Fundamental Rights

The topic is in particular: Evaluation in view ofFundamental Rights. Which Fundamental Rights do we mean? In fact there are four categories.

1. First of all we mean the universal international body of fundamental rights, like in the Universal Declaration ofHuman Rights adopted by the General Assembly of the United Nations of the 10¹h December 1948.

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The International Covenant on Civil an Political Rights of December 16th, 1966, the International Covenant on Economie Social and Cultural Rights ofDecember 19th, 1966.

The International Agreements against Race Discrimination ofMarch 7th, 1966, the Agreements against Slavery for Refugees, Stateless Persons, against Torture, Discrimination of Women, and so forth.

2. Secondly there are the Fundamental Rights of regional organisations, like the

African Charter on Human and Peoples Rights of June 27th, 1981 of the Organization of African Unity;

or the American Convention on Human Rights ofNovember 22nct, 1969 of the Organization of American States;

or the Cairo Declaration on Human Rights in Islam of August 5th, 1990, or the European Convention on Human Rights ofNovember 4th, 1950 of the Co un cil of Europe;

or the Organization on Security and Corporation in Europe (Helsinki) especially the 1989 Vienna Concluding Document;

or the Fundamental Rights in the Treaty of Rome and the Decidons of the Court of the European Union in Luxembourg.

3. The Fundamental Rights in the National Constitutions.

4. in federated states more fundamental rights are laid down in the State Constitutions.

Evaluation of law drafts and laws has to take into account fundamental rights in four perspectives.

1. Fundamental rights as participatory rights, namely political rights the right to vote,

the right to petition, and freedom of speech.

They constitute democracy. In fact by sorne steps of representation the citi-zens are the legislator, parliament only their representatives.

2. Fundamental rights as defensive rights, fundamental rights in a «nega-tive» (defending) perspective

- «man versus the state».

- property rights

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- freedom of vocation, profession

- freedom of speech and faith, conscience, creed - freedom of assembly

Fundamental rights in this notion are barriers to shield the individual from illegitimate invasion in his/her rights.

3. Fundamental rights have a «positive» perspective. Sorne fundamental rights are rights to enjoy state offerings, claim state services. They may be sharing rights:

- rights to basic welfare; e.g. the state has to guarantee that nobody dies by starving

- right to education

- right to be protected by security forces

- rights to receive information by broadcasting and press

The notion of this positive perspective of fundamental rights is: It is no longer at government's grace that you share these goods, but as a citizen you are entitled, because you pay taxes and-even ifyou don'tpay -you are ahuman being and a citizen.

4. All these fundamental rights- participation, negative, positive notion-have been demonstrated from the individual 's perspective, subjectively.

But they have an objective facet. They are social, political, constitu-tional institutions and constitute the structure of state and society.

- Freedom of speech and opinion is essential for a liberal, pluralistic state. Freedom of speech is the basis for an open society and democ-racy: tell me to what extent you enjoy freedom of speech and I'll tell you to what extent you are living in a free state.

- Freedom of faith and creed is the indispensible basis for a neutral distanced state. A neutral state has no religion, no ideology. These things are important but to be left to the individual.

- Freedom of profession, property rights, characterize the economie order of astate: e.g. market economy vs. state controlled economy.

- It is obvions that fundamental rights in this objective, institutional sense are important values for the individual and the self-understand-ing of the state.

The body of fundamental rights characterises society, the civil society as different from state and government. In the democratie rule oflaw state which

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is imprinted by fundamental rights, government actions in princip le are lim-ited, whereas the sphere of individual rights in principle is unlimited.

Each state action basically needs to be particularly, and in detail, legiti-rnized by the constitution, which is the basic legal order of the state. And the main instruments of legitimation of state action are law and budget as en-acted by parliament. Since the fundamental rights are the barrier of state action - fundamental rights as defensive rights- or the source of individual daims - fundamental rights as positive sharing rights -, the legislator in the process of drafting has to evaluate the impact of his product on fundamental rights.

Government by enacting laws wants to conduct human behaviour. Gov-ernment may do that in different intensities:

- indicative - influential - imperative

and these measures, as chosen, may cause conflicts with fundamental rights in increasing depth.

1. The state may want to give information for individual behaviour. State agen ci es may want to steer by indication. They may warn, that law stud-ies may be frustrating since there are too many lawyers on the market and no jobs. State agencies may encourage people to take early retire-ment since there is unemployretire-ment, state agencies may inform how to protect against AIDS-infection. They may indicate that consumption of bananas is healthy.

This form of indicative guidance does not interfere with fundamental rights. But very often, in order to give information the state needs to know. The state needs to collect data and collecting data may interfere with the individuals fundamental rights to decide him/herself, what he/

she wants to let the state know. There is a basic right to data protection.

Collecting information for tax laws may interfere with this fundamental right. It may be necessary to monitor telephone conversations to combat organized crime and drug traffic. This may interfere with fundamental rights to privacy. Exploring educational and professional priorities of people may be necessary for state planning of education and higher edu-cation. AU these state actions require a statutory law which is enacted by

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parliament, since they interfere with fundamental rights. To prepare sta-tistics vital for information may mean to lay open data and secrets of business, enterprise, and trade, and require a legal mandate.

2. Government may want togo on one step further and influence people's behaviour. This may be influenced in a negative sense, for instance to reduce smoking, drinking, or air pollution by high taxes on tobacco, whisky, and cars.

Of course, a tax law infringes the fundamental rights of free exercise of profession, vocation, and property. This impact has to be evaluated in ad vance and needs approval by an act of parliament.

Influence may be sought in a positive sense. Govemment may encourage bouse building by subventions, education by scholarships, early retire-ment by state pensions.

These subventions enlarge the fundamental rights domain, increase indi-vidual freedom and th us do not require a statu tory law as such, but - of course a budget appropriation of parliament. The tricky problem -however - very often is the equality clause. Why to encourage bouse building, not flat-building, not farm bouse building? There must be a sufficient good reason for differentiation. Why to give scholarships to foreigners and not to nationals, to poor students and not to rich ones (and who is «poor>>, who ist «rich»)? There must be a sufficient good reason for differentiation. Why offer state pension to the 62-year-old people, not to the 59-year-old ones? There must be a good reason.

Enlarging the freedom of one persan may curtail the freedom of others and th us a statu tory law is needed and the legislator has to evaluate these conflicts in advance, in quality, intensity, extent.

3. Finally the state may want to conduct people in an imperative manner:

arder to go to school not to kill the neighbour not to sit on the lawn to pay taxes.

It is obvious that it is necessary to evaluate the effects in advance in the period of drafting and concomitantly in the parliamentary process and later on in the period of implementation of the law.

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