Many states have undertaken, as part of their international obligations (especially under ICCPR) to implement and enforce the rights enshrined in the Conventions in their respective states.
Many believe that the duty of the state to implement and protect human rights originates only from their international obligations but the hidden reality is that the state has fundamental domestic obligations to protect human rights of its subjects. These obligations are derived from the social contract which a state has entered into with its people under which it has primary obligations to secure and protect the human rights of its citizens.
"It is a duty of any state to secure these rights since they are the core values of a constitution. As a part of its primary duty a state should protect its people’s rights and ensure justice to everyone by applying equality and equity in addressing or resolving any problems of the people"
No modern state could exist or function without the social contract and it is the people who give authority to the state or to its agent (government) to manage or run their affairs. Under the social contract the people surrender or delegate certain rights to the state while retaining or reserving their fundamental rights to themselves.
Further under the social contract the rights that are not delegated or retained by the people, the state undertakes to protect them (both individual and collective rights). In modern times the people do not give authority to states to establish absolute or totalitarian rule but they wanted states to protect their basic rights as the primary duty of the state.
The terms of the social contract (rights/duties of the state and rights/duties of the people) are normally enshrined and reflected in a country’s constitution and other respective laws.
Hence it is a duty of any state to secure these rights since they are the core values of a constitution. As a part of its primary duty a state should protect its people’s rights and ensure justice to everyone by applying equality and equity in addressing or resolving any problems of the people.
The “Justice, Equality and Equity” are the cardinal principles and fundamental requirements not only for successful resolutions of any dispute among the people but also to unite the diverse people under the one National banner. These cardinal principles are the fundamental values which cannot be subordinated to other claimed values.
The state stands by the Victims
The state intervention is the main aspect of the positive duty of a state to protect human rights.
State intervention means the state plays a more active and dynamic role to protect the human rights of people.
The state intervention should take place at two levels: - (1) Intervention to take necessary steps to prevent human rights violation and (2) Intervention when the individual rights are violated, to assist him to seek justice and obtain remedy.
In the US, the Justice Department has intervened in several cases where the people’s rights were violated. For instance, in the Nishala Hearn v. Muskogee Public School District Case (2003), the United States Justice Department intervened as a plaintiff intervenor to assist a sixth grade student who was unfairly victimized and singled out based on her religious faith.
The purpose of these interventions is to ensure that no state laws or by laws could override the constitutional guarantees given to the people. Since the constitutional guarantees of rights are very important terms of the social contract, a state cannot and should not permit any authority to violate or infringe them under any context or guise. When such guarantees are practically ignored, overlooked and infringed, the people will lose confidence and trust in the functional democracy and justice system of that state. This will also amount to usurpation of the people’s rights which they did not surrender or delegate to the state under the social contract.
Many states including Sri Lanka have guaranteed human rights through their respective constitutional provisions which provide remedial measures in the case of infringements by referring them to the court/s (fundamental rights action). The filing of fundamental rights action in the case of infringement of one’s right squarely depends on the decision of the victim. The victim has the option either to refer the infringement to the Supreme Court to seek redress or ignore the infringement without seeking any redress. Naturally, every victim tends to seek justice and remedies but the victims also involuntarily relinquish the constitutional rights to seek redress due to several reasons. These reasons could be identified as: Being unaware that such rights exist; the cost of filing the case; doubtfulness of the outcome (success/failure); threats- perceived or real; when the opportunity cost of such decision is very high (taking all obstacles into account); fear that they are falling into problems or inviting risks and the elements of uncertainty surrounded in the whole process.
When the victims choose not to pursue their cases due to one or more of the above mentioned reasons, not only are the violators of people’s rights not punished but alarmingly and disturbingly the people’s rights are not protected as they do not have sufficient state support to get justice or relief.
In the case of criminal action the state acts on behalf of the victims because if any person commits crime against any individual it is considered as a crime committed against the state. The primary reason is to provide security for every individual within its territory as a part of the state’s duties and therefore when a crime is committed the state is called upon to act on behalf of the victim. The reasons for state intervention are manifold and they include: provide justice to the victims (corrective or remedial justice); punish the offender/s (Punitive/retaliatory Justice) and preventing future crimes through punishing proven offender/s (deterrence/ exemplary justice).
What will be the consequences if a state does not intervene when a crime is committed within its territory? Natural results will be lawlessness/chaos with the strong suppressing the weak. It also will provide an open licence to criminals to commit criminal acts. Hence, a state undertakes (at least theoretically) positive obligations to ensure that the people are protected from the criminal acts through the criminal justice system which could stand as a deterrence to prevent further crimes.
The purpose of the state or administrative organs is to serve people in the best possible or optimum ways and hence a state has neither right nor duty to defend the wrong doers or violators of the people’s rights except providing the opportunity to them to prove their innocence.
On the other hand a state has the fundamental obligation to protect the fundamental rights of the people in an effective and assertive manner. Therefore, when a state plays only a passive role it breaches the cardinal terms of the social contract with the people.
If we can protect the rights of our people in a positive, affirmative and assenting manner we could be one of the exemplary states in the human rights milieu and also it will assist us to stop external intervention in our affairs through human right issues.
The writer is an Attorney-at-Law, Senior Lecturer in Law and International Politics and the Author of “Reflections of Evergreen”.