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On Writing Constitutions

Posted on by Brian Colwell

The purpose of this blog post is to gather, for use in the lawmaking, notes and quotes from the amazing ‘Writing Constitutions’ book series by Wolfgang Babeck and Albrecht Weber. ‘Writing Constitutions’ is a three-volume series published by Springer: ‘Volume I: Institutions’ was published in 2022; ‘Volume 2: Fundamental Rights’ was published in 2024; as of the writing of this blog post, ‘Volume III: Constitutional Principles’ has not yet been published. Taken together, Babeck and Weber’s is an amazing effort – both incredibly detailed and easy to read at the same time.

For information on why constitutions matter, click here; for quotes on constitutional law, click here, for a deep-dive into fundamental components of the U.S. Constitution, click here. You may also be interested in these articles – quotes on sovereignty, liberty, justice, autonomy, citizen rights, and the well-ordered society.

Finally, worth consideration in your constitutional design are – the European Charter Of Fundamental Rights (CFREU) and the International Bill of Human Rights [which is comprised of the Universal Declaration of Human Rights (UDHR) (1948), the International Covenant on Civil and Political Rights (ICCPR) (1966), and the International Covenant on Economic, Social and Cultural Rights (ICESCR) (1976)].

Writing Constitutions – Volume I: Institutions

PART I – Parliament

Chapter 1 – Unicameral Or Bicameral Parliaments

Chapter 2 – The Deputy

Chapter 3 – Political Parties And Thresholds

Chapter 4 – Internal Organization Of Parliament And Role Of Opposition

Chapter 5 – Investigative Committees And Inquisitorial Rights

Chapter 6 – Legislation

PART II – President

Chapter 7 – Presidential Office Qualifications, Election, Term

Chapter 8 – Presidential Powers And Veto Rights

Chapter 9 – Dissolution Of Parliament And Impeachment Of President

PART III – Government

Chapter 10 – Government

  • Role And Function Of Government
  • Appointment And Dismissal
  • Confidence And No Confidence

PART IV – Judiciary

Chapter 11 – Constitutional Courts, Supreme Courts

Chapter 12 – General And Special Jurisdictions And Public Prosecution

PART V – Territorial Structure

Chapter 13 – Territorial Structure

  • Unitary Systems
  • Regionalized Systems
  • Federal Systems
  • Local Government

Part VI – State Of Emergency

Chapter 14 – State Of Emergency

  • Norm Addressee
  • Types Of Emergency Rule
  • Procedure For Declaration
  • Substantive Requirements
  • Legal Consequences
  • Legislative Control
  • Judicial Review

PART VII – Defense

Chapter 15 – Defense

  • Military Forces
  • Power Of Military Command
  • Power To Declare War
  • Oversight Of War Powers

PART VIII – Budget, Finance, Central Banks

Chapter 16 – Budget, Finance, Central Banks

  • Budget Clause And Control Chamber
  • Taxes
  • Central Banks

PART IX – Referendum

Chapter 17 – The Referendum

  • Clause Required?
  • What Body Initiates?
  • What Body Determines Scope?
  • What Topics Can Be Subject?
  • Procedural Specifications
  • Regional Scope
  • Temporal Requirements
  • Required Quorum
  • Outcome Binding
  • Judicial Review

PART X – Amending The Constitution

Chapter 18 – Amendment Power

  • Overview Of The Rule
  • Details Of The Clause

Writing Constitutions – Volume 2: Fundamental Rights

Preface

  • “Fundamental rights primarily limit state action against the individual and are basic instruments of personal and political liberty and equally bind Parliament, the Executive and all courts in the formulation, execution or interpretation of the law. But beyond their role in limiting state power, fundamental rights also form the bedrock of a well–functioning democracy. They establish an inseparable connection between fundamental rights and the democratic constitutional state, recognizing that the preservation and respect of fundamental rights are essential for the functioning and sustainability of a democratic society.”
  • “Democracy requires not only political rights in the narrower sense (such as the right to vote, electoral equality and equal access to political office), but also the guarantee of fundamental civil liberties, such as the right to freedom of information, expression, thought and religion, free communication of the media, free assembly, freedom of political parties and freedom of association.”
  • “… a core fundamental rights canon is categorical and universal and not subject to functional-contextual interpretation.”

Chapter 1 – Building A Fundamental Rights Culture

  • “Under ‘fundamental rights’ we understand here the positive, ‘constitutionalized’ rights of the human person irrespective of the personal scope of the entitlement.”
  • “Fundamental rights normally are attributed to ‘every person’ or ‘everyone’, but in special cases may be restricted to nationals or citizens (‘citizen’s rights’).”
  • “Fundamental rights are… guaranteed by national constitutional law based on the legitimacy of the constituent assembly.”
  • “Fundamental rights as enshrined by positive constitutional law do not contradict internal human rights…”

Chapter 2 – Structure Of Fundamental Rights Catalogues

  • “… most constitutions guarantee the civil liberties; equality rights, judicial rights, and political rights as subjective, enforceable rights.”
  • “Civil liberties normally comprise the right to life and security; freedom of conscience and religion; right to information and freedom of opinion; freedom of the media; right to freely and peacefully assemble; property rights; freedom of education; freedom to freely choose one’s occupation; freedom of movement and residence; right to marriage and found a family; right to asylum; sometimes also right to practice arts and science.”
  • “Constitutions are seldom written for eternity…”

Chapter 3 – Human Dignity

  • “Human dignity is the fundamental principle and basis of all human rights. Notably the norm protects not only citizens of a country but all humans. It is therefore a countries’ confirmation of a joint belief in human rights. Next to the prohibition of torture it is often the only fundamental right without any explicit limitation in the constitutional text or in the law. If historical circumstances allow, human dignity should therefore be at the core of any fundamental rights catalogue of a modern constitution.”
  • “… human dignity centers around the person as a human being and is indissoluble from personal identity.”
  • “If we understand human dignity as the fundamental value norm and basic principle of all human rights and as an objective constituent principle of the legal order, the relation of the latter to other human rights is not one of concurrence but has a different status as an indispensable precondition for normative effectivity.”
  • “… it may be advisable to follow a rather pragmatic approach to differentiate between a core substance of human dignity which cannot be limited (like prohibition of torture, slavery, etc.) but usually is not expressly protected by human rights norms or constitutional norms which leaves a certain flexibility of interpretation for the judicial bodies.”
  • “The definition of human dignity… appears not only impossible but also dispensable primarily in order to not restrict a priori the potential scope of protection and application in specific cases.”
  • “With respect to the dual character of human dignity as a basic fundamental principle (objective principle) and an individual right it may be preferable to regard the impact of the norm in human rights law and constitutional law from this double angle and to focus on situations where specific emanations of human dignity (in contrast to torture, inhuman and degrading treatment, prohibition of slavery and forced labor, human trafficking) are usually not inserted in international ro constitutional texts.”
  • “… even if no express stipulation is embedded in human rights texts, courts have  referred to human dignity as a basis for liberty and equality and interpreted the relevance in connection with the prohibition of inhuman and degrading treatment, non-discrimination, privacy, or social rights.’

