Md. Shah Alam
MPhil Researcher
Department of History
University of Dhaka
The aftermath of the Second World War has witnessed the great concern for the humanity and as a consequence tremendous development have been made in the field of human rights. The Universal Declaration of Human Rights (UDHR) adopted by the United Nations General Assembly in 1948, moreover a large number of international human rights instruments have been signed under the auspices of the United Nations. It’s principal organs specially, the General Assembly and the Economic and Social Council and frosts of subsidiary agencies, created for the purpose of enforcement of human rights, are vigorously involved in the protection and promotion of human rights and fundamental freedoms. It must not, however, be supposed that this Human Rights Movement have appeared suddenly as full grown out of the ravages of the Second World War.
The term `Human Rights' came into wide use after World War II, replacing the earlier phrase “natural rights,’’ which had been associated with the Greco-Roman concept of natural law since the end of the Middle Ages.[1] The theories of natural rights advocated that the natural rights were derived from the nature of man for these are inherent in the nature of man and from part of his intrinsic nature.[2] It was explained that since man is endowed with reason, for that reason, he is also endowed with ``certain rights without which he ceased to be a human beings.’’[3] For Locke these rights consist of right to ``Life, liberty and property”.
The concept of natural rights, in its development, was closely associated with the natural law theories which played very significant role in universalizing the concept of natural rights. The underlying notion of natural law theories is that there essentially exist in the nature of universe certain objective moral principles which can be perceived by the man by the application of his reason. These principles of natural law and constitute the higher principles of justice and morality. Positive law, in order to be valid, should conform to it the principles of natural law are essentially valid in themselves because they are ``logically connected with the truths concerning human nature.”[4] As a consequence of this association between the natural rights and the natural law theories, the man has been viewed ``as a self-deterring and self-directing agent linking in an environment that offered him ample resources and opportunities to pursue his own goal and those his own actions free from interference by others.”
However it must be noted that the concept of natural rights prevailed even the evolution of natural law theories. The citizens of Greek City States a valid certain rights which they considered as fundamental for them .These rights in particular were: (1) the right to freedom of speech (isogonia); (2) the right to equality before law (isononia); and (3) the right to equal respect for all (isotimia).[5]
The natural law theory, as a matter of fact, was developed systematically after the breakdown of Greek City States by the Stoic philosophers. It was argued by them that a man should live reasonably and in accordance with the law of nature. If he fails to conform to the law of nature he should be considered as wicked and irrespective of the position he occupies in life.[6] State for them was merely a social convenience whose dictates or rules were not binding on the wise man.
Earlier in Greek, the wisdom and foresighted thoughts of Greek philosophers set up the foundation of Humanism. The doctrine of knowledge of the greatest philosopher Socrates manifested ‘Morality and Humanism’ in the world of philosophy. Plato was influenced by Socrates and expressed his thoughts about the welfare and legal rights of humankind. His philosophy is grand having posed the thoughts of Ideal state, equality and justice. In `The Republic’ while describing the origin and activities of the state, Plato says, ‘We cannot suppose that the states are made of oak and rock and not out of human natures which are in them ... .States are as the men are, they grow out human characters.`[7] That is, Plato wanted to say that, the citizens of the state are only to ensure the welfare of its citizen, not only to control or maintain security.
Though Plato’s theory is slightly universal, illiberal and narrow owing to classification of citizens and common people and giving priority to the privilege of a certain class; its importance can not be ignored. According to him the objectives of earning property is to live, not to dominate others rights. In `Republic’ Plato says “our aim in founding the state was not the disproportionate happiness of any one class, but the greatest happiness of the world whole. ``[8]
Plato’s theory of equality and justice can be considered as the basis of human rights. After Plato, Aristotle contributed to sketch the form of the Welfare State .His theory explains how the state can with its skilled and honest administration create a positive environment where justice and honesty will prevail. He discourages the classification and discrimination of rights as they spoiled the social unity. In ‘Politics', he says, ‘The cause of sedition (Revolution) is always to be found in inequality .......It is a passion for equality which is thus at the root of sedition. `[9]
According to Aristotle the way of promotion and preservation of Human Rights is through elimination of all kinds of discrimination and through establishing, fair relationship between the ruler and the ruled .However it is significant to note that though the Greek Society and philosophy contained justice, equality, dignity and rights of humankind, in fact these were enjoyed by only the free born citizens. The common people including slaves, peasants, labourers; who were the majority, were deprived of fundamental rights. [10]
Post-Aristotle philosophy gave prominence to men’s dignity, individualization and universal equality. At that time, `Stoicism’ had its great flourishing in Rome. The essences of; `Stoicism’ is the concept of rationalism, justice and natural laws. Loyalty to `Natural Law was regarded as the pre-condition of establishing of human rights.[11]
The central notion of the Stoic philosophy was that the principles of the natural law were universal in their nature. Their application was not limited to any class of persons of certain state, rather it applied to everywhere in the world. It was the embodiment of those higher principles of justice which could be discovered by human reason and as such were superior to positive law. The natural rights of man being its embodiment were ``not the particular privileges of citizens of certain state ,bur some thing to which every human being ,everywhere ,was entitled to in virtue of the simple fact of being human and rational.[12] They set forth further that men ``could compared and obey this law of nature because of their common possession of reason and capacity to develop and attain virtue.’’[13] In this way the Stoic philosophers were able to preach the idea of Universal brotherhood of mankind and laid stresses upon the equality and freedom for all.
