Read: The state of Human Rights in the Philippines

Definition of Human Rights:

The basic rights and freedoms to which all humans are entitled, often held to
include the right to life and liberty, freedom of thought and expression, and
equality before the law.
Characteristics of Human Rights
Universal and inalienable
The principle of universality of human rights is the cornerstone of international
human rights law. This principle, as first emphasized in the Universal Declaration on
Human Rights in 1948, has been reiterated in numerous international human rights
conventions, declarations, and resolutions. The 1993
Vienna World Conference on Human Rights, for example, noted that it is the duty of
States to
promote and protect all human rights and fundamental freedoms, regardless of
their political, economic and cultural systems.
All States have ratified at least one, and 80% of States have ratified four or more, of
the core human rights treaties, reflecting consent of States which creates legal
obligations for them and giving
concrete expression to universality. Some fundamental human rights norms enjoy
universal pro
tection by customary international law across all boundaries and civilizations.
Human rights are inalienable. They should not be taken away, except in specific
situations and according to due process. For example, the right to liberty may be
restricted if a person is found
guilty of a crime by a court of law.
Interdependent and indivisible
All human rights are indivisible, whether they are civil and political rights, such as
the right to life, equality before the law and freedom of expression; economic, social
and cultural rights, such as the rights
to work, social security and education, or collective rights, such as the rights to
development
and
self-determination,
are
indivisible,
interrelated
and
interdependent. The improvement of one right facilitates
advancement of the others. Likewise, the deprivation of one right adversely affects
the others.
Equal and non - discriminatory
Non - discrimination is a cross - cutting principle in international human rights law.
The principle is present in all the major human rights treaties and provides the
central theme of some of international human rights conventions such as the
International Convention on the Elimination of All Forms of Racial Discrimination
and the Convention on the Elimination of All Forms of Discrimination against
Women.
The principle applies to everyone in relation to all human rights and freedoms and it
prohibits discrimination on the basis of a list of non-exhaustive categories such as
sex, race, color and so on. The
principle of non-discrimination is complemented by the principle of equality, as
stated in Article 1 of the Universal Declaration of Human Rights: All human beings
are born free and equal in dignity and
rights.

Both Rights and Obligations

Human rights entail both rights and obligations. States assume obligations and
duties under international law to respect, to protect and to fulfill human rights. The
obligation to respect means that States must refrain from interfering with or
curtailing the enjoyment of human rights. The obligation to protect requires States
to protect individuals and groups against human rights abuses. The obligation to
Fulfill means that States must take positive action to facilitate the enjoyment of
basic human rights. At the individual level, while we are entitled our human rights,
we should also respect the human rights of others.
Read: Vienna Declaration and Programme Action
Mohd. Ahmed Khan v Shah Bano Begum
The husband (appellant) was married to the wife (respondent) in 1932. In 1975 the
husband drove the wife out of the matrimonial home. In April 1978, the wife filed a
petition against the husband under Section 125 of the Criminal Procedure Code
1973 (hereinafter referred to as the Code/ CrPC) in the court of the learned
Judicial Magistrate (First Class), Indore. She asked formaintenance at the rate of Rs.
500 per month. On November 6, 1978 the husband divorced his wife by an
irrevocable talaq. His defence was that she had ceased to be his wife by reason of
the divorce granted by him. He therefore claimed to be under no obligation
maintenance for her since he had already paid maintenance to her at the rate of
Rs. 200 per month for about two years and that, he had deposited a sum of Rs. 3000
in the court by way of dower during the period the of iddat.In August, 1979 the
learned Magistrate directed appellant
to pay a princely sum of Rs. 25 per month to the respondent by way of
maintenance. In July, 1980 in a
revisional application filed by the respondent, the High court of Madhya Pradesh
enhanced the amount
of maintenance to Rs. 179.20 per month. The husband has filed this appeal by
special leave before the
Supreme Court.
Legal Reasoning
1) Whether the payment of mehar by the husband on divorce is sufficient to absolve
him of any duty to pay maintenance to the wife.
...there is no escape from the conclusion that a divorced Muslim wife is entitled to
apply for maintenance under Section 125 and that, Mahr is not a sum which, under
the Muslim Personal Law, is
payable on divorce. (para 32)
The Court reached the above conclusion in support of the ruling in Bai Tahira where
Justice Krishna Iyer held that ...The payment of illusory amounts (referring to
mehar) by way of customary or personal law requirement will be considered in the
reduction of maintenance rate but cannot annihilate that rate unless it is a
reasonable substitute. (p.82,Bai Tahira)
2) Whether there is any provision in the Muslim Personal Law under which a sum is
payable to the wife on divorce
Referring to the views put forth by the learned scholars (Mulla, Tyabji and Paras
Diwan), the Court concluded that These
statements in the text book are
inadequate to establish the proposition that the Muslim husband is not under an
obligation to provide for the maintenance of his divorced wife, who is unable to
maintain herself.(para 16)
The sum settled by way of Mahr is generally expected to take care of the ordinary
requirements of the wife, during the marriage and after. But these provisions of the
Muslim Personal Law do not countenance cases in which the wife is unable to
maintain herself after the divorce. We consider it not only incorrect but unjust, to

