HUMAN RIGHTS AND CONSTITUTION MAKING

HUMAN RIGHTS AND CONSTITUTION MAKING

HUMAN RIGHTS AND CONSTITUTION MAKING

New York and Geneva, 2018

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HUMAN RIGHTS AND CONSTITUTION MAKING

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Sales no.: E.17.XIV.4 ISBN: 978-92-1-154221-9 eISBN: 978-92-1-362251-3

CONTENTS

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CONTENTS

INTRODUCTION .................................................................................. 1

I. CONSTITUTIONAL REFORMS AND HUMAN RIGHTS ......................... 2

A. Why a rights-based approach to constitutional reform?.................... 3 1. Framing the issue ....................................................................... 3 2. The constitutional State................................................................ 6 3. Functions of the constitution in the contemporary world ................... 7 4. The constitution and democratic governance.................................. 8 5. Constitutional guarantees of fundamental rights............................ 10

B. Human rights and the process of constitutional reform ................... 11 1. Ownership of constitutional reforms ............................................ 12 2. Public participation in constitutional reforms................................. 14 3. The human rights framework for constitutional reforms .................. 16

II. CONSTITUTIONAL BILL OF RIGHTS................................................. 20

A. The constitutional bill of rights and international human rights standards ..................................................................................... 21 1. International human rights law ................................................... 21 2. Domestic law and its relationship to international human rights law...................................................................... 23

B. Drafting a constitutional bill of rights: General requirements........... 31 1. Conformity with assessments dominating in the society.................. 31 2. Compliance with international human rights standards .................. 33 3. Scope of the constitutional language........................................... 35 4. Internal coherence .................................................................... 36 5. Normative content .................................................................... 36 6. Implementation and limitations ................................................... 40 7. Communicativeness ................................................................... 43

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HUMAN RIGHTS AND CONSTITUTION MAKING

C. Content of the constitutional bill of rights ....................................... 44 1. The rights holder ...................................................................... 44 2. Duty bearers ............................................................................ 51 3. Fundamental principles ............................................................. 57 4. Categories of rights and freedoms .............................................. 68 5. Permissibility of limitations ......................................................... 83 6. Protection of rights and state of emergency.................................. 87 7. Legal duties of the individual...................................................... 90

D. Institutional and procedural guarantees of rights............................ 96 1. Implementation of the constitution and human rights...................... 96 2. Institutional safeguards.............................................................. 98 3. Specific guarantees ................................................................ 105 4. Access to bodies and procedures established under international law .................................................................... 121

III. OHCHR AND HUMAN RIGHTS MECHANISMS .............................. 124

A. Contribution of human rights mechanisms.................................... 125 1. Application of international human rights law by States............... 125 2. Protection of substantive human rights ....................................... 128

B. Objectives, forms and methodology of assistance programmes .... 134 C. Partnerships ............................................................................... 138

SOURCES AND REFERENCES ............................................................ 139

INTRODUCTION

1

INTRODUCTION

States in many parts of the world regularly amend and in some cases write entirely new constitutions. This may happen for a variety of reasons. For example, it may reflect a desire to redefine the distribution of political power, hopefully with the aim that a constitution will be more democratic, have better checks and balances, and be more responsive to the wishes of the electorate. Constitutional change may also be undertaken after a period of conflict to establish a new constitutional order and to provide a vision on how to move forward to create a more equitable society. Or there may be a desire to update an existing constitution so that it will be more responsive to political, economic or social changes in society. Whatever the reason, a key part of any constitutional reform is ensuring the promotion, respect and protection of human rights and fundamental freedoms. Socrates wrote that freedom is the essence of democracy. It is as true today as it was over 2,000 years ago. And a good constitution can greatly assist in protecting those freedoms and providing the foundations for democratic governance.

This publication is designed to assist United Nations staff who provide human rights advice to States, which undertake to amend an existing constitution or write a new one. It should also be of use to States that undertake constitutional reform, including political leaders, policymakers, legislators and those entrusted to draft constitutional amendments or a new constitution. Further this publication should also facilitate advocacy efforts by civil society to ensure that human rights are properly reflected in constitutional amendments or new constitutions. Finally, this publication, along with the international human rights instruments, should not only provide a standard to measure whether constitutional amendments or a new constitution has appropriately reflected human rights and fundamental freedoms, but also assist in evaluating whether the processes used in constitutional reform are consistent with international procedural norms.

I. CONSTITUTIONAL REFORMS AND HUMAN RIGHTS

I. CONSTITUTIONAL REFORMS AND HUMAN RIGHTS

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A. Why a rights-based approach to constitutional reform?

1. Framing the issue

Does the constitution guarantee human rights to people in a country? Do public authorities act in accordance with the constitution? These are two of the most frequently asked questions when measuring the overall situation in a country. They reflect the central place occupied by the constitution in the lives of a State's people.

Most legal orders are based on a hierarchical structure of legal acts with the constitution at the top. All legislation and other legal measures of a State must be compatible with the constitution. If a law or other legal measure adopted by the State is inconsistent with the constitution, then it should be declared null and void by the competent judicial institution.

Human rights are at the heart of the constitutional order of a modern State, not only determining relationships between the individual, groups and the State, but also permeating State structures, and decision-making and oversight processes. As a consequence, a bill of rights constitutes an integral part of a modern constitution. At the same time, gaps in the implementation of human rights at the domestic level, whether individual or where appropriate collective rights, often originate from shortcomings in the area of constitutional law.

The link between human rights and democratic constitutional order begins with the process leading up to the adoption of a constitution or a constitutional reform. Such a process promises successful results if it is based on the broad participation of all parts of society. Participants should be able to articulate their views freely and communicate with each other without impediments on the part of those in power. It is important that their opinions and views are considered in the framework of clear procedures, provided those responsible for overseeing the process are fair and impartial.1 Such conditions can only be created when standards of freedom of expression, including the right to communicate one's opinion, freedom of speech and of the media, freedom of association and assembly, are upheld.

1 See Human Rights Committee, general comment No. 25 (1996).

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