Human Rights and the Constitution of Bangladesh (International Law of Human Rights)
Human rights are the rights which are possessed by all human beings, irrespective of their race, caste, nationality, sex, language etc simply because they are human being. As pointed out by Fawcett, “Human rights are some basic rights they are those, which must not be taken away by any legislature or any act by government and which are often set out in a constitution”. As natural rights they are seen as belonging to men and women by their very nature. Another way to describe them would be to call them ‘Common rights’ for they are rights which all men and women in the world share, just as the common law in England. for example, was the body of rules and customs which unlike local custom governed the whole country. As pointed out by Lauterpacht since human rights are not created by any legislation, they resemble very much natural rights. Any civilized country or body like United Nations must recognize them, they cannot be subjected of the process of amendment even.
The relation between the articles of United Nations Declaration of Human rights and the constitution of Bangladesh has cited in this topic.
CONCEPT OF RIGHTS, HUMAN RIGHTS AND FUNDAMENTAL RIGHTS
Concept Rights: Right means a claim of some interests adverse by an individual or a group of individuals which has either moral or legal basis, and which is essential for his development in the society.
Laski, “Every state is known by the rights that it maintains.” He also added that rights, in fact, are those conditions of social life without which, no man seeks in general, to be himself at his best.
Gilchrist, “Rights arise from the fact that man is a social being”
Bosanquetm, “A right is a claim recognized by the society and enforced by the State.”
T.H.Green, “Without society conscious of common moral interests, there can be no rights.”
Barker, “Rights are those necessary conditions of the greatest possible development of the capacities of all individuals, which are secured and guaranteed by the states.”
Salmond, “Right means an interest recognized and protected by the law, respect for which is a duty, and disregard of which is a wrong.”
Holland, “Right means a capacity residing in one man of controlling, with the assent and assistance of the state, the actions of others.” According to Salmond a right involves (I) a person invested with the right, or entitled; (ii) a person or persons on whom that right imposes a correlative duty or obligation; (iii) an act or forbearance which is the subject-matter of the right; (iv) an object, that is, a person or thing to which the right has reference; and (v) a title or reason for the right becoming vested in the owner. Rights are perfect and imperfect; positive and negative; real and personal; proprietary and personal; in repropria and in re aliena; principal and accessory; and legal and equitable.
Kinds of Right
Rights are primarily divided into two kinds except those as divided by Salmond:
i) Moral rights: Moral rights are those rights which have their basis on the rule of natural justice and the violation of which results in moral wrong~
ii) Legal rights: Legal rights, on the other hand, are those rights which are recognized by the positive law of the country and can be claimed on legal basis and the violation of which results in legal wrong.
The word “human” evolved from Latin word “humanus” which means “any view in which interest of human welfare is central.”
‘Human rights which are typically called natural rights or rights of man are those rights that are inherent in human person and without which a man can not live as human being. Since human rights came with birth and every person is entitled to them because of the very fact that he or she is a human, they are applicable to all people throughout the world irrespective of their race, sex, colour, language, religion, political or other opinion. Human rights are concerned with the dignity and worth of the individual.
It is Important to mention the comment of Sridath Ramphal as to ~ human rights, “they have their origin in the fact of the human condition, and because they have, they are fundamental and inalienable. More specifically, they are born not of man but with man.”
Human rights, therefore, have two inherent characteristics —
(i) universal inherence, and
(ii) Inalienability. But the term “inalienability” does not apply to all human rights, e.g. rights to property.
Everywhere human rights are being violated; there are some human rights which can be taken away by the State e.g. right to property, freedom of expression, right to assembly etc. on the ground of emergency or for the (so called) welfare of the citizen.
The truth is that the concept of human right is not at all a legal concept; it is purely a matter of international law. If a particular human right is recognized by a positive law of a State and is maintained through enforcement machinery only then it becomes legal and enforceable right. It is, therefore, better to describe human rights as universal moral rights. In this regard Article-2 (7) of UN charter may be adduce, “Nothing contained in the present charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present charter.
Human Rights in International Arena
The Charter of the United Nations for the first time internationalized human rights and fundamental freedoms. Besides Islamic States, human rights law initially developed as a part of constitutional law of the individual States. Although some scholars claimed to be able to trace a rudimentary concept of human rights back to stoic philosophy of classical times via the natural law jurisprudence of Grotius and the jus natural of Roman law, it seems evident that the origins of the modern concept are to be found in the English, American and French revolution of the seventeenth and the eighteenths centuries.Magna Carta of 1215, the petition of Rights of 1628, the Bill of rights of 1688 (1689), the Act of Settlement, 1701, the American Declaration of Independence, 1776, the American Bill of Rights, 1791, the French Declaration of Rights of Man and of Citizen, 1789, were milestone in the road in which the individual acquired protection against the capricious acts of kings and despots and the right to lead a free life in a free society.
