The Politics of Rights Douglas Brown Pol Sci 100 March 2009

The Politics of Rights What is a “right” ? What kinds of rights are there? Why are they needed? How do they come about? What form do they take? How do they affect other aspects of politics?

Magna Carta (1215), art. 39 “No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgment of his peers, or by the law of the land.”

Rights in the US Constitution An afterthought to the original Constitution. They consist of the first Nine Amendments of the Constitution of 1787 (part of the “ratification” bargain, ) Met concerns that the new central (federal) government would trample on the rights of the people (as they perceived the British had from ) Applied only to laws of Congress, not to the States, until the 14 th amendment, 1868.

From the US “Bill of Rights” 1 st No official religion; right to free speech, press, assembly, petition 2 nd The right to bear arms 4 th The right of security from unreasonable search and seizure 5 th The right to due process in criminal proceedings

The Universal Declaration of Human Rights (United Nations,1948) Article 1 All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. […]

UN Declaration Article 3. Everyone has the right to life, liberty and security of person. Article 4. No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

The Universal Declaration of Human Rights (United Nations,1948) Article 6. Everyone has the right to recognition everywhere as a person before the law. Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Constitution of the Peoples Republic of China Article 13. Private property, inheritance Citizens' lawful private property is inviolable. Citizens' lawful private property is inviolable. The State, in accordance with law, protects the rights of citizens to private property and to its inheritance. The State, in accordance with law, protects the rights of citizens to private property and to its inheritance. The State may, in the public interest and in accordance with law, expropriate or requisition private property for its use and shall make compensation for the private property expropriated or requisitioned. The State may, in the public interest and in accordance with law, expropriate or requisition private property for its use and shall make compensation for the private property expropriated or requisitioned.

Constitution of PRC Article 42. Right and duty to work Citizens of the People's Republic of China have the right as well as the duty to work. Citizens of the People's Republic of China have the right as well as the duty to work. Work is the glorious duty of every able-bodied citizen. All working people in State-owned enterprises and in urban and rural economic collectives should perform their tasks with an attitude consonant with their status as masters of the country. […] Work is the glorious duty of every able-bodied citizen. All working people in State-owned enterprises and in urban and rural economic collectives should perform their tasks with an attitude consonant with their status as masters of the country. […]

Categories of Rights Negative versus positive In US terms: “civil liberties” vs. “civil rights” In US terms: “civil liberties” vs. “civil rights” Civil and political Economic and Social Minority, aboriginal and other group rights Animal rights?

Canadian Charter of Rights and Freedoms, What rights are included ?— (see pp in textbook) S. 2 fundamental freedoms Ss. 3-5 democratic rights S. 6 mobility rights Ss legal rights Ss. 15 equality rights Ss minority language rights

Section 2 Everyone has the following fundamental freedoms: a) freedom of conscience and religion a) freedom of conscience and religion b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication c) freedom of peaceful assembly c) freedom of peaceful assembly d) freedom of association d) freedom of association

Sections 3-5: Democratic rights Right to vote Five-year maximum term for federal and provincial legislatures Provision for emergency extension of parliament’s term A sitting of Parliament/ legislatures at least once a year

Sections 7-14: Legal rights “7. Everyone has the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” 8. secure against unreasonable search or seizure 9. not to be arbitrarily detained 10. on arrest, prompt reasons, retention of counsel, right to habeas corpus

Legal rights, continued 11. proceedings in criminal matters with rights to be informed of offence, tried within a reasonable time, not compelled to witness against yourself, presumption of innocence, reasonable bail, etc. 12. no cruel or unusual punishment 13. no incrimination of witnesses 14. the right to interpretation if one cannot speak or understand English or French

Equality rights 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2)..does not preclude any law, program…that has as its object the amelioration of conditions of disadvantaged individuals or groups…

Sections 16-22: Language rights English and French as official languages for federal Parliament and government, Right to use either language in parliament Right to use either language in federal courts Right to communicate with federal public service in either language Similar rights in New Brunswick

Section 23: Minority Language Education Rights Right to have children receive primary and secondary education in the minority language in a province, where numbers warrant… …if parents’ mother tongue was the minority language …if parents went to primary school in Canada

Canadian Charter of Rights and Freedoms -- Interpretation and Enforcement -- “1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Section 1 interpretation by the courts Three stage test… 1.Does the law infringe a Charter right ? 2.If so, is the law a reasonable limit on that right, one that is demonstrably justifiable in a free and democratic society? 3.If not, what is the appropriate remedy – to strike down all or part of the law? To suspend the law? To seek a broader interpretation and application of the law?

Section 24: Enforcement “1. Anyone whose rights and freedoms, as guaranteed by this Charter, have been infringed or denied, may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

Sections 25-32: selected points S. 25: Charter does not “abrogate” or “derogate” Aboriginal rights S. 26: a guarantee of a right in the Charter does not necessarily deny other rights that may exist S. 28: all rights to be guaranteed equally to male and female persons S. 32 The Charter applies to the federal Parliament and government, as well as to the provincial and territorial assemblies and governments

Section 33 S. 33: Legislatures [federal or provincial] may “expressly declare”, in an Act, “that the Act or provision thereof shall have operation notwithstanding a provision in section 2 or sections 7 to 15 of this Charter.” Any override is limited to 5 years (but can be re-enacted)

Impact of the Charter in Canada – Areas of the law substantially changed by Charter rulings Criminal code, law enforcement and prosecution Abortions, family law Workplace equity, pay equity and retirement Immigration, refugee process Unemployment insurance Language and education Advertising aboriginal rights (as a result of other provisions in Constitution Act, 1982 –not Charter as such)

Impact of the Charter– On the Judiciary and other institutions Huge increase in workload, esp. for Supreme Court of Canada Greater demand for social diversity and sensitivity of judges Huge constraint on policy-making process within bureaucracy Major focus of legal education Increased exposure, political role for judges

Impact of the Charter– On politics Empowering of litigant “Charter” groups Increased tensions: judiciary versus legislatures Promotes pan-Canadian values (resistance in Quebec) Rights discourse displaces materialist politics Caused a conservative backlash