The Politics of RightsThe Politics of Rights

Douglas BrownDouglas Brown

Pol Sci 100Pol Sci 100

March 2009March 2009

The Politics of RightsThe Politics of Rights

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

Magna Carta (1215), art. 39Magna Carta (1215), art. 39

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

Rights in the US ConstitutionRights in the US Constitution

An afterthought to the original Constitution.An afterthought to the original Constitution.They consist of the first Nine Amendments of the They consist of the first Nine Amendments of the Constitution of 1787 (part of the “ratification” Constitution of 1787 (part of the “ratification” bargain, 1787-91)bargain, 1787-91)Met concerns that the new central (federal) Met concerns that the new central (federal) government would trample on the rights of the government would trample on the rights of the people (as they perceived the British had from people (as they perceived the British had from 1765-75)1765-75)Applied only to laws of Congress, not to the Applied only to laws of Congress, not to the States, until the 14States, until the 14thth amendment, 1868. amendment, 1868.

From the US “Bill of Rights”From the US “Bill of Rights”

11stst No official religion; right to free speech, No official religion; right to free speech, press, assembly, petitionpress, assembly, petition

22ndnd The right to bear arms The right to bear arms

44thth The right of security from unreasonable The right of security from unreasonable search and seizuresearch and seizure

55thth The right to due process in criminal The right to due process in criminal proceedingsproceedings

The Universal Declaration of Human The Universal Declaration of Human Rights (United Nations,1948)Rights (United Nations,1948)

Article 1 Article 1 All human beings are born free and All human beings are born free and equal in dignity and rights. They are endowed equal in dignity and rights. They are endowed with reason and conscience and should act with reason and conscience and should act towards one another in a spirit of brotherhood. towards one another in a spirit of brotherhood.

Article 2. Article 2. Everyone is entitled to all the rights Everyone is entitled to all the rights and freedoms set forth in this Declaration, and freedoms set forth in this Declaration, without distinction of any kind, such as race, without distinction of any kind, such as race, colour, sex, language, religion, political or other colour, sex, language, religion, political or other opinion, national or social origin, property, birth opinion, national or social origin, property, birth or other status. […]or other status. […]

UN DeclarationUN Declaration

Article 3. Everyone has the right to life, liberty Article 3. Everyone has the right to life, liberty and security of person.and security of person.

Article 4. No one shall be held in slavery or Article 4. No one shall be held in slavery or servitude; slavery and the slave trade shall be servitude; slavery and the slave trade shall be prohibited in all their forms. prohibited in all their forms.

Article 5. No one shall be subjected to torture or Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or to cruel, inhuman or degrading treatment or

punishment.punishment.

The Universal Declaration of Human The Universal Declaration of Human Rights (United Nations,1948)Rights (United Nations,1948)

Article 6. Everyone has the right to recognition Article 6. Everyone has the right to recognition everywhere as a person before the law. everywhere as a person before the law.

Article 7. All are equal before the law and are Article 7. All are equal before the law and are entitled without any discrimination to equal entitled without any discrimination to equal protection of the law. All are entitled to equal protection of the law. All are entitled to equal protection against any discrimination in violation protection against any discrimination in violation of this Declaration and against any incitement to of this Declaration and against any incitement to such discrimination. such discrimination.

Constitution of the Peoples Constitution of the Peoples Republic of ChinaRepublic of China

Article 13. Article 13. Private property, inheritancePrivate property, inheritance Citizens' lawful private property is inviolable.Citizens' lawful private property is inviolable. The State, in accordance with law, protects The State, in accordance with law, protects

the rights of citizens to private property and to the rights of citizens to private property and to its inheritance.its inheritance.

The State may, in the public interest and in The State may, in the public interest and in accordance with law, expropriate or accordance with law, expropriate or requisition private property for its use and requisition private property for its use and shall make compensation for the private shall make compensation for the private property expropriated or requisitioned.property expropriated or requisitioned.

