisions directly applicable. Otherwise, there is a need that do not appear self-executing, may still be to convert the provisions into actual rights invoked successfully before the courts. through other legislative measures. The Italian Constitutional Court has occasionally Provisions are, generally, more likely to be expressed that certain constitutional provisions directly applicable before a court or state are basically programme statements but may authority if the provision entitles a person/ still contain limitations upon the legislature group of persons to a specific right (every or the executive. For instance article 4 of the person has the right to …). Italian Constitution holds that:

Other provisions are less likely to constitute “The Republic recognises the right directly applicable rights either because the of all citizens to work and promotes right is rather vaguely formulated, or the state those conditions which render this right is required to take certain initiatives in order for effective.” the citizens to enjoy that right. If so, the right in question will be regarded as a programmatic The provision does not give the individual an provision and not an enforceable right. enforceable right to a specific job, but the Italian Constitutional Court held that the state shall Nevertheless, the fact that the right granted ensure that the individual has the opportunity by the provision needs to be supplemented by to seek a preferred job corresponding to the enabling legislation does not as such exclude skills of the individual.76 In another decision, the provision from being self-executing. “The the Court held that the right to work is a basic guide, or test, in determining whether a fundamental human right, and a provision in constitutional provision should be construed a law that unreasonably limits the access to to be self-executing, or not self-executing, positions within the public service would be

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unconstitutional.77 On other occasions, the formulated and enable the citizens to invoke Constitutional Court has concluded that the them directly before the courts. legislature decides how to implement the right to health,78 but the right includes an obligation SPHERE OF DISCUSSION upon the state to at least provide some sort of • Should the enumerated rights be enforceable minimum level of health care.79 If the state does and directly applicable? not fulfil its obligation, the court may quash • What are national courts’ criteria, if any, provisions of a law that do not comply with for accepting enforceability and direct the protected rights, even if the constitutional applicability? provision directly grants a right to the individual. • Do programmatic provisions have any impact upon the interpretation of constitutionality The Constitutional Court of Colombia has of national legislation, decisions, actions and also considered the difference between self- omissions? executing and non-self-executing provisions of the Constitution. The Court considers the DEROGATION rights relating to freedom and equality and In a state of emergency, the constitution may certain rights relating to dignity and life as self- under certain conditions allow the government executing.80 Economic, social and cultural rights to derogate from the rights enumerated might be indirectly applicable when they are in the Constitution. Derogation is a partial closely and concretely related to the enjoyment or complete suspension of a right. The of the directly applicable rights.81 This could be constitutionally accepted derogation from the case for instance, when the right to family fundamental rights and freedoms is a threat to life is claimed to have been violated because their effective enjoyment. Consequently, most the state is not enforcing environmental laws82 constitutions differentiate between derogable or when right to life is claimed to have been and non-derogable rights even under a state of violated because the state has deprived a emergency. person of his or her livelihood.83 In order to determine the effectiveness of Whether a constitutionally protected right is the constitutional protection of human rights, self-executing and enforceable depends on its the first step is to determine whether the wording and whether the standard is sufficiently declaration of a state of emergency is subject clear to provide the basis for a court to apply it. to substantive and procedural guarantees. If At the end of the day, this assessment depends the state of emergency can be declared easily on the national courts. However, the effective and the courts are not given any powers to hear and efficient protection, respect and promotion applications that challenge the declaration or to of human rights are more likely to succeed review the derogation, the effective protection if the constitutional provisions are clearly will become illusory.

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The state may only derogate from a limited In international human rights instruments number of rights and only to the extent strictly the basic conditions are: the interference required by the situation.84 with a right must be provided for by a law, must pursue a legitimate aim and it must be The next step is to carefully determine which proportional.86 All three conditions have to are the rights that cannot be derogated. In be fulfilled; they are cumulative. These basic international law, rights related to physical conditions are reflected in many constitutions. integrity, such as prohibition of torture, Sometimes the constitution contains all the genocide, slavery, and the prohibition of conditions in a general limitation provision.87 On retroactive penal laws, imprisonment for not other occasions, the limitation is integrated into fulfilling contractual obligations, the right to the provision itself.88 equal recognition before the courts, freedom of conscience and religion,85 are regarded as non- Both approaches may be effective for the derogable. The right to life is non-derogable if respect for human rights. However, if the the constitution prohibits the death penalty (or limitation clause is vague or not well-defined, the state has ratified international conventions the respect for the enumerated rights in the prohibiting the death penalty). It should be constitution is likely to be less effective. noted that the list of non-derogable rights in each constitution may be expanded due to the Regardless of the chosen approach the experience of the state in question. interference should be in accordance with law. The law might be written or unwritten. Common Non-derogable rights are often referred to as law – based on caselaw and customary law are ‘absolute rights’. regarded as fulfilling the criteria of law.

