(Transcript of the conference given by Dr. Tomas Delaney at Keiser University at the invitation of the KU-LAC Political Science Club, on November 28, 2017)
Thank you very much.
I have been asked to speak about the constitutional rights and liberties of Nicaraguans.
Our Constitution has a chapter that deals with rights, duties and safeguards of the Nicaraguan people. So the Constitution differentiates between rights, safeguards and duties, in which liberties are included, and that is what we will be discussing.
The Constitution lists rights and freedoms, incorporated in several chapters, such as Individual Rights, Political Rights, Social Rights, Family Rights, Labor Rights and Rights of the [Indigenous] Communities of the Caribbean Coast. It is a long list of rights, some very focused, among which the most important are the right to life, to equality before the law, to due process, to the non-retroactivity of the law, to citizenship, to information, to the protection of family, marriage, children and the elderly, to work, to access to basic services, to social security, to strike, to private property, to education and health, among others.
The main freedoms recognized by the Constitution are those known as “basic individual political freedoms,” such as freedom of conscience, of thought, of religion, of speech, of movement, of association, of assembly, of demonstration and of affiliation to political parties, among others.
“The democratic republic [ … ] cannot exist or be maintained, without the validity of the fundamental rights and freedoms of the people, and without the effective participation of its citizens.”
I have decided not to expand on each of these rights and freedoms individually, because the time we have for this discussion is limited. I would just end up reading the Constitution to you. So because of these time limitations, I thought it would be more useful to talk about these issues in a broader manner, in a more comprehensive and deeper context.
I want to focus, even if in a general manner, on the fundamental rights of persons, such as Human Rights; in the safeguards, mechanisms and procedures that are available to citizens to exercise and defend their constitutional rights and freedoms; and to civic duties. So that we have, an approximate idea of how the system of control of the rights, freedoms and safeguards of Nicaraguans works.
The fullness of the rule of law is not exhausted by the mere existence of an adequate and fair regulatory provision, but it essentially requires a real enforcement and its compliance, by the authorities in charge of executing it. Fair laws do not boil down to a system of fair standards — because the paper holds whatever you write on it. Instead, it requires that the attitude of the government, of the authorities, the conduct and the public policies that are implemented, are also fair and in accordance with constitutional provisions.
I want to start by saying that the greatest value of the Constitution is not in the written text, but in the constitutionality of the system. That is, in the proper functioning and respect of constitutional provisions in a harmonious way. It is of little use, for example, that the right to life be considered inviolable and inherent to all human beings, if in practice is not respected. It is of no use, for example, that the written Constitution says that the imprisonment of a person can only be carried out through a written order from a corresponding judge, if people are arrested at night, with the use of violence and with no court order. It is no use, for example, for the written Constitution to say that every detainee must be released within 48 hours, when authorities keep people indefinitely detained.
Thereby, the legal precept is not enough. It is imperative that it is respected and applied correctly. This is what is known as constitutional safeguards and this is what I want to talk to you about.
The Statement of Motives of the Constitution says that it is inspired by Christian values, which reaffirms a State of freedom and justice with complete respect for the dignity of all human beings, in a permanent search for the common good. The common good is closely linked to freedom, which is precisely one of the main rights set forth in the Constitution. Freedom is not only a citizen’s right, but it is also one of the fundamental principles of public peace. When this principle is violated, as it happens, for example, when authorities prevent the free movement of people who wish to demonstrate some discontent, to which they are entitled, it creates malaise and nonconformity in people, because it is arbitrary and violates the constitutional order.
No person is forced to do what the law does not mandate, nor prevented from doing what it does not prohibit. It is the known and universal Principle of Legality, included in Article 32 of the Constitution. From that principle the need arises of a law to regulate, mandate or prohibit conduct so that a person may be considered to have broken the law. And, at the same time, there is a need for legal remedies to punish any infringements in order to avoid arbitrary conducts and injustice in the enforcement of the law.
