Libertarians advocate for the negative liberty aspect of civil liberties, emphasizing minimal government intervention in both personal and economic affairs. Influential advocates of this interpretation include John Stuart Mill, whose work On Liberty argues for the protection of individual freedoms from government encroachment, and Friedrich Hayek, whose The Road to Serfdom warns against the dangers of expanding state power.[1][2]Ayn Rand'sAtlas Shrugged and Ron Paul'sThe Revolution: A Manifesto further emphasize the importance of safeguarding personal autonomy and limiting government authority.[3][4] These contributions have played a significant role in shaping the discourse on civil liberties and the appropriate scope of government.
Many contemporary nations have a constitution, a bill of rights, or similar constitutional documents that enumerate and seek to guarantee civil liberties. Other nations have enacted similar laws through a variety of legal means, including signing and ratifying or otherwise giving effect to key conventions such as the European Convention on Human Rights and the International Covenant on Civil and Political Rights. The existence of some claimed civil liberties is a matter of dispute, as are the extent of most civil rights. Controversial examples include property rights, reproductive rights, and civil marriage. In authoritarian regimes in which government censorship impedes on perceived civil liberties, some civil liberty advocates argue for the use of anonymity tools to allow for free speech, privacy, and anonymity.[5] The degree to which societies acknowledge civil liberties is affected by the influence of terrorism and war.[6][7] Whether the existence of victimless crimes infringes upon civil liberties is also a matter of dispute. Another matter of debate is the suspension or alteration of certain civil liberties in times of war or state of emergency, including whether and to what extent this should occur.
The formal concept of civil liberties is often dated back to Magna Carta, an English legal charter agreed in 1215 which in turn was based on pre-existing documents, namely the Charter of Liberties.[8]
The Fundamental Rights–embodied in Part III of the constitution–guarantee liberties such that all Indians can lead their lives in peace as citizens of India. The six fundamental rights are right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights and the right to constitutional remedies.[11]
Huge rallies like this one in Kolkata are commonplace in India.
These include individual rights common to most liberal democracies, incorporated in the fundamental law of the land and are enforceable in a court of law. Violations of these rights result in punishments as prescribed in the Indian Penal Code, subject to the discretion of the judiciary. These rights are neither absolute nor immune from constitutional amendments. They have been aimed at overturning the inequalities of pre-independence social practices. Specifically, they resulted in the abolishment of untouchability and prohibited discrimination on the grounds of religion, race, caste, sex, or place of birth. They forbid human trafficking and unfree labour. They protect the cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and administer their own educational institutions.
All people, irrespective of race, religion, caste or sex, have the right to approach the High Courts or the Supreme Court for the enforcement of their fundamental rights. It is not necessary that the aggrieved party has to be the one to do so. In the public interest, anyone can initiate litigation in the court on their behalf. This is known as "public interest litigation".[12] High Court and Supreme Court judges can also act on their own on the basis of media reports.
The Fundamental Rights emphasize equality by guaranteeing all citizens access to and use of public institutions and protections, irrespective of their background. The rights to life and personal liberty apply to persons of any nationality, while others, such as the freedom of speech and expression are applicable only to the citizens of India (including non-resident Indian citizens).[13] The right to equality in matters of public employment cannot be conferred to overseas citizens of India.[14]
Fundamental Rights primarily protect individuals from any arbitrary State actions, but some rights are enforceable against private individuals too.[15] For instance, the constitution abolishes untouchability and prohibits begar. These provisions act as a check both on State actions and the actions of private individuals. Fundamental Rights are not absolute and are subject to reasonable restrictions as necessary for the protection of national interest. In the Kesavananda Bharati vs. State of Kerala case, the Supreme Court ruled that all provisions of the constitution, including Fundamental Rights can be amended.[16] However, the Parliament cannot alter the basic structure of the constitution like secularism, democracy, federalism, and separation of powers. Often called the "Basic structure doctrine", this decision is widely regarded as an important part of Indian history. In the 1978 Maneka Gandhi v. Union of India case, the Supreme Court extended the doctrine's importance as superior to any parliamentary legislation. According to the verdict, no act of parliament can be considered a law if it violates the basic structure of the constitution. This landmark guarantee of Fundamental Rights was regarded as a unique example of judicial independence in preserving the sanctity of Fundamental Rights. The Fundamental Rights can only be altered by a constitutional amendment, hence their inclusion is a check not only on the executive branch but also on the Parliament and state legislatures.[17] The imposition of a state of emergency may lead to a temporary suspension of the rights conferred by Article 19 (including freedoms of speech, assembly and movement, etc.) to preserve national security and public order. The President can, by order, suspend the constitutional written remedies as well.
