Monday , June 18, 2018

Alamon: It can but should it?

THE modern nation-state as we know it was built on the principle of a social contract between government and its people. At least, that is how a host of political thinkers from Socrates, Hobbes to Locke, and other modern political thinkers idealized the workings of the modern republic. In order for us to understand self-proclaimed constitutional democracies such as ours, we may need to go back to certain political theories that provide basis for the modern nation-state.

Hobbes paints this social contract as a necessity, since left on their own; human being’s baser instincts will cause their extinction. The Leviathan, or monster, the telling-word that Hobbes called government, is where individuals surrender their right to kill or maim one another, or steal another person’s property, so that government can protect their right to pursue their other desires such as the acquisition of private property. John Locke’s vision of democracy is similar in purpose although he grounds the basis of government on the innate goodness of human beings coming together to establish government to allow individuals to pursue the good life.

At the crux of modern social contract theory is the idea that human beings surrender certain individual rights to government in exchange for the enjoyment of other rights. We authorize government to subject us to laws preventing harm to others so that ultimately we can pursue basic individual rights to life, liberty, and property. In the modern era, these rights are codified in a document often called the Constitution, enshrined therein are the basic rights that government are supposed to protect and uphold as enumerated in the Bill of Rights.

Thus, the social contract between a government and its people ultimately revolve upon this basic exchange- we pay taxes and surrender the right to harm others and their property so that government will be able to protect our individual rights to life, liberty, and property from others through its various apparatuses paid for by the public such as the military and police.

If a drug addict where to deprive your beloved family of these basic rights, it is the responsibility of the State as spelled out in the Constitution to come to your defense and where you can also seek retribution as the enforcement of that social contract. Thus, the first venue for redress for those whose basic individual rights are violated is through the courts and their agents – the law enforcers.

The evolution of human rights as a discourse developed much later and is actually borne out of the limitations of constitutional democracies after the First and Second World Wars of the last century. The sad experience of humanity with the modern nation-state is that it has not been thoroughly effective in protecting these basic individual rights and in many instances; it has actually been the main culprit in violating the terms of their own social contract against their own people.

In an attempt to curb these violations against individual rights by States, the United Nations in 1948 declared a set of inalienable human rights that are now enshrined in the Universal Declaration of Human Rights (UDHR). Many of these are civil and political rights in nature that protect individuals from the excesses of States. These include rights to equal protection of the law, protection against unreasonable searches and seizures, right to privacy of communication and correspondence, and the right to free speech, expression, and peaceful assembly. Note that this set of civil and political rights and the UDHR pertain to the protection of the rights of individuals directed against the State.

In recent times, there had been attempts to include in the ambit of the UDHR excesses of non-state actors such as businesses and corporations. That is why every year there is a UN conference on business and human rights. The overarching principle, however, remains the same: human rights are invoked against the excesses of powerful institutions such as the State and business corporations. In other words, there is a principle involving a sense of proportion here.

Human rights can be invoked by individuals for protection against powerful institutions like the State. But the inverse cannot be because of the principle of the social contract laid out above. The State is given the privilege and power to enforce laws and they are paid in the process through people’s taxes. They therefore cannot invoke the same mechanisms of redress of the weak and lowly. The 2007 United Nation’s Declaration on the Rights of Indigenous Peoples follow these same principles.

The raging debate about the tasks and functions of the Commission on Human Rights in the Philippines after Congress granted a measly thousand-peso budget should be appreciated according to these theoretical and historical considerations. Anyone including law enforces can seek redress from the Commission, that is true; but it is not legally effective for the reasons stated above. The Commission can file charges of human rights violations against non-state actors but given the distinctions and principles outlined above, should it?