On Constitutionality and Human Rights

BY Millard Arnold, August 28 2019

 

                     ON CONSTITUTIONALITY AND HUMAN RIGHTS[1]

 

                                                                            by

                                                               Millard W. Arnold

                                                                  ____________

 

  This is a most momentous time for the people of Mozambique.  In the life of any nation, the drafting of a constitution is an extraordinary expression of societal reflection and democratic concern.  For over a century, and at enormous costs, this country has battled against oppression and deprivation.  Having finally gained independence following decades of struggle, Mozambique now finds itself locked in combat with a foe of frankensteinian parentage which has resorted to banditry and unimaginable terror in its quest to bring about political change.  The barbarism and savagery that has characterized Renamo’s efforts has left, and will leave, an indelibly bitter scar on the fabric of society.  For generations to come the faces of Mozambique will bear the reminder of the atrocities committed in furtherance of a cause dimly held.  Millions of innocent people have been indiscriminately killed or maimed by Renamo raising fundamental and disturbing questions about the ethical temperament of those who would purportedly act in the name of democracy.

A constitution is both a legal document and a political statement.  It is shaped and directed by the passions and constraints of the moment.  As a consequence, a constitution inevitably reflects the necessities of society and its moral capacity for just implementation.  In the case of Mozambique, it is unimaginable that its new constitution would not be influenced by the security conditions that prevail in the country at the moment.  It is also inconceivable that the constitution not evidences some preoccupation over the issue of state preservation.  The drafting of this constitution takes place against the realistic expectation that serious negotiations are imminent with elements of the dissident Renamo movement.  An important component of those talks, perhaps the very essence of the discussions themselves, will be the nature and form of a government acceptable to all parties.  Given the underlying bitterness and apprehension, which pervades both sides, it is natural and understandable that this current draft of the constitution reflects a certain implacable fixation with matters of protest, dissent and state security.  The history of Mozambique would seemingly demand nothing less.  However, the responsibility of power requires magnanimity if a peaceful future is to be secured.  The conditions that prevail in Mozambique at the moment are not the conditions that will prevail forever.  The constitution should not be regarded as a temporal document addressing temporary issues.  As the supreme law of the land, it is expected to be of an enduring quality capable of absorbing change and flexible enough to provide for future considerations.  James Madison, writing about the American constitution in 1787 noted:

In framing a system which we wish to last for ages, we should not lose sight of the changes which ages will produce.

John Marshall, chief justice of the American Supreme Court echoing a similar sentiment in the landmark case of McCulloch v. Maryland in 1819 by stating that

…a constitution, [is] intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.

I am extremely honored and pleased to offer my brief and modest contribution to the cause of constitutional reform in Mozambique.  In preparing my submission, I have been inspired by Power and Democracy, the thoughtful exposition of Jose Oscar Monteiro, the Mozambican Minister of State Administration.  It provides a lucid, penetrating look at the evolution of democracy in Mozambique and the interaction between government and society.  I am personally indebted to him for causing me to rediscover and address these most important issues.  His influence on these deliberations is profound and he is to be commended for his devotion to constitutionality and the rule of law.

I have been asked to comment on the constitutional protection of individual rights and freedoms, and to specifically, address the relationship between dissent and liberty; freedom and order.  Clearly for a country contemplating reconciliation and national unity the importance of constitutional safeguards cannot be overstated.  Given the prolonged conflict between Frelimo and Renamo, the government’s exclusive right to administer power under a new constitutional dispensation necessitates a concern for the protection of rights and guarantees.  Above all, freedom of expression must be permitted and constitutional safeguards must be created which ensures the unfettered exercise of basic human rights.  To effectively persuade and encourage those skeptical of government’s bona fides and intention, nothing less will suffice.  As the negotiations unfold, those who would be subsequently bound by the constitution will obviously scrutinize it most carefully.  The assurances it provides can be a major inducement for an honorable settlement.

War is an undertaking from which there is no graceful retreat.  Only with the greatest of difficulty and rarest of success, can combat be terminated in favor of compromise.  The government’s present attempt at constitutional reform represents an uncommon opportunity to end a conflict and begin the considerable task of national healing.