Despite the adoption of this liberal constitution, often referred as the "Postwar Constitution" (戦後憲法, Sengo-Kenpō) or the "Peace Constitution" (平和憲法, Heiwa-Kenpō), the Japanese governing elites have struggled to usher in an inclusive, open and Pluralist society.[21] Even after the end of World War II and the departure of the Allied government of occupation in 1952, Japan has been the target of international criticism for failing to admit to war crimes, institutional religious discrimination and maintaining a weak freedom of the press, the treatment of children, minorities, foreigners, and women, its punitive criminal justice system, and more recently, the systematic bias against LGBT people.[22][23][24]
The first Japanese attempt to a bill of rights was in the 19th century Meiji constitution (1890), which took both the Prussian (1850) and British constitutions as basic models.[25] However, it had but a meagre influence in the practice of the rule of law as well as in people's daily lives. So, the short and deliberately gradual history of struggles for personal rights and protection against government/society's impositions has yet to transform Japan into a champion of universal and individual freedom.[26][27][28] According to constitutional scholar, Shigenori Matsui,
People tend to view the Bill of Rights as a moral imperative and not as a judicial norm. The people also tend to rely upon bureaucrats to remedy social problems, including even human rights violations, rather than the court.
—Shigenori Matsui, "The protection of 'Fundamental human rights' in Japan."[29]
Despite the divergences between Japan's social culture and the Liberal Constitutionalism that it purports to have adopted, the country has moved toward closing the gap between the notion and the practice of the law. The trend is more evident in the long term. Among several examples, the Diet (bicameral legislature) ratified the International Bill of Human Rights in 1979 and then it passed the Law for Equal Opportunity in Employment for Men and Women in 1985, measures that were heralded as major steps toward a democratic and participatory society. In 2015, moreover, it reached an agreement with Korea to compensate for abuses related to the so-called "women of comfort" that took place during the Japanese occupation of the peninsula.[30] However, human rights group, and families of the survivors condemned the agreement as patronizing and insulting.[31]
Human rights organizations, national and foreign, expand the list to include human rights violations that relate to government policies, as in the case of daiyo kangoku system (substitute prison) and the methods of interrogating crime suspects.[33] The effort of these agencies and ordinary people seem to pay off. In 2016, the U.S. Department of State released a report stating that Japan's human right record is showing signs of improvement.[34]
Australia
Whilst Australia does not have an enshrined Bill of Rights or similar binding legal document, civil liberties are assumed as protected through a series of rules and conventions. Australia had primary involvement in and was a key signatory to the UN Universal Declaration on Human Rights (1948)
the right to freedom from discrimination based on out-of-state residence (historical prejudice based upon residence within one state affecting treatment within another)
Certain High Court interpretations of the Constitution have allowed for implied rights such as freedom of political communication (which is construed broadly) and the right to vote to be established, however, others such as freedom of assembly and freedom of association are yet to be identified.
Refugee issues
Within the past decade, Australia has experienced increasing contention regarding its treatment of those seeking asylum. Although Australia is a signatory to the UN Refugee Convention (1951), successive governments have demonstrated an increasing tightening of borders; particularly against those who seek passage via small water vessels.
