Human Rights and Civil Liberties - Essay Example

Law: Human Rights Introduction “Human rights are foreign to no culture and native to all nations; they are universal.”1 Human rights have penetrated a great deal of the political preaching since the Second World War. While the fight for freedom from cruelty and despair is perhaps as old as humanity itself, it was the huge insult to human self-respect committed during that War, and the demand felt to avert such terror in the future put the human being back at the core and headed to the codification at the international point of human rights and basic freedoms. ‘Human rights’ and ‘civil liberties’ are actually those rights that for one rationale or another are considered as cardinal or essential to the individual, or group of individuals, who claim them. Thus, human rights and civil liberties are principally individual rights, arrogated by the individual or group of individuals as component of, and which link to, the arrangement of the individual in a planned state.2 The combined rights of society to harmony, safety or freedom from misdemeanor have not conventionally been classified as human rights or civil liberties, even though they will be powerfully confined by society by means of the conventional law, and can, in several cases connect individual human rights.3 According to (Gorman, 2003 & Harris, 2004)4 human rights and civil liberties “refer to individual benefits and enjoyment, for example the right to freedom of speech. Such rights are seen as inherent to our status as human beings – violations of them being considered as an affront to that status – and regarded as fundamental and in need of protection from arbitrary interference. Primarily couched in negative terms, they represent a notion of individual liberty and are usually given an enhanced status in each country’s constitutional arrangements, limiting the power of government to legislate or act in contravention of these liberties or freedoms.” These rights, or freedoms, are enclosed in both home and international official documents and even though there may be debates with regard to one right or claim being fundamental, these home and international official documents present a sensibly usual message. Therefore the legal organization of a state, and global accords, will try to defend rights like the right to life, the right to a fair trial and freedom of expression and peaceful assembly, the right to property. In the same way, fundamental wants like the right to food, shelter, clothing, and education will be considered as basic by most societies and fitted in the legal and constitutional system in some way. The reality that these freedom and rights are padded by international treaties backs the affirmation that they are considered, globally, as basic. Hence, for instance, the right to free speech and freedom of gathering will be considered as more vital than other reflections of individual liberty and self-reliance. Accordingly the right to dissent should usually take priority over the ‘right’ to shop in a region free from demos. Even though the latter interest might under certain situations, supersede our fundamental right, it cannot be argued that the right to shop has a basic grade and thus, suitable to be included any domestic or international list of rights.5 Human Rights and Law Since time immemorial human rights has sprung up from a perspective of poetic imperative mood in international dealings to one of reluctance and doubt. Instead of implanting themselves as indisputable factors in a conception of “good governance” with universal application, human rights are questioned once again. At one stage it looks that there is danger of human rights being transformed from normal to exceptional resulting in creation of space in the international/domestic political area merely when all other concerns in the name of protection have been quenched. While at another point the expression of human rights is becoming elastic which actually stretches beyond its restrictions.6 Thus we can question as to whether human rights are experiencing a situation of confidence (Tom Campbell, 2006, 204).7 One of the most important factors of this crisis is the basic vagueness with regard to the nature of human rights. The phrase “human rights” is applied with great regularity and there is a general theory that “we know them when we see them” or possibly more suitably when we see them harmed. Thus when we try to clarify and find a suitable definition it becomes all the more complicated. In the words of J.W. Harris (2004, 428-56)8 “When the surface rhetoric is scraped away, however, matters become obscure. Trying to clarify the concept, to provide a definition that will help direct action, seems to be a task to be ‘shyly left to one side.’ Harris (2004, 428) provides an overview of human rights invocations. He observes that, despite the frequent references to human rights issues, very little modern human rights discourse is available, and suggests that certain scholars misconceive human rights in the same way as they do mythical beasts. He discusses six propositions on the subject of human rights, in terms of: (1) the minimum human rights idiom; (2) strictly correlative rights; (3) domain rights; (4) the distinction between human and natural rights; (5) the concept of moral truth; (6) background rights; (7) the right to life; (8) the time-frame for the existence of rights; (9) the conventional and ethical dimensions of rights existence; (10) measures for protecting rights; (11) enforcement; (12) protection against torture; (13) socio economic rights; (14) universality and brotherhood; (15) dignity, autonomy and equality; and (16) cultural imperialism. The crisis of not finding an answer to the question as to what are human rights is deepened with the continuous admonishers of ungoverned infringement and agony in the world. Betrayal of human rights takes place when State officials and politicians justify their policies when they pursue certain decisions without actually looking at its applicability. Consequently torture becomes a flexible term, habeas corpus is open to discussion, and “security damage” is not suitable of grave political and lawful indication. For example in the UK in a space of a week in December 2004 a person can be treated to Court rulings on potential torture in Iraq, as in (Al Skeini and others)9, prejudice