SPHERE OF DISCUSSION Customary or traditional law is recognised • Is the process for declaration of a state of in a number of constitutions. However, if a emergency clearly described and subject to constitution recognises customary or traditional strict requirements? law, the constitution may also stress that its • Do the courts have powers to review the application has to comply with the fundamental declaration and possible derogations during a rights enlisted in the constitution.90 state of emergency? • Which non-derogable rights should be listed? The law – written or unwritten – should nevertheless be predictable, foreseeable, and LIMITATIONS accessible. Furthermore, the law shall not in Most human rights may be subject to general impair the enjoyment of fundamental limitations if the limitation is in accordance with rights. Once it has been determined that the certain conditions. interference is in accordance with the law,

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the actual interference also has to pursue a legitimate aim and be proportional in order to In general and simplified terms, customary or be lawful. traditional law is characterized by: • Preservation of peace and community Occasionally the scope of the right is explicitly harmony in a society where people, their role defined in the provision,91 and consequently, if and status are defined by their attachment to the circumstances of the matter fall outside the family and clan scope of the right, the right is not applicable • Oral, simple and flexible proceedings to such circumstances. On other occasions it is and adjudicators that are chosen through possible to identify some implied limitations mechanisms that are often based on status or within the concerned right. For instance the reputation, and sometimes on heredity right of a citizen to vote cannot be invoked by a • Accountability that is ensured through non-citizen. Implied limitations may also cover community bonds, mutual obligations and the question whether the right was intended to reputation, so that failure to live up to the go beyond the extent expressly provided. If not, demands of fairness and impartiality would the scope of the right will be restricted.92 bring shame and a consequent loss of status • Substantive rules that are derived Finally, the interpretation of the scope of from tradition that may be thought of a right may also imply a limitation on the having existed since time immemorial, respect, protection and enjoyment of another supplemented by common sense and right. If the scope of the human rights is perceptions of community consensus. interpreted narrowly by the authorities and • A system that is often oriented to a local courts,93 the impact will be negative upon the framework and a stable social structure effectiveness of enumerated rights. Likewise, if that is conscious of well-defined social and the permissible limitations are interpreted too gender roles, with corresponding rights and broadly then the rights risk becoming irrelevant obligations. in practice.94 Informal Justice Systems – charting a human rights based approach. A study of informal SPHERE OF DISCUSSION justice systems.89 • If rights are subject to limitations what should be the conditions for such limitations? • Have any limitations (in the existing / draft constitution) been formulated in a sufficiently clear manner? • Are the protected rights formulated in a sufficiently clear manner?

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• Based on existing practice, do national courts Instead it requires the support of the National interpret rights progressively and limitations Assembly with a supporting vote of at least narrowly? two thirds of its members; and of the National • Should customary or traditional law be Council of Provinces, with a supporting vote of recognised by the Constitution and what at least six provinces for it to be adopted.98 should be its status? As indicated above, the procedures vary, but CHANGES TO THE LIST OF RIGHTS it is particularly important for the effective One of the reasons for according a list of protection of the rights enumerated in rights and principles constitutional status is to the constitution that the procedures for entrench into national law certain fundamental amendment are not ordinary procedures rights provisions in such a way that they and that it is not possible to hamper with the cannot easily be disregarded or abolished procedures. subsequently. Constitutional amendments are usually more difficult to carry out as they have SPHERE OF DISCUSSION to follow a ‘special procedure’, irrespective • What should be the conditions for of the nature of the amendments.95 A special amendments to the constitution? procedure is a procedure subject to some • Should any special procedure be provided for stricter requirements than the usual procedure. in the constitution for making amendments to Not all national constitutions require the the chapter on human rights? holding of a public referendum for changes to be made to the constitution’s text.96 Furthermore, some constitutions distinguish between procedures for amendment depending on the character of the amendment. The Constitution of Spain distinguishes between the procedure for amending the constitution (which is still distinctive from ordinary procedures) and a very complex procedure for amendment that has a bearing upon the list of fundamental rights and duties which includes a national referendum.97 The South African Constitution also makes this distinction; however, an amendment to the bill of rights is not sent to a national referendum.

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3.4. REMEDIES AND NATIONAL be argued that access to free legal assistance in HUMAN RIGHTS MECHANISMS such cases is just as essential as it is for persons facing criminal charges.104 THE JUDICIARY – ITS MANDATE, FUNCTIONS AND POWERS The structure of the system of courts varies If it is not possible to bring alleged violations from country to country. Some countries of human rights before the national courts recognize the traditional courts or religious or other adjudicative bodies, human rights courts empowered to handle certain cases, protection becomes ineffective in practice.99 while others do not. Traditional or religious Consequently, the national constitutional courts as well as other similar alternative framework shall establish bodies that are conflict resolution bodies may have an, often empowered to handle such allegations and ignored, impact on the protection of human enforce the rights. These bodies shall likewise rights. Alternative conflict resolution bodies be empowered to remedy the violation must respect the constitution just as the formal effectively.100 justice system does.105 Although the alternative conflict resolution system is recognized by the National courts101 play a fundamental role in constitution, it is often required to have some this enforcement as long as the authorities formal linkage with the formal justice system, respect their final decision and the courts have e. g. in the form of an oversight of its decisions a reputation of being independent, impartial, by a High Court, an Appeal Court or the efficient and representing the highest quality. Supreme Court.106 The longer a matter is pending before the court, the less effective is the respect and protection One question that often arises in relation to the of the rights, in particular for those persons protection of constitutional rights is whether with less financial or other resources. Some the establishment of a Constitutional Court constitutions have established certain speedy vested with specific powers to consider matters court procedures if the matter concerns human concerning the interpretation of provisions in rights issues.102 the constitution provides a more effective and efficient protection than leaving such matters to Access to the courts plays another important a superior court of general jurisdiction, e.g. the role. Access means both physical access and country’s Supreme or High Court. access to legal assistance. Many constitutions grant access to free legal representation Such courts are the highest entity within the in some or all criminal cases,103 but few, court system. Their functions vary and the if any, guarantee free legal assistance or access to the court might be subject to specific representation to persons alleging a violation conditions. of their constitutional or human rights. It could

