Concept of Limited Government and Protection of Minorities in Democracy

Introduction to Human Rights Dr Anna ledzi ska-Simon LLM in International and European Law Lecture 4

Human rights and democracy O The concept of limited government requires introduction of institutional guarantees of checks and balances against the tyranny of the majority , because without separation of power the rights of individuals and minorities cannot be effectively protected . The principle of separation of powers implies division of competences between three branches of government, whereby the independent judiciary is a crucial element. It is also crucial that the executive enforces court decisions and the legislative respects decisions of constitutional courts (invalidating laws in conflict with the Constitution). It follows that HUMAN RIGHTS CAN ONLY EXIST IN A POLITICAL SYSTEM THAT RESPECTS LIMITATIONS OF POWER. In this sense, HUMAN RIGHTS SET LIMITATIONS ON THE POLICIAL PROCESS. Additionally, constitutions also amendments that would weaken protection of rights. O O O O O O protect minorities against easy

Human rights and democracy O In democracy there is an inherent conflict between: Majority rulev. minority protection O democracy may pose a threat to the rights of individuals and minorities, such as when the majority in power is tempted to manipulate political rights to increase reelection. A majority might suspend the rule of law to protect its interest or under the influence of a momentary passion. A majority may set aside the rights of an ethnic or religious minority, acting on such <<standing passion>> as religious fanaticism orethnic hatred. its chances for

Minority protection before courts / constitutional courts O In the constitutional democracy there are a number of countermajoritarian devices such as judicial review to protect minorities against the will of the majority. In the famous case the US Supreme Court confirmed that the standard of judicial review in cases concerning limitations of political process or minority rights should be particularly rigid. There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to beembraced within the Fourteenth.... It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.... Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious... or nations... or racial minorities...: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.... [Italics added] US SC in Carolene Products (1938), Footnote 4, https://legal-dictionary.thefreedictionary.com/Footnote+4

Human rights and constitutional democracy O Constitutions set out constitutional values as primary commitments that should be respected and enhanced in the political process. To such constitutional values count human rights, but also other goods such as public security, social cohesion or budgetary equilibrium. In a constitutional democracy, the conditions under which human rights can be limited or suspended are spelled out in the constitution (similar conditions are included in limitation and derogation clauses in international treaties). NOTE that in a constitutional democracy, only statutory laws may impose limitations on human rights. In this way, constitutions / international treaty law set the limits to the political process. In the political process, the majority defines social goals, by adopting laws and policies that should serve the general interest. However, such laws and policies may easily fall in conflict with human rights. It is the task of courts to solve conflicts of constitutional values and individual rights. In consequence, judicial review is perceived as a limit to the principle of parliamentary sovereignty. Hence, theoretical constitutionalism (recognizing the ultimate power of constitutional courts in solving this conflict) and political constitutionalism (recogniting the ultimate power of parliaments in this regard). O O O O opposition between legal

The logic of democracy and the logic of rights O Bargaining is the essence of the political process in a democracy, therefore Democracy should ensure fair conditions for citizen s participation in the political process (not only the exercise of voting rights, but also freedom of speech, association, assembly, freedom of media, Yet, more and more human interestsare proclaimed as human rights The morerights in a constitution, the less room fordeliberation As a result, inflation of rights and they decrease the value of having rights (since more rights more easily fall in conflctwith otherrights) In the end, all boils down to the question whether you have access to a court to claim rights. Solving the conflict of rights (or rights and public interests in courts) often is a zero-sum game (one party wins, the other looses). Instead the political process, at least theoretically, leaves some room for win- win situations. O O O O O O

Individual v. Group rights O Human rights in the process of historical evolution are understood primarily as universal individual rights, however some international human rights treaties also recognize group rights (of national and ethnic groups see the European Framework Convention on the Protection of National Minorities(1994),the European Charter for Regional and Minority Language(1992)). O Recently, with growing populisms, the focus is often shifted on majority rights protection (majority religion and culture) and rejection of multiculturalism. See also the ideological waragainst gender .

Illiberal democracy and populist rules O O O Illiberal democracy , Fareed Zakaria [2003] As a contradiction of deliberative democracy , Carl Sunstain [2001] Both illiberal and populist democracies weaken or elimitate the limitations of power, seek control of all independent institutions (such as the judiciary, media, cultural institutes), use emotions (such as fear) as justifications of state action, and antagonize the real people agaisnt the corrupted elites. O Democrature O Democracy and social media public debate is removed from politics, and deliberation takes place in other fora; political parties also lost their traditional roles, traditional media often seek sensation. In this way, public debate shifts away from rational arguments and leads the society in a war of two tribes (representing nationalist and cosmopolitan outlooks). O Human rights protection evidently decreases with the populist capture of independent courts (especially if one understands the revolution of human rights as the result of legal mobilization and empowerment).