against the Roma in migration rule, (R. v Immigration Officer, 2004)10 and violation of elementary rights of detainees held under anti-terrorism legislation in Belmarsh prison [A (FC) and Others]11. All these cases mentioned are an indication of the strong capability of the law to preserve human rights in the UK. The cases at the same time more strongly prove the depth and strength of anti-human rights exercises all through our own system. In the above case it has been held that “there is no European or other authority to support the Attorney General's submission. On the other hand, the Council of Europe is the body to which the states parties to the European Convention belong. ….. These materials are inimical to the submission that a state may lawfully discriminate against foreign nationals by detaining them but not nationals presenting the same threat in a time of public emergency. What cannot be justified here is the decision to detain one group of suspected international terrorists, defined by nationality or immigration status, and not another.” The flaw in absurdity as a view for defending people against prejudice can be established by the famous court case with reference to the extensive bar on homosexuals in the armed forces. An application for judicial review was brought before the Human Rights Act and it was enacted. In the home legal system, both the Divisional Court and the Court of Appeal found it ineffective to award the application (R v. Ministry of Defence)12. There was proof before the courts that the scrutiny of senior members of the armed forces was that the interdict was required for causes of military strength. Although the courts accepted the human rights backdrop they found not capable to embrace that the ban was illogical and so the appliers had to adopt the well-trodden route to Strasbourg. There they were victorious. The European Court of Human Rights held that “not only had there been a violation of Article 8 (the right to respect for private life) because the ban was excessive and disproportionate, but also that there had been a violation of the right to an effective remedy in Article 13, because the standard of review applied by the domestic courts was too low to give the protection to Convention rights which is required.” Even though the Court did not detect an infringement of Article 14, the equity proviso in the Convention, this was merely since it did not require covering it in the brightness of its other findings (Smith and Grady v. United Kingdom)13. It is obvious that if not the Court would have detected a violation of Article 14 since there was obviously favoritism which the Court did not believe was impartially reasonable and balanced. “If there was any single case which demonstrated the need for the Human Rights Act it was that one.” In case law applies a suspect classification then the courts should be shrewd to see that there is as stiff a fit as feasible between the capacity of the legislation and the range of the apparent reason. If not done so then there is always a danger that, how much ever the action is in good faith and that prejudice is unintentional, the state will give up a detested minority for the apparent benefit of the majority. Equality analysis renders a thorough analytical model for what might differently be supposed to be merely political decisions not fit for judicial intrusion. Apart from this discipline of equality is reliable with the autonomous arrangement of our society. It provides the courts with a constructive role in defending fundamental rights without trespassing on the strictly political function which is the responsibility of the government and of Parliament. What the courts can and should do is that they should stand up for the stable values of our society, which contain the principle of equality. As Lord Steyn stated in his address on 2 October 2003 in memory of Chief Justice Dickson in Canada: “A core characteristic of a constitutional democracy is the protection it offers to the rights of individuals against the majority view as reflected by an elected government. In our new constitutional order Parliament itself has placed this duty on the courts. It permits judicial review of Acts of Parliament. … The courts may not abdicate their responsibilities by developing self-denying constitutional limitations on their powers.” The case of A v. Secretary of State for the Home Department14 was related to confinement without assessment of suspected international terrorists. The Court had to look at the validity of the UK’s disparagement from Article 5 of the ECHR15 under Article 15, which allows derogation during war or other public crisis intimidating the life of the nation. Lord Woolf CJ referred to an important American case from 1949: “The vice involved in discrimination was well identified by Jackson J of the United States Supreme Court in 1949: “Equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.’ Railway Express Agency Inc v New York16” On the other hand, Lord Woolf while analysing the unfairness part of the dispute in the case of A itself, alleged that Special Immigration Appeals Commission had drifted in resolving that there was bias as between British citizens, who cannot be locked up on the certificate of the Secretary of State, and foreign nationals, based on the conditions laid down in section 23 of the Anti-terrorism, Crime and Security Act 2001. “47 … the position here is that the Secretary of State has come to the conclusion that he can achieve what is necessary by either detaining or deporting only the terrorists who are aliens. If the Secretary of State has come to that conclusion, then the critical question is: are there objective, justifiable and relevant grounds for selecting only the alien terrorists, or is the discrimination on the grounds of nationality? As to this critical question, I have come to the conclusion that there are objectively justifiable and relevant grounds which do not involve impermissible discrimination. The grounds are the fact that the aliens who cannot be deported have, unlike nationals, no right to remain, only a right not to be removed, which means legally that they come into a different class from those who have a right of abode.” This analysis is extraordinary. This means that outsiders can not only be governed in the background of immigration check but also exterior to that background