Chapter 4 – Civil Liberties I (Freedom, Life, Liberty, Privacy)

  • General Freedom To Act
  • Right To Life, Physical, Mental Integrity
  • Right To Liberty & Security
  • Right To Privacy
  • Right To Data Protection

General Freedom To Act

  • “The general freedom of action (or to action) is an all-encompassing liberty right, for some the incarnation of liberty. Not many countries have achieved to fully implement it into their constitution. In essence its implementation allows the individual to do everything that is not forbidden instead of only permitting to do what is allowed.”
  • “The general freedom of action is an emanation of human dignity and the free development of the personality.”

Right To Life, Physical, Mental Integrity

  • “The right to life and the protection of the physical and mental (psychological) inviolability are – besides the absolute prohibitions of torture and slavery – the most prominent examples of emanations of human dignity. Whereas the former is conceived as absolute rights, the right to life and the right to physical and mental inviolability may be limited under certain conditions if counterbalancing rights or values are at stake (e.g. self-defence; military service).”
  • “The right to life is closely linked with the intention of international human rights treaty law to prohibit the death penalty either totally or – at least – to restrict its application for specific cases and under certain circumstances; i.e. for serious crimes in times of war under treaty reservations.”
  • “… the application of the death penalty has irrevocable consequences, forecloses the correction of judicial error, and precludes any possibility of changing or rehabilitating those convicted.”
  • “… quite a number of constitutions expressly refer to and protect the unborn life (e.g. Ireland, Hungary, Czech Republic, Slovakia, Chile, Peru, Somalia, Kenya) but the overwhelming majority apparently leaves this most controversial issue to the legislator.”
  • Assisted Suicide: “In contrast to rare constitutional provisions concerning the unborn life and frequent constitutional provisions prohibiting the interference of the corporal and mental inviolability without prior consent, the constitutions generally seem to be silent on the issue of assisted suicide. The controversial problem mainly centers around the question of whether the person concerned has a ‘negative right’ against the penal sanctions provided for against third persons assisting at the suicide or even whether the state has a duty to allow assisted suicide under certrain circumstances.”
  • “… many constitutions contain specific norms protecting physical (corporal) or psychological (mental) inviolability beyond the prohibition of cruel, inhuman, and degrading treatment.”

Right To Liberty & Security

  • “The right to liberty and security is one of the oldest human rights guarantees and finds its origin in the principle of ‘habeas corpus’.”
  • “[There is a] close link between the deprivation of liberty and procedural guarantees in order to prevent arbitrary arrest and detention. It is a fundamental precondition for a rule of law-based democracy.”
  • “Liberty and security must be read and interpreted as a single right and the latter must be understood in the light of liberty… Thus safety is the corollary to the protection of liberty and has a strong relation to procedural safeguards of the rule of law (‘due process’).”
  • “… liberty concerns freedom of confinement, not a general freedom of action. Liberty concerns the freedom of bodily movement in the narrowest sense. Less severe restrictions to liberty, such as restrictions of the freedom of bodily movement, domicile or residency, exile, or expulsion do not fall within the scope of protection but may come within the scope of protection of free movement.”

Right To Privacy

  • “The right to privacy is an emanation of human dignity and personal autonomy. It mirrors the universal human need for the protection of private life in its various dimensions.”
  • “The right to privacy… encompasses the protection of personal data which frequently is expressly guaranteed in modern constitutions, either in close connection with the right to privacy or in separate norms.”
  • “Privacy means the protection of personality in its physical and psychological (mental) existence of oneself and with other persons[;] differentiate in the following between the particular scope of protection or application:”
    • Right to private life
    • Right to personal identity
    • Right to family life
    • Right to protection of domicile
    • Right to communication
  • Right to protection of domicile/ “Right to Home” : “Many constitutions view the right to home as an indissoluble part of private life and correspondingly entrench it in close connection with the protection of privacy, family life, and correspondence following the example of the human rights conventions; others expressly protect the inviolability of home and domicile against unlawful interference only permitted by law and by special (mainly judicial) authorisation.”
  • “The right to privacy encompasses several aspects or scopes of protection that should be enumerated in constitutional texts. This primarily includes the right to private life, personal identity, honour and reputation, family life, inviolability of the home, and communications. The notion of personal identity is broad enough to include the right to one’s own words and image or sexual identity, eventually honour and reputation. The secrecy of correspondence should be extended to all modern forms of communication which can be subsumed under the latter notion.”

Right To Data Protection

  • “The right to protection of personal data should expressly be guaranteed in national constitutions. Whether it is formulated in close connection with the traditional right of privacy is of secondary importance but a separate wording better underlines the relevance of data protection in modern society.”
  • “… the constitutional right to data protection should be entrenched, including minimal procedural and organizational guarantees concerning the legal reservation; consent of data subject; access; rectification and erasure of data as well as an effective remedy before an independent authority.”

