“Civil liberties”的意思、由来-开放百科全书

Civil liberties or personal freedoms are personal guarantees and freedoms that the government cannot abridge, either by law or by judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may include the freedom of conscience, freedom of press, freedom of religion, freedom of expression, freedom of assembly, the right to security and liberty, freedom of speech, the right to privacy, the right to equal treatment under the law and due process, the right to a fair trial, and the right to life. Other civil liberties include the right to own property, the right to defend oneself, and the right to bodily integrity. Within the distinctions between civil liberties and other types of liberty, distinctions exist between positive liberty/positive rights and negative liberty/negative rights.

Overview

Many contemporary states have a constitution, a bill of rights, or similar constitutional documents that enumerate and seek to guarantee civil liberties. Other states 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. The degree that democracies have involved themselves in needs to take into fact the influence of terrorism.^[1] Whether the existence of victimless crimes infringes upon civil liberties is 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.^[2]

Asia

China

The Constitution of People's Republic of China (which applies only to mainland China, not to Hong Kong, Macau and Taiwan), especially its Fundamental Rights and Duties of Citizens, claims to protect many civil liberties.

India

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 right to constitutional remedies.^[3]

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 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 abolishment of un-touchability and prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They forbid human trafficking and unfree labour. They protect 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 public interest, anyone can initiate litigation in the court on their behalf. This is known as "Public interest litigation".^[4] 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 to all citizens the access and use of public institutions and protections, irrespective of their background. The rights to life and personal liberty apply for 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).^[5] The right to equality in matters of public employment cannot be conferred to overseas citizens of India.^[6]

Fundamental Rights primarily protect individuals from any arbitrary State actions, but some rights are enforceable against private individuals too.^[7] For instance, the constitution abolishes untouchability and prohibits begar. These provisions act as a check both on State action and 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.^[8] However, the Parliament cannot alter the basic structure of the constitution like secularism, democracy, federalism, 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 violated 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.^[9] 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.

Japan

Since 1947, Japan, a country with a constitutional monarchy and known for its socially “conservative society where change is gradual,” has a constitution with a seemingly strong bill of rights at its core (Chapter III. Rights and Duties of the People).^[10] In many ways, it resembles the U.S. Constitution prior to the Civil Rights Act of 1964, and that is because it came into life during the Allied occupation 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."^[11] 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.”^[12]

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.^[13] 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.^[14]^[15]^[16]

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.^[17] However, it had but a meager influence in the practice of the rule of law as well as in people’s daily living. 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.^[18]^[19]^[20] According to constitutional scholar, Shigenori Matsui,

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.^[22] However, human rights group, and families of the survivors condemned the agreement as patronizing and insulting.^[23]

On its official site, the Japanese government has identified various human rights problems. Among these are child abuses (e.g., bullying, corporal punishment, child sexual abuse, child prostitution, and child pornography), frequent neglect and ill-treatment of elderly persons and individuals with disabilities, Dowa claims (discrimination against the Burakumin), 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 whose human rights are violated using the Internet, the homeless, individuals with genderidentity disorders, and women. Also, the government lists systematic problems with gender biases and the standard reference to sexual preferences for jobs and other functions in society.^[24]

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.^[25] 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.^[26]

Australia

Although 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 was a key player and signatory to the UN Universal Declaration on Human Rights (1948)

The Constitution 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 speech and the right to vote to be established, however others such as freedom of assembly and freedom of association are yet to be identified.

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 treatment of refugees. 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 for 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.

Czech Republic

Following the Velvet Revolution, a constitutional overhaul took place in Czechoslovakia. In 1991, the Charter of Fundamental Rights and Basic Freedoms was adopted, having the same legal standing as the Constitution. The Czech Republic has kept the Charter in its entirety following the dissolution of Czechoslovakia as Act No. 2/1993 Coll. (Constitution being No. 1).

France

France's 1789 Declaration of the Rights of Man and of the Citizen listed many civil liberties and is of constitutional force.

Germany

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.

United Kingdom

Civil liberties in the United Kingdom date back to Magna Carta in 1215 and 17th century common law and statute law, such as the 1628 Petition of Right, the Habeas Corpus Act 1679 and the Bill of Rights 1689. Parts of these laws remain in statute today and are supplemented by other legislation and conventions that collectively form the uncodified Constitution of the United Kingdom. In addition, the United Kingdom is a signatory to the European Convention on Human Rights which covers both human rights and civil liberties. The Human Rights Act 1998 incorporates the great majority of Convention rights directly into UK law.