Constitution of PRCConstitution of PRC

Article 42. Article 42. Right and duty to workRight and duty to work Citizens of the People's Republic of China Citizens of the People's Republic of China

have the right as well as the duty to work.have the right as well as the duty to work. Work is the glorious duty of every able-bodied Work is the glorious duty of every able-bodied

citizen. All working people in State-owned citizen. All working people in State-owned enterprises and in urban and rural economic enterprises and in urban and rural economic collectives should perform their tasks with an collectives should perform their tasks with an attitude consonant with their status as attitude consonant with their status as masters of the country. […]masters of the country. […]

Categories of RightsCategories of Rights

Negative versus positiveNegative versus positive In US terms: “civil liberties” vs. “civil rights”In US terms: “civil liberties” vs. “civil rights”

Civil and politicalCivil and political

Economic and SocialEconomic and Social

Minority, aboriginal and other group rightsMinority, aboriginal and other group rights

Animal rights?Animal rights?

Canadian Charter of Rights and Canadian Charter of Rights and Freedoms, 1982Freedoms, 1982

-- What rights are included ?—-- What rights are included ?—(see pp. 546-554 in textbook)(see pp. 546-554 in textbook)

S. 2 fundamental freedomsS. 2 fundamental freedomsSs. 3-5 democratic rightsSs. 3-5 democratic rightsS. 6 mobility rightsS. 6 mobility rightsSs. 7-14 legal rightsSs. 7-14 legal rightsSs. 15 equality rightsSs. 15 equality rightsSs. 16-23 minority language rightsSs. 16-23 minority language rights

Section 2 Section 2

Everyone has the following fundamental Everyone has the following fundamental freedoms:freedoms: a) freedom of conscience and religiona) freedom of conscience and religion b) freedom of thought, belief, opinion and b) freedom of thought, belief, opinion and

expression, including freedom of the press expression, including freedom of the press and other media of communicationand other media of communication

c) freedom of peaceful assemblyc) freedom of peaceful assembly d) freedom of associationd) freedom of association

Sections 3-5: Democratic rightsSections 3-5: Democratic rights

Right to voteRight to vote

Five-year maximum term for federal and Five-year maximum term for federal and provincial legislaturesprovincial legislatures

Provision for emergency extension of Provision for emergency extension of parliament’s termparliament’s term

A sitting of Parliament/ legislatures at least A sitting of Parliament/ legislatures at least once a yearonce a year

Sections 7-14: Legal rightsSections 7-14: Legal rights

““7. Everyone has the right to life, liberty 7. Everyone has the right to life, liberty and security of person and the right not to and security of person and the right not to be deprived thereof except in accordance be deprived thereof except in accordance with the principles of fundamental justice.”with the principles of fundamental justice.”8. secure against unreasonable search or 8. secure against unreasonable search or seizureseizure9. not to be arbitrarily detained9. not to be arbitrarily detained10. on arrest, prompt reasons, retention of 10. on arrest, prompt reasons, retention of counsel, right tocounsel, right to habeas corpus habeas corpus

Legal rights, continuedLegal rights, continued

11. proceedings in criminal matters with 11. proceedings in criminal matters with rights to be informed of offence, tried rights to be informed of offence, tried within a reasonable time, not compelled to within a reasonable time, not compelled to witness against yourself, presumption of witness against yourself, presumption of innocence, reasonable bail, etc.innocence, reasonable bail, etc.12. no cruel or unusual punishment12. no cruel or unusual punishment13. no incrimination of witnesses13. no incrimination of witnesses14. the right to interpretation if one cannot 14. the right to interpretation if one cannot speak or understand English or Frenchspeak or understand English or French

Equality rightsEquality rights

15. (1) Every individual is equal before and 15. (1) Every individual is equal before and under the law and has the right to the equal under the law and has the right to the equal protection and equal benefit of the law without protection and equal benefit of the law without discrimination based on race, national or ethnic discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or origin, colour, religion, sex, age or mental or physical disability.physical disability.