Chapter 5 – Civil Liberties II (Freedom Of Thought, Expression, Religion, Assembly, Association, Movement)

  • Freedom Of Thought, Conscience, Religion
  • Freedom Of Expression, Information, Media
  • Freedom Of Assembly
  • Freedom Of Association
  • Freedom Of Movement

Freedom Of Thought, Conscience, Religion

  • “Freedom of thought, conscience, and religion… comprise mostly the freedom of ‘belief’.”
  • “… the equal treatment of minority religions or beliefs including the religions of minorities must strictly be abided to.”
  • “The freedom of thought and conscience is an indissoluble part of personal dignity and identity and a precondition for the freedom of opinion and expression. Therefore, it is often mentioned in constitutions in close connection with the latter freedoms although it can be distinguished as an inner element or core (‘forum internum’) from the external sphere (‘forum externum’).”
  • “The freedom of thought and conscience is independent of religious or ideological beliefs; it encompasses internalized values and norms which are essential for the forming of the personal identity of the holder.”
  • “The freedom of thought and conscience as ‘forum internum’ is unconditionally guaranteed; no interference whatsoever can be justified. No one can be compelled to reveal his thoughts, religion, or beliefs (‘negative freedom’) and no one can be forced to have or change a religion or belief.”
  • “The freedom of thought and conscience does not guarantee to refuse general civic obligations…”
  • “Everyone has the freedom to manifest one’s religion or belief in public as in private; this is often specified by non-exhaustive examples like worship, observance, practice, and teaching.”
  • “The state must not enforce the practice of religious rites or integration into a religious community.”
  • “Religious communities or organizations cannot be coerced to register as legal persons or associations.”
  • “Self-determination or autonomy is an essential element of the freedom of religion or belief. Even if it is not expressly guaranteed in international human rights conventions, it may be deduced from a teleological interpretation of the norm.”
  • “… the autonomous existence of religious communities is an indispensable element of a pluralistic and democratic society…”
  • “Constitutions recognizing a state religion, predominant or traditional religion should not only guarantee equal treatment of religions or beliefs, but ensure legal and judicial remedies against any discriminating practices concerning worship…”

Freedom Of Expression, Information, Media

  • “The freedom of expression and information… constitute a basic human right for a liberal and democratic society.”
  • “The classical civil liberties of thought and opinion which are often mentioned conjointly with the freedom of expression and information are necessarily linked with the utterance and dissemination of thoughts, opinions, and convictions in the external sphere.”
  • “… freedom of expression… is an important element to promote the truth in the public debate by subjecting it to contradiction and competing arguments.”
  • “Freedom of expression is a precondition for the development of… personality, autonomy, and identity.”
  • “Freedom of expression and information are essential elements for the free flow of information and debate on government.”
  • “The freedom of opinion and expression, as well as the freedom of information and media, constitute a cornerstone of a free and democratic society and the constitutional wording should be well-drafted.”

Freedom Of Assembly

  • “The freedom of assembly – together with the freedom of association – is closely linked with the freedom of thought, expression, and information. They are the main pillars of a free democratic society and reflect the political and democratic aspects of the forum externum. They constitute a basis for the so-called ‘political rights’…”
  • “… genuine, effective freedom of peaceful assembly cannot be reduced to a mere duty on the part of the state not to interfere; a purely negative conception would not be compatible with the object and purpose [of the freedom of peaceful assembly, which] sometimes requires positive measure to be taken, even in the sphere of relations between individuals if need be (‘third party effect’).”
  • “The limitations clauses concerning the freedom of assembly are mostly specific and encompass the legal reservation (‘prescribed by law’), must comply with specific enumerated aims (national security, public safety, protection of health and morals, protection of right of others), and be proportional (‘necessary in a democratic society’).”
  • “Although there is a strong nexus between freedom of thought and opinion, freedom of expression, freedom of assembly, and association as a constitutional basis for political rights, the freedom of assembly should be guaranteed in a separate norm…”
  • “Restrictions for the freedom of assembly or demonstration in public should expressly be enshrined (‘legal reservation of fundamental rights’).”

Freedom Of Association

  • “The freedom of association as an individual or negative right as well as objective guarantee has to be viewed in close context with the other rights of communication: freedom of expression and information, freedom of media, freedom of assembly; but also reveals close links with the freedom of forming and joining trade unions.”
  • “The freedom of association is an overlapping right between civil and political rights…”
  • “The freedom of association is a basic human right that is crucial for the functioning of democracy and an essential prerequisite for other fundamental rights.”
  • “Freedom of association is the freedom to combine together for the pursuit of common purposes or the advancement of common causes. It is one of the fundamental freedoms guaranteed [and] a sine qua non of any free and democratic society, protecting individuals from the vulnerability of isolation and ensuring the potential of effective participation in society.”
  • “The freedom of association mainly comprises the positive freedom to form and join an association (or trade union) and the negative freedom to abstain from forming or joining.”
  • “The freedom of association is a fundamental civil right in close context with the political right and – in its special aspect of trade union rights – a fundamental economic and social right. Thus, it should be guaranteed among the civil liberties; the special protection of the freedom of association for trade unions may be guaranteed in a separate norm to underscore its vital importance for a free and liberal economic order.”
  • “Besides the general grounds for limitations as established in the human rights instruments (national security, public order and security, health and morals, rights of others) specific limitations concerning unconstitutional or unlawful purposes or activities should expressly be entrenched in the constitutional texts… in order to grant foreseeability and determinacy for executive and judicial intervention. Additionally, the specific restrictions for military, police personnel, and civil servants in the exercise of their duties should be expressly mentioned in the constitutional text to circumscribe more precisely the personal and material scope of the relevant categories of persons.”

Freedom Of Movement

  • “The freedom of movement is a specific emanation of the freedom of the individual to act and move freely unless any legal grounds of the common wheal or the rights of others are in contradiction.”
  • “The freedom of movement (and residence) is not identical with the right to liberty and security, which guarantees primarily protection against deprivations of personal liberty and security in the course of executive or judicial arrest or detention.”
  • “Not all constitutions expressly contain the freedom of intraterritorial movement or residence but stipulate only the freedom to move and travel; usually constitutions guarantee the freedom to move and leave the country as well the right to entry for citizens.”
  • “The freedom of movement and residence as an emanation of the freedom of one’s personality should be expressly guaranteed to everyone including non-nationals. Also, the freedom to leave one’s country following the human rights guarantees and many national constitutions should be expressly entrenched for everyone.”