since they have no right to be here in the first place. But Article 5 renders that “everyone” has the right to freedom. Lord Woolf’s analysis looks to hint that that would be allowable because a foreign national has no right to be here, so whilst they are here, they can not protest that their Convention rights are being intervened in a prejudiced way. In a way Human rights have turned what Costas Douzinas17 terms ‘the lingua franca of the New Times’. Ronald Dworkin’s18 assault on legal positivism is different. He does not submit a decisive moral test for lawful soundness; he confesses with positivists and admits the fact a given rule has been posited by a lawfully distinguished source can make it a decree of the system. As an alternative, he argues for an obligatory link between law and morals by testing the character of legal analysis. Human Rights as Ideal Moral The capability of human rights to operate as an ethical model and simultaneously as a profoundly sensible political instrument may be tormenting to the scholastics but it answers for the continuous clasp the idea has pulled off to preserve on global affairs. This has been more noticeable in the final historical phase that is the post Cold war period in which we are still immersed. The period of Ronald Reagan’s’ administration dominated the 1980s and it adopted President Carter’s human rights advance to world affairs and adapted based on its own needs. Thus it emphasized democratic freedom and personal freedom as the indispensable properties of the idea and spreading these to pressurize its enemies. The strength of the US binder to these goals is proved, its assistants say, by the readiness of Washington to interfere in other states, bringing down governments by military action to attain freedom and liberty for the previous victims of oppression (Kagan, 2007). Fair Balance Marc André Eissen remarked in 1993 that “proportionality does seem to play an important and growing role in the case-law of the Strasbourg Court” (Eissen, 1993, 145).19 John Joseph Cremona20 stated about the problem of proportionality as follows in 1995: “An important principle, which, though nowhere in the European Convention on Human Rights mentioned in express terms, permeates the whole of its fabric, is that of proportionality. Essentially this is but another facet of the concept of balance, and balance is very much at the centre of the whole subject of the protection of human rights, there being a sort of inbuilt balancing mechanism in the whole of the structure of the Convention”. While the spotlight on the edge of approval is definitely pertinent, it should not surpass the balance principle since, as professor Frowein has remarked, “The way necessity is established cannot be understood without discussing the difficult issue of the margin of appreciation” (Frowein, 1990, 345).21 Conclusion No matter what the causes, equality has been a deserted asset in constitutional law. As Lord Woolf put it eloquently in his recent lecture in Australia: “The real test of the [Human Rights Act] arises when individuals or minorities attract the antagonism of the majority of the public, when the tabloids are in full cry. Then, the courts must, without regard to their own interests, make the difficult decisions that ensure that those under attack have the benefit of the rule of law. At the heart of the HRA is the need to respect the dignity of every individual by ensuring that he or she is not subject to discrimination.” Where prejudice against a minority is referred, amounting to a violation of article 14 rights, the courts are permitted to entail to be fulfilled that a suitable and coherent rationalization for the variation in treatment has been made out. It is, as Buxton LJ has emphasized, “a matter involving rights of high constitutional importance where the courts are equipped to arrive at a judgment. It is indeed a classic role of the courts to be concerned with the protection of such minority rights.” “Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others. Social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged and (b) attach to the offices and positions open to all under conditions of fair equality of opportunity.22” The significance of human rights, the tenet of law and democracy to constancy and combined security has been documented in the OSCE from the very beginning, having been confirmed in the 1975 Helsinki Final Act. According to Stoudmann (2002, 1-2)23 “This reflects the experience that the root causes of conflict and instability can often be found in violations of human rights. It was the deterioration of the human rights situation; in particular the contempt for fundamental freedoms and individual rights that led to conflicts such as the one in Kosovo, and turned Afghanistan into a breeding ground for terrorism, to cite just two recent examples.” Bibliography 1. Costas Douzinas, 2002. ‘The End(s) of Human Rights’ 26 Melbourne University Law Review 445, 453. 2. Cremona, 1995. The Proportionality Principle in the Jurisprudence of the European Court of Human Rights, p. 323. 3. Dworkin, 1997. Taking Rights Seriously, Cambridge, MA: Harvard University Press. 4. Eissen, 1993. The Principle of Proportionality in the Case-Law of the European Court of Human Rights, The European System for the Protection of Human Rights p.145. 5. Frowein, 1990. The European Convention on Human Rights as the Public Order of Europe, Collected Courses of the Academy of European Law, Vol. I, book 2 p. 345. 6. Gorman, 2003. Rights and Reason: An Introduction to the Philosophy of Rights (Acumen Publishing). 7. Gerard Stoudmann, 2002. Organization for Security and Co-operation in Europe, April, Vol. IX No. 4, p.1-2 8. Harris, J.W. 2004. Human Rights and Mythical Beasts 120 LQR 428 -456 9. Tom Campbell, Rights: A Critical Introduction (2006) at p.204. 10. Gearty: 2001. ‘Democracy And Civil Liberties: A Reappraisal’ on vital “human” rights 11. The Liberalism of Fear’ in N L Rosenblum (ed), Liberalism and the Moral Life (Cambridge, Mass: Harvard University Press, 1989). 12. ‘Two concepts of liberty’ in Four Essays on Liberty (Oxford: Oxford University Press, 1969). 13. R Kagan, 2007. Dangerous Nation: America’s Place in the World from its Earliest Days to the Dawn of the 20th Century (Vintage Books, London,) 14. Rawls, 1972. A Theory of Justice argues for a hypothetical social contract: Read More