extend the scope of the statements extracted above to cases in which a divorced
wife is unable to maintain herself. We are of the opinion that the application of those
statements of law must be
restricted to that class of cases, in which there is no possibility of vagrancy or
destitution arising out of the indigence of the divorced wife (para 16)

she is entitled to take recourse to Section 125 of the Code. The outcome of this
discussion is that there is no conflict between the provisions of Section 125 and
those of the Muslim Personal Law on the question of the Muslim husbands
obligation to provide maintenance for a divorced wife who is unable to maintain
herself.

Since the Muslim Personal Law, which limits the husbands liability to provide for
the maintenance of the divorced wife to the period of iddat, does not contemplate or
countenance the situation envisaged
by Section 125, it would be wrong to hold that the Muslim husband, according to his
personal law, is not under an obligation to provide maintenance, beyond the period
of iddat, to his divorced wife who
is unable to maintain herself. (para 16)

Dismissing the appeal, the Court held:

1) The payment of mehar by the husband on divorce is not sufficient to absolve him
of the duty to pay maintenance to the wife.
2) The liability of the husband to pay maintenance to the wife extends beyond the
iddat period if the wife does not have sufficient means to maintain herself.
3) Section 125 of the Code applies to all citizens irrespective of their religion
4) Section 125 overrides the personal law, if is any there conflict between the two.
5) There is no conflict between the provisions of Section 125 and those of the
Muslim Personal Law on
the question of the Muslim husbands obligation to provide maintenance for a
divorced wife who is unable to maintain herself.

The Court concluded that the liability of the husband to pay maintenance to the wife
extends beyond the
Iddat period if the wife does not have sufficient means to maintain herself.
3) Whether Section 125 of the Code applies to Muslims.
Referring to Section 125 of the Code, the Court said: The religion professed by a
spouse or by the spouses as no place in the scheme of these provisions. Whether
the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens
arewholly irrelevant in the application of these provision. The reason for this is
axiomatic, in the sense that Section 125 is a part of the code of Criminal Procedure,
not of the Civil Laws which define and govern the right and obligations of the parties
belonging to particular religions, like
the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial
Act.
(para 7)

Local Application, Margin of Appreciation:

Clause (b) of the Explanation to Section 125(1), which defines wife as including a
divorced wife, contains no words of limitation to justify the exclusion of Muslim
women from its scope.(para 7)

"Margin of appreciation" refers to the power of a Contracting State in assessing the

factual circumstances, and in applying the provisions envisaged in international
human rights instruments.

Wife means a wife as defined, irrespective of the religion professed by her or by

her husband. Therefore, a divorced Muslim woman, so long as she has not
remarried, is a wife for the purpose
of Section 125. The statutory right available to her under that section is unaffected
by the provisions of the personal law applicable to her. (para 9)

Margin of appreciation is based on the notion that each society is entitled to certain
latitude in balancing individual rights and national interests, as well as in resolving
conflicts that emerge as a result of
diverse moral convictions.
Handyside v. the United Kingdom , (5493/72) [1976] ECHR 5 (7 December
1976)
BACKGROUND

4) Whether Section 125 would prevail over the personal law of the parties, in cases
where they are in conflict.
The Court in answering this question, gave the example of the Islamic Law regarding
polygamy:
It is too well-known that A Mahomedan may have as many as four wives at the
same time but not more. If he marries a fifth wife when he has already four, the
marriage is not void, but merely irregular.
The explanation confers upon the wife the right to refuse to live with her husband if
he contracts another marriage, leave alone 3 or 4 other marriages. and held-It
shows, unmistakably, that Section 125 overrides the personal law, if is any there
conflict between the two.
5) Whether there is any conflict between the provisions of Section 125 and those of
the Muslim Personal Law on the liability of the Muslim husband to provide for the
maintenance of his divorced wife The true position is that, if the divorced wife is
able to maintain herself, the husbands liability to provide maintenance for her
ceases with the expiration of the period of iddat. If she is unable to maintain herself,

Margin of Appreciation is a concept the European Court of Human Rights has

developed when considering whether a member state of the European Convention
on Human Rightshas breached the
convention. The margin of appreciation doctrine allows the court to take into effect
the fact that the Convention will be interpreted differently in different member
states. Judges are obliged to take into account the cultural, historic and
philosophical differences between Strasbourg and the nation in question. The
margin of appreciation is remotely similar in concept to but different from
subsidiarity.