Chapter 6 – Civil Liberties III (Property & Economic Rights, Educational Rights, Art & Science, Asylum)

  • Property Rights
  • Freedom Of Economic Activity, Profession, Establishment
  • Right To Education
  • Freedom Of Art & Science
  • Expulsion, Extradition, Right To Asylum

Property Rights

  • “The right to property… is an indispensable element of a free and rule of law-based order [and] the deprivation of property can only be permitted on grounds of public necessity, by law, and by just and previous compensation.”
  • “… no one can be deprived of life, liberty or property without due process of law, nor shall private property be taken for public use, without just compensation.”
  • “Everyone has the right to own, use, dispose and bequeath his or her possessions.”
  • “The social obligation of property is a permanent mandate for the legislator and enables interpretative orientation for the judiciary.”
  • “… the right to property [is] a constitutional fundamental value norm.”
  • “As the right to property is a human right, any restrictions for non-nationals should expressly be laid down in the constitutional text…”
  • “Reservation for certain areas of public property should expressly be mentioned in the constitutional texts…”

Freedom Of Economic Activity, Profession, Establishment

  • “The freedom of economic activity comprises the freedom of trade, commerce, enterprise, and competition; in a wider sense, it also encompasses the classical freedom of profession (or occupation) and establishment.”
  • “The freedom of economic activity can be interpreted as a manifestation of the free development of one’s personality and autonomy. It may vary from the concrete constitutionalization and encompass a subjective right, an objective guarantee, or institutional guarantee.”
  • “… conventions predominantly do not contain specific guarantees and normally limit the scope to negative prohibitions of forced or compulsory labor… Some, however, include the ‘right to free choice of employment’ or extend the right to work to ‘the opportunity to gain one’s living’ or ‘to pursue the freely chosen or accepted occupation’ [and] the ‘freedom to conduct a business in accordance with Community law.”
  • “Insofar as the right to work is guaranteed, it includes the right to freely choose a trade and profession, as well as a right to accept or refuse an offer and employment.”
  • “As the normative wordings of the content are not always clearly distinguishable, or seems advisable to use the topos of ‘freedom of economic activity‘ as an all-encompassing notion comprising the freedom of profession and establishment, trade and commerce, enterprise, competition, and contract. A modern and illustrative example is: ‘Economic freedom is guaranteed. Economic freedom includes, in particular, the freedom to choose an occupation as well as the freedom to pursue a private economic activity’[;] it may be recommendable to insert a clause of protection… expressly mentioning the various partial aspects of profession and establishment, trade and commerce, enterprise, competition, and contract…”
  • “The freedom of economic activity in an all-encompassing sense is a cornerstone of a liberal economic order which may be attenuated by the principle of the social state…”

Right To Education

  • “… recognize the right to everyone to education [and] agree that education shall be directed to the full development of the human personality and the sense of dignity, and shall strengthen the respect of human rights and fundamental freedoms.”
  • “… constitutional texts should take into account the three-level approach… and guarantee free accessibility in compulsory (primary) education, free access to technical and vocational training, and continuing training.”
  • “The right to found private educational institutions and facilities should be expressly enshrined; positive obligations of the state to fund or assist private school, vocational institutions, and universities may additionally be mentioned.”

Freedom Of Art & Science

  • “… a well-drafted norm as individual freedom in close connection with the freedom of opinion and freedom of assembly and association reads: ‘The arts and scientific research shall be free of constraint. Academic freedom shall be respected’ [;] ‘Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits’ [and] ‘… respect the freedom indispensable for scientific research and creative activity’.”
  • “The freedoms of arts and science reveal a double or even multifaceted aspect: individual freedom as civil liberty; cultural right to be respected and promoted as an objective or even institutional guarantee.”
  • “The freedom of science is open to everyone. Only the academic freedom may be limited to nationals if teaching as academic requires the possession of nationality.”
  • “… the freedom of art should be expressly enshrined in national constitutional texts.”
  • “[The freedom of art] is an inherent element of the free development of one’s personality.”
  • “The freedom of science and academic freedom should also be expressly guaranteed in constitutional norms. Although the distinction is not always clear and the latter may encompass the freedom of science as a pure theoretical attitude, both aspects, i.e. science and freedom of teaching, should be expressly mentioned in constitutional norms.”
  • “Express limitation as to the performance of teaching in conformity with constitutional values (‘loyalty’) may be inserted as a counterpart of academic freedom unless this evidently flows from the inherent limits of fundamental rights as established by constitutional theory and case law.”

Expulsion, Extradition, Right To Asylum

  • “As there is no general obligation in international law to permit the immigration of aliens in normal circumstances, a ‘right to immigrate’ is reduced to specific conditions if multilateral or bilateral treaties or integrations treaties warrant it or if the conditions of demand for asylum according to international law, integration law or national law are given.”
  • “Although there exist close links between expulsion and asylum, [one should] distinguish between expulsion, extradition, and right to asylum as separate legal facts.”
  • “The expulsion of foreigners residing in a country other than their own may be interpreted as an act of personal sovereignty of the national state…”
  • “… neither international customary nor treaty law guarantees an individual right to asylum to refugees for political, religious, or other reasons; it only entitles states to receive refugees on their own territory as an emanation of the territorial sovereignty without violating foreign sovereignty or mingling into internal affairs. It regulates the right to an asylum, not to asylum.”
  • “Even if international law does not grant an individual right to asylum, national constitutional law is not hindered to expressly enshrine an individual right…”
  • “Asylum should expressly be granted at least in accordance with the Refugee Convention 1951…”