In June 2008 the then Shadow Home Secretary David Davis resigned 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.

Russia

The Constitution of the Russian Federation guarantees in theory many of the same rights and civil liberties as the U.S. except to bear 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 like Amnesty International have warned that Vladimir Putin has seriously curtailed freedom of expression, freedom of assembly and freedom of association amidst growing authoritarianism.^[27]

North America

Canada

The Constitution of Canada includes the Canadian Charter of Rights and Freedoms which guarantees many of the same rights as the U.S. constitution, with the notable exceptions of protection against establishment of religion. However, the Charter does protect freedom of religion. The Charter also omits any mention of, or protection for, property.

United States

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.^[28] 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 liberties are now taken to include the political rights to vote and participate in elections. Because Indian 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.^[29]

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 establishes a civil liberties public education fund. It directs 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 requires that all documents and records that are created or received by the commission be kept in the United States archives.^[30]

See also

Notes and references

1. ^{{Cite journal|last=Hunter|first=Lance Y.|date=2015-09-18|title=Terrorism, Civil Liberties, and Political Rights: A Cross-National Analysis|journal=Studies in Conflict & Terrorism|language=en|volume=39|issue=2|pages=165–193|doi=10.1080/1057610x.2015.1084165|issn=1057-610X}}
2. ^{{cite web|author1=Hugh Starkey, Professor of Citizenship and Human Rights Education at UCL Institute of Education, London|title=Magna Carta and Human rights legislation|url=https://www.bl.uk/magna-carta/articles/human-rights-legislation|publisher=British Library|accessdate=22 November 2016}}
3. ^Constitution of India-Part III Fundamental Rights.
4. ^{{cite web| url = http://www.worldlii.org/int/cases/ICHRL/1995/69.html| title = Bodhisattwa Gautam vs. Subhra Chakraborty; 1995 ICHRL 69| publisher = [World Legal Information Institute]| accessdate = 2006-05-25}} This was the case where public interest litigation was introduced (date of ruling 15 December 1995).
5. ^Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, p. A-25
6. ^{{cite web| url = http://rajyasabha.nic.in/legislative/amendbills/XXXIX_2003.pdf| title = Citizenship (Amendment) Bill, 2003| pages = 5| publisher = Rajya Sabha| accessdate = 2006-05-25|archiveurl = https://web.archive.org/web/20060425230738/http://rajyasabha.nic.in/legislative/amendbills/XXXIX_2003.pdf |archivedate = 2006-04-25}}
7. ^{{cite web| url = http://www.worldlii.org/int/cases/ICHRL/1995/69.html| title = Bodhisattwa Gautam vs. Subhra Chakraborty; 1995 ICHRL 69| publisher = [World Legal Information Institute]| accessdate = 2006-05-25}} This was the case where Fundamental Rights were enforced against private individuals (date of ruling 15 December 1995).
8. ^Kesavananda Bharati vs. state of Kerala; AIR 1973 S.C. 1461, (1973) 4 SCC 225 – In what became famously known as the "Fundamental Rights case", the Supreme Court decided that the basic structure of the constitution was unamendable.
9. ^Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, p. A-24
10. ^{{cite book | url=https://books.google.com/?id=VvL8d8RH-Z8C&pg=PT225&dq=Japan+conservative+society+where+change+is+gradual#v=onepage&q=Japan%20conservative%20society%20where%20change%20is%20gradual&f=false | title=apan: A Global Studies Handbook | publisher=ABC-CLIO | author=Ellington, Lucien | year=2002 | location=Santa Barbara, CA | page=209 | isbn=978-1576072714}}
11. ^Law, David S., The Myth of the Imposed Constitution (May 26, 2013). The Social and Political Foundations of Constitutions (Denis Galligan & Mila Versteeg eds., Cambridge University Press 2013, pp. 239-68); Washington University in St. Louis Legal Studies Research Paper No. 13-05-01. Available at SSRN:http://ssrn.com/abstract=2270399
