Civil liberties are guarantees and freedoms that governments commit not to abridge, either byconstitution,legislation, orjudicial interpretation, withoutdue process. Though the scope of the term differs between countries, civil liberties often include thefreedom of conscience,freedom of press,freedom of religion,freedom of expression,freedom of assembly, the right to security andliberty,freedom of speech, theright to privacy, the right toequal treatment under the law and due process, theright to a fair trial, and theright to life. Other civil liberties include theright to own property, theright to defend oneself, and the right tobodily integrity. Within the distinctions between civil liberties and other types of liberty, distinctions exist betweenpositive liberty/positive rights andnegative liberty/negative rights.
Libertarians advocate for the negative liberty aspect of civil liberties, emphasizingminimal government intervention in both personal and economic affairs. Influential advocates of this interpretation includeJohn Stuart Mill, whose workOn Liberty argues for the protection of individual freedoms from government encroachment, andFriedrich Hayek, whoseThe Road to Serfdom warns against the dangers of expanding state power.[1][2]Ayn Rand'sAtlas Shrugged andRon 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 aconstitution, abill 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 theEuropean Convention on Human Rights and theInternational Covenant on Civil and Political Rights. The existence of some claimed civil liberties is a matter of dispute, as are the extent of mostcivil rights. Controversial examples includeproperty rights,reproductive rights, andcivil 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 ofvictimless 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 ofwar orstate of emergency, including whether and to what extent this should occur.
The formal concept of civil liberties is often dated back toMagna Carta, an English legalcharter agreed in 1215 which in turn was based on pre-existing documents, namely theCharter of Liberties.[8]
TheConstitution of the People's Republic of China (which applies only tomainland China, not toHong Kong,Macau, andTaiwan) especially its Fundamental Rights and Duties of Citizens, claims to protect many civil liberties. Taiwan, which is separated from mainland China, has its own Constitution.
Although the 1982 constitution guarantees civil liberties,[9] theChinese government usually uses the "subversion of state power" and "protection ofstate secrets" clauses in their law system to imprison those who criticize theChinese Communist Party (CCP) and thestate leaders.[10]
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]
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These include individual rights common to mostliberal 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 theIndian Penal Code, subject to the discretion of thejudiciary. 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 prohibiteddiscrimination on the grounds of religion, race, caste, sex, or place of birth. They forbidhuman trafficking andunfree labour. They protect the cultural and educational rights of ethnic and religiousminorities 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 theHigh Courts or theSupreme 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 apply only to thecitizens of India (includingnon-resident Indian citizens).[13] The right to equality in matters of public employment cannot be conferred tooverseas 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 prohibitsbegar. 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 theKesavananda 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 1978Maneka 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 astate 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. ThePresident can, by order, suspend the constitutional written remedies as well.
Since 1947,Japan, a country with aconstitutional monarchy and known for its socially "conservative society where change is gradual," has aconstitution with a seemingly strong bill of rights at its core (Chapter III. Rights and Duties of the People).[18] In many ways, it resembles theU.S. Constitution prior to theCivil Rights Act of 1964, and that is because it came into life during theAlliedoccupation of Japan. This constitution may have felt like a foreign imposition to the governing elites, but not to the ordinary people "who lacked faith in their discredited leaders and supported meaningful change."[19] In the abstract, the constitution strives to secure fundamental individual liberties and rights, which are covered pointedly in articles 10 to 40. Most salient of the human dignity articles is article 25, section 1, which guarantees that all"People shall have the right to maintain the minimum standards of wholesome and cultured living."[20]
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 andPluralist society.[21] Even after the end ofWorld War II and the departure of theAllied government of occupation in 1952, Japan has been the target of international criticism for failing to admit towar crimes,institutional religious discrimination and maintaining a weakfreedom of the press, the treatment of children, minorities, foreigners, and women, its punitive criminal justice system, and more recently, the systematic bias againstLGBT people.[22][23][24]
The first Japanese attempt to a bill of rights was in the 19th centuryMeiji constitution (1890), which took both thePrussian (1850) andBritish 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 theLiberal 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, theDiet (bicameral legislature) ratified theInternational 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 withKorea to compensate for abuses related to the so-called "women of comfort" that took place during theJapanese occupation of thepeninsula.[30] However, human rights group, and families of the survivors condemned the agreement as patronizing and insulting.[31]
On its officialsite, the Japanese government has identified various human rights problems. Among these are child abuses (e.g.,bullying,corporal punishment,child sexual abuse,child prostitution, andchild pornography), frequent neglect and ill-treatment ofelderly persons and individuals withdisabilities,Dowa claims (discrimination against theBurakumin),Ainu people (indigenous people in Japan), foreign nationals,HIV/AIDS carriers,Hansen's disease patients, persons released from prison after serving their sentence,crime victims, people whosehuman rights are violated using the Internet, the homeless, individuals withgender identity disorders, andwomen. Also, the government lists systematic problems with gender biases and the standard reference to sexual preferences for jobs and other functions in society.[32]
Human rights organizations, national and foreign, expand the list to include human rights violations that relate to government policies, as in the case ofdaiyo 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]
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)
TheConstitution of Australia (1900) does offer very limited protection of rights:
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 theirhuman 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.