The UN Charter was adopted and signed on 26 June, 1945, by the representatives of 50 states participating in the San Francisco Conference, and later by a fifty-first State, Poland, which had been unable to attend. It is possible to speak that of the advent of systematic human rights protection within the international system is only with the entry into force of the United Nations Charter on 24th October 1945. There are seven specific references in the charter of human rights and freedom but no where does it catalogue or define them. The specific references are mentioned, in the preamble of the UN Charter and in article-1(3), article-13 (1) (b), article-55 (c), article-62 Para-2, article-68 and article-76(c) of the Charter.’ It is pertinent to mention that article-10, article-56 and article-7 I of the Charter also impliedly states for the promotion and protection of Human Rights.
The Universal Declaration of Human Rights (UDHR) adopted on December 1948 gave the enumeration of “Human rights and fundamental freedoms” which was not categorized. The Universal Declaration proclaims two broad categories of rights: civil and political rights on the one hand and economic, social and cultural rights on the other hand. Article-3 to 21 deals with civil and political rights while articles 22 to 27 deal with economic, social and cultural rights. The philosophical postulates upon which the Declaration is based are laid down as “All Human beings are born free and equal in dignity and rights”. The Declaration is based on the Principle of equality and non-discrimination as regards the enjoyment of all the rights and freedoms set forth in it for all without distinction as to race, sex, colours, language or religion.’ Everyone as a member of society, is entitled to the economic, social and cultural rights which are indispensable for human dignity and the free development of personality, is another cornerstone of the Declaration.Thus the concept of human rights has got its formal and categorical shape from the UDHR adopted by the UN in 1948 where twenty five rights have got their place. These 25 rights are mostly referred to as human rights. Of theses 25 rights 19 are civil and political rights and 6 are economic, social and cultural rights. According to the Declaration the rights and freedoms enumerated therein would constitute for the moment the catalogue of rights and freedoms to which reference is made in the Charter. It is accepted that the Declaration, as distinct from the two covenants, is formally not a legally binding documents.
The ICCPR and the ICESCR, 1966 The ICCPR and the ICESCR on the assumption that UDHR would not impose sufficiently binding obligations, designed to become legally binding on the UN’s Member States, and was adopted in 1966. The division into of the single UDHR catalogue reflected certain ideological and political differences between two major groups of negotiating States. The division has also been supported by the argument that the grant or concession of most of the rights defined in ICCPR lies in the simple power of national government which are able if they wish to protect or guarantee them by legislation or administrative action whereas most of the rights described in ICESCR are said to depend for their realization on the progressive economic development of a country, which may take many years and does not lie extensively with in the power of its government.
The ICCPR contains 53 article whereas 27 articles defining and circumscribing in much greater detail then UDHR, a variety of rights and freedoms, and imposing absolute and immediate obligation on each of the State parties to-“respect and ensure” there rights to all individuals within its territories and subject to its jurisdiction. The instrument also establishes a Human Rights Committee (HRC).
The ICESCR contains 31 articles whereas 15 articles defining a set ofrights largely derived from UDHR. Unlike ICCPR, each of the state party only undertake to take steps … to the maximum of its available resources… with a view to achieving progressively the full realization of the rights recognized… by all appropriate means. 1CESCR contains no provisions for interpretation and application; instead, it provides a reporting procedure.
Three Generations of Human Rights
The varied perceptions of human rights have also led to claim that there are “three generations” of human rights. The so called “first generation” of human rights is represented by civil and political rights and can be found in treaties such as ICCPR and ECHR etc. Theses rights have been given priority by the western states. The Social, economic and cultural rights are equated with the “second generation” of human rights. These rights have been canvassed very strongly by the socialist countries and by the developing world.
It is generally viewed that civil and. political rights could be implemented immediately whereas economic, social and cultural rights can be introduced only progressively.
In the last quarter of the twentieth century another generation of human rights, the third generation of rights emerged. This set of rights included collective group rights and such rights as the right to development, the right to self-determination and the right to environment.
The term fundamental right is a technical one, for when certain human rights are written down in a constitution and are protected by constitutional guarantees they are called fundamental rights., They are called fundamental tights in the sense that they are placed in the supreme or fundamental law of the land which has a supreme sanctity over all other law of the land.
The object of enumeration of fundamental rights in a constitution is not to make them unalterable in any way but main object is that they can not be taken away by ordinary process of law making. They are placed beyond the reach of the executive and legislative to act violation of them.
In Jibendra Kishor vs. The Province of East Pakistan, the Supreme Court of Pakistan held “The very conception of a fundamental right is: that it being a right guaranteed by the constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of a constitution to say that a right is fundamental but that it may be taken away by the law.” The same view was reaffirmed by the Pakistan Supreme Court in State vs, Dosso and the Indian Supreme Court in Golak Nath vs. State of Punjab held-
“The declarations of the fundamental rights of the citizens are inalienable rights of the people… The constitution enables an individual to oppose successfully the whole community and the State to claim his right”
The idea of protection of fundamental rights can be best understood from the American Declaration of Independence, 1776 where it is stated-”That all men are created equal, that they are endowed by their creator certain inalienable rights, that among these are life, liberty and pursuit of happiness; that to secure these rights government are instituted among men deriving their just powers from the consent of the governed.; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it and to institute a new one.”
