PRINCIPLE OF PRESERVING THE ESSENCE OF FUNDAMENTAL RIGHTS

Abstract

Right-holders can have as many rights as their essence allows to. In other words, the essence of the right depends onto the essence of the right-holder. Accordingly, there are right-holders and their rights, scope of which is not circumscribed by national legal orders. Fundamental rights of the individual are so-called as rights of the “citizen of the world”. They do not owe their existence to legal orders. Fundamental rights are related to the existence of a human being. If they had their origin in national legal orders, their claim to universality would be unfounded. None of the rights linked to any particular legal order may be perfect and exhaustive, as no legal order can claim perfection. The fundamental rights accompany individuals, notwithstanding the jurisdiction which they enter. Even in the most backward and totalitarian country, a person is a holder of these rights. Ignoring these rights by a legal order does not mean that they can be denied. If the same person happens to be in a democratic country for a short period of time, that person will freely enjoy the fundamental rights, not because the legal order of that country grants him/her these rights, but because the person had such rights since the very moment of his/her birth. Thus, we should distinguish between the form of fundamental rights and the state of their implementation (guaranty). Fundamental rights are characteristic of human beings who are subjects of law. The Constitutional Court of Georgia has expressed the idea as follows: “state cannot grant or deprive a person of the basic rights, as it is not authorised to change the essence of a person.”This means that the essence of a right is defined with the essence of a person. In other words, rights are derived from the essence of a human being, thus a human being embodies rights. According to the interpretation of the Court, “Article 7 of the Constitution establishes two obligations of the State: 1) to acknowledge and 2) to protect the human rights. Due to the essence of the rights, their acknowledgement by the State means the obligation to recognise such rights as omnipresent entitlements of any individual. Whereas, protection of the stated rights means guaranteeing all the necessary mechanisms in order to ensure full exercise of such rights, including acknowledgement of the possibility to protect those rights at the court.”

This position of the Court does not mean that the source of the rights exists outside an individual. Any legal order is obliged to acknowledge that human beings, as subjects of law, are entitled to fundamental rights – the entitlements that are not separable from personality. Otherwise, the very humanity of a human being and his/her status as a subject of law become questionable. Individuals are subjects of law by birth. A human being has dignity and thus fundamental rights are related to dignity. Here we have such a chain of human characteristics that cannot be denied. Fundamental rights are recognized per se as human rights existing within human beings. What already exists, it can be only protected by legal order. Therefore, when we refer to acknowledgement of human rights by the State, we mean binding of the State with the existing reality. The purpose of reflecting on positive law is to develop the order of values for their effective protection. The Court’s following judgment alludes to the same idea, expressed while interpreting Article 7 of the Constitution: “... non-performance or improper performance of the obligation to acknowledge and ensure the right may not question the existence of the right, as of the superior good of an individual. Acknowledgment of such obligation in the Constitution means that the State shall establish all the conditions for existence of such rights, otherwise, the fundamental rights of individuals will be violated, whereas all democratic and rule-of law states agree on the necessity of protection and guaranteeing of these rights and counter-activities would challenge the aspiration of the country towards the ideal of a state based on rule of law.”

Thus, no one can question the rights of an individual. A human being is an individual because he/she is a rational, and social creature with a personality. No one can deprive a hu- man being of these characteristics. Article 7 of the Constitution sets forth the scope of the State’s constitutional obligation in relation to human rights. This means that “... the State, in the process of governing, is restricted with human rights, whereas subjects of rights are individuals, irrespective of their citizenship, place of residence or factual location.”