The democratic form of the State consists fundamentally and essentially in the effective validity of Human Rights, and they are so named because these are the rights inherent to all human beings. Some legal scholars have come to say that the defense of the democratic State is one of the most important legal assets, because its protection justifies the tenure of those essential rights. In this manner, democracy and Human Rights are closely linked. And they are also presuppositions of the common good.
There is already a generalized criteria in the sense that it recognizes to human beings rights which are pre-existing of the State, of which the State cannot deprive human beings. The right to life, for example, is considered as “the first natural right of the human being, pre-existing to all positive legislation,” and thus it is obviously recognized and protected by virtually all national constitutions. Article 46 of our Constitution literally reads that “…Within the national territory, every person enjoys protection of the State and recognition of the rights inherent to all human beings, of the unrestricted respect, promotion and protection of human rights, and of the full validity of the rights contained in the Universal Declaration of Human Rights; in the American Declaration of Rights and Duties of Man; in the International Covenant on Economic, Social and Cultural Rights and in the International Covenant on Civil and Political Rights of the United Nations and in the American Convention on Human Rights of the Organization of American States.”
I will not expand on each of these international agreements because it would take time. What I can tell you is that these international conventions, which are recognized in our Constitution, tend to protect the rights that are considered inherent to all human beings, and little by little have been extending their protection. At the beginning, they spoke only about basic individual Human Rights (such as life, liberty, security), then they included civil and political rights, and finally economic, social and cultural rights. The rights recognized as inherent to all human beings have been evolving.
What these instruments maintain is that the ideal of human beings cannot be fulfilled in the enjoyment of his civil and political rights, unless the conditions that allow each person to enjoy these rights exist. And these rights which are protected by these agreements, are universal. Therefore, they are above what national constitutions may provide.
For example, The American Convention on Human Rights (also called the San José Pact) stipulates that “…If the protection of such rights and freedoms is not already guaranteed, the party States are obligated to adopt legislative or other measures that may be necessary in order to make them effective.” In addition, it establishes the obligation to the party States, of a progressive development of the economic, social and cultural rights contained in the Charter of the Organization of American States. And, on the other hand, the Charter of the United Nations imposes on the States the obligation to promote the universal and effective enforcement of the rights and freedoms of all human beings.
In other words, Human Rights are more safeguarded than other rights specifically contained in the Constitution, because they cannot be modified by any constitutional reform. This then leads us to a legal debate that has always arisen regarding the application of constitutional provisions. Some scholars say that as long as a constitutional precept is not regulated, it cannot be applied. This criteria may be valid in technical, operational or programmatic provisions. But, when interpreting the Constitution, legal hermeneutics must be applied, by considering the hierarchy of the law. So the fundamental rights, freedoms and safeguards must be respected, because it is considered that human rights have their roots in natural law, which is equivalent to saying, that the legal ideal of justice is prior and above positive law, because justice is the ultimate goal of society. And the absence of regulatory norms cannot hinder their effectiveness.
Now, we have talked about constitutional rights and freedoms, now let’s talk about constitutional safeguards. Constitutional safeguards are the set of means that the Constitution itself makes available to the people, so that they can defend and protect their rights and freedoms before the authorities, and against other individuals or social groups. They are the mechanism by which arbitrary conduct and unilateral actions of the State are limited and restrained. Constitutional safeguards are also related to procedural safeguards, which are the rules and security procedures established in favor of individuals, precisely so that they may have the means to enforce their rights. In this regard, I am going to refer to two constitutional rights that are closely linked to the exercise of these safeguards: the principles of Equality Before the Law and Due Process.
Equality before the law is nothing more than the right to not establish exceptions or privileges that may exclude some of what, under the same conditions, is granted to others. It follows that true equality consists in applying the same law in concurrent cases. That is, in the same cases, the same law, taking into account the constitutive differences. So equality before the law, is not only that the same law applies to all equally, but that there be no privileges or favoritism for any one person.