The Abbott Government (2013) like its predecessors (the Gillard and Howard Governments) has encountered particular difficulty curbing asylum seekers via sea, increasingly identified as "illegal immigration". The recent involvement of the Australian Navy in refugee rescue operations has many human rights groups such as Amnesty International concerned over the "militarisation" of the treatment of refugees and the issue of their human rights in Australia. The current "turn-back" policy is particularly divisive, as it involves placing refugees in government lifeboats and turning them towards Indonesia. Despite opposition however, the Abbott government's response has so far seen a reduction in the number of potential refugees undertaking the hazardous cross to Australia, which is argued by the government as an indicator of its policy success.
Europe
European Convention on Human Rights
The European Convention on Human Rights, to which almost all European countries belong (apart from Belarus), enumerates a number of civil liberties and is of varying constitutional force in different European states.
The German constitution, the "Grundgesetz" (lit. "Base Law"), starts with an elaborate listing of civil liberties and states in sec. 1 "The dignity of man is inviolable. To respect and protect it shall be the duty of all public authority." Following the "Austrian System", the people have the right to appeal to the Federal Constitutional Court of Germany ("Bundesverfassungsgericht") if they feel their civil rights are being violated. This procedure has shaped German law considerably over the years.
In June 2008 the then Shadow Home Secretary David Davisresigned his parliamentary seat over what he described as the "erosion of civil liberties" by the then Labour government, and was re-elected on a civil liberties platform (although he was not opposed by candidates of other major parties). This was in reference to anti-terrorism laws and in particular the extension to pre-trial detention, that is perceived by many to be an infringement of habeas corpus established in Magna Carta.
The Constitution of Mexico was ratified on February 5, 1917. Similar to the U.S. Constitution, the United Mexican States provides all citizens the right to freedom of expression, but this right is not absolute (for example, child pornography, death threats, and defamation are exceptions to freedom of speech, and offenders can be subject to penalties). However, unlike the United States and Canada, Mexico has stricter limits on citizenship. For example, only people born in Mexico may take roles in law enforcement, legislating, or enlist in the armed forces. It also states each person born in Mexico cannot be deprived of their citizenship status.[36]
The United States Constitution, especially its Bill of Rights, protects civil liberties. The passage of the Fourteenth Amendment further protected civil liberties by introducing the Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause. Human rights within the United States are often called civil rights, which are those rights, privileges and immunities held by all people, in distinction to political rights, which are the rights that inhere to those who are entitled to participate in elections, as candidates or voters.[37] Before universal suffrage, this distinction was important, since many people were ineligible to vote but still were considered to have the fundamental freedoms derived from the rights to life, liberty and the pursuit of happiness. This distinction is less important now that Americans enjoy near universal suffrage, and civil rights are now taken to include the political rights to vote and participate in elections, being furthermore classified with civil liberties in general as either positive rights or negative rights. Because Native American tribal governments retain sovereignty over tribal members, the U.S. Congress in 1968 enacted a law that essentially applies most of the protections of the Bill of Rights to tribal members, to be enforced mainly by tribal courts.[38]
The Civil Liberties Act of 1988 was signed into effect by President Ronald Reagan on August 10, 1988. The act was passed by Congress to issue a public apology for those of Japanese ancestry who lost their property and liberty due to discriminatory actions by the United States Government during the internment period. This act also provided many other benefits within various sectors of the government. Within the treasury it established a civil liberties public education fund. It directed the Attorney General to identify and locate each individual affected by this act and to pay them $20,000 from the civil liberties public education fund. It also established a board of directors who is responsible for making disbursements from this fund. Finally, it required that all documents and records that are created or received by the commission be kept by the Archivist of the United States.[39]
↑ "Bodhisattwa Gautam vs. Subhra Chakraborty; 1995 ICHRL 69". [World Legal Information Institute]. Retrieved 2006-05-25. This was the case where Fundamental Rights were enforced against private individuals (date of ruling 15 December 1995).
↑ Kazuhiro Takii and David Noble, The Meiji Constitution: The Japanese Experience of the West and the Shaping of the Modern State (Tokyo, Japan: International House of Japan, 2007), 181.