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Countries with a common law system generally of these institutions will be provided for in the do not have a Constitutional Court as such. A constitution. similar mandate of constitutionality control is being exercised by ordinary courts during the These institutions often have a mandate to course of examining concrete cases. Most often receive and consider complaints, to submit it is the Supreme Court or a court of appeal of amicus briefs, or to bring cases before the the country that will rule on the conformity of a courts on behalf of alleged victims of human law to the constitution.107 rights violations. They may also have a mandate to provide remedies to the complainant either One of the potential benefits of having a directly described in the constitution or in the Constitutional Court or another court with enabling legislation. a similar mandate is the fact that the court is explicitly mandated to examine the Accreditation by the International Coordinating constitutionality of law without taking its point Committee of National Institutions for the of departure in a concrete matter. Constitutional Promotion and Protection of Human Rights courts may also issue opinions based on a indicates that the institution complies with request from other branches of government the so-called Paris Principles.109 However, a regarding the constitutionality of treaties, lack of independence, sufficient resources agreements, and bills.108 and/or public trust in the institution and its decisions will eventually diminish its status as a If the court’s mandate to assess the con­ constitutional human rights watch dog. stitutionality of a law is limited to concrete cases brought before it by an applicant, then In addition to these institutions with an explicit the protection of the constitutional rights might human rights mandate, institutions such as the be less effective; especially if it in practice is public prosecutor, the electoral commission/ difficult for ordinary persons to access the body or anti-corruption agency will have an court or the parliament does not have sufficient impact on the effective respect, protection and resources to assess constitutionality in the law- promotion of human rights. It should be added drafting process. that administrative courts – where they exist – must meet the same requirements in terms of OTHER CONSTITUTIONAL MECHANISMS human rights protection as ordinary courts. Courts are often supplemented by other national mechanisms that contribute to the SPHERE OF DISCUSSION effective respect, protection and promotion • What are the powers of the ordinary courts? of human rights, for example national human • Should a Constitutional Court or a Supreme rights institutions and/or ombudsman’s Court with similar functions be established? institutions. In some cases, the establishment

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• What should be the available human rights is regarded as a national law and it will only mechanisms, their independence, mandate, prevail if the convention has been ratified after function, remedies and interaction? the national law has entered into force (the • What should be the resource structure for the principle of lex posterior). various mechanisms? • Should traditional conflict resolution be Countries with a civil law system are more likely recognised by the Constitution? to have adopted monism.112 The constitutions of Spain,113 France,114 Turkey115 and Chad116 are 3.5. PRESENT AND FUTURE examples of monist systems. INTERNATIONAL HUMAN RIGHTS OBLIGATIONS The has also adopted monism117. However, through its reservations INTERNATIONAL INSTRUMENTS’ POSITION IN Egypt frequently adopts international human THE NATIONAL LEGAL HIERARCHY rights conventions while also “taking into The relationship with international treaty consideration the provisions of the Islamic bodies, the process for signing, ratifying and Sharia and the fact that they do not conflict with incorporating international instruments into the text annexed to the instrument ...” 118 Such national legislation as well as their status in the reservations have been criticized for their lack legal hierarchy of the state is a fundamental of clarity.119 part of a modern constitution. Traditionally, national legal systems follow two different The also confirms procedures for incorporating international law monism but in a slightly different manner into national legislation: Monism and dualism.110 by stating that: “The treaties concluded by Japan and established laws of nations shall be In the majority of monist states the inter­ faithfully observed.”120 national conventions are assumed to be part of national law from the moment the state has In a number of countries it is the dualistic ratified the convention in accordance with its system that prevails.121 These countries are internal procedures. Consequently, the national often common law countries, but countries like judge can immediately apply the provisions of Denmark and Norway also adhere to the dualist the convention. system. In the dualist system the international conventions are only part of national law if they In general, the international convention will are incorporated into national legislation. The prevail if a national law contradicts international parliament must enact an enabling law122 and obligations.111 The international convention is in case of a conflict between a national law and regarded as having supremacy even with­out an international convention it is the former that being incorporated into the domestic legislation. may prevail. In other cases the international convention

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Other countries attempt to combine the monist level124 and generally regarded as superior to and the dualist system. In Malawi – generally national legislation in case of conflict of norms. speaking characterized as a dualist system – Consequently, the international treaties may be the constitution has, nevertheless, adopted a a supplement to the rights recognized in the provision whereby: constitution and the constitution facilitates that new human rights development automatically “Any international agreement ratified by becomes part of national law. an Act of Parliament shall form part of the law of the Republic if so provided In the dualist system the international for in the Act of Parliament ratifying the conventions cannot be applied directly. The agreement. awareness of international human rights 2. International agreements entered conventions may thus be less prominent as into before the commencement of this they are not part of national law and public Constitution and binding on the Republic conscience. If the parliament does not enact shall form part of the law of the Republic, the convention, the chances of the convention unless Parliament subsequently provides becoming a living instrument domestically otherwise or the agreement otherwise appears less likely. However, public authorities lapses. and courts may apply international conventions 3. Customary international law, unless indirectly when interpreting national law. In this inconsistent with this Constitution or an way they may construe their decisions in such Act of Parliament, shall have continued a manner that they avoid the conflict with the application.”123 international obligations. The court may refer to the respect for international obligations as a Apparently the provision emphasizes the principle that is binding upon the state. dualist system except in certain cases. Consequently, a number of international Although the dualist system appears less open human rights instruments that Malawi ratified to international human rights development the during its authoritarian past, which were never respect, protection and promotion of human up-held then, became part of national laws rights may be enhanced through a progressive and theoretically strengthened the respect, interpretation of domestic human rights with protection and promotion of human rights in reference to international law. Malawi and before the Malawi courts. SPHERE OF DISCUSSION THE EFFECTIVE NATIONAL RECOGNITION OF • What is the status of international instruments INTERNATIONAL INSTRUMENTS: THE IMPACT within the national legal hierarchy? OF MONISM OR DUALISM • What is the applicability of international One of the major advantages of having a instruments at national level? monist system is the fact that the international • Are ratified international instruments instruments are directly applicable at national published?