Drafting a constitution in contemporary times under the exacting eye of the global community is a most daunting and arduous task.  The luxury of private, internal debate, the thoughtful consultation with constituencies, the reasonable uncertainty of how best to proceed is lost in the glare of international scrutiny.  By the same token, however, a well-conceived, fair, and objectively constructed constitution will gain the instance approbation of the international community, speak volumes as to Mozambique’s political maturity and enhance the country’s political and diplomatic credibility.  Although its development as a nation has been hampered by the prolonged confrontation with Renamo, Mozambique is seeking to accomplish something that took some 2,500 years in the West to achieve, and that is government acting in the interest of all its peoples.  It is a most difficult undertaking, unlikely to be fully achieved.  While Mozambique can, and will profit from the long history and global experience with constitutional development, it is nonetheless a political truism that democracy is impossible to achieve by fiat.  A government of the people and for the people is only gained by the continuous struggle of society seeking to be better than it’s past.  Perhaps this point is no better stated than in the words of Minister Monteiro:

realities, certainly social realities and especially when they involve institutional developments, are changed only through a long process of advances and retreats.  Commons sense reflects this in saying that society cannot be changed by decree.

Under the circumstances, the intent of the framers of the constitution should be to create a document inspired by Mozambican tradition, culture, and values and responsive to Mozambican needs.  The goal should be democratization politically and economically, through constitutional and representative government.

Barbara W. Tuchman, a noted American historian and twice winner of the Pulitzer Prize, once wrote that:

“If the mind is open enough to perceive that a given policy is harming rather than serving self-interest, and self-confident enough to acknowledge it, and wise enough to reverse it, that is a summit in the art of government.”   

The government and the people of Mozambique, and FRELIMO as the shepherd of change are to be congratulated for having the moral courage to perceive the need for political transformation and the willingness to undertake a search for constitutional reform.  Such a commitment reflects, to use the words of Ms. Tuchman, a summit in the art of government.

 

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While societies are formed for the collective well being of all its members, society itself is nothing more than the ordering of individuals and individual aspirations for a common purpose.  It is the individual who gives society its purpose for existing and it is the individual that stands as the society’s irreducible minimum.

Society exists so that each and every individual is able to realize his or her utmost potential as a human being; the attainment of the promise which comes with birth.  While born into society, an individual is born with the inherent right to live in a society that permits the full expression of his or her humanity.  That inherent right is the implicit power on which all legitimacy is based.

Although the principal purpose of existence is for the individual to fully discover his or her integrated wholeness — societally, universally and spiritually — the selfish, individual pursuit of personal aspiration would ultimately lead to societal chaos and social disintegration.  While the full participation of all individuals that compose society would provide the truest reflection of the society’s overall purpose, the reality is that the disparate nature of society makes it all but impossible to achieve this purpose without some type of controlling and implementing body.  To establish such a body, individuals acting in and through society, democratically form a government.

Government is necessary to provide a secure and orderly framework so that competing individual interests can be reconciled and the collective will of society realized.  In forming a government the society accepts that there will be certain limitations on an individual’s freedom to act; and the individual accepts that there must be a diminution of his own power and authority in the interests of the common good.  In and of themselves, governments have no sovereignty deriving as they do, their just power from the consent of the governed.  In essence, government is specifically elected individuals entrusted with the responsibility of ordering and directing the affairs of other individuals on behalf of the total society.  The prevailing obligation of government is to utilize power as reasonably as possible in the interest of the state and its citizens.

While government is the embodiment of the society’s power, government’s power is a derived power, flowing through the society from each and every individual.  The constitution thus serves as the legal framework by which society, collectively and individually, cedes to government the authority by which it acts.  Ideally, a constitution should be the culmination of society’s expectation of itself.  It should set forth the society’s most fundamental laws, establish the form and mechanisms of government and define the individual’s rights and liberties.