Chapter 7 – Equality Rights

  • Equality is… regarded as the fundamental principle of constitutionalism. It determines the position of an individual in relation to the state and other individuals, sets limits to the exercise of his/her rights and freedoms, as well as defines the content of certain rights and freedoms of an individual and the obligations of state authorities.”
  • “Equality does not mean that everyone should be treated in the same way, but that similar treatment should be given to entities belonging to the same category of similar entities.”
  • “Recognition of the equal and inalienable right of all members of the human family is… the foundation of freedom, justice and peace in the world [and] all human beings are born free and equal in dignity and rights.” – summarized from the Preamble to the UDHR
  • “Most constitutions guarantee a general right to equality… Constitutional provisions provide for a right to equal treatment, equality before the law or of the law, a principle of non-distinction, or a right to equal treatment without discrimination. Often, a combination of these terms and concepts appear in constitutional provisions.”
  • “Equality is expressed and guaranteed in modern constitutions both as a general principle and as an individual right.”
    • “As a constitutional principle equality expresses the leading idea of the system for the protection of constitutional rights and freedoms, the standard of a democratic legal state and is one of its axiological foundations. In this sense, the principle of equality often appears in the text of the constitution alongside the principle of freedom and the principle of human dignity.”
    • “The positive formulation of the state’s duties to ensure the implementation of the principle of equality can take various forms”:
      • “Public authorities shall create the condition such that the equality of the individuals may be real and effective.”
      • “The State shall take special measures to ensure the essential equality of men and women and to eliminate inequality.”
      • “It is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organization of the country.”
    • “As a right of an individual, equality is expressed in constitutions either by describing what the individual is or by indicating how the individual should be treated.”
      • “… the most commonly used formula is that of being ‘equal before the law’.”
      • “Second, constitutions express equality as ‘the right to equal treatment by public authorities’.”
      • “Third, equality is also expressed in constitutions as ‘the right to equal protection of the law’.”
  • “The right to equality is referred to as a meta-right (a second-level right) that an individual enjoys in relation to other rights and freedoms.”
  • Equality Before The Law: “In general, the idea of equality before the law means that no one should be above the law and that the law should be blind in treating all parties equally.”
  • Equal Protection Of The Law: constitutional examples
    • “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
    • “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory Of India.”
    • “No person shall be denied the equal protection of law.”
    • “The State shall grant equal rights to all to conduct economic and other activities, except for those prohibited by law, and guarantee equal protection and equal conditions for the development of all forms of leadership.”
  • “Equality is not absolute.”
  • Equality Versus Non-Discrimination:
    • “The prohibition of discrimination, unlike the injunction against equal treatment, is absolute and does not allow for any exceptions. In other words, discrimination can never be considered justified or excusable.”
    • “Non-discrimination in constitutions is expressed as a general principle (the prohibition of discrimination) or as a negative right (freedom from discrimination).”
  • “A necessary element of modern constitutions of democratic countries is the principle of equality and the prohibition of discrimination… For the constitutionalization of the principle of equality, the general formula is recommended, particularly the formula of equality before the law…”

Chapter 8 – Political Rights

  • Right To Vote
  • Right Of Access To Public Functions
  • Right To Good Administration
  • Right To Petition

Right To Vote

  • “The right to vote, also often referred to as suffrage, entails both a positive and negative element: (a) the right to cast one’s vote in elections and (b) the right to stand as a candidate for office.”
  • “The right to vote is interpreted as a positive right that imposes affirmative obligations – rather than limits (as in the case of negative rights)…”
  • “Most provisions require citizenship for the right to vote in national elections.”
  • “… the principle of equality (one man, one vote) is reflected in most of the provisions… all eligible voters have equal weight in respect of the outcome of the election.”
  • “… every citizen shall have the right to take part in the conduct of public affairs, directly or through freely chosen representatives.”
  • “The right to vote is subject to limitations… countries impose a minimum age at which citizens are allowed to vote.”
  • “… a secret ballot is essential to safeguard voters from any sort of undue influence.”

Right Of Access To Public Functions

  • “The right of access to public functions is a significant manifestation of civic equality.”
  • “By providing the opportunity to gain access to public service on equal footing with others, the right allows people to take part in the conduct of public affairs in public functions on an equal basis.”

Right To Good Administration

  • “The right to good administration can be conceived as an innovative citizen’s right which focuses at the fair, impartial and prompt treatment of the citizen’s affairs and can be understood as part of the rule of law in administrative proceedings.”
  • “The insertion of the right to good administration in an international human rights document… shall be quoted here literally:”
    • Every person has the right to have his or her affairs be handled impartially, fairly and within a reasonable time by the institution, bodies, offices and agencies of the Union.
    • This right includes:
      • (a) The right of every person to be heard, before any individual measure which would affect him or her adversely would be taken;
      • (b) The right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;
      • (c ) The obligation of the administration to give reasons for its decisions.”
    • Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of its duties, in accordance with the general principles common to the laws of the member states.
    • Every person may write to the institutions in one of the languages of the Treaties and must have an answer in the same language.”
  • “The principles of impartiality, fairness, transparency, effectivity, lawfulness, and proportionality are sometimes expressly mentioned in constitutional provisions.”
  • “Everyone shall have the right to the impartial and fair examination by administrative authorities within a reasonable period, of cases concerning him… Every person has the right to have his or her affairs to be handled impartially, fairly, and within a reasonable time by the authorities.”
  • “… enshrine the principle of good governance and prescribe state officials to serve the public in an expedient, expeditious and non-discriminatory manner.”
  • “Transparency and accountability of government is good governance, eliminates corruption and forges trust into public institutions.”

Right To Petition

  • “The right to be heard in administrative proceedings potentially affecting adversely the person involved, is an emanation of the rule of law.”
  • Some examples for the wording of the right to be heard:
    • “Citizens shall possess the right to be informed by the Administration whenever they so request as to the progress of the processes in which they are directly interested, as well as be made aware of such decisions as are taken in relation to them.”
    • “Unless a law provides otherwise, a person who claims that her rights were curtailed by a decision of a public administrative authority may turn to a court for review of the legality of that decision. However judicial review of decisions affecting the fundamental rights and freedoms listed in this Charter may not be removed from the jurisdiction of these courts.”
    • “… individuals who claim that any of their rights enumerated in the covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration.”
  • “… it is suggested that the wording of the constitutional right to petition should mention that sub-constitutional law shall specify the manners, conditions and procedures of exercising the right to petition.”

Chapter 9 – General Judicial Rights

  • Right To An Effective Remedy Before A Court
  • Fair Trial
  • Minimal Guarantees In Criminal Proceedings

Right To An Effective Remedy Before A Court

  • “The acknowledgement of the right to an effective remedy before a court (right to an effective judicial protection) has become a cornerstone of all liberal constitutional States in terms of the implementation of the rule of law and individual rights.”
  • The scope of the right is not limited to the mere formal granting of access to courts in disputes with public authorities. The protection must be complete and effective. This includes three dimensions”:
    • “First of all, complete legal protection presupposes that, in principle, legal disputes in all areas of administrative law fall within the jurisdiction of the courts.”
    • “Second, it is essential for complete judicial protection that legal action can be brought not only against administrative decisions or acts imposing a burden on the individual, but against any conduct of the public administration that may violate the individual’s rights.”
    • “And third, judicial protection is only complete and effective if it is granted in time; this requires the creation of a system of interim relief that provides for both the suspension of onerous administrative decisions and the possibility of interim orders by the court to compel the administration to behave in a certain way.”
  • “Though the right to an effective judicial remedy serves not least to protect individual freedom, it is not, from a norm structure point of new, a liberty right, but a performance right: The state does not have to abstain from certain acts, but on the contrary must provide certain facilities and services.”

