Thursday, July 22, 2021

Rights Held by Physical Persons

 Source: Law of Persons Teaching Material

Rights of personality and constitutional liberties

Rights of personality are held as of birth (Art. 1), although legally binding acts (e.g. contracts) are exercised through a person who is in charge of administering the property of the person with lessened capacity (192-393).  It is to be noted that holding rights refers to entitlement which may at times require exercising it through a guardian or a tutor. 

 The embodiment of rights of personality in civil law facilitates the implementation of these rights which are also enshrined in constitutional law and other laws.  Articles 8 to 31 of the Civil Code deal with rights of personality; i.e. - rights of every individual by virtue of physical personality.  Article 8 provides “Every physical person shall enjoy the rights of personality and the liberties guaranteed by the Ethiopian Constitution” without regard to race, colour, religion or sex.

  

Article 25 of the Constitution articulates the principle of equality before the law and entitlement without any discrimination to equal protection of the law.  This principle includes foreigners because they are not precluded from this principle of equality in all matters (389/1) other than the few specifically identified juridical acts they are not capable of exercising, such as participation in government (389/2) and ownership of immovable property without government permit (390). 

 

Chapter III of the Constitution entitled “Fundamental Rights and Freedoms” deals with constitutional liberties.  It has two parts.  Part I embodies provisions on human rights (Articles 14 to 28), and the second part of the chapter (Articles 29 to 44) deals with democratic rights.  Article 14 lays down the principle that “Every person has the inviolable and inalienable right to life, the security of the person and liberty.”  These rights ‘i.e. life (Art. 15), security of the person (Art. 16) and liberty (Art. 17)’ are further substantiated by other constitutional rights, namely: the right to protection against cruel, inhuman and degrading treatment (Art. 18), the rights of arrested persons (Art. 19), rights of accused persons (Art. 20), rights of persons held in custody and convicted prisoners (Art. 21), the right against retroactive application of criminal law (Art. 22) and the right against double jeopardy (Art. 23), right to honour and reputation (Art. 24), right to equality (Art. 25), right to privacy (Art. 26), freedom of religion, belief and opinion (Art. 27).  

Moreover, the rights under Part II of Chapter III of the Constitution (i.e. Articles 29 to 44) deal with the political rights that every person is entitled to.   The detail of constitutional liberties will be discussed in depth in other courses such as constitutional law and human rights.   

It is to be noted that Article 93/4 (c) of the Constitution enumerates the provisions that cannot be suspended nor restricted even at times of a state of emergency.  These provisions are Article 1 (nomenclature of the State), Article 18 (freedom from cruel, inhuman or degrading treatment), Article 25 (the rights to equality before the law without discrimination) and Article 39 Sub-Articles 1 and 2 (rights of self-determination).

International Covenant on Civil and Political Rights 

 

Article 9/4 of the Constitution recognizes all international agreements ratified by Ethiopia as “an integral part of the law of the land.”  Article 13/2 of the Constitution further provides that the fundamental rights and freedoms specified in Chapter III of the Constitution (i.e. Articles 13 to 44) “shall be interpreted in a manner conforming to the principles of the Universal Declaration of Human Rights, International Covenants on Human Rights and international instruments adopted by Ethiopia.” 

 

The issue regarding the level of hierarchy that international instruments on human rights have in Ethiopian law doesn’t belong to law of persons.  It suffices to say that in addition to our domestic laws and the Constitution, international instruments ratified by Ethiopia shall be relevant with regard to rights of personality.  The 1966 Covenant on Civil and Political Rights (ICCPR), in particular, has many provisions relevant to rights of personality.  Part III of the Covenant (Articles 6 to 27) embodies the following rights:

 

      right to life (Article 6), freedom from torture, or inhuman and degrading treatment (Art. 7),

      freedom from slavery and slave trade  in all their forms, servitude and forced labour (Art. 8), 

      right to liberty and security of the person, freedom from arbitrary arrest and detention (Art. 9), 

      right of detained and accused persons to be treated with humanity (Art. 10),

      freedom from imprisonment merely on the  ground of failure to fulfill contractual obligation (Art. 11), 

      liberty of movement and  freedom to choose residence, freedom to leave any  country including one’s own and freedom to return to one’s own country 

(Art. 12), 

      the freedom of aliens against expulsion (Art. 13) except for compelling reasons,

      right to equality before the law (Art. 14), and freedom from retroactive application of criminal law (Art. 15), 

      right to recognition as a person (Art. 16), 

      right to privacy of family, home and correspondence, and protection from against such interference and unlawful attacks on honour and reputation (Art. 17), 

      right to freedom of thought, conscience and religion  (Art. 18), and freedom of speech and expression (Art. 19), 

      freedom from any propaganda towards war, discrimination or hatred

(national, racial, religious) Art. 20, 

      right to peaceful assembly (Art. 21) and freedom of association with others (Art. 22), 

      right to marry, found a family and  the equality of rights and responsibilities of spouses (Art. 23), 

      right to every child to protection by his family, society and the State (Art. 24/1), and acquire name (Art. 24/2) and nationality (Art. 24/3), 

      right and opportunity to take part in the conduct of public affairs (Art. 25/a), right to vote and right to be elected (Art. 25/b), and the right to have access to equal public service in one’s country (Art. 25/c),

      right to equality before the law and equal protection of the law (Art. 26), 

      the right of members of minorities to practice their culture, to profess and practice own religion, or use their own language  (Art. 27).

 

It is to be noted that Article 4/1 of the Covenant provides that states “may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social groups.”  However, Article 4/2 prohibits “derogation from Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18.”   Issues pertaining to the inconsistency between the Constitution and the ICCPR with regard to the list of non-derogable rights are beyond the scope of law of persons. 

 Rights of personality under the Civil Code

Rights of personality and constitutional liberties are extra-commercium; i.e. - they are not subject to legal transactions (Art. (9/1).  Moreover, “voluntary limitation imposed on the exercise of such rights and liberties shall be of no effect unless it is justified by a legitimate interest” (9/2).  This provision has the purpose of protecting persons from their own harmful decisions and acts.

 

“Legitimate interest” is referred to as “les lois et l’ordre public” (law and public order) in the French master text.  The drafter’s original French version and the words "ተገቢ ለሆነ ለማህበራዊ ጥቅም" (legitimate social interest) in the official Amharic version may help us in interpreting “legitimate interest” that may justify voluntary limitation on one’s rights of personality and constitutional liberties. 

In addition to the enumeration of rights of personality and constitutional liberties, the law further avails remedies in case of violation of these rights. A person may demand the cessation of any unlawful molestation and is entitled to seek damages under extra-contractual liability (Art.10). 

The general principles under Articles 8 to 10 are applicable to the individual rights stipulated under Articles 11 to 31.  The rights of personality embodied in Articles 11 to 31 are:

-         Rights concerning the body (Articles 18-22,  25, 26)

-         Rights concerning privacy (Articles 11, 13, 27 to 31)

-         Freedom of action, thought, religion, silence, etc. (Articles 11, 12, 14 to 17, 23, 24).

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