Roman thoughts was widely influenced by Stoicism that reflected in the theory of positive law and sovereignty writing about natural law, Cicero (106-43 B.C), like Stoic philosophers laid emphasis upon the universal nature of it and said that natural law is of ``universal application ,unchanging and everlasting ...... . It is a sim to try alter this law ,nor is it allowable to attempt to repeal any part of it ,and it is impossible to abolish it entirely .We cannot be freed from its obligation by Senate or People ..... . And there will not be different law at Rome and Athens or different laws now and in the future, but one internal and unchangeable law will be valid for all nations and for all times.’’[14]
Rome’s applied the Stoic conception of natural law in the formation of body of legal rules for the administration of justice. Roman Law was divided into two categories of rules :`jus civile’, or Roman civil law dealing with citizens thinks and actions ; and `jus gentium', or the law of non-citizens. Many of these principles were adopted from `jus naturale’ (natural law) which enabled them to humanize these rules in such way that a man of common sense and good faith could approve them as just.[15]
At the beginning stage of modern age, the practice of Human Rights had been developed in England. After `Magna Carta’ an important step was taken by the parliament through adopting `Petition of Right’s in 1628 which admitted the right to freedom military rule, right to protection against arbitrary interference to one’s home or privacy, right to security from undisciplined arrest or detention etc. This petition of rights decreased people’s desirable rights.[16]
Subsequently, the Puritan Revolution (1640-1647) had played a pervading role in the development of human rights. The practice and thoughts about civil rights and fundamental freedom of middle age accelerated by puritan revolution. Right to vote, right to earn property, freedom of press and opinion etc were the output of the puritan revolution. Dunning said, ``The legal and the constitutional aspect of the Puritan Revolution in its progress up to the establishment of common wealth ,shows us the triumph of limited monarchy and the pretty clear definition of those individual rights which were to become known as natural rights.’’[17]
Next the Glorious Revolution of 1688 procreated constitutional practice of human rights by terminating the Royal Absolutism. For the sake of prolong the results of Glorious revolution, `The English Bill of Rights’ was adopted by parliament in 1689.The English Bill of Rights contained sovereignty of parliament, free and impartial election, freedom to express opinion, Right to fair trail etc. Deicy said ``The Petition of Rights and the Bill of Rights, contain, it may be said, proclamations of general principles which resemble the declaration of rights known to foreign constitutionalists and especially the celebrated Declaration of the Declaration of the Rights of Man of 1789.’’[18]
But, according to Dicey, ``the petition of Rights and the bill of Rights are not so much declarations of rights in the foreign sense of term, as Judicial condemnations of claims or practices in the part of the Crown, which are thereby pronounced illegal .It will be found every, or nearly every clause in the two celebrated documents negatives some distinct claim made and put into force on behalf of the prerogative.’’[19]
But the English Bill of Rights had agitated human minds all over the world. Besides the theory and philosophy of John Locke, Montesquieu, Voltaire, Jean-Jacques Rousseau had extensively stimulated man kind to attain their rights. Some historic events in regard to inalienable human rights such are the Declaration of Independence of America, 1776, and its consequential effect on rights of the common people to elect a representative government and in case of its failure to preserve human rights to change the government can be regarded as the mile stone in the history of human rights.
In this declaration, Locke’s doctrine of `Social Contract’ reflected so strongly the Maxey entitled it …laws the ``Thunderous Transcript of John Locke’s book `Two treaties on Civil Government.' After this, the American Bill of Rights followed the patterns which were added to its constitution in 1791.’[20] The first ten amendments to United States Constitution proposed and accepted by the Congress in 1791, known as the American Bill of Rights ,’’along with other provisions of the Constitution itself and other amendments , converted the natural and inalienable rights into rights recognized by the positive law and sought to protect them particularly against the Government. Ever since the insertion of Supreme Court of the United States to interpret them whenever disputes arose regarding their scope and meaning. Fundamental rights were declared also in the constitutions of the States[21]
In France the constitutional practice of human rights began through the French Revolution. After the revolution to ensure a balanced social system `The Declaration of Rights of man and of citizens’ was adopted by the national assembly of France which expresses: ``Men are born free and always continue free and equal in respect of their rights..... . The end of all political associations is the preservation of the natural and imperceptible rights of man; and these rights are liberty, property, security and resistance of oppression.’’[22]
The Irish Constitution of 1937 contains declarations of fundamental rights. Articles 40 of that constitution declare equality before the law, the guarantee to vindicate personal rights, personal freedom, free expression of convictions and opinions, the right of peaceable assembly and association. Article 44(2) includes freedom of conscience and the free expression and practice of religion.[23]
Freedom from discrimination , the right to personal liberty ,freedom of expression , assembly , association residence ,to acquire property and to follow an association ,freedom of conscience, protection against exploitation without compensation are all guaranteed by the Burma Constitution of 1948, which also provides for the enforcement of these rights by the English prerogative writs.