↑ Andrew Gordon, Postwar Japan As History. Berkeley: University of California Press, 1993, p. 91.
↑ Ugo Dessì, Japanese Religions and Globalization. London: Routledge, 2013, p. 64.
↑ “The protection of ‘Fundamental human rights’ in Japan,” a chapter in Human Rights in Asia: A Comparative Legal Study of Twelve Asian Jurisdictions, France and the USA, edited by Peerenboom, R. P., Carole Petersen, and Hongyi Chen (London: Routledge, 2006), 149
↑ Government of Japan (March 6, 2009). "Major Human Rights Problems". Human Rights Bureau. Ministry of Justice, Japan. Archived from the original on April 23, 2018. Retrieved July 5, 2016.
↑ Jeffrey Flynn, Reframing the Intercultural Dialogue on Human Rights: A Philosophical Approach (London: Routledge, 2014), 114.
Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life of society and the state.
The Canadian Charter of Rights and Freedoms, often simply referred to as the Charter in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part of the Constitution Act, 1982. The Charter guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada from the policies and actions of all governments in Canada. It is designed to unify Canadians around a set of principles that embody those rights. The Charter was proclaimed in force by Queen Elizabeth II of Canada on April 17, 1982, as part of the Constitution Act, 1982.
Freedom of association encompasses both an individual's right to join or leave groups voluntarily, the right of the group to take collective action to pursue the interests of its members, and the right of an association to accept or decline membership based on certain criteria. It can be described as the right of a person coming together with other individuals to collectively express, promote, pursue and/or defend common interests. Freedom of association is both an individual right and a collective right, guaranteed by all modern and democratic legal systems, including the United States Bill of Rights, article 11 of the European Convention on Human Rights, section 2 of the Canadian Charter of Rights and Freedoms, and international law, including articles 20 and 23 of the Universal Declaration of Human Rights and article 22 of International Covenant on Civil and Political Rights. The Declaration on Fundamental Principles and Rights at Work by the International Labour Organization also ensures these rights.
Civil liberties in the United States are certain unalienable rights retained by citizens of the United States under the Constitution of the United States, as interpreted and clarified by the Supreme Court of the United States and lower federal courts. Civil liberties are simply defined as individual legal and constitutional protections from entities more powerful than an individual, for example, parts of the government, other individuals, or corporations. The explicitly defined liberties make up the Bill of Rights, including freedom of speech, the right to bear arms, and the right to privacy. There are also many liberties of people not defined in the Constitution, as stated in the Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 185 national constitutions mention the right to privacy. OnDecember 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR); while the right to privacy does not appear in the document, many interpret this through Article 12, which states: "No one shall be subjected to arbitrary interference with their privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks."
The Constitution of the Commonwealth of Puerto Rico is the controlling government document of Puerto Rico. It is composed of nine articles detailing the structure of the government as well as the function of several of its institutions. The document also contains an extensive and specific bill of rights. It was ratified by Puerto Rico's electorate in a referendum on March 3, 1952, and on July 25, 1952, Governor Luis Muñoz Marín proclaimed that the constitution was in effect. July 25 is known as Constitution Day.
A Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibit the deprivation of "life, liberty, or property" by the federal and state governments, respectively, without due process of law.
The Constitution of the State of Hawaii, also known as the Hawaii State Constitution, is the fundamental governing document of the U.S. state of Hawaiʻi. As an organic text, it establishes the principles and framework of government, enumerates the rights and freedoms of Hawaiian citizens, and serves as the supreme law of the state.
In United States constitutional law, incorporation is the doctrine by which portions of the Bill of Rights have been made applicable to the states. When the Bill of Rights was ratified, the courts held that its protections extended only to the actions of the federal government and that the Bill of Rights did not place limitations on the authority of the state and local governments. However, the post–Civil War era, beginning in 1865 with the Thirteenth Amendment, which declared the abolition of slavery, gave rise to the incorporation of other amendments, applying more rights to the states and people over time. Gradually, various portions of the Bill of Rights have been held to be applicable to state and local governments by incorporation via the Due Process Clause of the Fourteenth Amendment of 1868.
