24 CROATIAN INTERNATIONAL RELATIONS REVIEW Minority …

24 CROATIAN INTERNATIONAL RELATIONS REVIEW

Minority Rightsand Constitutional Law

in the "Post-Modern" StateArsen Bacic

Introductory remarks

Most of our contemporaries would no longer dis-pute that the real role of the constitution and of consti-tutionalism is to facilitate a productive interaction be-tween reinforcing identity and preserving differences.A number of issues relating to the constitution and con-stitutionalism grow out of socio-political settings en-circled by colliding and competing identities. These iden-tities can be national, regional, linguistic, religious, eth-nic, political, generational, class or ideological in char-acter. In order to permit their expression and to harmonisethem with the basic principles of constitutionalism, aframework has to be set up for a kind of interplay be-tween identity and difference, a process in which thesecompeting agents and elements combine, diverge, andso forth.

In their most elementary form, the fundamentalvalues of constitutionalism are the needfor checks andbalances in government, the endorsement of the prin-ciple oflegality and theprotection offundamental rights.Each of these basic characteristics of constitutionalismseeks its legitimacy in relation to socio-political realityoriented towards the conflicting poles of identity anddifference. Although each of these values has a role toplay in the interaction between identity and difference,on this occasion stress is placed on the protection offun-dam ental rights, since the present text focuses exclu-sively on one group of rights. Bearing in mind the aimand purpose of constitutionalism, the protection of fun-damental rights, in the words of M. Rosenfeld, alsoimplies the existence of an ongoing tension betweenidentity and difference. Against the background oftheserights, the element of difference is to be found betweenthe individual citizen, on the one hand, and the collec-tivity or the dominant majority, on the other. Withoutthis difference, the individual would not seek protectionagainst the encroachment of state authorities on the areaof his fundamental interests. However, the responsibil-ity for the protection offundamental rights in the broad-est sense of the term requires the existence of at leasttwo elements: first, consensus as to which rights are tobe regarded as fundamental, and hence provided consti-tutional protection (this involves identity between theauthors of a constitution and those who are subject tothat constitution), and, second, the existence of another

type of identity linking all members of the communityas subjects of the same constitutional rights. In this man-ner, the constitutional provision that all persons are en-titled to the same respect and dignity generates the basisfor the identity of individuals who might otherwise con-sider themselves different in some ways.

The question of identity versus difference is thefirst to be raised whenever minority rights are concerned,one of the most disputed issues of legal and politicaltheory and practice in the world today. It is the subjectof intense scrutiny by international public law, but alsoby national public law, first of all constitutional law. Con-troversies exist in both international and constitutionallaw. A series of unsettled issues still remain in interna-tional law, including, amongst others, even the defini-tion of the word "minority". It is, namely, often arguedthat in the current state of affairs it is impossible to ar-rive at an internationally acceptable definition of theterm. Still, it must be stressed that situations ofthis kindare not quite unknown to international law, and, onceformulated, the application of certain rules is securedby tacit agreement about their subject. This also appliesto the identification of the subjects of application of in-ternationallaw concerning minorities. It is precisely inthis area, more than anywhere else, that the presence isfelt of political considerations, which permit a degreeof flexibility in the individualisation of minorities forthe purpose of the needed special protection. This alsogoes for the analysis of the historical evolution of themultilateral system of minority protection, or of the re-lationship between human rights and minority rights, acontroversial issue centring on the meaning and scopeof Art. 27 of the International Charter of Civil and Po-litical Rights.

However, it needs to be stressed that the questionof the rights of minorities and their position within acountry's national legislation, i.e. within constitutionallaw, represents a different chapter. Here we are concernedabove all with a number of specific questions. First, whyand in what way was traditional constitutional law forcedto incorporate new rights, among them minority rights,and whether in the classification of constitutional rightsminority rights figure as a separate group of standardisedrights, and if so, what place do they occupy among theminority rights? The second question to be consideredis the way in which the internal legislation, above all

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constitutional law, of the "post-modern" state, treatsminority rights?

About the transformation of the constitutionalparadigm in the "post-modern" state

As opposed to the individualistic concept of rightsin the 18th and 19th centuries, originating in Locke (allrights are individual, rights come before the state), whichdid not recognise group rights, the concept of rightswhich evolved in the 20th century begins to name thegroup as a means to realise the fundamental goals andwants of individuals. In the early 20th century J. Ellulasserts that the concept of individual freedoms shouldbe replaced by group rights if a society is to develop andprosper freely. The acceptance that man is a social be-ing gives rise to a special category of group rights, butthese rights have a place only side by side with indi-vidual rights.