The idea of protection of fundamental rights was also mentioned in the Bill of Rights, 1689, French Declaration of the Rights of man and of Citizen, 1789 etc. This idea was primarily derived from various religious verses especially in the Holly Quran in the medieval period.
Article-8 of the Universal Declaration of Human Rights, 1948 states- “Everyone has the right to an effective remedy by the competent national tribunal for acts violating the fundamental rights granted him by the constitution or by law.”
To this respect the Pakistan Supreme Court in Moudoodi vs. Government held that, “The basic principle underlying a declaration of fundamental rights in a constitution is that it must be capable of being enforced not only against the executive but also against the legislature by judicial process.”
Fundamental rights in the constitution of Bangladesh
Part III (from article-26 to 47A) of the Constitution of the People’s Republic of Bangladesh deals with fundamental rights.
In fact, 18 fundamental rights have been enshrined in our constitution from article 27 to 44. All of these rights are civil and political rights. These 18 fundamental rights may be firstly divided into two groups:
a. Rights granted to all persons- citizens and non-citizens alike. These rights are enumerated in articles 32, 33,34,35,41 and 44 of the constitution.
b. Rights granted to citizens of Bangladesh only. These are 12 in number enumerated in articles 27, 28, 29, 30, 31, 36, 37, 38, 39, 40, 42 and 43.
The Bangladesh constitution has imposed some restrictions in enjoying some fundamental rights. On the basis of this restriction all fundamental rights enumerated in the Bangladesh constitution may be classified into following three groups:
A. Absolute Rights
Parliament can not impose any restrictions over the following rights except as provided in the constitution:
1. Equality before law (art.27)
2. No discrimination on the ground of race, sex, caste, religion or place of birth; women shall have equal tights with men and special provisions for women, children or backward section of citizens; (art. 28)
3. Equality of opportunity in public employment subject to some restriction on religious institutions or office or employment suitable for members of one sex or special provisions for any backward section of citizens; (art. 29)
4. Prohibition of accepting foreign titles, honour, award or decoration without the approval of the President; (art.30)
5. Safeguards as to arrest and detention; every person shall have right to consult and defended by a legal practitioner after arrest and he must be produced before nearest magistrate within twenty four hours of such arrest excluding the time necessary for journey from the place of arrest; These provisions is not applicable to an alien enemy or a person who is arrested under any law providing for preventive detention; No person shall be in custody for more than six months under any law providing for preventive detention without the report of an advisory board consisting of 3-members (2-judges of the Supreme Court and 1-senior servant of the Republic); the authority making an order of preventive detention shall communicate to the detenu such grounds for detention except in the cases if it is against public interest; (art.33)
6. Prohibition of forced labour except by persons undergoing lawful punishment for a criminal offence; or required by any law for public purposes; (art. 34)
7. Protection in respect of trial and punishment; No retrospective affect of any law against a person; no double jeopardy i.e. no prosecution and punishment twice for the same offence; right to speedy trial by impartial and independent court; no person shall be compelled to be a witness against himself; no person shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment; (art.35)
8. Enforcement of fundamental rights either by the High Court Divisions under Article-102 or by any Court authorized by any enactment of Parliament; (Art.44)
B. Rights on which reasonable restriction can be imposed
1. Freedom of movement (art. 36)
2. Freedom of Assembly (art.37)
3. Freedom of Association (art. 38)
4. Freedom of thought and conscience and of speech and press (art. 39)
5. Freedom of religion (art.41)
6. Protection of home and correspondence (art 43)
The grounds for imposing restriction on these rights have been laid down by the respective sections:
1. in the public interest (art. 36)
2. in the interest of public order or public health (art. 37)
3. in the interest of public order or morality (art. 38)
4. in the interest of the security of the State, friendly relation with foreign State, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence (art. 39)
5. in the interest of public order or morality (art. 41)
6. in the interest of the security of the State, public order, public morality or public health. (art. 43)
Parliament can impose reasonable restriction on the above mentioned fundamental rights.
C. Fundamental rights which have been practically left to the legislature.
In respect of the following rights parliament can impose any restrictions it pleases.
I. Right to protection of law (art. 31)
2. Protection of right to life and personal liberty (art. 32)
3. Right to lawful profession, occupation, trade or business (art. 40)
4. Right to acquire, hold, transfer or otherwise dispose of property (art. 42)
A court cannot examine the reasonability of the restriction; it can see the following two things only:
I. if the law imposing restriction is a valid one;
II. if the right has been infringed or abridged in accordance with the law.
It is important to note that during emergency under Part-IXA (section-141C) of our constitution president may on the written advice of the Prime Minister issue a proclamation suspending the enforcement of the fundamental rights during which the proclamation is in force. But in time of Non-party Caretaker Government no such permission or approval from the Chief adviser is necessary to declare an emergency by the president.
When there is a violation of fundamental rights as mentioned from article 26 to 44 of the constitution and when there is no other equally efficacious remedy than one can apply under article-102 for the implementation of those rights to the High Court Division through writ petition.