(2)..does not preclude any law, program…that (2)..does not preclude any law, program…that has as its object the amelioration of conditions of has as its object the amelioration of conditions of disadvantaged individuals or groups…disadvantaged individuals or groups…

Sections 16-22: Language rightsSections 16-22: Language rights

English and French as official languages English and French as official languages for federal Parliament and government, for federal Parliament and government,

Right to use either language in parliamentRight to use either language in parliament

Right to use either language in federal Right to use either language in federal courtscourts

Right to communicate with federal public Right to communicate with federal public service in either languageservice in either language

Similar rights in New BrunswickSimilar rights in New Brunswick

Section 23: Minority Language Section 23: Minority Language Education RightsEducation Rights

Right to have children receive primary and Right to have children receive primary and secondary education in the minority secondary education in the minority language in a province, where numbers language in a province, where numbers warrant…warrant…

……if parents’ mother tongue was the if parents’ mother tongue was the minority languageminority language

……if parents went to primary school in if parents went to primary school in CanadaCanada

Canadian Charter of Rights and Canadian Charter of Rights and FreedomsFreedoms

-- Interpretation and Enforcement ---- Interpretation and Enforcement --

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

Section 1 interpretation by the Section 1 interpretation by the courtscourts

Three stage test…Three stage test…

1.1. Does the law infringe a Charter right ?Does the law infringe a Charter right ?

2.2. If so, is the law a reasonable limit on that If so, is the law a reasonable limit on that right, one that is demonstrably justifiable in a right, one that is demonstrably justifiable in a free and democratic society?free and democratic society?

3.3. If not, what is the appropriate remedy – to If not, what is the appropriate remedy – to strike down all or part of the law? To strike down all or part of the law? To suspend the law? To seek a broader suspend the law? To seek a broader interpretation and application of the law?interpretation and application of the law?

Section 24: EnforcementSection 24: Enforcement

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

Sections 25-32: selected pointsSections 25-32: selected points

S. 25: Charter does not “abrogate” or “derogate” S. 25: Charter does not “abrogate” or “derogate” Aboriginal rightsAboriginal rightsS. 26: a guarantee of a right in the Charter does S. 26: a guarantee of a right in the Charter does not necessarily deny other rights that may existnot necessarily deny other rights that may existS. 28: all rights to be guaranteed equally to male S. 28: all rights to be guaranteed equally to male and female personsand female personsS. 32 The Charter applies to the federal S. 32 The Charter applies to the federal Parliament and government, as well as to the Parliament and government, as well as to the provincial and territorial assemblies and provincial and territorial assemblies and governmentsgovernments

Section 33Section 33

S. 33: Legislatures [federal or provincial] S. 33: Legislatures [federal or provincial] may “expressly declare”, in an Act, “that may “expressly declare”, in an Act, “that the Act or provision thereof shall have the Act or provision thereof shall have operation notwithstanding a provision in operation notwithstanding a provision in section 2 or sections 7 to 15 of this section 2 or sections 7 to 15 of this Charter.”Charter.”

Any override is limited to 5 years (but can Any override is limited to 5 years (but can be re-enacted)be re-enacted)

Impact of the Charter in Canada – Impact of the Charter in Canada – Areas of the law substantially changed Areas of the law substantially changed

by Charter rulingsby Charter rulings Criminal code, law enforcement and Criminal code, law enforcement and prosecutionprosecutionAbortions, family lawAbortions, family lawWorkplace equity, pay equity and retirementWorkplace equity, pay equity and retirementImmigration, refugee processImmigration, refugee processUnemployment insuranceUnemployment insuranceLanguage and educationLanguage and educationAdvertisingAdvertisingaboriginal rights (as a result of other aboriginal rights (as a result of other provisions in Constitution Act, 1982 –not provisions in Constitution Act, 1982 –not Charter as such)Charter as such)

Impact of the Charter– On the Judiciary Impact of the Charter– On the Judiciary and other institutionsand other institutions

Huge increase in workload, esp. for Supreme Huge increase in workload, esp. for Supreme Court of CanadaCourt of Canada

Greater demand for social diversity and Greater demand for social diversity and sensitivity of judgessensitivity of judges

Huge constraint on policy-making process within Huge constraint on policy-making process within bureaucracybureaucracy

Major focus of legal educationMajor focus of legal education

Increased exposure, political role for judgesIncreased exposure, political role for judges

Impact of the Charter– On politicsImpact of the Charter– On politics

Empowering of litigant “Charter” groupsEmpowering of litigant “Charter” groupsIncreased tensions: judiciary versus Increased tensions: judiciary versus legislatureslegislaturesPromotes pan-Canadian values Promotes pan-Canadian values (resistance in Quebec)(resistance in Quebec)Rights discourse displaces materialist Rights discourse displaces materialist politicspoliticsCaused a conservative backlashCaused a conservative backlash