Two dominant ideologies of the second half ofthe 20th century, the ideology of democratic liberalismand that of Marxism, have had a large impact on thepositioning and proposed solutions to the problem ofminority rights as group rights, both at in internationallevel and in domestic policies of the states concerned.In their essence, though, both of these ideologies arehostile to the political reality of ethnic identification,although, for reasons of political strategy, they have of-ten expressed their interest in minority identification andin the political activity this implies. Until recently,Anglo-American and Western European liberal demo-cratic societies provided guarantees for each human rightwhich they considered important enough to be regulatedon an individual basis. On the other hand, also until re-cently, socialist societies attempted to guarantee humanrights on a collective basis. Of course, it is easily arguedthat this difference in emphasis reflected different con-cepts as to which factor - the individual or the collectiv-ity - was at the centre of the "good state."

About the classification of rightsin constitutional documents

The authors of the first constitutions were, as weall know, simple and practical people. The first consti-tutions rarely contain the phrases so dear to the theoreti-cians and apologetics of constitutionalism. The expres-sion "fundamental rights", for example is not to be foundin the US Constitution. Its first ten amendments com-prise in fact guarantees of the followingpersonal rights:(I) freedom of religion, of speech, of the press, of as-sembly, and of peaceful protest; (2)freedom to bear armsfor the purpose of setting up a well-trained militia; (3)freedom from having soldiers quartered in one s home;(4) freedom from search and arrest without probablecause; (5) right to be tried by a Grand Jury, except inmilitary cases, and freedom from being twice put injeop-

25ardy of life or limb or having to be a witness againsthimself; (6) the right to a speedy and public trial by animpartial jury and the right to be informed on the accu-sation, the right to obtain witnesses in one's favour, andto have a counsel for defence; (7) the right of trial byjury in civil suits where the value exceeds twenty dol-lars and the prohibition of re-examination by anothercourt except according to the rules of common law; (8)prohibition of excessive fines and cruel punishment; (9-10) individuals enjoy other rights which are not enu-merated in the Constitution or in the amendments, ex-cept those delegated to the Federal Government, or whichare reserved for the States, or are prohibited to them.

The significance of the first ten amendmentsadded to the US Constitution in 1791 is in that theycharge the recently established federal state with the dutyto respect certain basic rights, while Amendment XIV(passed in 1868) charges the individual federal units withthe same obligation. The rights provided for in theseamendments were expressed in negative terms: Congressshall make no law abridging the freedom of the press;the right to keep arms shall not be infringed; the right tobe secure shall not be violated; no person shall be de-prived of life, liberty or property without due process oflaw; no fact tried by a jury shall be re-examined thanaccording to the rules of the common law.

The French Declaration of the Rights of Man(1789), too, simply enumerates the rights and freedoms:equality before the law (Art. 6), the principle of non-retroactivity oflaws (Art. 8), freedom of expression (Art.11), equality before state authorities (Art. 13), the rightto property (Art. 17), etc. In 18th century ideology, whichthese two documents reflect, freedom is considered anexclusively individual good. In order to achieve this sa-cred individualism, the French Revolution broke downall the existing groupings (the estates, corporations, con-gregations). Grown out of the spiritual milieu of class i-cal constitutional law, these and many other documentsdealing with the rights of man and the citizen exclusivelyfocus on the individual dimension.

Our century, in turn, brings with it a tendency ofsocialisation and concretisation of rights and freedoms.Many constitutions are made on this model. Among themis the West German Grundgesetz of 1949, which can beused as an illustration of classification of rights. Indi-vidual freedoms continue to exist, applicable when aperson is regarded as an isolated individual; but thereare also collective freedoms, applicable to, and exercisedby, groups. That constitution draws a distinction betweenfreedoms that are ends in themselves (freedom of ideas,freedom of religion, etc.) and freedoms that are merelymeans to an end (freedom of association, freedom ofassembly, etc.). Another distinction that can be made isbetween traditional freedoms and economic and socialrights, which first appeared in modern constitutions af-ter 1919. In the most general sense, the latter freedomsare not protected as strictly as this is done with tradi-

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tional freedoms. The authors of the constitution definesthe fundamental rights as being inviolable and inalien-able, and equally directly applicable and binding for thelegislative and for the executive and judiciary branchesof government. Their essence must not be restricted (Art.19/2). All rights are not expressed in absolute terms. Thewording of the constitution strives towards a balance inthe rights of the individual so as to prevent their useagainst the "constitutional order or morality". Some ofthe more recent constitutions seem to strive toconstitutionalise these tendencies.