• Writ jurisdiction: The term “Writ’ is not properly defined anywhere. Initially it was the royal prerogatives and was exercised by the king or queen as the fountain of justice. The Constitution of the Peoples Republic of Bangladesh provides 5 kinds of Writ although their name is not specifically used i.e.
(a) Writ of Habeas corpus i.e. have the body before the court i.e. if any person is arrested and taken in custody illegally then the court will direct the govt. or concerning authorities to produce the person before the court to determine whether the person is taken in custody without lawful authority or in an unlawful manner;
(b) Writ of Mandamus i.e. to issue a Rule directing the govt. or concerning authorities to do something which he/ she is bound to do;
(c) Writ of Prohibition i.e. to issue a Rule directing to the govt. or local authorities to~ refrain or abstain from doing something which he/ she is not entitled to do,
(d) Writ of Certiorari i.e. to quash the proceedings which is done by the govt. or local authorities exceeding their jurisdiction and in violation of the principles of natural justice;
(e) Writ of Quo-Warranto i.e. to show cause under which authority he is doing so or holding the posts.
When there is a violation of fundamental rights as mentioned from article 26 to 44 of the constitution and when there is no other equal efficacious remedy than one can apply under article-102 for the; implementation of those rights.
Only an aggrieved person can apply for writ of prohibition, mandamus and certiorari and anyone can apply for writ of habeas corpus and quo warranto.
A writ can be filed either against the government or against the local authorities or any person performing any functions in connection with the affairs of the Republic.
The High Court Division shall have no power to pass any interim order or other order in relation to any law to which article-47 applies. Article-47 states compulsory acquisition, nationalization or requisition of any property or the control of management etc thereof whether temporarily or permanently by passing any law. in the Parliament for the effective implementation of the fundamental principles of state policy.
The right to file a ‘writ’ may be suspended under the emergency period as derived from articles 141A, 141B & 141C of our constitution under Article 102(1) a writ may be filed against any person for the enforcement of fundamental rights. A writ can be filed under Article 135 of our constitution for dismissal of a govt. servant. if provisions of any law are violated and no equally efficacious remedy is available, a writ may be filed. Even in case of the violation of fundamental rights by any individual a writ can be filed against him under article-102(I). But fundamental rights are rarely violated by an individual.
Distinction between Human Rights and Fundamental Rights
Firstly, all fundamental rights are human rights but all human rights are not fundamental rights; Fundamental rights are those of human rights which are placed in a written constitution. Human rights are therefore, are the whole of which fundamental rights are a Part.
Secondly, the sources of a fundamental right are the constitution whereas the source of human rights is the international law.
Thirdly, fundamental rights have territorial limitations i.e. they have no application as fundamental rights outside the territory of a particular state. But human rights have no territorial limitations; they have universal application.
Fourthly, fundamental rights are protected by constitutional guarantees and can be enforced through State mechanisms; but there is no effective enforcement machinery for human rights.
Fifthly, fundamental rights are largely applicable to the citizens while human rights are universally applicable to all human being.
It is pertinent to mention that human rights are sometimes used as fundamental human rights or human rights and fundamental freedoms but the terms are not properly defined anywhere. For academic interest we can consider fundamental human rights or human rights and fundamental freedoms as those rights which are most essential for a human being. In our constitution
Article-11 states that the Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed (and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured).
EVOLUTION AND DEVELOPMENT OF HUMAN RIGHTS
The catalyst to which we owe the Universal Declaration of Human Rights and indeed much of the new international law of Human Rights which has so radically changed the theory and practice of the law of nations was the gross violations of human rights that were committed in and by certain countries during and immediately before the Second World War. For it was these atrocities that fostered the climate of world opinion which made it possible for the San Francisco Conference to make the promotion of respect for human rights and fundamental freedoms “for all without distinction as to race, sex, language or religion”, one of the pillars on which the United Nations was erected and a stated purpose of the Organization. It was on these foundations that the new international law of human rights was built.
The international efforts made in the realm of human rights before the adoption of the UN Charter were not universal in nature. Besides Islamic States human rights law initially developed as a part of the constitutional law of the individual states. The classic doctrine of international law had no place for human rights at all. According to Oppenheim, “the so-called rights of man can not enjoy any protection under international law, because that law is concerned solely with the relation between states and can not confer rights on individual.”
Two overlapping propositions
Before 2nd world war, international lack of interest in human rights was often expressed in two overlapping propositions: (i) the individual is not a subject of international law; (ii) how a state treats its own inhabitants is its own concern or affair.
In ancient time the concept of human rights was scattered and originated through various religion.
The factors which influenced the development of human rights law in the medieval period are (a) Christianity, (b) Chivalry and (c) Islam.
(a) Christianity: The Judeo-Christian religion had proclaimed that all men were created in the image of God that all were the children of the same father and all were offered eternal life. This new doctrine had a far-reaching impact in formulating the status of an individual.
If all men were brothers to kill a man was a crime and there would be no more slaves. This concept was so revolutionary that it shook the foundation of the ancient society and contributed to bring down the tottering structure of the old system.
