SCOPE AND CONTENTS
You doubtless know the story of the new recruit to the armed forces, coming from a world in which, to a considerable extent, he could eat and drink when and what he liked, rise and go to bed when he liked, employ his leisure as he liked and, if he was dissatisfied with his pay or conditions of service, go on strike.
After a few days in the army, chafing at the new restrictions imposed upon him, he asked an old soldier if there was any escape from this tyranny and was told, ‘They can do anything with you except put you in the family way’. The veteran at least conceded that a soldier had a fundamental right not to be put in the family way and this will do as an indication of what a fundamental right is. It is a restriction on sovereignty for the benefit of the individual.The scope of the liberties which have been given general recognition has differed from time to time but there are some today to which almost all civilized countries pay at least lip service. Peaslee’s Constitutions of the World sets out the constitutions of eighty-nine countries, in all of which there is some recognition of some of the fourteen rights I am about to mention. Eight-four countries recognize the rights to personal liberty, fair legal process and freedom of expression. Eighty- three recognize freedom of conscience and religion. Eighty-one recognize freedom of assembly and association and the inviolability of correspondence and domicile. Eighty recognize the right to property; seventy-nine the right to freedom of education; seventy-seven the right to equality before the law; seventy-six the right to freedom of labour; sixty-three the right to petition government authorities; sixty to certain rights relating to health and motherhood; fifty-nine the right to social security; fifty-six the right of free movement within the nation; and forty-nine protection against retroactive legislation.
The classification I have given is apt to mislead, except as to the kind of restriction to which the peoples of the world have given formal recognition. There is a wide variety in the scope of die formulae defining the recognized rights. In some countries one or more of these rights may be so generally recognized that there is no point in declaring them: the right to petition, for instance, in the Commonwealth. Then the eighty-nine constitutions in Peaslee’s book fall into three different classes. There are the normative constitutions of the politically mature countries, for example the Scandinavian countries, in which the Supreme Court interprets the constitution and the executive and legislature abide by the interpretation; the formal constitutions found, for instance in South America, only partially enforced in practice but which it is hoped will be normative constitutions when political maturity is achieved. And there are constitutions devised to throw dust in the eyes of observers while the ruling clique or party does as it likes; here the Fundamental Rights, like bikinis, are important only for what they conceal. Again, some constitutions provide effective legal process for enforcing Fundamental Rights: India, for instance, makes the right to effective judicial process a Fundamental Right itself; other constitutions are silent on the point; but there may nevertheless be a judicial remedy for infringement, and this may be speedy or not. There may be effective protection by convention, as in this country, where it would be impracticable to initiate legislation permitting detention without trial in the interests of public safety except in time of war, legislation expropriating without compensation and legislation to suppress an effective political opposition. On the other hand there may be no effective protection of fundamental rights. The degree to which any particular liberty is enjoyed in a particular country depends on a large number of factors, of which a constitutional provision is but one.