There are countries, on the other hand, where eco-nomic freedoms and rights are not incorporated in theconstitution, but are efficiently covered by ordinary leg-islation (e.g. Belgium).

Even the first known constitutional documentson human rights are currently supplemented by this newdimension of socialisation and concretisation. Thus, forexample, the simplicity ofthe French Declaration of theRights of Man, as the primary source of the rights andliberties of man and the citizen in France, have beenenriched by the contents of subsequently passed consti-tutional documents. As a result, in France today, by thewill of the authors of the constitution, fundamental rightsderive not only from substantive law, the currently valid1958 Constitution, but also from the 1789 Declaration,the 1946 Preamble to the Constitution, and from the basicprinciples recognised by the laws of the Republic. Theseare rights recognised in a series of acts, primarily deal-ing with the right to equality, the principles of nationalsovereignty and democracy, or some other aspects offreedoms (individual freedom, freedom of the press). Thedistinctions drawn for the purpose of classification in-clude the first category, involving rights inherent in hu-man beings. These rights have their source in the 1789Declaration (equality, freedom, security, resistance torepression, etc.) The second category comprises thoserights which represent specific aspects or consequencesofthe previously mentioned rights. For instance, the prin-ciple of equality has aspects such as the equality of sexes,equality before the law, equality in employment, equal-ity and universality of suffrage, equal access to educa-tion, training and culture, equality of conditions for theexercise of freedoms. The principle of freedom has theaspects of freedom of conscience, thought and expres-sion and freedom of the press, as well as freedom ofreligion, freedom of assembly, association and educa-tion; the autonomy of university teachers, trade unionfreedom, freedom to strike and, of course, individualfreedom. This category also encompasses the principleof ownership and the principle of security. The third cat-egory of fundamental rights involves the rights withwhich the constitution endows collectivities, but whichrequire the passing of special regulations to be activated.These are the right to employment, to the participationof employees in collective bargaining, and the right toparticipate in the management of enterprises, the right

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to a family, health protection, material security, to holi-days, to leisure time, etc., etc .. The fourth category cov-ers rights which are pivotal for the situation of the indi-vidual but also decisive for the character of the state inquestion. It is the right of territorial collectivities to free-dom of government by elected bodies, freedom of self-determination of peoples, respect for pluralism of modesof socio-cultural expression, participation in politicalbodies, and the right of expression through elections.The last right determines the democratic character of astate. To this can be added the division of powers, theseparation of the executive from the judiciary branch ofgovernment, etc.

The same can be said ofthe Russian Constitution(1993), where all rights are located in the second chap-ter, with the statement that they are directly effective.Basically, the list of rights is similar to those found inStalin's constitution of 1936 and Brezhnev's constitu-tion of 1977, with certain additional provisions reflect-ing the new era in the Russian state. These provisionswarrant the freedom of private enterprise, private own-ership of land, and the right to a fair trial. Interestinglyenough, the 1992 Treaty on the European Union doesnot contain a Bill of Rights. This circumstance repre-sented from the outset the threat of the supremacy ofcommon legislation, but the opinions of the EuropeanCourt are gradually forming the stance that the protec-tion of human rights constitutes an integral part of thelegal system of the Community. Stress is laid on the sig-nificance of the "constitutional traditions" of the mem-ber states and on the European Convention on HumanRights (1950).

There is a discernible tendency in contemporaryconstitutional law wherein the latest changes of interna-tional documents dealing with minority rights, whateverour opinion of them, are all focused on pluralistic dis-course about the constitution. These changes, as manyauthors point out, have added to this discourse anotherimportant feature, namely, an even more resolute andforthright attitude towards a more comprehensive ac-commodation of pre-political group differences - eth-nic, linguistic, religious. Side by side to the formerlydominant constitutional paradigm, expressed through theslogan: "Democracy as the promotion of human rightsagainst the background of the welfare state ", the emerg-ing constitutional teleology is offering an alternativesyntagm: instead of, or together with, the fundamentalvalues of Liberty-Equality-Brotherhood, emphasis isnow on Security-Difference-Solidarity. In other words,it is the material principles of peace and security, of to 1-erance and the promotion of differences, and of socialjustice which are today beginning to legitimise the po-litical symbolism of human rights. All of this is the prod-uct ofthe interventionist nature of the contemporary wel-fare state, in which enormous efforts have been made toreconcile the various generations of human rights and toevolve a new relationship between the citizen and the