Fair Trial

  • “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charges against him.”
  • “Access to a competent, independent, and impartial tribunal in civil lawsuits and criminal trials may be considered as the core of the principle of a fair trial.”
  • “The independence of the judiciary as an institutional guarantee has to be reinforced by special state obligations to ensure the independence of judges.”
  • “The right to a fair trial obviously encompasses the right to be heard.”
    • “Each party must be able to present his case. This requires the prosecution authorities to disclose all evidence; it also includes proceedings in private arbitration.”
    • “The right to be heard includes the right to a reasoned judgment…”
  • “… at the center of the right to a fair trial [is] the right to a fair [and public] hearing…”
    • “The right to a fair hearing… encompasses the right to a publicly pronounced or publicly disseminated judgment.”
    • “The right to a public hearing means that all criminal trials and civil lawsuits must in principle be conducted orally and publicly.”
    • “The publicity of hearings ensures the transparency of proceedings and thus provides an important safeguard for the interest of the individual and of society at large. Courts must make information regarding the time and venue of the oral hearings available to the public and provide for adequate facilities for the attendance of interested members of the public, within reasonable time limits, taking into account, inter alia, the potential interest in the case and the duration of the oral hearing.”

Minimal Guarantees In Criminal Proceedings

  • Right To Be Informed
  • Right To Prepare Proceedings
  • Trial Within A Reasonable Time
  • Right To Defense, Legal Counsel, Free Legal Assistance
  • Right Of Calling And Examining Witnesses
  • Right To Free Assistance Of An Interpreter
  • Right Not To Be Compelled To Witness Against Himself Or To Confess Guilt
    • “The prohibition of self-incrimination… contribut[es] to the avoidance of miscarriage of justice.”
  • Right To Compensation For Miscarriage Of Justice
  • Right To Appeal To A Higher Court

Chapter 10 – Specific Judicial Rights

  • Right To A Natural Judge
  • Presumption Of Innocence
  • Nulla Poena Sine Lege: Nullum Crimen Sine Lege
  • Ne Bis In Idem

Right To A Natural Judge

  • “The right to a natural judge is an extraordinary, effective tool to combat external and internal interference, including corruption, upon the judiciary and safeguards its independence.”
  • “As a corollary… so-called emergency, ad hoc, and special courts are forbidden.”

Presumption Of Innocence

  • “Reduced to its historical core, the presumption of innocence means that the accused is presumed innocent until proven guilty by the prosecution.”
  • “… the presumption of innocence has been described as:”
    • “A principle of objectivity (for judges, juries, prosecutors, and other officials)”;
    • “A right against self-incrimination (and the corresponding right to remain silent)”;
    • “A burden of proof (placed on the prosecution)”;
    • “A high epistemic standard of proof (i.e. beyond a reasonable doubt)”;
    • “An obligation to acquit defendants if the standards are not met (in dubio pro reo)”;
    • “A general protection against court rulings written in an insulting or offensive manner”;
    • “A general obligation to treat defendants with respect (addressing them as defendant rather than as guilty party, for example)”.
    • “An assumption of no-proof-of-guilt at the outset of a criminal trial.”
  • “… the presumption of innocence cannot stand alone, but must be embedded in the overall construct of all fundamental rights of justice.”
  • “All rights of the accused must be secured and regulated in more detail in ordinary law so that the presumption of innocence can come into effect… A constitution, or at least the simple laws, should not only grant the accused the presumption of innocence, but clarify its meaning”:
    • “What type of innocence is presumed?”
    • “What objective requirements apply to the standard of proof?”
    • “Who is bound by the presumption and the established standard of proof?”
      • “… a gross deviation of the subjective conviction from the objective standard of proof can be prevented by differentiating requirements for the evidence of the criminal procedure and limiting the subjective judicial conviction (or that of a jury).”
  • “… explicitly link the presumption of innocence with the right to be treated as innocent until the verdict is irrevocable.”

Nulla Poena Sine Lege: Nullum Crimen Sine Lege

  • “The principle of ‘Nullum Crimen Sine Lege’ (no crime without law) and ‘Nulla Poena Sine Lege’ (no punishment without law) are… fundamental principles of justice… and represent the most fundamental achievement of an enlightened, modern legal system based on the rule of law.”
  • “The prohibition of punishment without law is indispensable as a basis for legal certainty and predictability of the law as well as for the exclusion of state arbitrariness.”
  • “… no one may be convicted of a crime or punished except in accordance with previously established law [and] there is no punishment based on a law that was not valid before the act or is not sufficiently defined.”
  • Nulla Poena Sine Lege Stricta, Scripta, Previa, Certa: “The principle of legality in criminal law… is today usually divided into four individual principles: the prohibition of analogy (stricta), legal reservation (scripta), the prohibition of retroactivity (previa) and the requirement of certainty (lege certa)…”
  • When drafting or amending constitutional clauses it is recommended to explicitly name the overarching principle – ‘Nullum Crimen Sine Lege’ (no crime without law) and ‘Nulla Poena Sine Lege’ (no punishment without law) – as well as the four elements – the prohibition of analogy (stricta), legal reservation (scripta), the prohibition of retroactivity (previa) and the requirement of certainty (lege certa).
  • Example verbiage:
    • (1) “No one shall be held guilty of any criminal offense on account of any act or omission which did not constitute a criminal offense under national law or international law at the time when it was committed. Not shall a heavier penalty be imposed than the one that was applicable at the time the criminal offense was committed. If, subsequent to the commission of a criminal offense, the law provides for a lighter penalty, that penalty shall be applicable.
    • (2) This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles recognized by the community of nations.”

Ne Bis In Idem

  • “The principle of Ne Bis In Idem denotes the prohibition of sentencing a defendant more than once for a particular offense. It is a fundamental right and forms part of the core of principles of criminal procedure under the rule of law.”
  • “The prohibition of double jeopardy is in tension with legal certainty and substantive justice.”
  • “No one shall be liable to be tried or punished again in criminal proceedings for an offense for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.”

