Constitutional principles of civil society in the context of guaranteeing human rights and freedoms

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Constitutional principles of civil society in the context of guaranteeing human rights and freedoms

Babakhanova Mehriban Eldar kizi, Associated professor, PhD in law Azerbaijan University of Languages

Introduction

Ensuring the construction and functioning of a democratic civil society is one of the most important tasks of modern constitutionalism. The idea of civil society is especially relevant for post-Soviet countries, including Ukraine. The experience of countries with a high level of democracy shows that civil society can ensure the observance of fundamental human rights and freedoms. In Ukraine, where constitutional construction is in the process of formation, the problem of guaranteeing, observing and protecting fundamental human rights is particularly acute.

The problem of constitutional foundations of civil society in the context of guaranteeing the rights and freedoms of man and citizen has been covered in their studies by such scientists as Berchenko H., Boryslavska O., Ishchuk S., Yosyfovych D., Zabokrytskyi I., Kahliak O., Kovalchuk S., Liubchenko P., Melnyk L, Rabinovych P., Rechytskyi V., Tymchenko S., Todyka Yu., Fedorenko V. etc. However, the issues of the content, structure of civil society, as well as the essence of civil society and constitutional foundations of civil society in Ukraine are still insufficiently clarified.

Purpose of the article is to clarify the essence and meaning of the constitutional foundations of civil society in the context of respect for human and civil rights and freedoms.

constitution human right guarantee

Results

The practice of building civil society in countries with a developed level of constitutionalism proves that constitutional states that constitutional-legal regulation and regulation in countries with a democratic state (political) structure are aimed at supporting civil society, and that the formation and development of civil society in the extra-state sphere of social relations does not mean its isolation from state-legal institutions, but allows or assumes a sustainable and intelligent

In the science of constitutional law there is no single definition of the concept of civil society, which in general is widely used and has numerous interpretations.

Generalization of modern scientific views regarding the essence of this concept allows us to assert the presence of three main approaches: broad, dichotomous and narrow. The broad approach consists in the fact that the concept of “civil society” is identical to the concept of “society”, that is, any society cannot be non-civil. The dichotomous approach consists in the division of the state and civil society, while supporters of the narrow approach believe that society consists of civil society, political (state), and economic (market) components. It should be noted that the narrow approach assumes the formation of civil society on the basis of classical liberal ideas about a free person [10, p.45].

Civil society is a concept that refers to a system of independent and state-independent public institutions and relations that provide conditions for the realization of private interests and needs of individuals and collectives, for the functioning of social and spiritual spheres, their reproduction and transmission from generation to generation.

In civil society, the rights and freedoms of citizens are the most important social and political-legal institution that determines its development. Human rights in civil society are inseparable from social relations. They ensure the normative consolidation of the conditions of human life, objectively necessary for the normal functioning of society and the state. Human rights establish a degree of freedom, which, on the one hand, ensures the realization of subjective interests, and on the other hand - does not violate the possibilities of others.

Civil society is the foundation of a legal, democratic state. Legal, social and democratic state can be considered only when it interacts, cooperates with civil society, reflects real needs and interests of this society, its people, its traditions and culture in the purposes and directions of social development [14, p. 5].

Civil society provides a necessary and rational way of social existence of people based on reason, freedom, law and democracy. The sphere of civil society includes: socio-economic relations and institutions (forms of ownership, entrepreneurship, labor); organization and activities of citizens' associations (public organizations, political parties, as well as trade unions, creative unions, religious organizations); the sphere of education, education, science and culture; family - the primary basis for cohabitation of people; system of mass media;

Civil society begins with a person, its formation is inseparably connected with the awareness of members of society of their civil rights, with the formation of their active position on the realization and protection of their rights.

Prerequisites for the formation of civil society are ensuring equality of people in their rights and dignity, prohibition of any privileges of people on their natural or civil characteristics, people's sovereignty, high level of legal culture of members of society, economic, cultural and legal relations between them [8, p. 155].

