Constitution Background to this section Return to the Constitution list A constitution is a body of fundamental principles according to which a group, association or a country is organized and governed. As long as those principles enable a realistic level of adaption to the legitimate individual and family aspirations on the one hand and to the limitations of effective human action on the other, then a constitution can help enhance human freedoms and happiness. On the other hand, where the reference point shifts from individuals and families to an institutional-centric focus, then the risk of restriction of basic freedoms becomes real causing people to live in fear of the state. European historic fiascos are all associated with the failure to recognise this essential issue. Sometimes central decisions are taken which might apply in some circumstances but not in others. Legislators can make mistakes because the legitimate interests of some groups are not represented and therefore the full range of possible circumstances, to which a law will be applied, has not have been fully taken into account. Certainly the Roma for well over half a millennium, have suffered as a result of this combination of central decision making and a lack of effective respresentation. Family, community decisions Within Roma communities many decisions are taken as family or community groups. Families can be represented by an elected member or by, for example, the oldest member or the head of the family in the form of the husband. This normally works to everyone's satisfaction. It can occasionally fail as a result of bias and one family being large than another, over-represented if you will. On many occasions decisions are taken on matters where someone has done something, not with ill intent, but which has harmed another or something whih belongs to someone else. In such cases some form of compensation is worked out. Parallels with Roma practice Broadly speaking, the legal forms within a constitution which parallel the Roma practice are tort law and juries. Tort Tort law, which is well-established in England for example, implicitly recognises that institutions and government can follow "legal procedures" but end up harming someone as a result. Tort law is there, at least, not to prevent harm but to compensate where someone has been unjustifiably harmed. This is a rational and practical view of the legal process of instututions and administrations. Even folllowing procedures they can harm people but are not immune from having to compensate those they have harmed. Juries Juries, again well-developed in England, are a process more aimed at avoiding harm resulting from judicial decisions. Juries are often applied to criminal cases and they have the role of deciding the facts of a case and therefore the verdict whereas the judge has the role of sentencing and deciding the substantive punishment in the case where the accused is found to be responsible for some crime. However, the jury also has the power to sense where a law is being misapplied or where the law itself is not appropriate to the circumstances (case) in question. Under such circumstances the jury can declare not guilty to nullify the law. Juries avoid harm resulting from inappropriate judicial process. Representation It can be forgotten that juries are a fundamental part of the constitutional defence of democractic representation even in the case of those countries which have "unwritten" constitutions. Ideally, there should be three tribunals in a parliamentary system general election parliament juries General elections The first tribunal is that of the people voting in a general election where people can elect whom they feel might represent their interests best and who, amongst other things, can be trusted to legislate and introduce laws. A general election is also that occasion in which the electorate can put out of power those who have not governed well and who have been poor legislators. Parliaments The second tribunal is parliament where the representative of the people go about the business of managing the affairs and interests of the people of a country including the drafting and passing into force, legislation. Juries The third tribunal, that of the jury of citizens, safeguards the freedom and interests of other citizens who have been accused, fairly or unfairly, of some misdeed and which is to be assessed and decided upon in a court of law. It is here that legislation is tested, no longer a theoretical product of committee room drafting and lobby interests but a real life event. Juries prevent arbitrary enforcement of laws both by biased judges or government. It is the jury who hear the evidence and arguments, it is the jury who sees the accusor and the accused, it is the jury who decides. Without the role of a jury it is possible for more and more legal decisions to be arbitrary and harmful to citizens. European codefied statutes and the erosion in freedom Today some 60% of national legislation is initiated by the European Commission and it enters Statutes where enforcement has no jury oversight, even in England. The Roma in England are a litmus test of the relative benefits of this form of European Law. During the last 40 years in England, for example, the range of arbitrary enforcements by magistrates and judges in jury-less sesssions, including confiscation of property, has increased for non-represented Roma. This is directly associated with the reduction in the role of jury power in civil areas in the UK and more specificallt the absense of juries in the process of appeals against enforcement under many "statutes". The weight of enforcement decisions, without juries, for the population as a whole, in terms of value of fines, loss of property and loss of freedom has also increased. The draft European Constitution The draft European Constitution will extend a Roman style (not Roma !) codified law structure to the whole of Europe. Unfortunately the draft makes no allowance for juries nor for judicial decision tort review and it makes no provisions for an independent judiciary. At the same time many so-called sovereign countries will shift in status from being national entities with mainstream populations to being minorities with no effective decision making power over their own specific affairs nor any protection offered by provisions such a juries and tort law. Hungary, for example, will move from being an entire sovereign state to a group of people making up less than one quarter of one percent of the population of the European Union. Many countries in Europe will become like the Roma, without protection. It is tragic to observe how people with greater freedoms, than they afford the Roma, do not themselves recognise the value of this freedom and are permitting it to be undermined. Need for change There is no doubt that to compensate for this there is a need to rewrite this constitutional document with regard to the development of a system which looks to the representation of all in a flexible manner so as to avoid the current trend towards a majority and effectively mob rule by an elite. Source: European Campaign for Jury Rights