TheEuropean Convention on Human Rights, to which almost all European countries belong (apart fromBelarus), enumerates a number of civil liberties and is of varying constitutional force in different European states.
Following theVelvet Revolution, a constitutional overhaul took place inCzechoslovakia. In 1991, theCharter of Fundamental Rights and Basic Freedoms was adopted, having the same legal standing as theConstitution. The Czech Republic has kept the Charter in its entirety following thedissolution of Czechoslovakia as Act No. 2/1993 Coll. (Constitution being No. 1).
France's 1789Declaration of the Rights of Man and of the Citizen listed many civil liberties and is of constitutional force.
TheGerman 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 theFederal Constitutional Court of Germany ("Bundesverfassungsgericht") if they feel their civil rights are being violated. This procedure has shaped German law considerably over the years.
Civil liberties in theUnited Kingdom date back toMagna Carta in 1215 and 17th centurycommon law andstatute law, such as the 1628Petition of Right, theHabeas Corpus Act 1679 and theBill of Rights 1689. Parts of these laws remain in statute today and are supplemented by other legislation and conventions that collectively form the uncodifiedConstitution of the United Kingdom. In addition, the United Kingdom is a signatory to theEuropean Convention on Human Rights which covers bothhuman rights and civil liberties. TheHuman Rights Act 1998 incorporates the great majority of Convention rights directly into UK law.
In June 2008 the then Shadow Home SecretaryDavid 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 ofhabeas corpus established in Magna Carta.
TheConstitution of the Russian Federation guarantees in theory many of the same rights and civil liberties as the U.S. except tobear arms, i.e.: freedom of speech, freedom of religion, freedom of association and assembly, freedom to choose language, to due process, to a fair trial, privacy, freedom to vote, right for education, etc. However, human rights groups likeAmnesty International have warned thatVladimir Putin has seriously curtailedfreedom of expression,freedom of assembly andfreedom of association amidst growingauthoritarianism.[35]
TheConstitution of Canada includes theCanadian Charter of Rights and Freedoms which guarantees many of the same rights as the U.S. Constitution. The Charter omits any mention of, or protection for, property.
TheConstitution 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, anddefamation 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 inMexico 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]
TheUnited States Constitution, especially itsBill of Rights, protects civil liberties. The passage of theFourteenth Amendment further protected civil liberties by introducing thePrivileges or Immunities Clause,Due Process Clause, andEqual Protection Clause. Human rights within the United States are often calledcivil rights, which are those rights, privileges, and immunities held by all people, in distinction topolitical 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 nearuniversal 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 eitherpositive 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 bytribal courts.[38]
TheCivil Liberties Act of 1988 was signed into effect by PresidentRonald Reagan on August 10, 1988. The act was passed by Congress to issue a public apology for those of Japanese ancestry wholost their property and liberty due to discriminatory actions by the United States Government duringthe 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 theArchivist of the United States.[39]
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