12. ^{{cite journal | url=http://www.corteidh.or.cr/tablas/27531.pdf | title=Japan's foreign policy towards human rights: uncertain changes | author=Yokota, Yozo, & Chiyuki Aoi | journal=Human Rights and Comparative Foreign Policy: Foundations of Peace, Edited by David Forsythe | year=2000 | volume=United Nations University Press | pages=Chapter 5}}
13. ^{{cite book | url=https://books.google.com/books?id=H-HODTsc7LsC | title=Building Democracy in Japan | publisher=Cambridge University Press | author=Haddad, Mary Alice | year=2012 | location=Cambridge, UK | page=59 | isbn=978-1107014077}}
14. ^{{cite news | url=http://www.japantimes.co.jp/news/2015/02/25/national/japan-veering-away-from-global-human-rights-standards-says-amnesty-international/ | title=Japan veering away from global human rights standards, says Amnesty International | work=The Japan Times | date=February 25, 2015 | accessdate=July 5, 2016 | agency=Kyodo News}}
15. ^{{cite web | url=https://www.outrightinternational.org/content/un-urges-end-discrimination-against-lgbt-individuals-japan | title=UN Urges End to Discrimination Against LGBT Individuals in Japan | publisher=Outright International | work=Analysis | date=July 25, 2014 | accessdate=July 5, 2016 |author1=Suzanne Trimel }}
16. ^{{cite news | url=http://www.japantimes.co.jp/news/2015/06/26/national/u-s-rights-report-slams-japan-on-child-abuse-prison-conditions-asylum-system/#.V3sEBJMrJE6 | title=U.S. rights report slams Japan on child abuse, prison conditions, asylum system | work=News report | date=June 26, 2015 | agency=Japan Times | accessdate=July 5, 2016 | author=Osumi, Magdalena}}
17. ^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.
18. ^Andrew Gordon, Postwar Japan As History. Berkeley: University of California Press, 1993, p. 91.
19. ^{{cite book |last= Henderson |first= Dan Fenno |editor-last= Ward |editor-first= Robert E. |title= Political Development in Modern Japan: Studies in the Modernization of Japan |publisher= Princeton University Press |date=2015 |pages=441–45|chapter=Chapter 11: Law and Political Modernization in Japan |chapter-url= https://books.google.com/books?id=vqJ9BgAAQBAJ&pg=PA445&dq=japan+%22Bill+of+rights%22&hl=en&sa=X&ved=0ahUKEwi7rOav99rNAhVqxoMKHaRVC58Q6AEILjAD#v=onepage&q=bill%20of%20rights&f=false |access-date=July 5, 2016|isbn= 978-1400871667}}
20. ^Ugo Dessì, Japanese Religions and Globalization. London: Routledge, 2013, p. 64.
21. ^“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
22. ^{{cite news | url=https://www.bbc.com/news/world-asia-35188135 | title=Japan and South Korea agree WW2 'comfort women' deal | date=December 28, 2015 | agency=BBC | accessdate=July 5, 2016}}
23. ^{{cite news | url=https://www.telegraph.co.uk/women/life/the-horrific-story-of-koreas-comfort-women---forced-to-be-sex-sl/ | title=The horrific story of Korea's 'comfort women' - forced to be sex slaves during World War Two | work=Telegraph | date=December 29, 2015 | accessdate=July 5, 2016 | author=Sanghani, Radhika | location=London}}
24. ^{{cite web | url=http://www.moj.go.jp/ENGLISH/HB/hb-03.html | title=Major Human Rights Problems | publisher=Ministry of Justice, Japan | work=Human Rights Bureau | date=March 6, 2009 | accessdate=July 5, 2016 | author=Government of Japan}}
25. ^Jeffrey Flynn, Reframing the Intercultural Dialogue on Human Rights: A Philosophical Approach (London: Routledge, 2014), 114.
26. ^{{cite news | url=http://www.japantimes.co.jp/news/2016/04/14/national/social-issues/japan-human-rights-improve-problems-persist-u-s-state-department/#.V3tLxZMrKRs | title=Japan human rights improve but problems persist: U.S. State Department | work=Japan Times | date=April 14, 2016 | accessdate=July 5, 2016 | author=Wanklyn, Alastair}}
27. ^[https://www.theguardian.com/world/2008/feb/27/russia.humanrights Putin rolling back civil rights, warns Amnesty | World news | The Guardian]
28. ^America's Constitution: A Biography by Akhil Reed Amar
29. ^Robert J. McCarthy, Civil Rights in Tribal Courts; The Indian Bill of Rights at 30 Years, 34 IDAHO LAW REVIEW 465 (1998).
30. ^{{cite web|last1=Foley|first1=Thomas|title=Civil Liberties Act of 1987 - Conference Report|url=https://www.congress.gov/bill/100th-congress/house-bill/442|website=Congress.gov|accessdate=2015-06-18|year=1988}}