This safeguard applied to the judicial process requires that all persons be equal before the courts, regardless of their personal condition. The manner in which the accused is to be treated does not allow discrimination based on economic, social, religious and/or political reasons. This safeguard not only ensures that every person can effectively approach a court of law seeking justice, on equal terms and without discrimination, but can also obtain a fair and grounded decision.
Due Process, contemplated in Article 34 of the Constitution, implies the obligation to ensure the rights of a fair process, such as the presumption of innocence until proven otherwise; the right to be judged by a fair and competent judge; the right to a legitimate defense; the right to be respected in your physical integrity; etc. And it also implies the obligation for courts and judges to reason and explain their judgments. In this manner, the service of justice and the substantive law invoked by the parties, must be channeled through pre-established structures, judicial mechanisms and procedural norms, in order to secure a fair process and a sound judgment.
Constitutional safeguards are a means of protection for freedom, and are included in the final part of the Constitution in the chapter titled Constitutional Control, where it mentions the four main legal resources that Nicaraguans have in order to protect their constitutional rights and freedoms. These are the Unconstitutionality Claim (against any law, decree or regulation), the Constitutional Protection Appeal (against actions or omissions of public officials), the Habeas Corpus Writ (in favor of those illegally deprived of liberty or because they fear for their own physical security) and the Habeas Data Writ (to protect a person’s privacy and the right to access personal information).
In this sense, one of the areas that offers the most constitutional safeguards is that of the legal process. Therefore, it is very important that we know these resources and know how to use them, when we feel that our constitutional rights are being infringed, or are at risk. All these resources are regulated in the Constitutional Justice Act. “…Persons whose constitutional rights have been infringed or are in danger of being so, may file a writ of habeas corpus, a constitutional protection appeal or a writ of habeas data, as appropriate and in accordance with the Constitutional Justice Act,” reads Article 45 of the Constitution.
So far we have talked about constitutional rights and freedoms, and legal safeguards. But we must also mention the other side of the coin, such as our civic duties.
Within the political rights enshrined in the Constitution, the most important of all is the right to citizenship, contemplated in Article 47; because only citizens have political rights. That is, from that one fundamental right the others are derived (the right to vote, the right to be elected, etc.). Citizenship is not only a source of rights, but also of obligations. And the main civic duty is political participation.
It is not enough to demand our rights, nor to be satisfied just because they are written on paper. It is necessary to participate in the election of representatives and in the formulation of public policies, because the Republic and democracy are founded, and are sustained, by their citizens. It is true that much political awareness is required. But we must also recognize that broad popular participation is necessary for democracy to function effectively. Democracy is the rule of the majority, so it is not effective if only the minority is active in the system. And such political awareness consists in understanding that there is a direct connection between broad political participation, government policies and the quantity and quality of benefits and services that the people receive.
Let me share with you an anecdote of Benjamin Franklin:
“After the United States won its independence, the Founding Fathers met in a Constitutional Convention, chaired by George Washington, to write the Constitution and design the system of government that would prevail in the new independent nation.
On the last day of debates, having approved the new Constitution, Benjamin Franklin walked outside and went to sit on a bench in a Philadelphia park to ponder.
A woman recognized him, sat next to him and asked excitedly: “So, Mr. Franklin, have you reached a consensus on what type of Government we will have?”
Franklin smiled at her, put a hand on her shoulder and said, “My lady, we have given you a democratic Republic. The debate was never that. The debate was always if you, a people endowed with freedom, can keep it.”
The democratic Republic, which is the model that we supposedly also have, cannot exist or be maintained, without the validity of the fundamental rights and freedoms of the people, and without the effective participation of its citizens. Our responsibility as citizens is not only to demand our rights. We also have a duty to participate and contribute to the construction and maintenance of a true republican democracy.
In this regard, I will close with a well-known phrase from another American statesman, who said, “Ask not what your country can do for you, ask what you can do for your country” (John F. Kennedy).