Although society is a collection of individuals with a common purpose, that purpose is by no means a unanimous one.  Notwithstanding a commitment to democracy, and a sharing of vision, a society can never fully satisfy each and every need of each and every individual.  Tensions will exist within the society as myriad interests vie for ascendancy or expression.  While a government can identify a purpose and arrive at a course of action through a democratic process, implicit in the voluntary nature of compulsory society is the fact that a significant minority may nonetheless feel compelled to assembly, voice opinions, and oppose what they perceive to be as action detrimental to their own self interest.  If unresolved, such opposition becomes protest, and, if unsatisfied, such protest becomes dissent.  Society must function on the basis of consensus and when a consensus can no longer be obtained, the constitution must permit the people the means to peacefully and legally alter or abolish government, and institute new governments that will fulfill society’s purpose.  Such a requirement mandates that a constitution institutionalize the democratic process and legalize and legitimize the form and degree of reasonable dissent.  To do so adequately, a constitution must recognize the importance of opinion, protest and dissent and provide for their free expression.  By delimiting the procedures for participation and the acceptable periphery of protest, the constitution gives substance and harmony to democracy.

In the exercise of democracy, dissent is unavoidable.  Dissent is a necessary by-produce, a trying but indispensable element in a flourishing, vibrant democracy.  Unequivocally, the right of dissent should be an absolute in any political system.  While necessary, dissent can be minimized if society allows the widest expression of competing, individual interests.  In providing for the fullest expression of opinion, a democracy ideally permits the society to gain a broader and better understanding of its overall goals and aspirations and lessens the likelihood of dissent.  As Minister Monteiro sagely noted:

Democracy has the primary ingredient of speaking out, since if one does not speak out there is no expression of one’s points of view, no defence of one’s ideas.  

Dissent, however, when expressed as a need for fundamental change within society itself, severely test democracy and strains the limits of a constitution.  The need for a basic restructuring of society, or even the perception of such need, is society’s greatest threat.  The expression of opinion regarding such change is often unpopular and initially regarded with extreme hostility by government and society at large.  Moreover, since the idea of change is usually leveled at the exercise of power by the government and the established mechanisms that support it, those who express unpopular opinions are often victims of such power.

In response to the victimization of those expressing an opinion for change, protests are mounted.  Protest gives way to dissent, which in turn gives rise to disorder.  For society, disorder is an intolerable and unacceptable condition.  The first objective of government is to ensure the security of the state.  Confronted with protest and concerned with the need to uphold order, the government, through its constitution, as in the case of Article 40 of the draft Mozambican constitution, makes punishable by law “all acts intended to undermine national unity, to disturb social harmony, or to create divisions.”

Perversely, a basic human right — the democratic expression of an opinion regarding the need for fundamental change in society — is interpreted as a threat to the security of the state.  To avoid confrontation and in an effort to peacefully register protest, the individual elects not to participate in the electoral process.  However, the individual’s freedom of expression has been further curtailed by an obligation to vote, since, according to the constitution, the right to vote is “personal and shall constitute a civic duty.”  (Article 18).  The failure to vote, the constitution states, would be an act that arguably “undermines national unity” (Article 40) and is thus “contrary to the constitutional order…subject to sanctions according to law.”  (Article 47).  The consequence of such a duty to vote then is to place the individual in the untenable position of being forced to choose between two or more unacceptable alternatives under pains of imprisonment.  In so doing, it would apparently override any constitutional provision stating that one does not have to comply with “orders that are illegal or infringe upon their rights” (Article 45) or a provision that states that “individual rights and freedoms shall be guaranteed,” (Article 60) because there is an implicit requirement that such rights and freedoms must be exercised “within the framework of the constitution and laws.”  (Article 60).  More importantly, such a provision negates the fundamental right of the individual to act of his or her own volition.  Implicit in the social contract between the individual and society is the understanding that an individual must be permitted to object to actions that would deny the realization of his or her humanity.  Unquestionably, it is precisely that rationale that underlies freedom of expression.

It is this exercise of power by government in the name of society, which warrants the constitutional protection of individual rights.  While government’s power is derivative in nature, its sense of the inviolability of its own power suggests that challenges can always be suppressed.  Arbitrary power, with its inducements to self-indulgence and unrestraint and its chronic suspicions of dissent, tends to create unpredictable authoritarian governments with uncontrollable oppressive tendencies.  Moderation is obliterated in the exercise of too much power.  The permissive use of too much power leads on the one hand to societal disarray, while the ruthless use of too much power results in injustice.  Plato reached the conclusion that laws were the only safeguard.  It is also for that reason that the third whereas clause of the preamble to the Universal Declaration of Human Rights states that:

 it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.

