The minimum conditions of a juridical system
in which fundamental rights and human dignity are respected must be the
following:
1. Personal
security must be guaranteed. No one may be arrested or detained without
a judicial decision or for preventive purposes. The residence is
inviolable. No one can be expelled from his residence, deported, or
exiled except in the case of a court decision with final validity, based
on a restrictively interpreted legal provision.
No one can be compelled against his will by
threats, pressure or other measures to spy on the political or
intellectual attitudes of his fellow citizens. All generalized systems
of denunciation for the purpose of persecuting any political opposition
are prohibited.
2. No fundamental
right may be interpreted as implying the authorization for any state or
for anyone of its organs to issue legislative provisions, to undertake
an activity or to commit an act having as its purpose the restriction or
suppression of that fundamental right. Consequently, everyone has the
right to freedom of opinion and expression; this implies the right not
to be molested or persecuted for holding opinions and not to be forced
to express an opinion contrary to conviction.
3. Everyone must
be guaranteed freedom of expression through all media of communication,
particularly the press. There must be no legislative or administrative
provisions encroaching upon this freedom. This freedom presupposes
the possibility of receiving and imparting all information or ideas by
any means of expression, regardless of the fact that the information may
have originated abroad.
Censorship must be prohibited. Systematic
interference with radio broadcasts must also be prohibited.
4. The private
life of persons being inviolable, secrecy of mails must be guaranteed.
No one must be persecuted for opinions expressed in correspondence.
5. Freedom of
religion must be guaranteed. Religious faiths, the internal organization
and worship of the different cults must be respected provided the public
order and morals are not violated.
6. Right to
education must be guaranteed to all without any discrimination. School
instruction must be given in the spirit of inter- national
understanding, of respect for the dignity and fundamental rights of man.
The teaching staff of the universities must not be molested by
legislative or administrative measures taken to its detriment.
7. Everyone is
entitled to freedom of assembly and peaceful association and
particularly to become a member of a political party of his own choice.
No political party must be put in a preponderant position in the state
apparatus through legislative or administrative provisions.
8.
(a) Everyone is entitled to take part either directly, or through freely
chosen representatives, in the direction of the public life of his
country.
(b) The will of the people is the basis of
the authority of public powers. This will must be expressed by free
elections; all direct or indirect pressure exercised on the voters to
the end to force them to express their opinion publicly is prohibited.
The right to present candidates must belong to all political parties and
to all political organizations. No measure should be taken during the
elections which would permit the divulging of the personality of the
voter or the contents of a ballot.
The authority of the state must be exercised
in conformity with the general will expressed by such free elections.
(c) The independence of the judiciary and
the guarantee of its impartiality are the indispensable conditions of a
free and democratic state.
The legislative power must be effectively
exercised by an appropriate organ, freely elected by the citizens. The
laws and other legal measures taken by the legislative cannot be
abolished or restricted by a governmental measure.
Persons in the employ of the state or its
public services must exercise their functions in the service of the
community and not of a political party or political organization. They
have the particular obligation of loyalty towards the state. In the
exercise of their functions they must not receive directives from a
political party or any other organization.
9. The
recognition of the right to self-determination being one of the greatest
achievements of our era and one of the fundamental principles of
international law, its non-application is emphatically condemned.
(Congress of Athens, 1955, Committee on Public Law, Resolution III)
10.
(i) Justice demands that a people or an ethnic or political minority be
not deprived of their natural rights and especially of the fundamental
rights of man and citizen or of equal treatment for reasons of race,
colour, class, political conviction, caste or creed;
(ii) It is the duty of public authorities to
respect those principles;
(iii) Discrimination based on race and
colour is contrary to justice, the Charter of the United Nations, and
the Universal Declaration of Human Rights, and is abhorrent to the
conscience of the civilized world. (Congress of Athens, 1955, Final
Resolution)
II. Basic
requirements of representative government under the Rule of Law
(Conference of Bangkok, 1965, Committee I)
1. The Rule of
Law can only reach its highest expression and fullest realization under
representative government.
2. By
representative government is meant a government deriving its power and
authority from the people, which power and authority are exercised
through representatives freely chosen and responsible to them.
3. Free periodic
elections are therefore important to representative government. Such
elections should be based on universal and equal adult suffrage and
should be held by secret ballot and under such conditions that the right
to vote is exercised without hindrance or pressure. Where a legislature
is elected by districts, there should be a periodic re-distribution of
seats or districts so as to ensure as far as practicable that each
individual vote has the same value. It is also necessary to ensure that
election expenses of candidates are regulated in such a manner and to
such an extent as may be necessary to ensure that elections are both
free and fair.
4. No adult
citizen should by reason of race, colour, sex, language, religion,
political or other opinion, national or social origin, wealth,
education, status or birth be deprived of the right to be a candidate at
any election, to seek votes, or to cast his vote for any candidate.
5. Freedom of
expression through the press and other media of communication is an
essential element of free elections and is also necessary to ensure the
development of an informed and responsible electorate.
6. Representative
government implies the right within the law and as a matter of accepted
practice to form an opposition party or parties able and free to
pronounce on the policies of the government, provided their policies and
actions are not directed towards the destruction of representative
government and the Rule of Law.
7. Illiteracy is
an impediment to representative government reaching its highest
expression and fullest realization. It is therefore the duty of the
state to provide compulsory free education for all children and free
education for all illiterate adults up to such standard as is necessary
ultimately to remove such impediment.
8. To enable
representative government to yield the best results, the people should
not only be literate, but should have a proper under- standing and
appreciation of the principles of democracy, the functions of the
different branches of the government and the rights and duties of the
citizen vis-à-vis the state. Civic education through schools and through
all mass media of communication is therefore a vital factor for ensuring
the existence of an informed and responsible electorate.
9. It is
essential for the effective operation of the Rule of Law that there
should be an efficient, honest and impartial civil service.
10. The guarantee
of individual freedom and dignity within the framework of a
representative government requires that:
(1) In a state in which the Rule of Law
prevails there should be effective machinery for the protection of
fundamental rights and freedoms, whether or not these rights and
freedoms are guaranteed by a written constitution.
(2) In countries where the safeguards
afforded by well-established constitutional conventions and traditions
are inadequate, it is desirable that the rights guaranteed and the
judicial procedures to enforce them should be incorporated in a written
constitution.
(3) While governments should of their own
volition refrain from action infringing fundamental rights and freedoms,
the ultimate determination as to whether the law or an executive or
administrative act infringes those rights and freedoms should be vested
in the courts.
(4) The ultimate protection of the
individual in a society governed by the Rule of Law depends upon the
existence of an enlightened, independent and courageous judiciary, and
upon adequate provision for the speedy and effective administration of
justice.