As Zabokrytskyi I. notes, human rights are built on certain principles. Among them are such as the rule of law, equality and non-discrimination, inalienability, universality, etc. Of course, the scientist notes that universality, inalienability and indivisibility reflect their natural law principles, which show that these principles must necessarily belong to every person in accordance with his/her nature. Interdependence and interconnectedness point to the systemic nature of law when we must consider the legal status of the individual in a complex.

The understanding that every person in accordance with his nature has certain rights, which must be inalienable and inalienable, and the observance of which the state must necessarily ensure, has been developing for a long time. However, in order for human rights not to be an abstraction, they must be enshrined in a legal document [8, p. 125].

The legal nature of civil society is based on such strategic human rights as freedom and equality. In civil society, the individual is equal, free, autonomous, and sovereign.

The legal guarantee of the formation of civil society in the states built on the principles of constitutionalism is the existence of a constitution, which enshrines the fundamental human and civil rights [8, p. 178].

Thus, all countries of the European model of constitutionalism have constitutions, the purpose of which is to establish a constitutional legal order based on the ideas of human rights, freedom, equality and democratic values

It should be noted that in the constitutions of most states the presence of such special sections on civil society is the exception rather than the rule. However, in all constitutions of democratic states the legislator followed the path of constitutional declaration and constitutional guarantee of basic principles and institutions of civil society. These are such fundamental principles of civil society as equality of rights and freedoms of citizens and their legal protection; constitutional ensuring of independence of every citizen; regulation of the institution of property; d) constitutional ensuring of scientific, educational and cultural development, guarantees of freedom of speech, prohibition of censorship; ensuring constitutional mechanisms of interaction between the state and civil society; determination of forms, methods and limits of state intervention in all areas of civil society. Compliance with such principles ensures the functioning of civil society on the basis of constitutionalism [17, p. 43].

A. Borislavskaya, a well-known researcher of constitutionalism, gives such definition of constitutionalism - “a political and legal system based on ideology of liberal character, which is a set of interconnected relations between a person, society and the state, in which human rights are guaranteed, society is free, and the state power is limited by constitutional means”. In a narrow sense under constitutionalism, she understands the constitutional system of government, that is, the system of means and methods of government in the state, based on the ideas of the rule of law, human rights and freedoms

[7, p. 2].

Recognition of the priority of fundamental human rights is fundamental for civil society, because guaranteeing these rights establishes a clear framework for the state (power). The Declaration of the Rights of Man and the Citizen proclaims: “A society in which rights are not guaranteed and there is no separation of powers has no Constitution” (Article 16). This document laid down the foundations of constitutionalism, gave a legal form to the fundamental human rights: equality and freedom from birth; right to political association; presumption of innocence; limits of freedom (one can do anything that does not harm others); freedom of speech, free expression of opinion, expressing political and religious views; right of private property as an inviolable right, etc [1].

The State, in performing its main duty to assert and ensure human rights and freedoms, must not only refrain from violations or disproportionate restrictions of human rights and freedoms, but also take appropriate measures to ensure the possibility of their full realization by everyone under its jurisdiction [15, p.8-9].

The features of fundamental human rights as an element of the European model of constitutionalism are the following Human dignity as a constitutional fundamental right, which has priority over other fundamental rights; the right to life (prohibition of the death penalty); a number of social and economic rights; the obligation of the state to guarantee human rights.

Modern science of constitutional law (and not only) focuses particular attention on fundamental human rights. Human rights are the subject of research in general legal theory, philosophy of law, international law, and almost all sectoral legal sciences.

Under the European model of constitutionalism, fundamental human rights are not just an idea, a goal, but also an institutional mechanism of restraining state power to prevent state arbitrariness. Such a mechanism functions on two levels: national and global.

