human rights: Definition, Origin, Limitations and Importance

 

human rights: Definition, Origin, Limitations and Importance


Definition of Human Rights

Human rights may be defined as those privileges enjoyed by the citizens of a given states. The privileges are usually defined and enjoyed within the bounds of the law that is the law of the country.

In written constitutions these rights, the limits to such rights and the protection accorded them by the government are specified.

In other words, human rights are spelt out in written a constitution of modern democracies and protected by the government being a charter of the United Nations.

The protection of these rights calls for two forms of action on the part of the government. Government is forbidden to do a series of things to the individual in order to preserve his/her rights and the government is obliged to perform certain obligations to the individual purposely to preserve his/her liberties against which the citizen can enforce the rights through judicial process.

 

Origin of Human Rights

Historically, the origins of human rights can be traced to the American Declaration of Independence of 1776, which proclaimed right to life, liberty and pursuit of happiness, the French Declaration of the Rights of man in 1789, the European Convention of Human Rights and the 1948 Universal Declaration of Rights.

Many political scientists have written and said a lot on fundamental human rights. Its most influential exponent perhaps was the English political philosopher John Locke, who wrote that the obedience to the commands of a given government is for only one reason, and that is to secure the personal rights to life, liberty, and property that naturally belong to all men equally, simply because they are all human beings.

In the Nigerian constitutions since 1963 Republican Constitution, there has been a Chapter devoted exclusively to the provisions on Fundamental Human Rights.

Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 guarantees the citizens’ Fundamental Human Rights in the following section of the document thus:

 

Fundamental Human Rights

1.       Right to life

2.       Right to dignity of human person

3.       Right to personal liberty

4.       Right to fair hearing

5.       Right to private and family life

6.       Right to freedom of thought, conscience and religion

7.       Right to freedom of expression and the press

8.       Right to peaceful assembly and association

9.       Right to freedom of movement

10.    Right to freedom from discrimination

11.    Right to acquire and own immovable property anywhere

The First amendment to the American constitution also lawfully secures freedom of speech and of peaceful assembly.

The Fourth secures the citizen that his house shall not be searched except upon a warrant while the Eight legally secures citizens against excessive bail.

In the unwritten British Constitution, however, there has been no general proclamation of rights but each of a series of important rights has been achieved because of a particular struggle in history, and its maintenance today depends on the working of the law.

In short, whether a country operates a written or an unwritten constitution, there are Fundamental Human Rights guaranteed for the individual citizen and protected by law.

These Rights include:

1.         Right to life

2.         Freedom of association

3.         Freedom of speech

4.         Freedom from slavery

5.         Freedom of religion

6.         Freedom of assembly

7.         Freedom from unlawful imprisonment.

8.         Right to private life and property.

Right to life, for instance is the foundation on which other rights are based. This is why murder and suicide are punishable under the law by capital punishment, even when sanctioned by the state, for many reasons, including the sanctity of human life remains a controversial subject. However, when we say human rights are inalienable it does not imply that they are not without qualifications.

This means in effect that there are some rules guiding these various rights or liberties.

 

Limitations to Human Rights

Fundamental Human Rights are not without limitations since it is obvious that absolute right is as good as no right at all.

A Citizen should know that his/her rights ends where that of others begins. For example, you have a right to stress your hands the way you like but you should not box or hit anybody with your hands in the process, otherwise you may be charged to Court with assault and battery by the aggrieved person.

Law of libel is a limitation to the freedom of speech and writing if it defames or impugns the integrity of another person. The freedom of assembly could be lawfully curtailed in order to prevent a breakdown or law and order.

Freedom of movement could be withdrawn by the state during emergency period, people may be asked to stay in door from dusk until dawn to observe a curfew. A citizen who is mentally challenged could be ‘arrested’ and ‘detained’ in a psychiatric hospital for treatment, against his/her wish to roam the street.

Citizens could also be conscripted into the Army and sent to the war front to defend the state, which may serve as a limitation to his/her freedom to life. Human rights are said to be inalienable, yet without detracting from this view it is still a fact that the only part of the conduct of any one, for which he is amenable to society, is that which concern others.

 

What is Liberty?

Liberty does not mean freedom to do one’s will. This is a negative conception, which suggests absence of restraint, which the rich prefer. The presence of government will make this definition of liberty impossible.

Liberty means the maintenance of equal opportunities for all citizens. Liberty therefore is a positive thing. It does not merely mean absence of restraint. Regulation is required since citizens cannot live together without common rules.