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INTER-LINKAGE BETWEEN CONSTITUTIONAL PROTECTION AND EFFECTIVE AND EFFICIENT PROTECTION OF HUMAN RIGHTS

To summarise, the effective and efficient Once the rights have been incorporated into protection of human rights at domestic level the constitution, the risk of debilitating the requires an adequate constitutional framework rights needs to be minimalized. It could be that has been adopted after a participatory considered a potential threat to the protection national process. There is no universal standard and enforcement of human rights if the for such constitutional framework but a number constitution does not favour the protection of of factors may contribute to the effective and human rights when human rights and other efficient protection of human rights. fundamental principles or values conflict. Another potential threat is the possibility of The constitution has to effectively address amending or suspending the constitution. the actual rights. The approach may vary, but Consequently, amendments to the enumerated there appears to be an international tendency rights and the use of state of emergency should towards combining a set of overall values or only be possible when subjected to some very fundamental principles with a bill of rights. The strict conditions and control by the ordinary bill of rights may cover civil, political, social, courts. economic and cultural rights, but also other rights such as a right to a clean and healthy In order to apply and enforce the rights before environment. The enumerated list of rights authorities and adjudicative bodies, the rights may reflect international standards as well as need to be clearly formulated without leaving national experiences and political agenda. too much, if any, room for limitations. Otherwise there is a risk that the bill of rights will become A constitutional set of values or principles and meaningless and not be a living instrument a bill of rights are not sufficient instruments for at domestic level. If the constitution makes an effective and efficient protection of human direct reference to the international obligations rights if the constitution does not provide for of the state (international instruments and other measures facilitating their protection and jurisprudence), the integration of international enforcement in practice. human rights obligations or case law into the decision making processes at domestic level could be facilitated.

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Finally, independent, strong and easily accessible national mechanisms for promotion, protection and enforcement of human rights are essential (national human rights institutions, ombudsman institutions etc.). The constitution shall ensure the independence and effectiveness of such bodies and the implementing laws shall provide these bodies with the sufficient financial, human and technical resources.

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ENDNOTES

2. INTRODUCTION is the latest and most prominent guidelines for regulating the responsibilities private 1 According to Ian Brownlie the rule of law companies in relation to the protection of concept contains the following elements: human rights. i) Officials’ action is based upon authority 5 E.g. article 152 (1) (b) of the South African conferred by the law; ii) The law conforms Constitution establishes that the objectives to substantial and procedural standards; of local government are to ensure the iii) There is a separation of powers – the provision of services to communities in judiciary is not subject to the executive; a sustainable manner. The constitution iv) All legal persons are subject to the law of Ecuador article 277 (1) states that the on a basis of equality; and v) There is an general duties of the State in order to absence of wide discretionary powers in the achieve the good way of living shall be: ...to government. See Brownlie, Ian: The Rule of provide public services. Law in International Affairs, Hague Academy 6 The Constitution of Mexico from 1917 was of International Law, Martinus Nijhoff, 1998. probably the first constitution to include 2 The supremacy of the constitution is a social rights, which inspired the Constitution result of various factors: The constitution of the Federation of Russia. may only be amended in accordance with 7 The International Bill of Human Rights a specialized procedure that differs from consists of the Universal Declaration of the usual law-making process; the text of Human Rights, the UN Covenant on Civil the constitution grants it supremacy and all and Political Rights as well as its two branches of government are subjected to optional protocols and the UN Covenant on the constitution including the legislature. Economic, Social and Cultural Rights. 3 E.g. from 1215 or rules of 8 The European Convention on Human Habeas Corpus (the ancient common law Rights, the Inter-American Convention prerogative writ). on Human Rights, the African Charter for 4 E.g. UN Guiding Principles on Business and Human and Peoples’ Rights and the Arab Human Rights for implementing the UN Charter for Human Rights. “Protect, Respect and Remedy” Framework

