THE AMERICAN UNIVERSITY WASHINGTON, DC.
MEMORANDUM
TO: Constitutional Commission
FROM: Professor Herman Schwartz
DATE: September 30, 1991
SUBJECT: Proposed Bill of Rights
Introduction
Minister of Justice Raidla suggested I might prepare a draft of a Bill of Rights for you to consider, and I am enclosing something I put together. Because I am assuming that Estonia will want to join the Council of Europe, and thereby submit to the European Committee of Human Rights, its Commission and Court, it seems appropriate to draw primarily on that for two reasons:
1. Estonia will have to abide by its provisions sooner or later, so it may as well be sooner.
2. The European Commission and Court have developed an extensive body of interpretation of the provisions of the Convention which is both humane and convenient. It takes a good deal of time to develop constitutional concepts, and it makes sense to take advantage of an already developed body of law especially since, as noted above, the country may have to draft it eventually.
Obviously, whatever is in this draft will have to be reshaped in accordance with Estonian legal tradition and conditions, but as set forth below, the principles are of quite unusual application.
It is not hard to develop a catalogue of rights; many repressive regimes have such fine-sounding lists. The important thing is to make these rights enforceable, to create disincentives to and remedies for violations of these rights. This is often a matter of statutory law, but constitutional provisions are necessary. Moreover, many rights should be enforceable even without enactment of a statute.
Finally, one explanation for a very important point. Because the recent history of the countries has been dominated by official decrees, orders, and other acts that were not legislative enactments but only administrative decrees, many rights were curtailed and infringed without such curtailments or infringements having any legislative justification.
This practice was obviously repressive and anti-democratic, and all of the recent constitutions have insisted that the only limitations of such rights as speech, assembly, organization, privacy, etc., should be those authorized “by law.” That is fine so far as it goes, but it doesn’t go far enough, for it imposes no limit on the legislature. This is a very serious omission, for experience has shown that liberty and democracy face threats not just from the government, the executive branch, but also from the legislature.
For this reason, all curtailments of rights should themselves be limited to certain specified circumstances and allowed only to the extent “strictly required” (the phrase is from the European Convention) by the need for the curtailment. (The American version of this is that curtailments should be the “least drastic alternative” among whatever curtailments are available.) The draft I attach tries to do this by providing for specific limitations on the allowed curtailments of specific rights (drawn primarily from the European Convention, with modifications) and by a general rule adopting the “strictly required” language of the Convention that is applicable to all curtailments of rights.
As overall models, I enclose copies of the Hungarian, Namibian, and Czechoslovak Bills of Rights and a proposed constitutional provision that I suggested to the Russian Supreme Soviet.
Basic Principles
1. Protecting individual freedom and dignity are the fundamental principles of this Constitution and shall be respected by all state organs and officials.
2. State organs and individuals have only the authority given them by the Constitution and by the law as duly enacted.
3. The rights and freedoms set forth in this charter shall be rules of law for the courts to apply, and any law, decree, regulation, or other official action inconsistent with or which undermines any of these rights and freedoms, shall be null and void, and subject to being set aside by the courts.
4. The enumeration of certain rights and freedoms in this charter shall not be considered exhaustive and shall not be understood as implying that no other rights exist.
5. Restriction of any right or freedom included in this charter shall be limited to the specific circumstances set forth, shall not undermine the essential content of the right, and shall be allowed only to the extent strictly required by such circumstances.
[For a model of an omnibus clause, see Hungarian Constitution Section 8 (3).]
6. To the extent possible, the rights and freedoms set forth in this chapter shall be enforceable in a court of law without the need for any further legislation. The courts shall grant whatever monetary and other relief are required to remedy harm done by the violation and to prevent any such future violation and its results.
[Alternate]
6. (1) Anybody who claims that his or her rights have been violated by a decision of a state or state official organ may turn to a court for a review of the legality of such decision.
(2) Everybody is entitled to compensation for damage caused to him or her by an unlawful decision of a court, another organ of the State or public administration, or through unlawful or otherwise wrongful official action. (Drawn from Article 36, Czechoslovak Constitution.)
7. The Parliament shall appoint an Ombudsman who shall investigate complaints that governmental authorities have violated a person’s rights or freedoms. The Ombudsman shall be independent. The Ombudsman shall serve for one ten-year term and shall report annually to the Parliament. The Ombudsman shall issue public reports on his investigations except where necessary to protect vital public or private interests [and in appropriate circumstances may bring an action in a court of law to end such violations].
8. Every person is presumed innocent until proven guilty and convicted, and no punishment or other hardship shall be inflicted on such person prior to such conviction except those necessary to protect the legal process or to prevent a serious danger to the community.
Fundamental Rights and Liberties
Article 1
A human being’s life is sacred and shall be protected from birth. [Death may not be imposed as a penalty for crime.]
Article 2
No one shall be subjected to torture or to inhumane or degrading treatment or punishment.
Article 3
1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labor, except for
a. any work required to be done in the ordinary course of detention imposed according to the provisions of this charter or during conditional release from such detention;
b. any service of a military character or, in case of conscientious objectors, service exacted instead of compulsory military service;
c. any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
d. any work or service which forms part of normal civil obligations.