Chapter 11 – Rights & Principles Of The Economic, Social, Cultural Order (ESCR)

  • Characteristics Of ESCR
  • Economic Order
  • Right To Work
  • Social Order
  • Cultural Order

Characteristics Of ESCR

  • “When ESCR are to be outlined and characterized, the concepts of ‘rights’, ‘principles’, and ‘order’ should be made explicit. ‘Rights’ are individual entitlements, they give the beneficiary the freedom or advantage addressed in the specific guarantee. ‘Principles’ are legal rules, which characterize a system of law and give them a special direction, identified by the said principle. ‘Order’ means the legal order. It is based on written legal sources of both international and national law.”
  • “[ESCR] rights are… not to be found in the guarantees of the Constitution. Treating [the ESCR] as rights undermines the enjoyment of individual freedom, distorts the functioning of free markets by justifying large-scale state intervention in the economy, and provides an excuse to downgrade the importance of civil and political rights.”
  • “Neither nation-building, nor social citizenship, nor democracy can justify substantially the welfare state – despite the fact that these thoughts play an important and on-going role in the political rhetoric, which is driven by a widespread nationalist undertone.”

Economic Order

  • “… the property of everyone is protected… one may only be deprived of his property for the reason of public utility and with consideration of a just indemnity, in the case and in the manner established by law.”

Right To Work

  • “… the Constitution [can] name the right to the free choice of a profession, the right to engage in enterprise and to acquire the means of one’s livelihood by work.”
  • “Every citizen has the right to choose their trade, occupation or profession freely.”
  • “Everyone has the right to earn a means of living by lawful work, chosen or accepted by himself.”
  • “Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment. Everyone, without discrimination, has the right to equal pay for equal work. Everyone has the right to found and join trade unions for the protection of his interests.”
  • “… the right to work creates neither an abstract duty to work nor an enforceable claim to a specific workplace of choice.”
  • “The right to work encompasses a multitude of normative dimensions of employment. As a right to inclusion for everyone, it safeguards access to the labor market free of discrimination of any kind, protects employees from and during unilateral, groundless dismissal by an employer, ensures a right to inclusion in a labor organization and when defining working conditions, guarantees the right to the preservation of physical existence and bodily integrity, requires a labor market organization with proof of employment and employment exchange, employment promotion and income from employment as a living wage that guarantees one’s livelihood, and it, in turn, creates the basis for social security appropriate for the occurrence of various recognized social risks.”

Social Order

  • Right To Social Security
  • Right To Health
  • Right To Social Assistance

Cultural Order

  • Right To Education
  • Freedom Of Arts And Science

Chapter 12 – Global Collective Rights

  • Right To Development
  • Right To Peace

Chapter 13 – Minority Rights

  • Language
  • Religion
  • Culture
  • Land Claims

Chapter 14 – Rights Of Children

  • Children As Rights Holders
  • Family Environment And Alternative Care Rights
  • Disability, Health And Welfare Rights
  • Protection Measures From Violence
  • Protection Measures From Exploitation
  • Protection Measures For Children In Vulnerable Situations

Chapter 15 – Environmental Rights

  • Express Environmental Provisions
  • Implied Environmental Provisions
  • Global Overview Of Environmental Provisions
  • Difference Between Policy Directives And Material Fundamental Constitutional Rights
  • Environmental Protection As An Enforceable Human Right
  • Nature As A Legal Entity

Chapter 16 – Constitutional Duties

  • “From a purely semantical point of view ‘duties’ may be defined as ‘any action or course of action which is regarded as morally or legally incumbent, apart from personal likes and dislikes’. As a legal term it is a summary expression, which circumscribes all constitutional provisions that require a certain type of behavior from the individual.”
  • “Three criteria constitute an essential duty:
    • “First, the duty must be formally enshrined in the constitution. Although it is preferable for such duties to be expressly written, it is sufficient for the duty to originate in a constitutional principle and to be subsequently given concrete form by sub-constitutional law. The purpose of this requirement is to make a substantive distinction between fundamental duties and the numerous simple duties that are found en masse in all legal systems.”
    • “Secondly, the subject of a duty is the individual. A duty can address the individual in its quality as a human being, as a citizen or as part of a social group, e.g., for certain occupations or as being part of a family.”
    • “Lastly, a duty always requires a certain type of behavior. This course of action may be a position action, a sufferance, or an omission.”
  • “The causes and roots justifying the existence of duties are the sovereignty of the state, the value concepts of each constitution, the principle of the welfare state or the guarantee of fundamental rights.”
  • “The effective enjoyment and implementation of human rights and fundamental freedoms are inextricably linked to the assumption of the duties and responsibilities implicit in those rights…”
  • “… everyone has duties to the community in which alone the free and full development of his personality is possible.”
  • “Duties are usually sorted by their addressee, their cause (public weal, public order, morality) or by their required behavior (action, sufferance, omission; mostly referred to as  positive or negative duties).”
  • “Obedience to the Law – Just over half of all constitutions put in force since 1789 impose a duty to obey the constitution, either on public officials, private individuals, or both.”
  • “Slightly different from the duty to obey the constitution is the duty to obey the laws of the country. The latter is a prerequisite for any functioning state. Like regarding the duty to obey the constitution, it is not mandatory that the duty to obey the laws be explicitly written, however, if so, there should be a clear distinction between the two.”
  • “Closely connected to the duties to obey the constitution and laws are the duties to not infringe rights of others and to not discriminate.”
  • “A duty gains legal relevance and exceeds limitations of rights where it demands a positive action.”
  • “The implementation of duties into a constitution are by no means an authoritarian aspect of a constitution. Instead they can validly contribute to an ever more needed solidarity between citizens, but also between regions or nations.”

