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Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties often 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 Self-defense, 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.
Libertarians advocate for the negative liberty aspect of civil liberties, emphasizing Small-government in both personal and economic affairs. Influential advocates of this interpretation include John Stuart Mill, whose work On Liberty argues for the protection of individual freedoms from government encroachment, and Friedrich Hayek, whose The Road to Serfdom warns against the dangers of expanding state power. Ayn Rand Atlas Shrugged and Ron Paul further emphasize the importance of safeguarding personal autonomy and limiting government authority. These contributions have played a significant role in shaping the discourse on civil liberties and the appropriate scope of government.
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.
Although the 1982 constitution guarantees civil liberties, the Chinese government usually uses the "subversion of state power" and "protection of state secrets" clauses in their law system to imprison those who criticize the Chinese Communist Party (CCP) and the state leaders.
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 the public interest, anyone can initiate litigation in the court on their behalf. This is known as "public interest litigation". This was the case where public interest litigation was introduced (date of ruling 15 December 1995). 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 the citizens of India (including Indian diaspora citizens).Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, p. A-25 The right to equality in matters of public employment cannot be conferred to overseas citizens of India.
Fundamental Rights primarily protect individuals from any arbitrary State actions, but some rights are enforceable against private individuals too. This was the case where Fundamental Rights were enforced against private individuals (date of ruling 15 December 1995). For instance, the constitution abolishes untouchability and prohibits Forced labour. 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 the Kesavananda Bharati vs. State of Kerala case, the Supreme Court ruled that all provisions of the constitution, including Fundamental Rights can be amended. Kesavananda Bharati vs. the 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. 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 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 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.Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, p. A-24 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.
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. 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.
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.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. 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.Andrew Gordon, Postwar Japan As History. Berkeley: University of California Press, 1993, p. 91.Ugo Dessì, Japanese Religions and Globalization. London: Routledge, 2013, p. 64. 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 National 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 "Comfort women" that took place during the Japanese occupation of the Korean Peninsula. However, human rights group, and families of the survivors condemned the agreement as patronizing and insulting.
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 Elder abuse and individuals with Disability abuse, 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 Gender dysphoria, and Misogyny. Also, the government lists systematic problems with gender biases and the standard reference to sexual preferences for jobs and other functions in society.
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.Jeffrey Flynn, Reframing the Intercultural Dialogue on Human Rights: A Philosophical Approach (London: Routledge, 2014), 114. 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.
The Constitution of Australia (1900) does offer very limited protection of rights:
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 their human 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.
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.
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 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 the Archivist of the United States.
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