(b) Chivalry: Chivalry or knighthood played an important role in the development of human rights law regarding war,
(i) War had to commenced after a declaration concerning it,
(ii) Special status of those who carried a flag of truce;
(iii) Banning of certain weapons.
(c) Islam and Human Rights
Islam had played a very significant role towards the development of International Human Rights law. Human rights in Islam mean those rights which are granted by Allah and can neither be suspended nor abrogated as there is no higher purpose to which they are subservient. They are an integral part of Islamic faith.
In Islam the most relevant provisions concerning human rights and fundamental freedoms are as follows:
(i) Right to life: The Holly Quran declares human life as sacrosanct and Allah said, “Do not take life-which Allah made sacred, except just cause. If anyone slew a person unless it be a murder or for spreading mischief in the land, it would be as if he slew the whole people; And if anyone saved a life it would be as if he saved the life of whole people.” Al-Quran 17:33, 5: 55.
Again Allah said, “If any one is Slain wrongfully, I have given his heir the authority to demand Qisas or to forgive but let him not exceed the boundary in the matter of taking life.” Al-Quran 1733.
Hazrat Muhammad (PBUH) said in the farewell Hajj, “Three things of a Muslim are prohibited for another Muslim; his blood, his property and his reputation.” (Hadith: Bukhari and Muslim). Thus Islam ensures the security of life through imposing ban on killing man except on reasonable grounds.
(ii) Equality of all people: The foundation of the social system of Islam rests on the conception that all human beings axe equal and belongs to one universal brotherhood It announces that all men in the world have sprung from the same parents, (Adam and Eve), and therefore, are brothers and sisters and are equal in their statutes as human beings. Islam rejects all distinctions of birth, class, race, colour and language etc.
Allah, the almighty, has laid down in. the Holy Quran: “O mankind, we have created you from single pair of male and female and we have made you nations and tribes so that you may recognize each other.”
The prophet (PBIJH) has declared the principles of entire human being in the address on his farewell hajj as follows:
“No Arab has any superiority over non-Arab, nor does a non-Arab have superiority over a Blackman or the Blackman any superiority over Whiteman. You all are the children of Adam and was created from clay.”
(iii) Equality as to the status of woman: The almighty Allah said, “The woman are rairnent for you and you are raiment for them.” Islam places woman at the same level as men with respect to their right to property, honor, marriage, education etc. The holly Quran says, “Let the woman live in the same style as you live.” (65:5)
(iv) Right to wealth: In the Quran it has been stated, “Do not eat up your property among yourself in vanity.” It also states, “Do not squander your wealth among yourselves in vanity.” In the funeral pilgrimage the Prophet (PBUH) said, “Your lives and your properties and your honors are sacred to one another like the sacredness of this day of yours in this city of yours.” Islam has declared “Zakat!’ compulsory as its third pillar. In this context, the prophet (PBUH) said, “It will be taken from the rich and given to those in the community in need.”
(v) Right to personal freedom: In Muwatta of Imam Malik it was written, “In Islam no man may be arrested or imprisoned without justice.” Only two kinds of detention is permissible in Islam, (i) Under the Orders of the Court, (ii) For the purposes of investigation. The holy Quran explicitly says, “No one can bear the burden of another.”
(vi) Right to privacy or sanctity or security of Private life: The Holly Quran has laid down following injunctions, “Do not enter Houses other than your own without first announcing your presence and invoking peace upon the folk thereof.”
(vii) Freedom of expression: The almighty Allah in the Holly Quran says, “The believers, men and women, are protectors of one another, they enjoin what is just and forbid what is evil.”
(viii) Freedom of Association: The Holy Quran says, “Let there arise out for you a bend of people, inviting to all that is good, enjoining what is right and forbidding what is wrong. They are one’s to attain felicity.” (3:10). Again Allah said, “Be not like those who are divided amongst themselves and fall into disputation after receiving clear signs, for them is dreadful penalty.”
(ix) Freedom of movement: The Holly Quran said, “It is he who has made the earth manageable for you, so travel you through the track and enjoy the substance which he furnishes but unto him is the resurrection.”
(x) Freedom of religion: Allah says, “Let there be no compulsion in religion.”
(xi) Freedom of conscience and conviction: Islam recognizes the freedom of conscience and conviction of all human beings. The freedom of conscience and conviction includes the right to profess, practice and propagate one’s religion.
(xii) Right to participate in the affairs of the Republic/ state: The Holly Quran says, “Their (believer) affairs are (decided) by mutual consultation.” It also states, “And consults them (with the people) in matters of administration.” The true concept of democracy derives from these verses.
(xiii) Right to Education: The seeking of knowledge has been repeatedly encouraged in the Holly Quran by the words that one should “see”, “look”, “think”, “judge”, reflect etc. The prophet (SM) enjoined upon every Muslim to seek knowledge when he said, “Knowledge is incumbent on every male and every female.”
(xiv) Right to economic security: Islam recognizes the right to every person, irrespective of caste, creed and religion, to meet their basic economic needs like food, shelter, clothes, education etc. In respect of employment and earnings equal opportunities are open to all. Everyone is allowed to adopt any profession or service according to will and ability except in religious institutions. He will have full freedom to enjoy his earnings which will not be disposed from him though Confiscation or other coercive methods.”