The applicant, Mr Handyside, was the proprietor of the publishing firm "Stage 1" in
London and had published the book 'The Little Red Schoolbook' which was intended
for, and made available to, school
- children of the age of twelve and upwards. The book contained chapters on sex,
including sub- sections on issues like masturbation, contraceptives, menstruation,
pornography, homosexuality and abortion and addresses for help and advice on
sexual matters. A prosecution was brought against him based on the
Obscene Publications Act1959, as amended by the Obscene Publications Act1964.
His appeals against his conviction failed but did not exercise his right of making a
further appeal to the Court of Appeal since he
did not dispute that the original Magistrate's Court judgment had correctly applied
English law.
APPEAL TO THE EUROPEAN COURT OF HUMAN RIGHTS (E.C.H.R)

The applicant appealed to the E.C.H.R. on the grounds that his conviction
constituted an interference of his Article 10 rights to freedom of expression. The
issue for the court was whether the interference had been 'necessary in a
democratic society' in accordance with the legitimate aim of "protecting morals."
JUDGMENT: The Court ruled that in respect of 'protecting morals', it was impossible
to find a uniform European conception amongst the contracting states. A margin of
appreciation was to be applied,
"By reason of their direct and continuous contact with the vital forces of their
countries, State authorities are in principle in a better position than the international
judge to give an opinion on the exact content of these requirements as well as on
the 'necessity' of a 'restriction' or 'penalty' intended to meet them."
At the same time, the Court stressed that the test of 'necessity' was a strict one:
"[W]hilst the adjective 'necessary' ... is not synonymous with 'indispensable' ... the
words 'absolutely necessary' and 'strictly necessary'..., neither has it the flexibility
of such expressions as 'admissible', 'ordinary', 'useful', 'reasonable' or 'desirable'.
"The Court noted that freedom of expression constitutes one of the essential
foundations of a democratic society, one of the basic conditions for its progress and
for the development of every person. The right to freedom of expression applies:
"To information or ideas that are favourably received or regarded as inoffensive or
as a matter of indifference, but also to those that offend shock or disturb the state
or any sector of thepopulation.
Such are the demands of that pluralism, tolerance and broadmindedness without
which there can be no democratic society. This means ... that every 'formality, '
'condition, ' 'restriction' or 'penalty' imposed in this sphere must be proportionate to
the legitimate aim pursued."
The Court was concerned by the fact that the publication was aimed at children and
adolescents aged from twelve to eighteen and that the applicant intended
widespread circulation including schools.
Although the book contained factual, correct and useful material, it also included
passages that impressionable young people could have interpreted as an
encouragement to indulge in precocious
activities harmful for them or even to commit certain criminal offences.
Furthermore,the Court considered that the fact that no proceedings had been
instituted against the revised edition, which
differed extensively from the original edition on the points at issue, suggested that
the authorities had wished to limit themselves to what was strictly necessary.
Therefore, the Court could find no violation of the applicant's right to freedom of
expression.
Schools of Thought on Human Rights
Theological
Human rights are given to human beings by a Supreme Being. Ones faith
determines what constitutes human rights.
Strengths: It denotes an understanding and practice of human rights that is geared
towards higher
Spiritual purpose. Human rights become part of ones faith and belief rather than
mere concepts to
be learned.

