Constitutional Protection Of Unarticulated Fundamental Rights

The protection of unarticulated fundamental rights is the natural extension of the theory of fundamental rights,as well as the logical consequence of the constitutional function of protecting fundamental rights.The philosophical base of the constitution would be undermined if the constitutional protection of unarticulated fundamental rights is denied.In that case,the common view of recognizing as well as trying to protect unarticulated fundamental rights has already been established.The system of rights prescribed in the constitution should open to new allegations of rights as well as recognize them,along with the continuous variation of the society in the future. However,limited by cognition and legislative technology,the protection of unarticulated fundamental rights has actualized through the clause of generalized rights.At the beginning of the frame of the constitution in this country,fundamental rights had not been affirmed as the core term of the text of the constitution.The framers rejected to the concept that fundamental rights should be treated as the starting point as well as the destination of the constitution,denied the binding force of fundamental rights to the power of the state,which,to some extent,resulted in the fragility of the protection of fundamental rights.Although the enumeration of fundamental rights increased in some amendments afterwards,such a drawback has never been conquered.In the year of 2004,the clause of "the state respects and protects human rights" was written in the constitution,which is supposed to be the establishment of the concept of "the core nature of fundamental rights" as well as the reversion of the concept that fundamental rights should be treated as the nature of the constitution."Human rights" are attributed to general rights.The clause of "the state respects and protects human rights",as the clauses of fundamental rights,is attributed to normative force.The channel to extend and accommodate new rights would be established if such a clause is construed as a clause of general rights.The clause of "the state respects and protects human rights" is the core basic clause to regularize and construct the system of fundamental rights of the constitution in this country.Whereas,it will arm the judicial protection of fundamental rights with strong penetrating ability to interpret in the future.The clause of "the state respects and protects human rights" has substantive function of derivation.Unarticulated fundamental rights may be interpreted from this clause.Meanwhile,combined with the articulated fundamental rights,the preamble of the constitution,the general principle of the constitution,the basic tenets of the constitution as well as the international human rights norms,through the constitutional interpretation and reasoning,unarticulated fundamental rights may be interpreted from this clause.Hence,the self-contained protection of rights would be established,avoiding amending the text of the constitution frequently.