Section 7 of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section: the right to life, liberty and security of the person. Denials of these rights are constitutional only if the denials do not breach what is referred to as fundamental justice.
The Fundamental Rights, Directive Principles of State Policy and Fundamental Duties are sections of the Constitution of India that prescribe the fundamental obligations of the states to its citizens and the duties and the rights of the citizens to the State. These sections are considered vital elements of the constitution, which was developed between 1949 by the Constituent Assembly of India.
Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Sustainable Development Goal 17, established in 2015, underscores the link between promoting human rights and sustaining peace.
A constitutional right can be a prerogative or a duty, a power or a restraint of power, recognized and established by a sovereign state or union of states. Constitutional rights may be expressly stipulated in a national constitution, or they may be inferred from the language of a national constitution, which is the supreme law of the land, meaning that laws that contradict it are considered unconstitutional and invalid. Usually any constitution defines the structure, functions, powers, and limits of the national government and the individual freedoms, rights, and obligations which will be protected and enforced when needed by the national authorities. Nowadays, most countries have a written constitution comprising similar or distinct constitutional rights.
Unenumerated rights are legal rights inferred from other rights that are implied by existing laws, such as in written constitutions, but are not themselves expressly stated or "enumerated" in law. Alternative terms are implied rights, natural rights, background rights, and fundamental rights.
Security of the person is a basic entitlement guaranteed by the Universal Declaration of Human Rights, adopted by the United Nations in 1948. It is also a human right explicitly defined and guaranteed by the European Convention on Human Rights, the Constitution of Canada, the Constitution of South Africa and other laws around the world.
The Fundamental Rights in India enshrined in part III of the Constitution of India guarantee civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These rights are known as "fundamental" as they are the most essential for all-round development i.e., material, intellectual, moral and spiritual and protected by fundamental law of the land i.e. constitution. If the rights provided by Constitution especially the Fundamental rights are violated the Supreme Court and the High Courts can issue writs under Articles 32 and 226 of the Constitution, respectively, directing the State Machinery for enforcement of the fundamental rights.
Civil liberties in the United Kingdom are part of UK constitutional law and have a long and formative history. This is usually considered to have begun with Magna Carta of 1215, a landmark document in British constitutional history. Development of civil liberties advanced in common law and statute law in the 17th and 18th centuries, notably with the Bill of Rights 1689. During the 19th century, working-class people struggled to win the right to vote and join trade unions. Parliament responded with new legislation beginning with the Reform Act 1832. Attitudes towards suffrage and liberties progressed further in the aftermath of the first and second world wars. Since then, the United Kingdom's relationship to civil liberties has been mediated through its membership of the European Convention on Human Rights. The United Kingdom, through Sir David Maxwell-Fyfe, led the drafting of the Convention, which expresses a traditional civil libertarian theory. It became directly applicable in UK law with the enactment of the Human Rights Act 1998.
Human rights in Canada have come under increasing public attention and legal protection since World War II. Prior to that time, there were few legal protections for human rights. The protections which did exist focused on specific issues, rather than taking a general approach to human rights.
Justice K.S. Puttaswamy (Retd.) &Anr. vs. Union of India &Ors. (2017), also known as the Right to Privacy verdict, is a landmark decision of the Supreme Court of India, which holds that the right to privacy is protected as a fundamental right under Articles 14, 19 and 21 of the Constitution of India. The original petitioner Justice K.S. Puttaswamy was former judge of the Karnataka High Court
Ordered liberty is a concept in political philosophy, where individual freedom is balanced with the necessity for maintaining social order. In "Ordered Liberty," Randy E. Barnett examines the concept of ordered liberty and its relationship to the U.S. Constitution. He argues that the Constitution was designed to protect individual liberty within a framework of ordered liberty, which balances the need for social order with the importance of individual freedom.(This reference does not seem to be accurate. There is no article by Barnett in the Journal for the pages noted.)
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