Law analysis
Raising human honour
Mufassil M M Islam
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Photo: UDHR.Org |
The albatross can fly for a year without landing on the ground even once and it is definitely not worried about other albatrosses attacking it. It flies with confidence depending on its own two wings stretched to the limits of the sky. We, humans have penetrated the visible limits of the sky and flown to the oblivion relying on artificial wings and yet we are worried about our existence as we cannot trust our own kind.
Humans pride in being the best of all creations of God as we have this unique rational, philosophical, emotional and complex mental faculty. We have come a long way since time unrecorded to the time when we are thinking of going back to the past as HG Wells dreamt of a 'Time Machine Capsule'. Our imaginations and our endeavours have pushed our imaginations to that far where many of us want to get away from our own fellow human beings and wishes for a 'cast-away' life like that of an 'Alexander Selkirk'. Yet, we were the 'homo sapiens' who with our gifts as an advanced species, formed families which grew into societies, nations and international unions of various nations.
Religion, philosophy, politics, science and natural justice have often pushed us to ponder, meditate, love, cherish and on the reverse crush our own fellow travellers of life and our 'colleagues in time'. The inner-core of human unity was often shaken by various norms and discords in the shapes of jealously, rivalry and hate. Budhdha went to achieve 'Nirban' and Jesus Christ spread unconditional 'Love' with the plea to keep the created united in one cord. RK Mission spreads human dignity above all differences within human races. Alas! We remain so far from one another even within the same very core of family lives. Our Prophet Muhammad (PBUH) spread practical means to resolve practical problems of this practical world and sought divine blessings from the Almighty as William Cowper said, 'An oar is not enough to reach the shores. God's air must swell the sails'. Misconstrued, deviated, derailed and zealous fanatic world leaders and even terrorists vie to obliterate the existence of other nations and religious groups being so far away from the teachings of their ultimate true teachers.
Political leaders and law makers unite to forge League of Nations, United Nations, European Union, ASEAN, SAARC and African Union to stretch the ever squeezing nationalistic sentiments.
Various laws, regulations, treaties, conventions and bills are drafted every year to resolve human differences and to put them in harmony with one another by confirming common grounds of interests by declaring 'justifiable human rights'. But the definition of justifiability remains an unconfirmed and uncharted territory which loses shape from zone to zone in the world's atlas. Our human race is now challenged with the final frontiers of resolving their own differences.
Human Rights are the rights which humans should enjoy and the state has the positive duty to safeguard their enjoyments and negative duties not to deny them. When these rights are written in constitution we brand them 'fundamental rights' Various national unions have now reached treaties to combined values and reach multinational treaties and conventions to spill over their rights to other different nations. European Convention of Human Rights 1950 is one as such. Primarily the similarities in race, culture, tradition and historical connections have assisted immensely behind the thought of such a union but surprisingly religion still plays an important role behind allowing a country into the union which reflected in Pope Benedict's initial opinion against inclusion of Turkey into the Union (www.euractiv.com).
The history of the growth of the concept of Human Rights goes back to the history of human existence. The Code of Ur-Nammu is the oldest legal codex that survives today. The Twelve Tables of the Romans, The Medina Sanad, Bill of Rights of England and USA, The Magna Carte are the initiators of modern day legislations on Human Rights issues. Several other legislations have been enacted apart from the Universal Declaration of Human Rights as a few are following:
* Convention on the Prevention and Punishment of the Crime of Genocide (entry into force: 1951)
* United Nations Convention Against Torture (entry into force: 1984)
* Convention on the Elimination of All Forms of Racial Discrimination (entry into force: 1969)
* Convention on the Elimination of All Forms of Discrimination Against Women (entry into force: 1981)
* Convention on the Rights of the Child (entry into force: 1989)
* Rome Statute of the International Criminal Court (entry into force: 2002)
The Geneva Convention 1951 is being used immensely by the lawyers around the world in securing the rights of the migrant refugees in foreign countries. In Europe, Article 3 of the European Convention of Human Rights Act 1950 is being used to secure the rights to live in Europe for an individual who is fled his country against fear for his life and security. This Convention secures the rights of the individuals into two folds: Absolute Rights and Qualified Rights and the Absolute Rights do not require any weighing of other options to safe-guard the interests of the asylum seekers. I tried Article 3 of the Human Rights Act 1998 in England to ensure the medical treatment of a fleeing asylum seeker from Congo which barred the Government from deporting the failed asylum seeker to his native country as her rights to be treated in UK was incumbent against a forced deportation which would have pushed her to a sure-death situation where the treatment would have been an impossibility (news.bbc.co.uk/1/hi/health/3582322.stm). I also successfully used Article 3 against Parking Fines without any photographic evidence. My latest efforts include the suing of an individual against his ex-girlfriend's decision to keep their relationship a classified information from her fiancé.
Ordinarily we understand Human Rights to be the rights guaranteed by laws. But there are rights and privileges which cannot be enshrined by any legislation. For example, the rights to be respected by the elderly and the rights to be helped financially by the richer cannot be made mandatory by confirming charity as an obligation. But religion sometimes make moral duties as obligatory and a legal preface is given by confirming punishment otherwise. Islam confirmed many charitable works like that of Zakat and Fitra to be state obligations in order to enforce these moral duties as State laws as well. But in this ever fluctuating political world where we have had to decipher the nations into political zones and restrict human movements, we are challenged to find a third way to climb the high ladder so that we could see more and grow out of our personal views about our ideologies.
SAARC can play an important roles by putting important issues on the table which may take several years, sessions and wrangling but will one day be realised. Issues like having a South Asian Human rights Convention as we have a load of similar values, a South Asian Court of Human Rights which would have superseding authority on existing highest courts of the signatory states. The lawyers need to have practising flexibility to ensure representation of individuals in the South Asian Court of Human Rights and we have examples of such courts in Europe Court of Justice (curia.europa.eu). Time has come not to hide behind the excuse of keeping our obligations away by degrading ourselves as poor. We do not need to be financially well off that much to take these steps rather being rich in confidence will pave the way. Our leading lawyers should focus more in enhancing the practising arena by focusing on what lawyers can do for the nation as lawyers and not as politicians only although lawyers around the world were and are engaged successfully in politics and names of Clinton, Tony Blair, Nelson Mandela, Gandhi, Sher-E-Bangla, Sohrawardi, Dr. Makal Hossain are among the few of many starry legal luminaries.
But we above all, we need to practise our morality. Our religious leaders, politicians, philosophers, academicians and other leaders in the society need to shed their vanity and sit to draft a national Human Rights Act if not a South Asian Convention immediately, to equip the lawyers to habituate the confused communities of our poor nation so that we practise into being a more civilised society where we already have reputation as being a country where people are flatteringly hospitable to total strangers and we should be confident that a new enactment in the right direction will equally be welcomed. It is true that rights are often denied by the ill-achievers but if we are aware of our basic rights, we will be able to demand it with the development of the socio-political and judicial environment. A true separation of the Judiciary from the Executive will also mean complete renunciation of all black laws and slow but steadily distancing ourselves from hurried Tribunals. We must bring back our confidence in the Judiciary and our laws so that we can improve our dignity as human beings with equal rights for all.
My writing has been an endeavour to the patient reader to have a third view towards the issue of Human Rights as we all have a third eye of the mind but we are sometimes required to open it as well.
The writer is Human Rights Advocate President and CEO Islam and Associates.
