|Preamble section 3:|
|Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,|
Concepts and Ideas
The recital states that if man is not to be forced or compelled to resort to rebellion as a means of assistance or safety against tyranny and oppression, human rights should be protected by the rule of law. To rebel against tyranny and oppression means to organize an armed resistance against a ruler or government that engages in arbitrary or oppressive exercise of power.
The concept of rule of law has three meanings. First, it connotes the supremacy of law over arbitrary power. Second, it proclaims equality before the law, meaning that no one can be exempt from obedience to the law. Third, the rules stated in the Constitution are not regarded as the source but rather the result of the individual rights of the people (Reesor). In this sense, the concept of the rule of law is the opposite of tyranny and oppression. While not conceding an express right to rebellion, the recital indirectly tells us that individuals who are aware of their inherent rights will not accept being oppressed or tyrannized (Morsink).
Rights to Rebellion
The recital is of a special character since the very nature of rebellion is an idea more traditionally associated with a group of people rather than with individuals. This notion is exemplified by Thomas Paines statement that a Nation has at all times an inherent indefeasible right to abolish any form of Government it finds inconvenient. Paines The Rights of Man defended the French Revolution in reply to Edmund Burke's Reflections on the Revolution in France. Its basic premises were that there are natural rights common to all men and that only democratic institutions are able to guarantee these rights. According to Cassin, the right to rebel was based on the noble principle of 1789 and also on the situation created by recent events." (Morsink, 310)
Rule of Law, Democracy and Constitutionalism
The question whether rebellion should be permitted is an old debate in democratic theory. In this respect, the third recital has close connections to the concept of democratic rule and the theory of government stated in Article 21. Democracy generally means government by the people; it refers to that form of government in which the sovereign power resides in the people as a whole, and is exercised either directly by them (as in the small republics of antiquity) or by representatives elected by them. In modern use, democracy is often defined more vaguely as a social state in which all have equal rights, without hereditary or arbitrary differences of rank or privilege (Oxford English Dictionary).
The link between democracy, individual rights, and the rule of law is to be found in the broader concept of constitutionalism. Constitutionalism is a political condition in which the constitution functions as an effective and significant limit on government. Where constitutionalism characterizes a regime, the constitution is antecedent to government, and those who govern are constrained by its terms. The constitutional rules of such a regime are not easily changed even when they are obstacles to policies supported by leading politicians. Thus, constitutional government is said to be limited government. (Sartori (1956) in Social Science Encyclopedia)
Peter Danchin, Columbia University