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9 E.g. Constitution of , Constitution of be worthy of attention. I am sensible they South Africa and the Constitution of Malawi. are not so strong as to satisfy gentlemen 10 E.g. the United Kingdom where the of every description who have seen and constitution is not a single written examined thoroughly the texture of such document, but a set of written and unwritten a defence; yet, as they have a tendency to laws and principles. impress some degree of respect for them, 11 E.g. the Scandinavian countries, Malaysia, to establish the public opinion in their Australia and the United States of America. favor, and rouse the attention of the whole 12 In common law jurisdictions, such a list of community, it may be one mean to control rights is called a bill of rights. However, the the majority from those acts to which they term bill of rights is used by others that do might be otherwise inclined.” not belong to a common law jurisdiction. 16 Nwabueze, B.O.: Constitutionalism in For the sake of this analysis, the term bill the emergent states, Fairleigh Dickinson of rights is used to cover both the common University Press, 1973, p.2. law term and a list of rights granted by a 17 Rights often go hand in hand with duties, constitution. and an increasing number of constitutions 13 Most Latin American and African countries, include a chapter on the duties of the Turkey, India and some of the Eastern individuals. The Declaration on the Right European countries, e.g. Serbia. The and Responsibility of Individuals, Groups European Union has incorporated into and Organs of Society to Promote and its fundamental treaties the Charter of Protect Universally Recognized Human Fundamental Rights of the European Union Rights and Fundamental Freedoms 14 Article 26 of the Vienna Convention on the adopted by the UN General Assembly Law of Treaties codifies the principle of (resolution 53/144) emphasizes that “pacta sunt servanda”: “Every treaty in force “everyone has duties towards and within is binding upon the parties to it and must be the community, in which alone the free and performed by them in good faith.” full development of his or her personality 15 In 1789, the Congress of United States is possible (article 18).” The duties shall be discussed whether to enumerate a bill balanced and not make the enjoyment of of rights in the Constitution. Member of rights illusionary. The duties are, however, the House of Representatives, James not described in the present analysis. Madison addressed the House on 8 June 18 E.g. the 1996 South African Constitution was 1789 on the Necessity of Amendments to the first constitution after the abolishment the Constitution, concluding that “It may of Apartheid and the 1996 Constitution of be thought all paper barriers against the Chad with its 2005 amendments. power of the community, are too weak to

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19 E.g. the 2008 Constitution of Ecuador the court found that a provision in the reflects a country that was previously ruled Law on Direct Foreign Investments was by a military regime (ended formally in conflicting with article 2 of the constitution 1978), but with its recent constitution has and in the context of the fifth paragraph of granted rights that go beyond the rights the preamble. granted in international instruments and 26 The Constitution of Morocco of 30 July 2011, other constitutions in Latin America. The preamble. Constitution reflects e.g. social demands, 27 E.g. the Constitution of Ireland and the right to a clean environment, including former Constitution of Tunisia. rights of nature. 28 The Constitution of Denmark article 4, 20 E.g. Constitutions of Turkey, Iraq (2005) and the Constitution of Norway article 2, or of Chad. Argentina article 2. 21 E.g. Constitutions of France, Spain and Italy. 29 E.g. the Constitution of Chad, of Lebanon and of Ecuador (combined with article 1). 3. HUMAN RIGHTS – THE 30 The Constitution of France or of Turkey. CONSTITUTIONAL FRAMEWORK 31 Rabb, Intisar A. “We the Jurists: Islamic Constitutionalism in Iraq,” University of 3.1. THE PREAMBLE Pennsylvania Journal of Constitutional Law, 22 Constitutions of South Africa, Ecuador, Vol.10, 2008, pp. 527-579. Turkey and Chad but not the one of 32 The 1980 Constitution with subsequent Malaysia. amendments. It has for many years sparked 23 Constitutions of Chad, Morocco and Turkey. controversy and is being reviewed. 24 E.g. the French Conseil Constitutionnel 33 E.g. the , article 2 and in its decision 71-44 DC of 16 July 1971. of Qatar, article 1:” the Islamic Sharia shall A reference in the preamble of the 1958 be a main source of legislation”; and the Constitution to the 1789 Declaration of , article 2: “Islamic Rights forms the basis for determining Sharia is a principal source for legislation”. whether a law was in conflict with the right 34 Rabb, Intisar A.: see note 31 to association. 35 Rabb, Intisar A.: see note 31 25 E.g. South African Constitutional Court in: 36 Norris v. A.G. [1983] IESC 3;[1984]IR 36 (22 Government of South Africa et al. against April 1983). Irene Grootboom and others, CCT 11/00, 37 Supreme Court Decision on the Regulation para 1 or Minister of Home Affairs and of Information (Services out-side the State Another v Fourie and Another CCT 60/04, for Termination of Pregnancies) Bill, 1995, para. 138. In a decision published 16 April No. 87 of 1995: 43 SC, 1I.R Hamilton. 2008 by the Turkish Constitutional Court, It should be noted that the European Court

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of Human Rights has examined a number Africa, but omitted in the final Constitution. of Irish cases related to the relationship Nevertheless, the Ubuntu is regarded as between religion, the constitution and a fundamental value in South Africa; see human rights: Airey v. Ireland, 9 October also “Law in the uBuntu of South Africa” 1979 (prohibition of divorce) , Norris v. by Drucilla Cornell and Nyoko Muvangua, Ireland, 26 October 1988 (criminalisation published at http://isthisseattaken.co.za/ of homesexuality), A, B and C v. Ireland, 16 pdf/Papers_Cornell_Muvangua.pdf. December 2010 (prohibition of abortion). 47 Constitutional Court of South Africa, CCT3/94, S.V. Makwanyane and Another, 3.2. FUNDAMENTAL PRINCIPLES para 25 and 106-117. 38 E.g. Constitutions of South Africa, Turkey, 48 The Supreme/Constitutional Court af India, Ecuador, Colombia, Brazil, Ethiopia, India Kinkri Devi and Anr. vs. State of Himachal and Malawi. Pradesh and Ors decided on 29 May 1987, 39 E.g. the article 5, par. 8. the Constitution of Spain article 9(2) or the 49 The Supreme/Constitutional Court af Constitution of Colombia article 2. India, Olga Tellis v Bombay Municipality 40 E.g. the Constitution of Cambodia article Corporation, decided on 10. July 1985, 52 or article 41 of the South African para 33 “…The Principles contained in Constitution. Articles 39 (a) and 41 must be regarded as 41 E.g. the Constitution of the United Republic equally fundamental in the understanding of Tanzania part II. and interpretation of the meaning and 42 Articles 13-14 of the Constitution of Malawi. content of fundamental rights. If there is an 43 Article 14 of the Constitution of Sierra obligation upon the State to secure to the Leone. citizens an adequate means of livelihood 44 If a fundamental principle only refers to e.g. and the right to work, it would be sheer the respect of internationally recognized pedantry to exclude the right to livelihood human rights, the actual contents of that from the content of the right to life. The principle is uncertain. On the other hand, State may not, by affirmative action, be if the fundamental principles refers e.g. to compellable to provide adequate means the Universal Declaration of Human Rights, of livelihood or work to the citizens. But, the norms can actually be derived from that any person, who is deprived of his right to instrument. livelihood except according to just and fair 45 Constitutional Court of Colombia, case procedure established by law, can challenge C-546/92. the deprivation as offending the right to life 46 A reference to Ubuntu was made in the conferred by Article 21…” epilogue to the interim constitution of South