Chapter 17 – Limitation & Derogation Of Fundamental Rights

  • General Statutory Reservation Authorized By Constitution
  • Inherent, Implicit, Express Limitations
  • Limitations To Interference Of Fundamental Rights

General Statutory Reservation Authorized By Constitution

  • Formulation of basic requirements of limitations based on the law respecting the rights of others and just reasons of public interest: “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights of others and of meeting just requirements of morality, public order and the general welfare in a democratic society.”
  • “General non-specific reservations permit the limitation of fundamental rights by simple reference to the legislature.”
  • Constitutional formulation: “Any limitation on the exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or need to protect the rights and freedom of others.”
  • Constitutional formulation with reference to general objectives and counter-limitations: “Restrictions on fundamental rights must have a legal basis. Significant restrictions must have a basis in a federal act. Restrictions on fundamental rights must be justified in the public interest or for the protection of the fundamental rights of others. Any restrictions on fundamental rights must be proportionate. The essence of fundamental rights is sacrosanct. This general statutory reservation clause is not an overall reference to the legislator, but intends to frame the essential limitations as well as counter-limitations.”
  • Constitutional formulation substantiating with values of dignity, equality, freedom: “The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom, taking into account all relevant factors, including…” [then in the next part name the nature of the right, the importance of the purpose of the limitation, nature and extent of the limitation, the relation between the limitation and its purpose, and the less-restrictive means test]

Inherent, Implicit, Express Limitations

  • “Inherent or implicit limitations are norms of a constitutional rank that have the function of fundamental rights limitations. The fundamental right is limited without any intermediary step by the legislation and the limitation flows directly either from the constitutional wording of the fundamental right itself or from the content of the whole constitution.”
  • “Express inherent or implicit limitations are internal limits directly flowing from the wording of the constitutional norm and restrict the content or scope of application of the respective right.”

Limitations To Interference Of Fundamental Rights

  • “Human rights conventions usually circumscribe four main conditions or principles to be respected when applying the proclamation of emergency”:
    • Exceptional threat
    • Principle of proportionality
    • Non-discriminatory application
    • Non-derogable fundamental rights
  • “There are a number of non-derogable fundamental rights that are commonly exempted from any derogation under emergency situations”:
    • Right To Life
    • Prohibition Of Torture
    • Prohibition Of Slavery And Servitude
    • Prohibition Of Ex-Post-Facto Laws

Chapter 18 – Judicial Protection Of Fundamental Rights

  • Objects Of Judicial Control
  • Quasi-Judicial Remedies

The Catalogue Of Fundamental Rights

“The Catalogue of Fundamental Rights… is a common set of joint human values that most nations have unequivocally agreed upon in various international declarations or conventions. The world has agreed on minimal standards.”

Preamble

Reference to international human rights; dignity and freedom of the human being… Each country must find its own wording [to] individualize their human rights catalogue.

“The international or universal human rights conventions indicate that fundamental civil liberties, political rights, judicial rights, economic, social, and cultural rights should be respected and protected by the contracting parties. The leading function of the UDHR (Universal Declaration of Human Rights, 1948) as programmatic declaration for the further evolution of international human rights law is recognizable and has been subdivided, differentiated and refined in the subsequent binding treaties.” – Chapter 2

Title I: Human Dignity

  • Human dignity is inviolable
  • Right to life
  • Prohibition of death penalty
  • Right to physical and mental integrity
  • Prohibition of torture, inhuman and degrading treatment
  • Prohibition of slavery and servitude

Title II: Fundamental Rights and Freedoms

  • General Freedom to Act
  • Right to liberty/rights of the detained
  • Right to security
  • Respect of private and family life
  • Protection of personal data
  • Right to marriage and founding a family
  • Right to protection of domicile
  • Right to protection of communication
  • Freedom of thought, conscience and religion
  • Freedom of information and expression
  • Freedom of pluralism of media
  • Freedom of assembly
  • Freedom of association
  • Freedom to found, join and leave trade unions
  • Freedom of arts and sciences; respect of academic freedom
  • Right to education
  • Free compulsory education
  • Access to vocational training
  • Freedom to found education establishments
  • Rights of parents to ensure education and teaching of children according to their religious, philosophical and pedagogical convictions
  • Freedom to pursue a freely chosen and accepted occupation
  • Freedom to seek employment and to work
  • Freedom to exercise the right of establishment and provide services
  • Freedom to found and conduct an enterprise
  • Right to property and inheritance/protection of intellectual property
  • Freedom of movement
  • Prohibition of collection expulsion
  • Prohibition of removing, expulsion, or extradition of a person to a state where a serious risk of death penalty, torture or unhuman or degrading treatment exists
  • Right to asylum

Title III: Equality Rights

  • Equality before and under the law
  • Prohibition of any discrimination based on sex, race, color, ethnic or social origin, genetic features, language, religion or belief, political opinion, national minority, property, birth, age, disability, or sexual orientation
  • Equality of men and women
  • Rights of the child
  • Rights of the elderly
  • Rights of persons with differing abilities

Title IV: Political Rights (“Citizen’s Rights” or “Democratic Rights”)

  • Right to vote and stand for elections (active and passive vote)
  • Right to good administration
  • Right to access to documents
  • Right to petition
  • Right to ombudsman
  • Right to diplomatic and consular protection

Title V: Judicial Rights

  • Right to an effective remedy before a tribunal
  • Right to a fair trial
  • Right to a natural judge
  • Right to presumption of innocence
  • Nulla pena, nullum crimen sine lege
  • Ne bis in idem

Title VI: Social Rights and Principles

  • Right to a decent work
  • Right to fair wages
  • Right to collective bargaining
  • Right to social security
  • Right to health care
  • Right to social assistance
  • Prohibition of child labour
  • Protection in the event of unjustified dismissal

Title VII: Cultural and Minority Rights

  • Preservation of one’s culture, religion and language as individual right
  • Preservation of indigenous rights as collective rights

Title VIII: Protection of the Environment

  • Preservation of one’s environment and biodiversity as individual right
  • Sustainable, balanced and intergenerational preservation of nature

Title IX: Duties

  • Duty to pay taxes
  • Duty to compulsory military or civil service
  • Duty to acquire education
  • Parental and social duties
  • Duty to respect the constitution and the law

Title X: Limitation of Fundamental Rights

  • Limitation of Fundamental Rights
  • Express limitations in a general clause
  • Inherent limitations
  • Protection of the essential core or essence of Fundamental Rights
  • Respect of the principle of proportionality
  • Derogation of Fundamental Rights in emergency situations

Title XI: Judicial Protection

  • (Reference to different sections concerning Constitutional or Supreme Court jurisdiction)
  • Abstract and concrete review of norms
  • Constitutional complaint/recurso de amparo
  • Extra-judicial protection: Ombudsman and mediation

Writing Constitutions – Volume III: Constitutional Principles

[content coming when Volume III is produced in 2026]