Weakness: History tells us that churches spiritual leaders are not infallible. People
are vulnerable
to faith without understanding and reason. Different faiths have different beliefs
therefore human
rights become varied and not standardized for all humans.
To be sure, the term "human rights" as such is not found in traditional religions.
Nonetheless, theology presents the basis for a human rights theory stemming from
a law higher than that of the state and whose source is the Supreme Being.
If one accepts the premise of the Old Testament that Adam was created in the
"image of God," this implies that the divine stamp gives human beings a high value
of worth. In a similar vein the Quran says, "surely we have accorded dignity to the
sons of man." So too, in the Bhagavad-Gita, "Who sees his Lord/Within every
creature/Deathlessly dwelling/Amidst the mortal: That man sees truly . . . ."
In a religious context every human being is considered sacred. Accepting a universal
common father gives rise to a common humanity, and from this flows a universality
of certain rights. Because rights stem from a divine source, they are inalienable by
mortal authority. This concept is found not only in the Judeo
-Christian tradition, but also in Islam and other religions with a deistic base.
Philosophical
Reason defines the scope of human rights. If one will rationally understand the
nature of human beings, then one will likewise understand that human rights are
inherent to human beings. Therefore human rights are natural rights.
Strengths: Recognizes the inherence of human rights and affirms the dignity of the
human person. It supports the belief that all human beings by virtue being human
have rights
Weakness: Reason is very difficult to determine whose reason is supreme. Can all
human beings arrive in the same conclusion? We are all different.
Locke imagined the existence of human beings in a state of nature. In that state
men and women were in a state of freedom, able to determine their actions, and
also in a state of equality in the sense that no one was subjected to the will or
authority of another. However, to end the hazards and inconveniences of the state of
nature, men and women entered into a "social contract" by which they mutually
agreed to form a community and set up a body politic. Still, in setting up that
political authority, individuals retained
the natural rights of life, liberty, and property. Government was obliged to protect
the natural rights of its subjects, and if government neglected this obligation, it
forfeited its validity and office.
It is visible in the French Declaration of the Rights of Man. Natural rights theory
makes an important contribution to human rights. It affords an appeal from the
realities of naked power to a higher
authority that is asserted for the protection of human rights. It identifies with and
provides security for human freedom and equality, from which other human rights
easily flow. It also provides properties of security and support for a human rights
system, both domestically and internationally.
Positivistic
Human rights are those recognized by the legal system. Human rights are legal
rights.

Strengths: Human rights become standardized and can easily be enforced because
they become part of the law.
Weaknesses: Laws are not perfect. They are evolving and need further refinements
depending on the demands of the time. The process of law making takes time. It
involves a lot of negotiations and compromises among the concerned parties thus
laws sometimes are inadequate to address the immediate needs of the people.
Ideological
States adopt different political and economic systems depending on how best they
see a country should be governed. Leaders and other political actions are often
guided by certain political and economic
Principles with which a country is run. These principles are called the states
ideology. Itis the framework of governance. Human rights are often interpreted
depending on the adopted ideological framework. Some believe that the liberal
tradition of the west puts much emphasis on civil and political rights with an
understated pursuit of socio-economic-cultural rights. Others believe that
developing countries pursue vigorously socio-economic-cultural rights at the
expense of civil and political rights. The challenge now
is how to strike a balance. Human rights then becomes dependenton the position
adopted by the government in the ideological spectrum.
Strengths: When human rights are interpreted depending on the states ideology
the political will is strong.
Weaknesses: Human rights are reduced to the issue of power politics. The
promotion prevention and
protection of human rights become subject to the decision of those in power and not
dependent on what is necessary from the point of view of the powerless and
dispossessed.

Human Rights Law vs Humanitarian Rights Law

International humanitarian law and international human rights law (hereafter
referred to as human rights) are complementary. Both strive to protect the lives,
health and dignity of individuals, albeit
from a different angle.
Humanitarian law applies in situations of armed conflict (see Q7), whereas human
rights, or at least some of them, protect the individual at all times, in war and peace
alike. However, some human rights treaties permit governments to derogate from
certain rights in situations of public emergency. No derogations are permitted under
IHL because it was conceived for emergency situations, namely armed conflict.
Humanitarian law aims to protect people who do not or are no longer taking part in
hostilities. The rules embodied in IHL impose duties on all parties to a conflict.
Human rights, being tailored primarily for peacetime, apply to everyone. Their
principal goal is to protect individuals from arbitrary behavior
by their own governments. Human rights law does not deal with the conduct of
hostilities.
The duty to implement IHL and human rights lies first and foremost with States.
Humanitarian law obliges States to take practical and legal measures, such as
enacting penal legislation and disseminating
IHL. Similarly, States are bound by human rights law to accord national law with
international obligations. IHL provides for several specific mechanisms that help its
implementation. Notably, States
are required to ensure respect also by other States. Provision is also made for an
enquiry procedure, a Protecting Power mechanism, and the International FactFinding Commission. In addition, the ICRC
is given a key role in ensuring respect for the humanitarian rules.