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50 The Constitutional Court of Spain in its but are nevertheless fundamental in the decision 176/2011, 8. November 2011 governance of the country and it shall declaring a law unconstitutional as it was, be the duty of the state to apply these inter alia, not respecting the principles in principles in making laws. articles 1 (1) and 9(1) of the Constitution. 57 E.g. Constituent Assembly of India, Volume II, Monday the 20th January 1947. 3.3. BILL OF RIGHTS 58 The debates from the Constituent Assembly 51  A legal rule is traditionally a question of do not reflect this inspiration, probably whether the facts in a specific case fall within because the fundamental rights in the the scope of the legal rule and if that is so, Indian constitution were already drafted the rule will indicate the consequences. at the time of adoption of the Universal E.g. an accused person has a right to a legal Declaration. However, the impact is still aid. A norm that contains a legal principle acknowledged, e.g. in the case of Maneka is usually subject to interpretation as the Gandhi vs. Union Of India, Supreme Court wording leaves room for interpretation, e.g. decision on 25 January, 1978. The Court the right to a family life. The legal principles held that “…[m]oreover, it may be noted that could be regarded as vague, but they are only a short while before the Constitution also flexible and give the courts and others was brought into force and whilst the empowered to apply the rule in the light of constitutional debate was still going on, the present day conditions and to broaden the Universal Declaration of Human Rights their application. was adopted by the General Assembly of 52 E.g. the Constitution of Denmark, Finland the United Nations on 10th December, 1948 (before the amendments in 1972 and later and most of the fundamental rights which a larger revision in 1995), the United States, we find included in Part III were recognized the Netherlands before the revision in 1983, and adopted by the United Nations as the and Lebanon. inalienable rights of man in the Universal 53 E.g. the 2008 Constitution of Ecuador and Declaration of Human Rights.” the 2009 Constitution of Bolivia. 59 Constitutions of Lebanon, Turkey, Iraq, India, 54 In Norway, the human rights committee Malaysia, Cambodia, Chad, Malawi, South of Parliament has just published a report Africa, Tanzania, Ecuador, Colombia, Bolivia, on how to protect human rights in the Brazil, Venezuela and Mexico. Constitution. 60 Constitutions of Lebanon (only, the right to 55 E.g. Turkey, Chad, South Africa, Spain and education), Turkey (comprehensive), Iraq the Netherlands. (comprehensive), India (comprehensive), 56 Similar to the principles known from the Cambodia (comprehensive but Constitution of Malawi and the Ivory Coast, through a reference to international they shall not be enforceable by any court, instruments), Chad (comprehensive),

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Malawi (comprehensive), South Africa 65 The preamble of the Constitution (comprehensive), Tanzania (only the right emphasizes the commitment of Ecuador to work), Ecuador, Colombia, Bolivia, Brazil, to a new form of public coexistence, in Venezuela and Mexico. diversity and in harmony with nature, to 61 E.g. Constitutions of Bolivia, Brazil, achieve a good life, the sumak kawsay. The Colombia, Ecuador, India, South Africa rights of nature are part of that commitment and Venezuela. Other constitutions partly and value. recognize collective or environmental 66 Article 58. rights. See for instance the Constitution of 67 Article 62. Cambodia (collective right to ownership of 68 Article 218. property and that the State shall protect 69 See article 46, which concerns both national the environment), Chad (right to healthy and international commerce of human environment), Malawi (protection of the being, including trafficking. environment is part of the fundamental 70 E.g. the Constituent Assembly of India principles and the Constitution includes discussions on Friday, the 24th January a right to development for peoples) and 1947 about the election of an advisory Turkey (a right to a healthy environment committee to the assembly, or Hon. Judge but not a reference to collective rights). S.M. Sikri, C.J. in in the Supreme Court The Constitution of Iraq does not include of India judgment Kesavananda Bharati a reference to environmental rights or Sripadagalvaru and Ors against State of collective rights as such, but recognizes Iraq Kerala and Anr paras. 182 – 193. as a multiethnic, multi-religious and multi- 71 Justiciability refers to those matters, sect country. More than 90 constitutions which are appropriately resolved by the include a duty of the state to prevent harm courts. That means that a matter can only to the environment, see: Barry E. Hill, Steve be determined by the court if it is not Wolfson & Nicholas Targ: Human Rights hypothetical or abstract. If a right is not and the Environment: A Synopsis and Some justiciable, it will then lack legal recognition Predictions, Georgetown International and cannot be defended or invoked directly Reveiw, Vol 16, Issue 3, in court. 2004, p. 359. 72 This brief does not address these issues in 62 A similar provision is found in the detail, although they are key to accessing Constitution of South Africa section 3. human rights/are key to human rights 63 E.g. sections 6 in conjunction with sections promotion, protection and fulfillment. 29-31. 73 General Comment no. 9 (E/1999/22). 64 The emphasized criteria are those that differ 74 40 countries have signed and 8 countries from the criteria known from international have ratified the protocol (25 May 2012). instruments. The protocol will come into force when 10 countries have ratified the protocol.

