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August 22, 2004 

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Your Advocate

Q: We often hear about human rights. I have attended a number of seminars on human rights and listened to many speakers talking on human rights. I must confess I could not gather a clear conception about what human rights exactly is. I do not understand which right enjoyed by human is not human right. I think any and every right of a human is human right. Then again there are concepts of 'fundamental human rights' and ''fundamental rights'. I need your comments by way of clarifications.
-Choudhury Areff Rahman, Sylhet.

Your Advocate: The intelligent among men are those who know that they do not know. The legal phraseologies you have referred to be really technical in nature and it is natural that their technical import may not be clear by mere attending seminars or symposiums unless you have had a close study on the subject. I do not claim I have extensive study on the subject beyond the little I needed for my profession. Well, I can share my professional experiences with you.

Human rights as a discipline is relatively of recent origin. It is theoretically a complex question to be explored in an interdisciplinary inquiry. Human rights are seen by many academic writers as 'those moral rights, which are owed to each man or woman by every man and woman solely by reason of being human'. Maurice Craston described human rights as 'being the rights of all people at all times at all situations'. This bears a sense, which comes closer to your idea. Human rights as a modern concept has found its origin in the wake of Second World War. Horror of war and boundless sufferings of mankind in the two world wars gave rise to the desire to protect human rights with a realisation that denial of human rights was a potent cause of injustice and strife. Tension of strife-situation and unrest of diverse nature which was making inroads into the different societies and shared concern for protection of citizens against gross violation of fundamental freedoms by the states in the god-like justifications of 'state security', 'public safety', 'national economy', 'law and order' and so on led the international community to take measures for protection against violation of basic human rights and fundamental freedoms. The contemporary search for general international norms and insistence on a universal common standard of human rights particularly of fundamental human freedoms and their legal protection brought about a profound change in the underlying jurisprudence of international law which may fairly be called a revolution. The formal outcome of this revolution is a detailed code of international law which spells out the rights of individual that protect their rights and fundamental freedom as against their own states and the world at large. The code calls these rights "human rights".

The UN General Assembly laid down the foundation of this task by adoption of the Universal Declaration of Human Rights on 10th December 1948. The underlying premises of the declaration was that all human beings are born free and equal in dignity and endowed with reason and conscience and should act towards one another in an spirit of brotherhood. A number of substantive rights are set out ranging over political rights, civil and economic rights, social and cultural rights. They include right to life and liberty, protection against arbitrary arrest, detention or exile, freedom of religion and conscience, freedom of _expression and association, freedom of movement and protection of legal systems, including right to fair trial. Also protected are the political rights of free and equal franchise and an elected government and an equal access to public services. The declaration was a resolution of the UN, not in itself binding on the member states. Later two covenants: The International Covenant of civil and Political Rights (ICCPR) and The International Covenant on Economic, Social and Cultural Rights (ICESCR) were brought into being to give effect to the declaration. It is the two Covenants that one normally turns to find obligations as regards human rights binding on the member states particularly because of their precise language and special machinery each Covenant established for the supervision and enforcement of their provisions. The Universal Declaration and the Covenants are referred to as 'International Bill of Rights".

The precise and compelling words of international instrument of human rights have inspired many state constitutions together with regional human rights treatise and examples of legislation quoting or reproducing provisions of the Declaration. Bangladesh constitution has enumerated a series of those rights and freedoms under its fundamental rights chapter enforceable under Article 102 of the Constitution. Development of human rights jurisprudence has, therefore, taken place in a restricted sense. Technically human rights conform the basic rights enumerated in the human rights instruments negotiated under the auspices of the UN. 'Fundamental rights' are also human rights enumerated as such in our Constitution and are enforceable under law. This does not mean human rights are confined to the rights enumerated by the UDHR or fundamental rights laid down by our Constitution. In its generic sense, human rights as Craston maintained, are all rights that every man and woman owes to every man and woman as human.

Your advocate M. Moazzam Husain is a lawyer of the Supreme Court of Bangladesh. His professional interests include civil law, criminal law and constitutional law.

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