The role of the constitution, as the supreme law of the land, is to therefore address the balance between freedom and order.

Freedom of expression is of paramount importance in a democracy.  Indeed, nothing better exemplifies democracy than the right to free expression.  Apart from the right to life and liberty, a democratic society knows no greater right.  However, the free and full expression of opinion within a society is only possible when an individual believes that there are sufficient safeguards or protections that guarantee that right.  If the constitution is silent as to such rights or inadequately provides for their protection, the exchange of opinions, which is the hallmark of democracy, ceases to take place.  For individuals to freely express of themselves their particular aspirations for society, there must be assurance that such expression will not cost them their rights or freedoms.  At a minimum, those assurances must include the right to life, the right to liberty and security of home and person, freedom from torture or inhumane treatment, the freedom to move, assemble and speak, the right to equality under, and the equal protection of the law.  Without such guarantees, democracy has no meaning.    Almost all constitutions provide some degree of protection to its citizenry.  The issue more often is the adequacy of such protection.  For those individuals concerned with government’s response to protest and seeking comfort in the provisions of a constitution, it is unsettling to note that the constitution does not acknowledge a right to liberty.

Liberty makes freedom of expression possible.  Because society is composed of freely consenting individuals, liberty represents the individual’s primordial right of disassociation.  Freedom of expression, protest and dissent are the logical extension of the individual’s right to liberty.  Philosophically, a constitution is conceived of as a document in which its governing provisions are deduced from a principle, and that principal must be the primacy of the individual.  A constitution can have no order or symmetry without such a guiding principle.  The noted French philosopher Montesquieu wrote in the 18th century in his Spirit of the Laws, that:

The deterioration of every government, begins with the decay of the principles on which it was founded.

A constitution, which does not recognize the supremacy of the individual, is conceptually flawed for failing to appreciate that power flows from the individual through the society to the government.  Liberty is therefore, and must be, a fundamental right in any society.  It is a right that derive from the inherent dignity of the human person.  Whether through arbitrary arrest, detention or criminal proceedings, the deprivation of liberty is the state’s penultimate sanction against the individual.  The absence of a provision protecting liberty in a constitution suggest that in fact liberty can and will be deprived and thereby raises disturbing questions about the efficacy of all other rights.

Without a commitment to liberty in a constitution, there must be a sufficient provision ensuring that should an individual have his or her liberty deprived, they will be entitled to proceedings before a court of law of competent jurisdiction so that the court might determine the lawfulness of the detention.  It is not sufficient to state, “in case of illegal imprisonment or detention, resulting from abuse of power, citizens shall have the right to demand the remedy of habeas corpus.”  (Article 67).  In the first instance such a provision seemingly suggest that before the remedy of habeas corpus applies, a determination must be made that (1) the detention was illegal and (2) it resulted from an abuse of power.  What is required is a guaranteed recourse to a competent court to determine the lawfulness of the detainment.  Minister Monteiro stressed the importance of such guarantees by noting:

security understood not merely as immunity to arbitrary arrest, but understood in a wider sense as the certain knowledge that in a particular situation one may legitimately expect a particular outcome.

Although a constitution might guarantee access to the courts, in the event liberty has been deprived, for the guarantee to be meaningful, an individual must be given the reason for his arrest and some notification of the pending charges.  If a person is to be tried, there should be some certainty that the trial will take place within a reasonable timeframe.  If not, the individual should be released.  Any person, whose liberty is at stake in a legal proceeding, should have the right to request witnesses to give evidence before him in open trial.  Furthermore, any such person should have the right to legal counsel of his or her own choosing.  While every individual may be equal before the law that is no guarantee that every individual will be accorded the equal protection of the law.

Of considerable concern to an individual whose liberty is deprived, would be a provision in a constitution which would hold judges “responsible in civil, criminal and disciplinary proceedings for acts committed in the exercise of their duties only in cases specifically provided for by law.”  (Article 123).  While such a provision is clearly intended to offer individuals recourse in cases where rights and freedoms have been curtailed or suspended by a judge, it may also be used to intimidate the legal process.  If the government, acting through its legislative organs, enacts a law which would limit the human rights provisions of a constitution, judges would be constrained from guaranteeing those rights for fear of civil or criminal actions against them.

