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Policy Option in the 1st Task : Universal Application of Rights

Towards the Irresistible Balance

The tendency to seek a balance between liberty and security is inevitable. The recent tug-of-war between Internet companies and the Congress over the SOPA and PIPA legislations in the U.S epitomizes this tendency. What companies such as Wikipedia, Google and Facebook are tugging for is not a lack of internet security or an unrestricted freedom of speech.1It is the vague language of the legislations2 that has raised an ancient and legitimate concern of abuse of power to restrict freedom, under the guise of security.3 While such legislations could make governments look draconian it would not be prudent to assume that governments are born blind to the cause of liberty. On the occasion of a similar controversy in the Indian Parliament, the Press Council Chairman, remarked aptly that, security is a prerequisite for liberty and any restriction decided upon will only safeguard other liberties. As can be seen in cases such as Eldred v.Ashcroft , it is often proponents of civil liberties who call for qualified security measures. Consequently, neither side wants the rope completely. Hence, a successful policy on security affecting liberties, will reflect the balance that players on either end of the rope inevitably seek. The selective suspension of rights, with all its constraints, would be able to provide the required balance. It provides room for discussion, as can be seen with the post-Sept 11 anti-terror legislations in Australia, Canada, New Zealand and South Africa.4 Deliberation upon which rights, the extent they can be limited and the circumstances that permit such limitations are highly contentious issues. Establishing set procedures for suspension of rights, such as the Emergency Provisions under the Indian Constitution, ensures that seemingly conflicting parties such as human rights groups and government bodies have the space to reconcile. The lack of such space creates friction between affected parties, as during the rapid implementation of the US Patriot Act which unjustly encroached upon the privacy of innocent citizens. The level of security and liberty that can be reached through this policy is hard to predetermine as it is highly time and context specific. Apartheid legislations, that curtailed the rights of blacks for security reasons, were not met with revolutionary contempt by human rights activists during the initial years. The five decades of apartheid, was during times of limited globalization and almost negligent opposition to the policy within South Africa. Todays globalized political and social economy will not allow for violations in such an explicit manner, due to the sheer opposition that would be raised. Hence, Apartheid laws provided the level of liberty and security which the context and time in South Africa demanded. But, the evolution time and context, set new standards for what level of security and liberty was required.

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http://www.nytimes.com/2012/01/19/opinion/sopa-boycotts-and-the-false-ideals-ofthe-web.html 4 Page 2 of the Balancing Security and Liberty Article

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Policy Option in the 1st Task : Universal Application of Rights

A policy to suspend rights may not always seem to be progressive, as there may sometimes be a lack of outcome, under a healthy deliberative process, where political stalemates may reasonably occur, as was in the case of increasing the powers of Australias ASIO Amendment Act. But, under facilitating constitutional procedures, stalemates urge both advocates of security and of liberty to defend their stance and garner support, which often ends in a compromise, as was seen in the case of Canadas enactment of the Anti-Terrorism Act 2001. This would be the result, only under a constitutional/legal framework that is largely inclusive of different classes and groups of citizens. In a country like India, where several groups are automatically left out from political participation due to the sheer diversity of communities, a deliberative process becomes tough to implement. Underrepresented communities such as tribals, political prisoners and eunuchs, could lose out due to the lack of power to voice their position on a policy. However, the increasing number of human rights organizations in developing nations, is a positive indicator that pressure is being mounted against repressive security policies. This policy option, under effective constitutional safeguards, could create a self correcting mechanism where neither the government nor private citizens and other affected parties lose too much. This in turn would restrain abuse of power that impedes liberty, as a deliberative process inherently calls for accountability. A policy that seeks universal application of human rights instantly runs into the difficulty of defining what that universal standard is. Deliberation here is strictly limited to those economically powerful nations such as the US and UK, that call for certain standards and weaker nations such as Libiya or Sudan comply merely in fear of economic sanctions. This leads to non-consensus among nations as to which basic human rights cannot be derogated, as was seen during the framing of the UDHR by the UN. Moreover, a universal policy cannot sustain the test of time, with changing national and regional political and social demands. The main benefits of such universal application being the easy identification of derogation and standard application of sanctions, do not outweigh the cost of inhibiting sovereign power of nations to decide levels of security and liberty tailored to their needs. The universal application of human rights within a nation would hinder efforts against terrorism that may sometimes call for immediate actions that suspend rights.5 It is due to these inherent limitation of such policies, that even the UN framework for human rights consists solely of declarations that have no legally binding effect, instead of treaties. A policy that seeks derogation from established human rights norms under exceptional circumstance is unacceptable as it provides a large scope for discretion to subvert basic human rights. It was this growing concern that gave birth to the Geneva Conventions that allow for war crimes prosecution. Working outside existing legal frameworks amounts to the derogation of the rule of law, and such instances have been condemned by constitutional courts and human rights agencies, such as in

http://books.google.co.in/books?id=i8ldLN2vDrAC&pg=PA120&lpg=PA120&dq=nonsignatories+to+the+UDHR&source=bl&ots=S4yESrwOh9&sig=1w2TvVJj0GBeRBRN8EYE3JR-Rs&hl=en&sa=X&ei=Bkw7T-ytAorprAe7pyGAQ&ved=0CGwQ6AEwBw#v=onepage&q=nonsignatories%20to%20the%20UDHR&f=false

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Policy Option in the 1st Task : Universal Application of Rights

the case of illegal detention centers across Europe. The sole beneficiaries of such a policy are powerful governments that seek to retain their political clout at the expense of human rights and civil liberties. Therefore, an implementable solution seems to be a policy option that suspends rights. The room for dialog that such qualified suspension creates facilitates the natural tendency towards a balance between liberty and security. Though this policy would be largely successful where constitutional procedures guarantee such deliberation, it is still implementable even in instances where such safeguards are limited. For instance, though the Indian Constitution does not provide for special representation of most communities in the Parliament, an upsurge of human rights groups over the last decade, has forced the Indian government to institute Human Rights Commissions to facilitate the process of deliberations. The first step for governments while implementing such a policy option is to ensure that established democratic processes are as inclusive as possible. This would mean that rights are ensured and safeguarded for groups such as women, child delinquents, prisoners of war and aliens, under existing legal frameworks. This can be achieved by catering to demands of representation in the political process that already exist. Once there is adequate representation or scope for representation of affected parties, a reasonable expectation for constructive deliberation exists. The influence of externalities such as the political and economic environment on deciding the levels of liberty and security that need to be implemented should also be factored in. While erratic political and economic climates can cause temporary imbalances in the results that this policy option might produce, such imbalances can easily be remedied through the deliberative processes that this policy option rests on. Moreover, the selective suspension of rights, while the selection happens in a transparent and deliberative manner, is more in consonance with larger notions of democracy that is being sought through movements such as the Arab Spring and the anti-corruption movements in India. The selective suspension of rights ultimately rests on an intimate sense of order that we share. This sense of order rests on both the pillars of security and liberty realizing that the ceiling of order would crack and eventually collapse if one pillar is to be compromised. This policy option in a democratic model, will constantly try to balance this notion of order that rests on security and liberty. This policy would be successful if it generates a self-regulating mechanism, creating optimum levels of security and liberty. This option will allow for the creation of new balances in changing contexts and times. As the Spanish liberal philosopher Ortega said, Order is not pressure which is imposed on society from without, but an equilibrium which is set up from within. A policy option that is reflective of democratic principles allowing for selective suspension of rights would provide that delicate equilibrium between security and liberty that we so naturally tend towards almost irresistibly.