The above mentioned rights will be ensured by the Court or State machinery and also will be conducted in the next world.
(d) Modern concept of Human Rights:
Modern concept of human and fundamental rights has taken shape during the long development of democratic society. Magna Carta of 1215. the Petition of Rights of 1628, the Bill of Rights 1688 (1689), the Act of Settlement 1701, the American Declaration of Independence 1776, the American Bill of Rights 1791, the French Declaration of Rights of Man and of Citizen 1789, were milestone in the road in which the individual acquired protection against the capricious acts of kings and despots and the right to lead a free life in a free society.
Magna Carta of 1215:
Magna Carla was in fact a treaty of peace between the king John of England and the wealthy landowners or barons in arms. The provisions of it were designed to ensure
a) The prohibition of imposing arbitrary taxation by the king without the assent of the Great Council and the prohibition of arbitrary seizure of the property by the Royal Officials.
b) Freedom of movements of the merchants with in the realm.
c) Trial by Jury etc.
Article-39 of the Magna Carla says that: “No freeman might be arrested, imprisoned, dispossessed, outlawed or exiled or harassed in any other way save by the lawful judgement of his peers and the law of the land provided a cause for democratic interpretation as applying to all persons.”
The petition of Rights 1628
It was declared by the Petition of Rights that-
a) No person was required to pay tax or benevolence without approval of parliament;
b) No person was to be imprisoned without cause shown to him -only the royal command being no sufficient cause;
c) No troop was to be Quartered in private homes without the consent of, and compensation to , their owners;
d) No commission for proceeding by martial was to be issued by the Crown.
The Bill of Rights 1688 (1689)
Though Magna Carta is often seen as the origin of liberties of the English citizen, it was not until the Bill of Rights that rules directed towards the protection of individual rights or liberties emerged. The Bill of Rights, which is described in its long title as, “An Act declaring the Rights and Liberties of the subject and setting the Succession of the crown.” was the outcome of the seventeenth century struggle of parliament against the arbitrary rule of the Stuart monarchs; passed after the enforced abdication of James-Il and the accession to the throne of William Ill and Mary II following the Glorious revolution of 1688.
The contents of the Bill of rights were as follows:
i) Suspending and dispensing of laws shall be illegal;
ii) Erection of royal commission and courts shall be illegal;
iii) Keeping or raising standing army in time of peace shall be illegal unless parliament agreed;
iv) Election of parliament shall hold frequently;
v) Parliament to enjoy full liberty to speech and debate.
It is important to note that the Act of Settlement also regarded as an instrument which helped to develop the concept of human rights in England.
The American Declaration of Independence 1776
The preamble to the American Declaration of Independence proclaimed for all human beings the two fundamental principles:
Firstly, “That all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”
Secondly, “That to secure these rights, Governments are instituted among men, deriving their just powers from the consent of the government. That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it.”
We find the following human rights elements in the document:
(i) Equality of Man;
(ii) Right to life, liberty and pursuit of happiness, and
(iii) Obligation of the state to ensure theses rights.
The American Bill of Rights 1791
The drafter’s of the US constitution influenced by Mason’s Virginia declaration (House of Representatives was set up according to this plan) included the protection of these minimum rights. This was affected by a number of amendments (10 amendments in a day) to the constitution.
First amendment: The rights which were protected by this amendment are:
(i) Freedom of Religion;
(ii) Freedom of the Press
(iii) Freedom of Expression and
(iv) Right to assembly.
Fourth Amendment: This amendment protects the rights of the individuals against unreasonable search and seizure.
Fifth Amendment: This amendment established the Rule against self-incrimination and right to due process of law.
Later on, the thirteenth amendment of the US constitution forbade the practice of slavery.
The French Declaration of the right of Man and of Citizen 1789
The French Declaration of the right of Man and of Citizen 1789 proclaims that, “Men are born and remain free and equal in rights” and that “the aim of every political institution is the preservation of the natural and imprescriptibly rights of Men. These rights are liberty, property, security and resistance to oppression.
The declaration further stated in particular:
“When a government violates the rights of the people; insurrection is for the people and for each section of the people the holiest of rights and most indispensable of duties.”
We find the following human rights elements in the document:
a) Equality of all men;
b) Right to liberty, property and security;
c) Right to resistance to oppression;
d) Freedom of thought and speech;
e) State obligation to ensure these rights.
Thus we can consider that although some scholars claim to be able to trace a rudimentary concept of human rights back to stoic philosophy of classical times via the natural law jurisprudence of Grotious and the Jus naturale of Roman law; it seems evident that the origin of the modern concept are to be found in the English, American and French revolution of the seventeenth and the eighteenth centuries.
Covenant of the League of Nations 1919
We will now focus our attention beyond national boundaries and begin with the League of Nations which after the end of First World War was established by the treaty of Versailles- 1919. The covenant did, however, contain two provisions (Article-22 and 23) that bear on the development of international human rights law. The league also played an important role in helping with the implementation of post world war-I treaties for the protection of minorities.