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state, but also between the state and the internationalcommunity. The growth and evolution of internationalorganisations and of the level of organisation in them,the conduct of transnational operations but also the de-velopments at national level, all of these comprise aframe of reference which reflects with ever greater clar-ity the trend of changing contents of the sovereignty ofthe "state-nation". Proceeding from the rights definedby international documents, the state today is requiredto "respect and secure all individuals in its territory andto subject them to its jurisdiction". This task is to beperformed regardless of differences in language or reli-gion, or of national or ethnic differences. In other words,when it comes to human rights, the state is to secure alegal and administrative system that will apply to all in-dividuals within its jurisdiction, a system that will al-low no differences between the majority and the minori-ties in the application of these rights. Evidently, then, aseries of important issues (economic, social, political)is today determined at supra-state level. The post-mod-ern tendencies, which sometimes over-emphasize thesigns of the gradual weakening of the role of the state,and the weight of the demands made by the internationalcommunity on constitutional law and state authority neednot necessarily lead to chaos and anarchy. Anarchy canoccur without the state, but the state and its quality canbe further evolved and improved through internationalcooperation, by the acceptance of common standards andsolutions to common problems.

About the question of minority rightsas collective rights

It is widely accepted that, with the discovery ofthe state-nation (f'Etat-Nation), Europeans have createda machine for the production of minorities. Although itis often heard on the Old Continent that "Europe findsits identity precisely in its diversity ", the restricted scopeof the application of this idea with regard to internalminorities indicates that something is wrong. A goodillustration of this ambiguity is the hypocritical attitudetoward the legal situation of minorities in France. Thechief difficulty in minority protection in France stems,namely, from the circumstance that the existence of mi-norities is denied in France in order to assert the idea ofthe "State-Nation". In fact, France is built upon this veryidea. Of course, there are communities on French soilwhich could (and probably will, one day) be consideredminorities. Although they are not yet considered as mi-norities, they have been recognised "the right to indi-vidual difference ". This illustration from France directlyposes the question: How to reconcile the denial of theexistence of minorities on one's own soil with the real-ity of a multicultural society? As we know only too well,Croatia has not been spared this dilemma, either, afterattaining independence and sovereignty.

27International documents have oscillated in their

position on the concept of collective rights in general,and of minority rights among them. This is due to theideological and political implications this notion carriesas much as to a whole range of other dilemmas, theo-retical as well as practical. Prior to 1941, the interna-tional community was favourably disposed towardsgroup rights. This is evidenced in an Advisory Opinionof the Permanent International Court of Justice adoptedin 1935:

"The idea behind the Treaty on the protection ofminorities is to provide certain elements incorporatedin the state, whose population differs from them by race,language or religion, the possibility for peaceful life sideby side, friendly cooperation between them, and at thesame time the preservation of characteristics which dis-tinguish them from the majority, meeting certain needsof theirs. In the endeavour to reach that aim, two thingsare considered especially important...

first, ensuring that citizens belonging to racial,religious or linguistic minorities are made equal in ev-ery respect with other citizens,

secondly, ensuring to minority elements appro-priate means for the preservation of their racial pecu-liarities, traditions and national characteristics.

These two elements are closely related, so thatno genuine equality can exist between the majority andthe minority if the latter is deprived of its own institu-tions, and if it is constantly denied that which consti-tutes the very essence of its existence as a minority ".

After 1945, solutions concerning minority rightsas collective rights were the first to undergo an evolu-tion. Despite blockades which prevented the internationalcommunity from concentrating on the issue of minorityrights (minority rule in South Africa, or theassimilational, inward-turned nation-building design ofstates which emerged from colonial rule, etc.), effortswere made to reinforce minority rights as a concept ofinternational law. This is best shown in the process ofdrafting of an important and recent UN document aboutminorities:The UN Declaration on the rights of persons belongingto national or ethnic, religious and linguistic minorities(1992). In the course of the work on this document agroup emerged who advocated placing the promotionand realisation of minority rights "within a constitutionalframework", that is to say, the state in question and itsconstitutional laws would be practically the only guar-antor of minority rights. However, this situation also sig-nified a potentially subordinate position of internationallaw, and ofthe Declaration as the instrument of this law,in relation to the constitutional law of individual states.For this reason, the phrase that the promotion andrealisation of minority rights, like all other rights andfreedoms of man, occur "within a constitutional frame-work" was replaced by the wording "within a democraticframework founded on the rule of law", a wording which

28cannot be reasonably interpreted as restricting the ob-jectives ofthe Declaration. On the contrary, the languageofthe Declaration asserts the concept of democratic plu-ralism, a notion which leaves its mark on the entire textof the document. Consequently, the framework of thepromotion of rights is democracy and the rule of law,rather than a special constitutional system, which neednot honour any of the objectives mentioned in the docu-ment. This relationship between democracy, the rule oflaw, pluralism and minority rights is common to allOSCE instruments, and the UN Declaration also reflectsand supports this strong tendency which prevails todayin contemporary political thinking and complementarystandards in human rights.