UN Secretary-General Antonio Guterres, in his message to the opening of the 46th regular session of the Human Rights Council on February 22, 2021, outlined all the major threats to human rights and fundamental freedoms, and outlined a new principle of struggle to ensure them. According to him, the most important value is human dignity, and all states, international governmental and non-governmental organizations, and all institutions of civil society must take this into account in their activities. As noted by the UN Secretary-General in 2021, the main problems in the sphere of observance of fundamental human rights are the spread of intolerance, racism, discrimination, aggression, xenophobia, which is acquiring a threatening scale due to the development of information technology. The problem of misuse of data, which threatens such a fundamental right of every person as freedom, was named as particularly urgent. The problem of poverty and environmental hazards remain relevant. It should be noted that these problems are also relevant for Ukraine [7].

Fundamental human rights are interrelated with democracy and the rule of law and are an essential element of every constitutional state.

For example, let us turn our attention to the current legislation of Azerbaijan. Thus, Article 24 of the Constitution of this state establishes that the principle of guaranteeing the rights and freedoms of man and citizen is the main and important for the society of this country. It is established that human dignity is recognized as the highest social value. It is protected and respected for humanity [3].

In addition, the Law on Constitutional Court of the Republic of Azerbaijan establishes that if the rights and freedoms of a person are violated by certain regulatory and legal acts of the legislative and executive municipalities and courts, persons whose rights have been violated may submit a complaint to the Constitutional Court to resolve such a dispute to restore their own rights and freedoms. Thus, on the example of this country, we can conclude that human rights and freedoms are guaranteed by law here. These norms largely coincide with the rules of conduct enshrined in the domestic Ukrainian legislation [4].

The basic principles of civil society are also enshrined in the Constitution of Ukraine. Thus, article 3 of the Constitution of Ukraine declares that “the human being, his life and health, honor and dignity, inviolability and security are recognized as the highest social value, Human rights and freedoms and their guarantees determine the content and direction of state activity. The State is accountable to the individual for its activities. To affirm and ensure human rights and freedoms is the main obligation of the state” [10].

According to Article 4 of the Constitution of Ukraine, the bearer of sovereignty and the only source of power in Ukraine is the people. Legal guarantees of the right of the people to power are also a fundamental feature of civil society.

Norms of the Constitution of Ukraine enshrine the principles according to which in Ukraine human and civil rights and freedoms are recognized and guaranteed under the generally accepted principles and norms of international law. Section II of the Constitution of Ukraine “Rights, Freedoms and Duties of Man and Citizen” is devoted to human rights and freedoms. All rights are guaranteed on the principles of freedom, equality, inalienability and inviolability (Article 21).

Among the basic rights and freedoms are the right to life, the right to dignity, the right to liberty and security of person, freedom of movement and freedom of expression, freedom of ideology and religion, participation in public associations, the right to peaceful assembly, the right to property, leisure, business activity, etc. (Art. 21-68) [10].

It should be noted that fundamental human and civil rights in Ukraine are declared at a proper level in accordance with international standards. However, the main problem now is not their declaration, the existence of appropriate norms in laws and subordinate legal acts, but their implementation in the life of each person.

Such national problems as high level of corruption, low development of economy, weak state institutions, high level of crime, low level of legal education of citizens threaten the functioning of civil society and do not contribute to the observance of fundamental rights and freedoms of man and citizen.

Conclusions

Consequently, modern civil society is the foundation of a state governed by the rule of law and a democratic state, functioning on the principles of constitutionalism. In civil society, the rights and freedoms of citizens are the most important political and legal institution that determines its development. In civil society, human rights are inseparable from social relations. The presence of the fundamental human and civil rights declared in the constitution in accordance with the international standards is the determination of the mechanism of implementation of human rights and freedoms, consolidation of guarantees of their protection, but the important feature of modern civil society is not their declaration or presence of relevant norms in the laws and sub-legal acts, but their implementation in the life of each person as the highest social value.

Prospective directions for further research. An urgent problem requiring further research is the realization of basic human rights and freedoms at the current stage of civil society development, given the global and local challenges of the present.

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