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75 The Supreme Court of Florida in Gray v. 85 UN Covenant on Civil and Political Rights Bryant, 125 So.2d. p. 846. article 4 or the Constitution of Turkey article 76 Judgment no. 45/1965, 26. May 1965, 15. considerato in diritto para. 3. 86 Usually regarded as a necessity test in the 77 Judgment no. 108/1994, 23. March 1994, context of a democratic society. considerato in diritto para. 2. 87 The Constitution of Turkey, article 13; of Iraq, 78 Article 32 of the Constitution: “The Republic article 46; and of South Africa, article 36. safeguards health as a fundamental right 88 E.g. Constitution of Chad, article 27; of of the individual and as a collective interest, Malaysia, article 10; of Italy, article 14; of and guarantees free medical care to the India, article 19 and of Colombia, article 37. indigent.” 89 Informal Justice Systems – charting a 79 Judgment no. 509/2000, 13. November human rights-based engagement. A study of 2000, considerato in diritto para. 4. Informal Justice Systems: Access to Justice 80 The Constitution of Colombia article 85 lists and Human Rights, 2012 copyright of UNDP, a number of rights that are immediately UNICEF and UN- Women. Drafted by the applicable. Danish Institute for Human Rights. 81 Sentencia de Tutela nº 506/92 de Corte 90 E.g. article 39 of the South African Constitucional, Augusto 21, 1992 para.2 Constitution: “…when interpreting any 82 E.g. the European Court of Human Rights, legislation, and when developing the López Ostra v. Spain, December 9 1994. common law or customary law, every court, 83 The Supreme/Constitutional Court of tribunal or forum must promote the spirit, India, Olga Tellis v Bombay Municipality purport and objects of the Bill of Rights. Corporation, decided on 10. July 1985, Article 149 of the Constitution of Peru para. 2.3, “…Evidently, they [the applicants] emphasises that authorities of the Peasant choose a pavement or a slum in the vicinity and Native Communities, with the support of their place of work, the time otherwise of the Peasant Patrols, may exercise taken in commuting and its cost being jurisdictional functions within their territory forbidding for their slender means. To in accordance with customary law, provided lose the pavement or the slum is to lose they do not violate the fundamental the job. The conclusion, therefore, in rights of the individual. Similar provisions terms of the constitutional phraseology are found in the constitutions of Bolivia, is that the eviction of the petitioners will Ecuador, Kenya and Malawi. lead to deprivation of their livelihood and 91 E.g. forced labour is prohibited unless it is consequently to the deprivation of life.” work required of an individual while serving 84 UN Human Rights Committee, General a prison sentence, Constitution of Turkey Comment no. 5. article 18.

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92 The fundamental rights are usually not passed by Parliament, followed by election intended to be extended to the unborn to a new Parliament. The new Parliament child. has to pass the same bill and then the 93 The interpretation of ambiguous laws may bill has to be adopted through a national vary depending on the legal traditions of referendum, where a qualified majority the state in question. Civil law countries has to favour the amendment before are looking more at the text, the context of the amendment is adopted, cf. article the ambiguity provision compared to the 88. A similar process is provided for in surrounding provisions and the preparatory the Constitution of Japan (article 96). An work of the provision (the law is the primary amendment of the Constitution of Turkey source), while common law (the law has to requires a national referendum depending be interpreted in the light of existing case on the majority of votes in the National law) is looking at the context of the concrete Assembly favoring the amendment and/or case, the legislation as a whole, giving whether the President wishes to submit the effect to certain rules for interpretation amendment to a national referendum, cf. and previous case law from higher courts art. 175. (principle of stare decisis). 96 E.g. Constitution of Mexico article 135. The 94 In some constitutions it is clearly Constitution of Chad allows revision as long emphasized that the interpretation has as the revision does not interfere with the to be in favour of the human rights, list of fundamental rights. Any amendment e.g. Constitution of Kenya article 20. has to be adopted through a referendum, cf. The Colombian Constitution article 93 article 224-225. recognizes that the interpretation has to 97 Article 168. be in accordance with international human 98 Section 74. rights conventions ratified by Colombia. The Constitution of Spain emphasizes that the 3.4. REMEDIES AND NATIONAL HUMAN recognized rights shall be interpreted in RIGHTS MECHANISMS conformity with the Universal Declaration of 99 E.g. the Constitution of Turkey, article 40; Human Rights and the international treaties of South Africa, article 38 and of Colombia and agreements on those matters ratified by articles 86-89. Spain. 100 E.g. through declaring the law or action 95 E.g. the Constitution of Denmark may invalid, order just compensation or undue only be amended following a very the wrongs comprehensive procedure regardless 101 Could be the formalized court system but of the character of the amendment. Any also traditional or religious courts amendment has to be adopted in a bill