Still, the possibility of conflicting interpretationsof the individual versus collective dimension of minor-ity rights has not disappeared. This is borne out by theformulations we find, e.g., in Art. 1 of the 1994 DraftConvention which speaks about the protection of "na-tional minorities" but also about the protection of "per-sons belonging to these minorities". The explanatoryremarks accompanying the Proposal for the EuropeanConvention for the Protection of Minorities stress alsothat it is "... necessary to recognise the rights which donot belong only to individual members of minorities butalso to minorities as such. since minorities are not merelythe sum total of individuals but represent a system ofrelationships between these individuals. Without the con-cept of collective rights. minority protection would bethus restricted".

The constitutional documents ofthe Republic of Croatia and minority rights

In the constitutional documents passed after 1990,the Republic of Croatia has adopted an unquestionablyfirm stance regarding the protection of human rights. Theconstitutional guarantees for this are both the principleof equality of citizens in rights and freedoms (Art. 14 ofthe Constitution) as well as the willingness to respectinternational law (Art. 134 of the Constitution). Therights of citizens as individuals are supplemented bycertain "collective rights belonging to members of cer-tain communities as a whole". The aspect of minorityrights as collective rights is particularly emphasised bythe adoption in 1992 of a special Constitutional Law onHuman Rights and Freedoms and the Rights of Nationaland Ethnic Communities or Minorities. However, in spiteof the essential "consistency with the principles of par-liamentary democracy, the protection of fundamentalrights and the rights of minorities, and the rule of law"of this major legal text, "it is not sufficient in itself towarrant the conclusion that the legal system conformsto the principle of the rule of law". However, it is fareasier to say: "Let's have diversity in equality " thanmake this come true. The dramatic circumstances inwhich Croatia won its independence were definitely not

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an ideal framework for the assertion of diversity in equal-ity. Civilising the principle of majority will be one ofthe most urgent tasks for Croatia. And this will be bestreflected, among other things, in the stabilisation of thebelief that, for the assertion of the Republic of Croatiaas a state based on constitutional democracy, the only"civilised solution" is to "permit 'diversity in equality',that is, having equal citizens and at the same time pro-tecting special groups so as to enable them to preservetheir identity, language and culture".

Closing remark

In the Afterword to his book "Proizvodnja ludila"(The Production of Madness), Thomas S. Szasz saysthat the social man fears the Other and strives to destroyhim; he needs the Other and, if necessary, he will createhim so that, by disparaging him as evil, he can establishhimself as good. Szasz illustrates this thesis by a storyfrom the "Painted Bird" by Jerzy Kosinsky, where thepainted bird stands as a symbol of the persecuted Other,the Stranger, the Victim:

....One day he trapped a large raven. whose wingshe painted red. the breast green. and the tail blue. Whena flock of ravens appeared over our hut. Lekhfreed thepainted bird. As soon as it joined the flock a desperatebattle began. The changeling was attacked from all sides.Black. red. green. blue feathers began to drop at ourfeet. The ravens ran amuck in the skies. and suddenlythe painted raven plummeted to the fresh-ploughed soil.It was still alive. opening its beak and vainly trying tomove its wings. Its eyes had been pecked out. and freshblood streamed over its painted feathers. It made yetanother attempt to flutter up from the sticky earth. butits strength was gone.

The painted bird is a perfect symbol of the Other,the Stranger, the Victim. With inimitable artistry, as Szaszputs it, the author depicts both faces of this phenom-enon: if the Other is not like the other members of theflock, he is expelled from the group and destroyed; andifhe is like them, man intervenes and makes him appeardifferent, so that he may be cast out and destroyed. Bird-painting, says Szasz, who is an adherent of the human-istic anti-psychiatric trend of the late 1960s, has becomean accepted medical activity, and among the paints used,the psychiatric diagnosis is the most fashionable one.

The metaphor of the Painted Bird has a definitebearing on the overall issue of minorities, including mi-nority rights. We believe, therefore, that the best wayfor a state and for its internal laws, above all its consti-tutional law, to avoid the Painted Bir.d syndrome withrespect to minority rights, especially the rights of ethnicgroups, is to adopt appropriate, consistent and effectiveminority protection policies, combined with confidence-building efforts and with cooperation with existing sov-ereign states based on mutual respect for territorial in-tegrity. •