During the Second World War
In the declaration of the United Nations signed by all the allied powers on January 1, 1942, it was stated that “complete victory over their enemies is essential to defend life, liberty, independence and religious freedom, and to preserve human rights and justice in their own lands as well as in other lands.”
Charter of the United Nations 1945
After the end of the 2nd World War the United Nations was set up in 1945 by the charter of the United Nations. There are seven specific references in the charter of human rights and fundamental freedoms but nowhere does it catalogue or define them. The references are: (I) the Preamble,(ii) Article-I (3), (iii) Article- 13 (1) (b), (iv) Article-55 (c), (v) Article-62 para 2, (vi) Article-68 and (vii) Article-76 (c).
In addition it is clear that several attempts were made by the leaders of revolution to set down certain minimum rights of citizen in charter, Bills, Petitions or declarations to limit the power of tyrannical governments. It is also pertinent to mention that international efforts made in the realm of human rights before the adoption of the United Nations Charter were scattered and not universal in nature.
Drafting History of Universal Declaration of Human Rights
In the Charter of The United Nations there was no definition of human rights. The Charter also did not incorporate a Bill of Rights although some countries including Chile, Cuba, Panama urged to incorporate a bill of rights. However, the Sanfrancisco conference did include in the Charter article-68 which states as below, “the Economic and Social Council shall set up commissions in economic and social fields and for the promotion of human rights, and such other commissions as may be required for the performance of its functions.”
Recommendation to establish the commission on human rights
The “preparatory commission of the United Nations” and “its Executive committee” meeting in the autumn of 1945, both recommended that the work of the commission on Human Rights, the establishment of which is provided for in the Charter, should be directed, in the first place, towards the “formulation of an international bill of rights.” The General Assembly agreed with theses recommendation in January 1946.
Establishment of the commission on Human Rights:
In compliance with the Charter, the Economic and Social Council established the Commission on Human Rights by resolution 5 (I) of 16th February 1946 and instructed it to submit proposals, recommendations and reports regarding an international bill of human rights. The Council further requested the Commission, in resolution 9 (11) of 21st June 1946, to submit suggestions regarding ways and means for the effective implementation of human rights and fundamental freedoms.”
Method of activities of the commission on human rights
The Commission fixed some agenda to act according to the resolution. It was decided:
i) To apply the term, “International Bill of Human Rights” or “for brevity, “Bill of Rights” to the entirety of documents in preparation: the Declaration, the Convention and Measures of implementation.”
ii) To present a separate draft of the Declaration;
iii) To call the convention on human rights, “The covenant on Human Rights.” And
iv) To refer to the outcome of various suggestions for international supervision as, “Measures of Implementation.” Regardless of whether theses measures will eventually form part of the covenant or not.
1st Session of the commission
The commission held its first regular session on 27 January, 1947, which continued until 10th February 1947.
Establishment or appointment of the drafting committee: A drafting” committee was appointed by the commission consisting of its chairman (Mrs. Eleanor Roosevelt of the USA, wife of President Franklin D Roosevelt), its vice-chairman.(P.C.Chang of China), and its rapporteur. (Charles Malik of Lebanon) to prepare a first draft. But this committee failed to draft any article.
New drafting committee
The previous drafting committee was replaced by a new-drafting committee of eight members consisting frOm Australia, Chile, Lebanon, China, France, the USA, The UK and the Soviet Union.
2nd session of the commission
The Second session of the commission on Human Rights was held at Geneva from 2 to 17 December, 1947. The Commission drafted a declaration of human rights and a covenant on human rights on the basis of the report of the first two working groups.
Later the drafting committee at its second session from 3 to 21 May, 1948 revised the, declaration and the covenant, taking into consideration the comments, suggestions and proposals of various governments.
3rd session of the Commission
The commission and its drafting committee completed their work in remarkably short time; and the Commission’s draft was sent up to the General Assembly in time for its third session which opened in Paris on 21 September 1948. Although the draft was routed through the Economic and Social Council (ECOSOC), of which the commission is one of the functional bodies, the council as such took no part in the drafting of the declaration.
Steps of the third committee of the General Assembly
The General Assembly referred the draft to its third committee which devoted 81 meeting to the text and to the 168 formal amendments which were proposed to it. But, notwithstanding the length of the discussions, and the many amendments considered, the text which finally emerged was surprisingly like the one that had been prepared by the commission on Human Rights.
Adoption of the Declaration
The plenary session of the General Assembly, which after accepting one amendment in relation to Article-2 proposed by the UK adopted and proclaimed the Universal Declaration of Human Rights on 10th December, 1948. The declaration was adopted without any dissenting vote.
Abstain of some countries in voting
While 48 out of 56 countries voted in favour, the whole of communist block i.e. Soviet Union. Ukraine, Czechoslovakia, Byelorussia, Poland and Yugoslavia together with Saudi Arabia and South Africa abstained in the vote.
Each year since 1950 the anniversary of the adoption of the Universal Declaration of human Rights on 10th December is observed internationally as Human Rights day, designed so by General Assembly.
