Building a Fundamental Rights Culture

When drafting a bill of fundamental rights for a constitution, a drafter must first understand the concept of a culture of fundamental rights: What is the normative dimension of fundamental rights and their coverage of civil liberties, equality rights, political rights, social rights and judicial rights, and how must national fundamental rights be interpreted in the light of international human rights instruments? Fundamental rights are not limited to “rights of defence” against interference by the state, but fundamental rights also bind the state in all three branches of power, whether retrospectively or in relation to present or future activities of the state. This provides a constant threshold for any legislation drafted by Parliament or any other provision drafted or enacted by the executive, such as ministries or other state organisations, as well as a benchmark for court decisions. The text then outlines a six-step manual for drafting a catalogue of fundamental rights, noting that each country should adapt its own wording. The chapter finally presents a draft bill of fundamental rights for a modern constitution, consisting of some 70 different fundamental rights.