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102 See e.g. the Constitution of Spain article 53 rights of the individual. Similar provisions whereby any “citizen may assert a claim to are found in the constitutions of Bolivia, protect the freedoms and rights recognized Ecuador and Kenya. in section 14 [equality before the law] and 106 See for instance article 149 of the in division 1 of Chapter 2 [fundamental Constitution of Peru; article 171 of the rights and public freedoms], by means of Constitution of Ecuador and article 192 a preferential and summary procedure of the Constitution of Bolivia. The Kadhis’ before the ordinary courts and, when courts in Kenya have jurisdiction over the appropriate, by lodging an individual appeal determination of questions of Muslim for protection (recurso de amparo) to the law relating to personal status, marriage, Constitutional Court. This latter procedure divorce or inheritance in proceedings in shall be applicable to conscientious which all the parties profess the Muslim objection as recognized in section 30”. religion and submit to the jurisdiction of 103 E.g. the Constitution of Iraq, article 19 and the Kadhi’s courts. However, the courts are of Kenya, article 50. subordinated courts at the same level as 104 The Constitution of South Africa, article the Magistrates courts. 38 and the Constitution of Kenya without 107 E.g. the Supreme Court of India (partly paying a fee, article 22, entitle others than before the amendment of article 131A the victim to approach the court in order to in 1977), the Supreme Court of Ghana enforce the bill of rights. The Constitution (article 130 of the constitution), or the of India article 39A stresses that the Court of Appeal of together with state shall secure that the operation of the Supreme Court of Uganda (when the legal system promotes justice, on a hearing appeals from the Court of Appeal basis of equal opportunity, and shall, in sitting as constitutional court), article 131 particular, provide free legal aid, by suitable together with article 137. the Constitution legislation or schemes or in any other way, of Iraq, article 93 establishes a Federal to ensure that opportunities for securing Supreme Court with functions similar to a justice are not denied to any citizen by Constitutional Court. reason of economic or other disabilities. 108 See the Constitution of Guatemala article 105 See article 149 of the Constitution of Peru, 272. The 2011 Constitution of Morocco whereby authorities of the Peasant and empowers the Constitutional Court to Native Communities, with the support examine laws prior to their promulgation of the Peasant Patrols, may exercise in order to pronounce their conformity with jurisdictional functions within their territory the Constitution (see article 85 or 132), in accordance with customary law, provided but also if the question arises as part of they do not violate the fundamental court proceedings when the question is

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maintained/supported by one of the parties law and to some extent Scandinavian law and it addresses the rights and liberties (based in the civil law system) should not guaranteed by the Constitution (see article remain unnoticed. Today, it is difficult to 132). A disposition that has been declared find any country that has not benefitted unconstitutional cannot be promulgated or from more than one legal tradition in one put into effect/applied. way or another (China for instance appears 109 Principles relating to the Status of to combine civil law with socialist law, and National Institutions, adopted by the UN Egypt combines law of Sharia – mostly in General Assembly resolution 48/134 of 20 areas of family law – with civil law). However, December 1993. countries that have been influenced by France, Spain, Germany and Holland 3.5. PRESENT AND FUTURE INTERNATIONAL usually follow the civil law system, while HUMAN RIGHTS OBLIGATIONS countries influenced by England (and 110 In a monist system the national law and the Commonwealth) are inspired by the international instruments ratified by the common law system. state are part of a single legal system. 113 Section 96: “Validly concluded international In a dualist system the two systems are treaties, once officially published in Spain, separated from each other. shall be part of the internal legal system.” 111 Section 10 (2) of the Constitution of Spain: 114 Article 55: ”Treaties or agreements duly “Provisions relating to the fundamental ratified or approved shall, upon publication, rights and liberties recognized by the prevail over Acts of Parliament, subject, in Constitution shall be construed in regard to each agreement or treaty, to its conformity with the Universal Declaration of application by the other party.” Human Rights and international treaties and 115 Article 90: ”International agreements duly agreements thereon ratified by Spain.” put into effect bear the force of law. … In 112 The legal systems are traditionally divided the case of a conflict between international into three main traditions: Civil, common agreements in the area of fundamental and socialist systems. A legal system rights and freedoms duly put into effect reflects a notion about the nature and and the domestic laws due to differences contents of law, and how to legislate and in provisions on the same matter, the apply law. The civil system has its roots provisions of international agreements shall in Roman law and continental Europe. prevail”. Common law has its roots in England 116 Article 222: ”Treaties or agreements and socialist law is basically rooted in regularly ratified have, as soon as they have the former Soviet Union. However, other been published greater authority than that legal traditions such as Islamic law, Hindu of laws…”

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117 Article 151 of the 1980 Constitution with 124 If the provision itself is sufficiently clear and subsequent amendments The Constitution appears to be self-executing. has for many years sparked controversy and it being reviewed. 118 Human Rights Committee, Reservations, declarations, notifications and objections relating to the International Covenant on Civil and Political Rights and the Optional Protocols. U.N. Doc CCPR/C/2/Rev.4., 1995. 119 See the UN Committee under the ICCPR, CCPR A/58/40, 2003. The Committee considered the third and fourth periodic reports of Egypt, (CCPR/C/EGY/2001/3) at its 2048th and 2049th meetings, held on 17 and 18 October 2002 (CCPR/C/SR.2048 and CCPR/C/SR.2049), and adopted the following concluding observations at its 2067th meeting (CCPR/C/SR.2067) on 31 October 2002. 120 Article 98(2). 121 E.g. the United Kingdom, India (e.g. article 253 of the Constitution states that the legislature has exclusive powers to implement international obligations through national legislation, and article 51 articulates that respect for international law is a directive principle, and consequently not directly applicable) or Uganda (see Ratification of Treaties Act, Act no. 5 of 1998. 122 Another process is to harmonize existing laws or to conclude that national law is in compliance with its international obligations. 123 Section 211 of the Constitution.

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