One of the features of the UN Charter which distinguishes ii most sharply from the Covenant of the League of Nations is its concern for human rights and fundamental freedoms. Although the provisions of the UN charter on human rights and fundamental freedoms are scattered and terse, the charter for the first time legally internationalized human rights and fundamental freedoms. There are seven specific references in the charter of human rights and freedom but nowhere does it catalogue or define them. The specific references are mentioned in the preamble of the UN Charter and in article-I(3), article-13 (I) (b), article-55 (c), article-62 Para-2, article-68 and article-76(c) of the Charter.1 It is pertinent to mention that artcle-10. article-56 and article-7l of the Charter also impliedly states for the promotion and protection of human Rights.
Specific functions regarding human rights and fundamental freedoms have been endowed to the General Assembly, to the States parties to the United Nations, to the Economic and Social Council as well as to the Trusteeship Council.
Provisions of UN Charter regarding human rights
The provisions of the UN charter which specifically states human rights and fundamental freedoms are discussed in the below:
In the preamble the United Nations record its determination, ‘to reaffirm faith in fundamental human rights, in the dignity and worth of human person, in the equal rights of man and woman and of nations large and small… have unsolved to combine our efforts to accomplish these aims.”
The second reference is to be found in article- 1(3) which proclaims the following goals as one of the purposes of the UN: To achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.”
The third reference in article 13(1) (b) authorizes the General Assembly to initiate studies and make recommendations for the purpose of, “promoting international cooperation in the economic, social, cultural, educational and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.”
Article-55 (c) written in imperative terms, obliges the United Nations to act in such a way as to promote,” universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.”
Article-56 states that all members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article-55.
Article 62, Para 2 states that the Economic and Social Council (ECOSOC), “may make recommendations for the purposes of promoting respect for, and observance of, human rights and fundamental freedoms for all.”
Under article-68, the United Nations requires that, “The. Economic and Social Council shall set-up commissions in economic and social fields and for the promotion of human rights, and such other commissions as may be required for the performance of its functions.”
Article-76 states that the basic objectives of the trusteeship system are, interalia, “to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion, and to encourage recognition of the interdependence of the people’s of the World.”
Again, the following articles of the UN Charter may be regarded, in advance, ‘as the related provisions in promoting and protecting human -rights and fundamental freedoms.
Article-3 provides,” The original members of the United Nations shall be the states which, having participated in the United Nations Conference on International Organisation at Sanfrancisco or having previously signed the Declaration by United Nations of 1st January, 1942 sign the present charter and ratify it in accordance with Article-110.”
Article-8 states, “The United Nations shall place no restrictions on the eligibility of men and women to participate, in any capacity and under conditions of equality in its principal and subsidiary organs.”
Article-l0 provides, “The General Assembly may discuss any questions or any matters with in the scope of the present charter or relating to the powers and functions of any organs provided for in the present charter, and, except as provided in Article 12, may make recommendations to the members of the United Nations or to the security Council or both on any such questions or matters.”
Artricle-l2 deals with the privileges given to Security Council at the time of exercising its jurisdiction or functions in respect of any international dispute or matters which shall not be interfered by the General assembly unless so requested.
Article-71 States that, “The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence. Such arrangements may be made with international organizations and, where appropriate, with national organizations, after consultation with the Member of the United Nations concerned.
So, we find a number of provisions in the Charter concerning human rights and fundamental freedoms. The Charter has internationalized human rights and created obligation of the Member States of the United Nations to co-operate with the organization in the promotion and protection of human rights and fundamental freedoms. But it is undoubtedly true that the references of the UN Charter to human rights are scattered and terse and no catalogue of human rights was specifically mentioned in there.
Evaluation of the Human Rights provisions in the Charter
The human rights provisions in the charter can be evaluated as follows:
i. Internationalization of human rights was done;
ii. Human rights and fundamental freedoms have been mentioned in the charter but there is no classification or elaboration as to the meaning of what those rights are or categorically mentioned in any chapter;
iii. Member States are under obligation to observe human rights and. fundamental freedoms and respect them;
iv. it created legal basis for the protection of human rights and fundamental freedoms;
v. International Bill of Human Rights’ and other human rights instruments were adopted by the authoritative power of the Charter under UN for the promotion and protection of human rights and fundamental freedoms.
The references of the UN Charter to human rights are called scattered and terse but many have a promotional and programmatic character for they refer principally to the purpose of the UN or to the competence of different UN organs.
HUMAN RIGHTS AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR): A COMPARATIVE STUDY
The Universal Declaration of Human Rights (UDHR) —the first segment of the International Bill of Human Rights is the basic international pronouncement of the universal inalienable and inviolable rights of all members of the human family. The Declaration is based on the principle of equality and non-discrimination as regards the enjoyment of all the rights and freedoms set forth in it
Significance of the UDHR
The significance of the Declaration, in the field of human rights is multi-dimensional. It can be discussed as follows:
Regarding Preamble of the UDHR
The Preamble of the Universal Declaration, which-as usual in international instruments-gives