What comes before a Bill of Rights?

Calls for a Bill of Rights are becoming increasingly more common in Australia and around the world. Such legal institutions are seen as a way of ensuring that average people (those without access to power or wealth) in a society are given a fair and equitable degree of access to protection against infringement on their freedom.

The United States Bill of Rights sets out a range of things that cannot be done at law by Government to people. While not directly stating these rights accrue to citizens only, that is implied by the bill being an amendment to the US Constitution.

The striking thing when you read the US Bill of Rights is that it makes some assumptions about its society that are the basic precursors for an effective bill. These preconditions are:

• A legislative system fundamentally responsive to the population,
• A reliable legal system based in codified and common law,
• An economic system and a trade system based on a currency, and
• The capacity of people to exercise the rights offered.

These preconditions are easier to write down than understand. And they are certainly easier to identify in the US Bill of Rights than others like say the English Bill of Rights (1689).

Amendment One of the US Bill of Rights talks about freedoms of association and speech and is predicated on a fundamental capacity of the population to influence legislative decision making. The Bill limits the Congress’s capacity to stop people from protesting and petitioning in order to address some grievance with Government. This presumes that the legislature will listen if the community is given the right to voice its disquiet. The bill doesn’t require them to act but it does require that the Congress at least hears the complaints.

This concept forms the first pre-condition because there are plenty of instances where a Bill of Rights wouldn’t work because no matter how much people protest, the legislature can not be influenced by these actions. The events in Fiji of recent times bear witness to this situation. The constitution of that country embeds racism into its electoral system – no amount of protest would influence the legislature in that respect. In China the legislature is not empowered to take action no matter how much they agree with the voiced disquiet of the community.

The next element required to make a Bill of Rights work is that the legal system must normally be based on defined standards and be generally reliable in its decisions. The US Bill of Rights assumes that the system is capable of deciding issues like "probable cause" and understand how to deal with unreasonable searches. The authors lived in a world that was heavily influenced by the legal structures the English had brought with them.

The presumption is essentially that the people will consider the court system reliable and free of corruption. The rights contained in the US Bill of Rights presume that a court can fix the problem you have and that you will accept the outcome because it is fair and impartial. This means that codified and accessible law and case history will help in clarifying and showing at least procedural fairness and that common law will exist to deliver citizen to citizen remedies.

If you can’t be sure that the legal system is beyond being influenced to deliver biased verdicts then you don’t really have access to rights contained in a bill of rights. For instance it would be no use for Aung San Suu Kyi to go to the courts to have her right to political protest up help in a hypothetical Burmese Bill of Rights if the military dictatorship were still able to control the outcome in the courts.

The stability of the American political and economic systems is in part supported by the legal system with its Bill of Rights and partly supports these institutions. But few people will pay attention to a Bill of Rights if there is no economic basis for the citizenry to have something economic to defend. Part of our freedom is predicated on the right to act as economic agents. Without a capitalist style economy we would have little capacity to understand the economic costs of our loss of rights. In particular, the US Bill of Rights talks about just compensation for private property taken for public use.

If you don’t have property or aren’t allowed to own property this kind of right to compensation is pretty flimsy. In Brazil people live in abject poverty in hovels on the outskirts of cities. When the authorities wanted the land the shanties were on, they simply moved in and bulldozed homes (such as they were). So much for a right to just compensation. The wealth and economic capacity of the general public is critical to the success of the concept of private ownership and compensating for its seizure by the state.

Finally, people actually have to be able to access the necessary resources and information to make the bill a contestable or enforceable document. Part of why the preconditions don’t exist in Burma is because Aung San Suu Kyi and her supporters have no capacity to go to the courts and claim their free speech is limited. People without the literacy to read a Bill will not know it has been infringed.

This last condition is something of a rehash of the others because it is the interaction of them, as well as a whole range of societal preferences for fair and equitable solutions to the problems of Governance, that a Bill of Rights addresses.

This all means that the Bill, whatever it looks like, is only as good as the existence of these preconditions. The English Bill only worked for the rich in England: it was part of the reason for the American rebellion in the first place.

Australia has a set of conditions that would lead to an effective Bill of Rights but the question is: would the Bill undermine the preconditions?