Your
Advocate
Q:
We often hear about human rights. I have attended a number of seminars
on human rights and listened to many speakers talking on human rights.
I must confess I could not gather a clear conception about what human
rights exactly is. I do not understand which right enjoyed by human
is not human right. I think any and every right of a human is human
right. Then again there are concepts of 'fundamental human rights' and
''fundamental rights'. I need your comments by way of clarifications.
-Choudhury Areff Rahman, Sylhet.
Your
Advocate: The intelligent among men are those who know that
they do not know. The legal phraseologies you have referred to be really
technical in nature and it is natural that their technical import may
not be clear by mere attending seminars or symposiums unless you have
had a close study on the subject. I do not claim I have extensive study
on the subject beyond the little I needed for my profession. Well, I
can share my professional experiences with you.
Human
rights as a discipline is relatively of recent origin. It is theoretically
a complex question to be explored in an interdisciplinary inquiry. Human
rights are seen by many academic writers as 'those moral rights, which
are owed to each man or woman by every man and woman solely by reason
of being human'. Maurice Craston described human rights as 'being the
rights of all people at all times at all situations'. This bears a sense,
which comes closer to your idea. Human rights as a modern concept has
found its origin in the wake of Second World War. Horror of war and
boundless sufferings of mankind in the two world wars gave rise to the
desire to protect human rights with a realisation that denial of human
rights was a potent cause of injustice and strife. Tension of strife-situation
and unrest of diverse nature which was making inroads into the different
societies and shared concern for protection of citizens against gross
violation of fundamental freedoms by the states in the god-like justifications
of 'state security', 'public safety', 'national economy', 'law and order'
and so on led the international community to take measures for protection
against violation of basic human rights and fundamental freedoms. The
contemporary search for general international norms and insistence on
a universal common standard of human rights particularly of fundamental
human freedoms and their legal protection brought about a profound change
in the underlying jurisprudence of international law which may fairly
be called a revolution. The formal outcome of this revolution is a detailed
code of international law which spells out the rights of individual
that protect their rights and fundamental freedom as against their own
states and the world at large. The code calls these rights "human
rights".
The
UN General Assembly laid down the foundation of this task by adoption
of the Universal Declaration of Human Rights on 10th December 1948.
The underlying premises of the declaration was that all human beings
are born free and equal in dignity and endowed with reason and conscience
and should act towards one another in an spirit of brotherhood. A number
of substantive rights are set out ranging over political rights, civil
and economic rights, social and cultural rights. They include right
to life and liberty, protection against arbitrary arrest, detention
or exile, freedom of religion and conscience, freedom of _expression
and association, freedom of movement and protection of legal systems,
including right to fair trial. Also protected are the political rights
of free and equal franchise and an elected government and an equal access
to public services. The declaration was a resolution of the UN, not
in itself binding on the member states. Later two covenants: The International
Covenant of civil and Political Rights (ICCPR) and The International
Covenant on Economic, Social and Cultural Rights (ICESCR) were brought
into being to give effect to the declaration. It is the two Covenants
that one normally turns to find obligations as regards human rights
binding on the member states particularly because of their precise language
and special machinery each Covenant established for the supervision
and enforcement of their provisions. The Universal Declaration and the
Covenants are referred to as 'International Bill of Rights".
The
precise and compelling words of international instrument of human rights
have inspired many state constitutions together with regional human
rights treatise and examples of legislation quoting or reproducing provisions
of the Declaration. Bangladesh constitution has enumerated a series
of those rights and freedoms under its fundamental rights chapter enforceable
under Article 102 of the Constitution. Development of human rights jurisprudence
has, therefore, taken place in a restricted sense. Technically human
rights conform the basic rights enumerated in the human rights instruments
negotiated under the auspices of the UN. 'Fundamental rights' are also
human rights enumerated as such in our Constitution and are enforceable
under law. This does not mean human rights are confined to the rights
enumerated by the UDHR or fundamental rights laid down by our Constitution.
In its generic sense, human rights as Craston maintained, are all rights
that every man and woman owes to every man and woman as human.
Your
advocate M. Moazzam Husain is a lawyer of the Supreme Court of Bangladesh.
His professional interests include civil law, criminal law and constitutional
law.
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