For example, a citizen’s liberty is not endangered if he is refused permission to commit murder. So also is observing traffic regulation. To compel obedience to them is not to make a man un-free.

Where restraint becomes an invasion of liberty is where the given prohibition acts to destroy productive endeavors.

Liberty, therefore, is never real unless the government can be called to account, especially when it invades rights. In his Essay on Liberty, John Stuart Mill wrote: “That government is best which governs least.” There are three aspects of liberty.

The first is private liberty. This means the opportunity to exercise freedom of choice in personal life, like in religious beliefs.

The second is political liberty. This is the citizens right to participate in the political activities of his country-right to vote and to stand for elections and to criticize the government- A citizen must find no barriers that are not general barriers in the way of access to position of authority.

The educational system must not be structured such that children of rich or well-born men are trained to imbibe habit of authority while the children of the poor are trained to habits of deference.

The third is economic liberty. This means security and the opportunity to find reasonable means of livelihood. As argued by Laski (1982) where there are rich and poor, educated and uneducated, we find always masters and servants. Therefore, liberty cannot exist without equality.

Economic liberty also means democracy in industry or what is called equal economic opportunities. Freedom can therefore not exist in the presence of special privilege, since there is no liberty where the rights of some depend upon the pleasure of others.

Equality does not mean identity of treatment. There can be no ultimate identity of treatment so long as men are different in want, capacity and need. It implies, fundamentally a certain leveling process, and the provision of equal opportunities for all, which also depends on the training we offer to citizens. For the power that ultimately counts in society is power to utilize knowledge; and disparities in the ability to use that power.

In the final analysis, political equality is never real unless it is accompanied by economic equality since political power is the handmaid of economic power.


The State and protection of liberties

Every state is measured by the amount of liberties and rights that it obliges her citizens. The state is not simply a sovereign organization with the power to get its will obeyed, it must safeguard rights by preventing unlawful invasion of rights and ensuring that a citizen’s right stops where another’s begins.

Harold Laski (1982) made this delicate balance clear: “It is a state, for instance which can prevent the Roman Catholic Church putting a man to death for heresy; but it cannot force the Roman Catholic Church to surrender the dogma of Papal infallibility.” Also a state cannot demand allegiance from its subjects, expect in terms of what that allegiance is to serve.

Indeed, the state character will be apparent from the rights that, at any given period, secure recognition. Any given state is therefore torn between rights that have been recognized and rights, which demand recognition. 

Rights, in fact, are those conditions of social life without which no man can seek, in general, to fulfill himself. Since, the state exists to make possible that achievement, it is by maintaining rights that its purpose may be served.

For example, rights such as freedoms of speech, association assembly, religion are rights either equally applicable to all citizens without distinction or not applicable at all.

Freedom of speech is only limited by the law of libel, or slander, as a constraint on the freedom of the press. Opinion, in the view of Harold Laski (1982) may be penalized if it is held to involve disorder.

But in order to ensure that rights are respected by the state authorities, it is imperative to ensure in the constitution the principle of separation of powers, and the system of checks and balances. In the opinion of Harold Laski (1982) the more independent a judiciary, the more adequate are the safeguard of rights.

However, he added a caveat that since the executive ultimately appoints the judiciary, its independence is rarely final.

Indeed, separation of powers merely acts as checks upon the expansion of each authority’s allotted sphere into another; it does not determine the quality and the extent of the power that are allotted Nurudeen (2009).

It is therefore not enough for a state to make verbal commitments to respect human rights; statutory and institutional frameworks are required to back or safeguard them. 

In the United Kingdom, for example, there is a special precaution against unlawful imprisonment. A citizen unlawfully imprisoned can proceed against whoever imprisoned him through the writ of Habeas Corpus. This is an order from a judge of a Law Court requiring whoever is being detained to be produced before the court on a given date. The effect is that any person unlawfully detained, can obtain his release or trial at the earliest time possible.

In Nigeria, if a citizen is unlawfully arrested, he is entitled to receive compensation; and if lawfully arrested, he enjoys the right to defend himself accordingly (Ojo, 1973). In a similar manner, a citizen can bring a writ of Mandamus from a Law Court to compel any level of government to perform its constitutional responsibility.

A citizen can also protect his/her liberties by seeking either interlocutory or perpetual  injunctions from a Law Court, to compel a stay of action that may violate his/her rights.

The essence of safeguards of human rights is to prevent governments from invading citizens’ rights or the latter from engaging in acts of lawlessness, which are capable of throwing the state into chaos.