The Constitution of Canada, Australia and Union of South Africa, being Acts of British Parliament, do not provide any `comprehensive statement of human rights.’ Their resemblance in this respect to United Kingdom Constitution is quite obvious. They follow the British pattern in so far as they neither affirm nor guarantee the liberties of the subject. Many of the new and newly emerging states in Africa and elsewhere are seen to have guaranteed some fundamental rights in their constitutions. [24]
In British India, not withstanding pressure from Indians, the Constitution Acts enacted by the parliament of the United Kingdom did not contain a declaration of fundamental rights as such, though they guaranteed a few rights. The proclamation of Queen Victoria on November 1858, laid down the State Policy in certain matter as follows
1. It decided the secular nature of the State and the principle of non-interference with the citizens' religious faith and observances.
2. It declared the freedom of religious faith and worships.
3. It assured the right to private property particularly in land.
4. It declared impartiality in the matter of appointment to public services.
5. It proclaimed the equal protection of law.[25]
But as the proclamation merely contained a declaration as to State policy, the principles enunciated therein were not enforceable in courts. The origin of this guarantee is traceable to the Charter Act of 1833.
Section 96 of the Government of India Act, 1915, guaranteed equality of opportunity in the public services, regardless of race or religion. But it is not followed. The Government of India Act, 1935, went further .It imposed in Sections 275 and 297 to 299 some restrictions on executive and legislative action forbidding discrimination, which are comparable with the fundamental rights, for they could be enforced, even against a statute by the Constitutional remedy was provided to enforce such rights.
The British, as the colonial power in India, desired above all to control a huge population with a minimum number of foreign persons. They wanted to prevent the formation and evolution of any kind of revolutionary movement, especially those demanding independence. Therefore, human rights groups or movements had no place in British India. The only ones, which were tolerated, were those, which were promoted by the outlawing of the cruel and inhuman practice of suttee.[26]
The same situation prevailed in Pakistan from 1947-1971.Much of that period was passed under martial law. The national security state was the model in which government exercised maximum control and justified it in the name of rapid economic development. Thus, human rights organizations did not exist in this period either. The exploitation of East Pakistan by West Pakistan, economically, socially, society and culturally, is so well known as to require no detailed analysis.[27] Even though East Pakistan had 56 percent of the population of the entire country and its language was spoken by the majority of the people, there was an attempt on the part of West Pakistan to foist Urdu on the nation as the only national language .The opposition from the student community of East Pakistan and the death of martyrs of the Bengali language movement on 21 February 1952 brought about the recognition of the Bengali as of equal status with Urdu as a State language. It is one of the greatest triumphs of human rights in Pakistan. Social, economical, cultural, political and civil rights, all were violated in Pakistani rule.
In 1971, the Pakistani Military committed genocide with the help of some Bengalese in East Pakistan and facing a modern force the people of East Pakistan established an independent country named Bangladesh. The killing of 71 was a brutal instance in contemporary history and a vital example of gross human rights violation.
[1] http://www.britannica.com/EBchecked/topic/275840/human- rights/275840overview/Overview
[2] Gaius Ezejiofor, Protection of Human Rights under the Law, London, Butterworth's, 1964 p-3
[3] Friedrich Carl. J., Constitutional Government and Democracy: Theory and Practice in Europe, and America, Oxford & IBH Publication, 1968. p-156
[4] P. J Fitzgerald (Edited), Salmon on Jurisprudence, Twelfth edition, 1966, p-15
[5] James Edgar Swain, A History of World Civilization, McGraw-Hill Book Company, NY, 1947
pp-150-1
[6] James Edgar Swain, pp-150-1
[7] Begum Rokeya, Human Rights –An overview in Historical Perspective , Journal of Social Development, Institute of Social Welfare and Research, Dhaka University, Vol-12 Number 1 (1997) p-189
[8] Begum Rokeya, P-190
[9] Begum Rokeya, P-190
[10] Begum Rokeya, P-190
[11] Begum Rokeya, p-190
[12] Dr.U Chandra, Human Rights, Allaahbad Law Book Publication Agency, Allahabad, 1999, p-2
[13] Dr.U Chandra, p-2
[14] Dr. U. Chandra. p-2
[15] Swain James Edgar, pp-150-1
[16] Rokeya Begum, p193
[17] Rokeya Begum, p-194
[18] F.K.M.A Munim.-Rights of the Citizen under the Constitution and Law, BILIA, Dhaka, 1975, p-5
[19] F.K.M.A Munim, p-5
[20] Rokeya, Begum, p-194
[21] F.K.M.A Munim, pp-7-8
[22] Thomas Paine, Rights of Man, The Heritage Press, New York, 1961, p-78
[23] Munim, F.K.M.A, p-3
[24] F.K.M.A. Munim, p-3-4
[25] F.K.M.A. Munim, p-3-4
[26] R.W.Timm, Human Rights, Mohiuddin Ahmed, (Edited), Bangladesh Towards 21st Century, CDL, Dhaka, 1999, p—25
[27] R.W.Timm, p—25