Another major concern would be provisions in a constitution that entitles a government to restrict granted rights to the extend “provided for,” “stipulated,” “fixed,” or “regulated by law,” or that rights and freedom must be “exercised within the framework…of the laws.”  Such extremely vague standard appear to place no external restraint upon government actions, although that is arguably the purpose of human rights instruments.  Provisions such as these that purport to protect the individual but which actually do so only to the extent that an individual is protected under law is of very little value, especially in cases where law does not provide effective redress for violations.  These “retraction” clauses found in many provisions would seem to permit the de facto suspension of individual rights merely through the enactment of national legislation.  This is of extreme importance when, under the draft Mozambican constitution, it is the legislature and not the Courts which determines whether a law is constitutional.

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Any constitution, such as the draft Mozambican Constitution, which has among its basic, governing principles:

The defence and promotion of human rights and the equality of citizens before the law;

The building of a society of social justice, and the achievement of material and spiritual well-being for its citizens; and

The strengthening of democracy, of freedom and of social and individual stability;

is a constitution appreciative of the need to recognize, further and protect human rights objectives.  It is a constitution that comes close to meeting the ideal expressed by Minister Monteiro:

the role of the constitution is that of establishing a harmonious meeting place which ensures that the pursuit of economic and social aims are reconciled with an affirmation of the rights of citizens.

No constitution is flawless.  The imperfections of a constitution can and should be overcome as society thoughtfully considers their shortcomings or implications.  Assuming that a constitution is intended to provide substantive protection to human rights, the immediate flaws which need to be corrected are a provision which provides for the basic right to liberty, some defined limits on retraction clauses, and a delineation as to when rights have preference over duties.

We are witnesses to an era of astonishing political change in the world.  It is a change that is grounded in the universal desire for freedom, justice and peace.  Mozambique is also affected by a movement that has at its core the irrepressibility of the human spirit and a concern for human rights.  It cannot help but to be shaped to an unusual degree by the global commitment to human dignity as reflected in the mores, behaviors and conditions of the times.  To disregard the movement and sentiments developing around human rights would be imprudent and unwise.  The effective promotion of human rights, however, invariably results in rising expectations that these rights will be granted in fact and, if violated, that sanctions may be available.  Government cannot function without respect.  What makes a government capricious and unprincipled is refusing to recognize the prevailing moral and ethical values.  In doing so, it gives rise to protest, dissent, unrest and disorder.  Consequently, any government, which considers itself to be of the people, must conduct itself with regard to the feelings of the governed.  To fail to do so would, as recent history has shown, invite its own demise, for an unwilling people cannot be forcefully governed indefinitely.

In redrafting its constitution, Mozambique clearly seeks to establish a framework for human existence that has embarked on

In closing, it is only appropriate to once again refer to the thoughtful reflections of Minister Monteiro:

 We are on the one hands agents of will and bearers of aspirations but likewise dependent on the social and cultural reality around us and the values that shape us and determine our way of thinking and acting.However, reality changes regardless of our outlook or our will.  There is no return to the past, in a rapidly changing world.  Peoples demand a constantly higher standard of living, a demand that is constantly reflected in the need for a democratisation of their way of life.

If Mozambique is successful with this most courageous undertaking of drafting and introducing a new constitution, the outlook for the country and the people will be a democratic society, responsible for itself.  In the end, is that not ultimately what a constitution should provide?

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Millard Arnold, an attorney with the firm of Land, Lemle & Arnold, is currently on sabbatical as a Senior Associate for the Carneige Endowment for International Peace in Washington, D.C.  He is a member of the board of the directors of the International Human Rights Law Group and was formerly Deputy Assistant Secretary of State for Human Rights during the Carter Administration.

[1] Remarks before the Seminar on International Constitutional Law convened by the Ministries of Justice and State Administration of the Government of Mozambique, 24 – 27 April 1990, Maputo, Mozambique.