It is also to ensure that individuals can perform their lawful duties without fear of oppression and victimization. A government, which deprives its citizens of these fundamental rights, would have lost its legitimacy to remain in office.

Hence, John Locke’s remark that:

i. The great and chief end... of men uniting into commonwealths.

ii. Putting themselves under government, is the preservation of their property (i.e. their natural right).

iii. When a government fails to preserve these rights and thereby cease to serve the end for which it was created, the citizens have the right indeed, the duty, to overthrow it.

Law is therefore an important condition of rights. But laws can either help or destroy liberty because laws can positively provide equal opportunities or negatively curtail freedom. A. V. Dicey once argued that the more there is one (law) the less there is the other (rights).

The independence of the judiciary is achieved by providing for appointment or removal of judicial officers through a due process to ensure job security; and payment of their salaries/allowances from the Consolidated Revenue Fund. Other measures to protect Human Rights from encroachments are:

i) A written constitution in which the rights and obligations of citizens are set out in a lucid and unambiguous language. Citizens are aware of these liberties and measure of defending them if violated.

ii) Existence of Ombudsman - a Public Complaints Commission, through which any aggrieved citizen, can seek a redress against the state or any of her agencies.

iii) A free press that will report and disseminate information, as well as educating the citizenry about government policies and its implications on their rights and liberties. A democratic government also helps to safeguard human rights, because democratic institutions such as the Senate, House of Representatives and State Assemblies are composed of elected people who are representing different constituencies in the federation. They protect members of their constituents through public hearing, motions and bills to protect citizens’ rights.

iv) Quick dispensation of justice is another element in protecting rights and liberties of citizens. As the saying goes, “justice delayed is justice denied,” the judicial process should not only be fast but should also be accessible to the poor through a reasonable cost of litigation.

 

Importance of Human Rights

In principle, no human individual should be rendered stateless: the Universal Declaration of Human Rights stipulates that the right to have or change citizenship cannot be denied.

In practice, the legal claim of citizenship is a slippery concept that can be manipulated to serve state interests. On a spectrum from those who enjoy the legal and social benefits of citizenship to those who’s right to nationality is outright refused, people with many kinds of status live in various degrees of precariousness within states that cannot or will not protect them.

These include documented and undocumented migrants as well as conventional refugees and asylum seekers living in various degrees of uncertainty. Vulnerable populations such as ethnic minorities and women and children may find that de jure citizenship rights are undermined by de facto restrictions on their access, mobility, or security.

The Human Right to Citizenship provides an accessible overview of citizenship regimes around the globe, focusing on empirical cases of denied or weakened legal rights. Exploring the legal and social implications of specific national contexts, contributors examine the status of labor migrants in the United States and Canada, the changing definition of citizenship in Nigeria, Germany, India, and Brazil, and the rights of ethnic groups including Palestinians, Rohingya refugees in Bangladesh, Bangladeshi migrants to India, and Roma in Europe. Other chapters consider children's rights to citizenship, multiple citizenship, and unwanted citizenship. 

With a broad geographical scope, this volume provides a wide-ranging theoretical and legal framework to understand the particular ambiguities, paradoxes, and evolution of citizenship regimes in the twenty-first century.

In any given state citizens are endowed with rights because without them they may not be able to function optimally, or perform their civic obligation to the state.

Put differently, rights are corollaries to duties. For example, a man has not only the right to work; he has the right also to be paid an adequate wages for his labor.

To live citizen without access to the means of existence is to deprive him of that which makes him perform his basic civic obligations, or function in the interest of the larger society. As Laski put it; “there must be sufficiency for all before there is superfluity for some”. The state also provides for the right to property if what a citizen owns is commensurate to his efforts, or can be shown to be related to the common welfare. 

However, a citizen cannot justifiably own directly because of the efforts of others; or if the effect of such ownership is a power over the life of other.

Indeed, there is an income below which no man can be allowed to fall if he is to be himself as a decent citizen.

The state in civilized modern state accords right to education top priority, since the citizen who lacks it is bound to be the slave of others.

He will not only live a stunted being, but also fails to rise to the full heights of his personality. If citizenship means the contribution of one’s instructed judgment to the public good, a citizen without basic education will not be able to make informed choices. Related to this is a right to political power. Every adult citizen has the right to indicate the person he desires should be elected. 

If the body of voters is limited, the welfare realized usually excludes that of the persons excluded. But just as those who choose cannot be drawn from any special class in a state so also, those who are chosen cannot be members of a limited section only.

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