3. The right of conscientious objection to military service is guaranteed.
Article 4
1. No one shall be deprived of liberty except in the following cases:
a. the lawful detention of a person after conviction by a competent court;
b. the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law;
c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority if there is a reasonable belief he has committed an offense or when it is reasonably considered necessary to prevent his committing an offense or fleeing after having done so;
d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
e. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics, or drug addicts or vagrants;
f. the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is deprived of his liberty shall be entitled to take proceedings by which the lawfulness of the deprivation shall be decided speedily by a court and his release ordered if the deprivation is not lawful.
3. Everyone who has been the victim of a deprivation of liberty in contravention of the provisions of this Article shall have an enforceable right to compensation.
Article 5
1. Everyone has the right to freedom from intrusion into his private and family life, his home, his workplace, and his communications by voice, telephone, mail or otherwise.
2. The privacy of private and family life, the home, the workplace, and communications may not be invaded except under the authority of a court order, and only if (a) it is in accordance with procedures set forth in the law; and (b) is necessary in a democratic society in the interests of national security, public safety, for the prevention of disorder or crime, for the protection of health, or for the protection of the rights and freedoms of others.
3. Women have the right to have abortions.
Article 6
1. Everyone has the right to freedom of thought, conscience and religion. This right includes the freedom to change one’s religion or belief and freedom, either alone or in community with others, and in public or private to manifest his religion or belief in worship, teaching, practice and observance. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order or health, or for the protection of the rights and freedoms of others.
2. There is no state religion in Estonia.
Articles 7–9
[Other rights, can be drawn from the European Convention, such as freedom of expression (Article 10), freedom of assembly, association and organization (Article 11), and the rights of criminal defendants (Article 6).
I would only add the following: The Convention includes “economic well-being” and “morals” as justification for restrictions of rights. We in the United States have found these to be much too general and therefore dangerous, for they allow too many restrictions. I have therefore omitted them in what I drafted and would omit them from the European Convention models.
Finally, I would add to Article 1): “Freedom of the press is guaranteed. Censorship is not permitted.”
Article 10
Free Movement
All persons shall have the right to move freely within Estonia or to leave the country.
Article 11
Self-Incrimination
No person shall be required to testify against himself or against his close relatives.
Article 12
Equality
All persons are equal before the law, and no person shall be denied any rights or freedoms on the ground of sex, race, skin color, language, faith or religion, political or other belief, ethnic or social origin, property, birth or status.
Article 13
Minority Rights
[I think Pars. 21–23 of the 1920 Constitution is a good model, plus the minority language sentence of par. 12 on education. Since Estonia is a member of the Conference on Security and Cooperation in Europe (Helsinki Accords), it is necessary to check the 1990 Copenhagen Agreements, Part IV, as well.].
Article 14
Property
1. Everybody has the right to own property. The ownership rights of all owners enjoy the same protection. Inheritance is guaranteed.
2. The law shall specify which property essential for securing the needs of the society, development of the national economy, and public welfare may be owned exclusively by the State, the community, or by specified legal persons; the law may also specify that some things may be owned exclusively by citizens or by legal persons residing in Estonia.
3. Ownership may not cause damage to human health, nature and the environment beyond statutory limits.
4. Expropriation or other forcible limitation of the ownership right is possible only in the public interest and on the basis of law and for fair compensation.
Article 15
Voting
Every citizen – years of age and over is entitled to vote, including Estonia citizens living abroad. Voting shall be by secret ballot.
Article 16
Freedom of Information
All state and other governmental organs and officials are obligated to provide full information on their activities upon request, subject to exceptions for national security, public safety, law enforcement, health, and private interests such as private reputation and trade secrets. The exceptions shall be kept as narrow as possible and shall only be those specified by law. Such information shall be provided speedily and shall be as inexpensive as possible to obtain.
Article 17
Right of Petition
The right of petition is guaranteed; everybody has the right to address himself, or jointly with other individuals, to organs of the State or of local self-government with requests, proposals and complaints in matters of public or other common interest.
Article 18
Emergency Powers
In the event an emergency is declared, the Basic Principles and the rights set forth in Articles 1, 2, 3(3), 4, 5, 6, 9 (criminal defense rights), 11, 12, 15, 17 [plus some social rights] may not be infringed.
[Compare Hungarian Constitution, Section 8 (4).]
Economic and Social Rights
These rights are easy to list but unlike the rights in Article 1–16, are not always directly enforceable in a court. For example, how can one enforce the right to social security if there is no statute creating a social security system? The right to a healthy environment? Separation of powers principles would prevent the court from ordering the legislature to pass legislation.
Some of these rights are, however, judicially enforceable. To take care of both possibilities, I have drafted the following overall clause:
Economic and social rights shall not be arbitrarily or otherwise unlawfully denied, and judicial remedies shall be available to remedy such denials, provided however that in no event shall a judicial remedy order the Parliament to take legislative action.
The specific rights are set out in the Namibian and Czechoslovak Constitutions and include:
(1) the right to choose one’s work;
(2) the right to a job;
(3) the right to a state support if one cannot work;
(4) the right to a minimum wage;
(5) the right to basic health care;
(6) the right to basic education;
(7) the right to the results of creative intellectual activity
A model can be found in the Czechoslovak Charter.