Fundamental rights and freedoms

[Olivia Munoz]

Hello, in the current global climate, with the development of different tracking and state surveillance systems and the increasing role of nudge theory in public policy design, all accelerated by emergency laws during the pandemic and the example of China’s social credit system, I believe there should be an emphasis on the protection of citizens’ fundamental rights and freedoms, in the classical sense. I can see that this notion is somehow embedded in the second point under b). But I would add the following:

“on unconditional respect for the diversity of sciences, cultures, languages, ethnicities, and beliefs of the citizens within the federation AS WELL AS ON THE PROTECTION OF THEIR FUNDAMENTAL RIGHTS AND FREEDOMS”

There is a difference between ‘respecting’ and ‘protecting’, I believe, especially, in these emerging, ambiguous legal situations, where citizens are free to choose not to do what is asked from them, but are de facto heavily penalized in different ways if they do.

I can anticipate a possible counter-argument: that ‘fundamental rights and freedoms’ is too vague an expression. If so, how could this core notion be inscribed in the Preamble so as to protect citizens from these emerging, ‘subtler’ attacks on their fundamental rights and freedoms?

[Christer Lundquist]

I was thinking the same thing; but by adding two words after”duty to support” – namely “and protect” – in the line about happiness and freedom.
Protection of its citizens is the paramount duty of any democratic state, and I feel that it should be expressed literally. Especially, I’m concerned with citizens’ individual rights and freedoms, but suppose adding “and protect” encompasses this fundamental function of a democracy based on law and justice.

[Olivia Munoz]

Yes, perhaps that would be a better way of going about it. At the same time, I wonder if the emphasis, conceptually, should not be on protecting fundamental (individual) rights and freedoms rather than protecting citizens. My concern is that state surveillance, etc. is generally done in the name of protecting citizens. And, on the other hand, if emergency laws, which bypass parliaments, become increasingly the norm; we can no longer assume the democratic content of law and justice. I suppose that what I am trying to convey is that we should be sensitive to the current context and trends, and ensure that the most basic notions of what democratic rule of law entails are inscribed in the Preamble.

[Fabrice Luijten]

Hi Olivia, Christer and others,

Interesting discussion. I do agree on the importance to explicitly emphasize the protection of fundamental rights and freedoms.

However I would like to make the link to another forum topic, started bij Jakub Jermar, that the preamble might also be seen as being to verbose and ideological. So this brings me to the question: ‘how do we decide what values are so universally important that they should have their place in the preamble? and what should we leave to the political realm or to society itself to organize?’ I think one of the criteria is timelessness, so I am a bit hesitant to inscribe things into the preamble / constitution based on the trends we see now in our society. Which does not mean that I don’t regard the protection of fundamental rights and freedom as ‘timeless’, because I do.

The discussion here and the one started by Jakub Jermar only makes me curious to your ideas on where to draw the line as to what makes it into the preamble. Is there some set of criteria available that can help us to decide? Hopefully one of the participants has some valuable insights on this matter.

[Giuseppe Martinico]

We could certainly say more in the preamble, but the operative part of the constitution is the articles, where, in my opinion, the value of the charter of fundamental rights in the hierarchy of legal sources should be clarified. That is why I have proposed an amendment to make it clear that the Charter of Fundamental Rights has the same nlegal force as the constitution. This will make human rights “foundational”, i.e. part of the Grundnorm.

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