Security of person: Wikis

  
  

Note: Many of our articles have direct quotes from sources you can cite, within the Wikipedia article! This article doesn't yet, but we're working on it! See more info or our list of citable articles.

Encyclopedia

From Wikipedia, the free encyclopedia

Security of person or security of the person is a human right guaranteed by the Universal Declaration of Human Rights, adopted by the United Nations in 1948. It is also a right respected in the Constitution of Canada, the Constitution of South Africa and other laws around the world.

In general, the right to security of person is associated with liberty and includes a right to habeas corpus.[1] Security of person can also be seen as an expansion of rights based on prohibitions of torture and cruel and unusual punishment. Rights to security of person can guard against less lethal conduct, and can be used in regard to prisoners' rights.[2]

Contents

United Nations

The right to security of person is guaranteed by article 3 of the Universal Declaration of Human Rights. In this article, it is combined with the right to life and liberty. In full, the article reads, "Everyone has the right to life, liberty and security of person."

The United Nations treaty, the International Covenant on Civil and Political Rights (1966), also recognizes a right to security of person. Article 9(1) states that "Everyone has the right to liberty and security of person," and the section prohibits "arbitrary arrest or detention." The section continues, "No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."

Canada

The right to security of the person was recognized in Canada in the Canadian Bill of Rights in 1960. Section 1(a) of this law recognized "the right of EVERYONE to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law." However, the Bill of Rights was a statute and not part of the Constitution.

In 1982, a right to security of the person was added to the Constitution. It was included in section 7 of the Canadian Charter of Rights and Freedoms, which stipulates that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." Security of the person in section 7 consists of rights to privacy of the body and its health[3] and of the right protecting the "psychological integrity" of an individual. That is, the right protects against significant government-inflicted harm (stress) to the mental state of the individual. (Blencoe v. B.C. (Human Rights Commission), 2000)

This right has generated significant case law, as abortion in Canada was legalized in R. v. Morgentaler (1988) after the Supreme Court found the Therapeutic Abortion Committees breached women's security of person by threatening their health. Some judges also felt control of the body was a right within security of the person, breached by the abortion law. In Operation Dismantle v. The Queen (1985) cruise missile testing was unsuccessfully challenged as violating security of the person for risking nuclear war. In Chaoulli v. Quebec (Attorney General) (2005), some Supreme Court justices even considered Quebec's ban on private health care to breach security of the person, since delays in medical treatment could have physical and stressful consequences.

There has been discussion within the Supreme Court and among academics as to whether security of the person also guarantees some economic rights. Theoretically, security of the person would be breached if the government limits a person's ability to make an income, by denying welfare, taking away property essential to one's profession, or denying licenses. However, section 7 is primarily concerned with legal rights, so this reading of economic rights is questionable. Many economic issues could also be political questions.[4]

Bourviers Law Dictionary 6th Edition: SECURITY. That which renders a matter sure; an instrument which renders certain the performance of a contract. The term is also sometimes applied to designate a person who becomes the surety for another, or who engages himself for the performance of another's contract.

PERSON. This word is applied to men, women and children, who are called natural persons. In law, man and person are not exactly-synonymous terms. Any human being is a man, whether he be a member of society or not, whatever may be the rank he holds, or whatever may be his age, sex, &c. A person is a man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him, and the duties which it imposes.

Source: Bouviers Law Dictionary 6th Edition [1]

Blacks Law Dictionary 1st Edition: SECURITY. Protection; assurance; indemnification. The term is usually applied to an obligation, pledge, mortgage, deposit, lien etc. given by a debtor in order to make sure the payment or performance of his debt, by furnishing the creditor with a resource to be used in case of failure in the principal obligation. The name is also sometimes given to someone who becomes surety or guarantor for another.

PERSON. A man according to the rank he holds in society, with all the rights to which he holds the place entitles him, and the duties which it imposes. A human being considered being capable of having rights and being charged with duties, while a "thing" is the object over which rights may be exercised. Persons are divided by law into natural and artificial. Natural persons are such as the God of nature formed us; artificial are such as are created by human laws, for the purpose of society and government, which are called "corporations" or "bodies politic".

Source: Blacks Law Dictionary 1st Edition[2]

South Africa

In 1996 the government of South Africa adopted a constitutional Bill of Rights which recognized a right to security of the person in section 12. Here, it was combined with a "right to freedom." Section 12 went on to define security of the person and the right to freedom more thoroughly, including within it bodily control and reproductive control, freedom from torture and cruel and unusual punishment and a right to trial.

In full, section 12 reads,

12. (1) Everyone has the right to freedom and security of the person, which includes the right
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.
(2) Everyone has the right to bodily and psychological integrity, which includes the right
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their informed consent.

Turkey

The Constitution of Turkey guarantees security of person, along with the right to liberty, in Article 19, enacted in 1982 and amended in 2001. The article spells out limits to these rights in the form of rulings of courts under the law, allowing for mental institutions and institutions for addicts, extradition, etc. The article also limits arrest and detention to cases in which a judge allows it, where there is not enough time for this, or the person is seen being responsible for a crime. A person will then be told why they have been arrested, and their next of kin will also be told of the arrest. Finally, the article allows for government compensation if these rights are violated.

New Zealand

The New Zealand Bill of Rights Act, adopted in 1990, guarantees "Life and security of the person" in sections 8 through 11. Section 8 guarantees a right to life except when deprived in accordance with fundamental justice, while section 9 prohibits cruel and unusual punishment. Section 10 prohibits a person being subjected to medical treatment against his or her will. Finally, section 11 gives a New Zealander the right to not take medical treatment.

United Kingdom of Great Britain and Northern Ireland

Security of person is mentioned in Schedule I Article 5 of the Human Rights Act 1998.[5] This version is the latest incarnation of the Act, though there have been minor edits since.[6] This new act represents one aspect of Tony Blair's 'Constitutional Reform'.

Security of person is defined very vaguely in the Act. Speculation exists among the growing 'Freeman Movement' in the UK that 'security' in this sense refers to an actual financial document associated with the 'person' - person in this sense is understood to mean a commercial entity. Facts used by them in support of their claim include wording in Section 28 of the Births and Deaths Registration Act 1953, where it is implied that directions regarding Birth Certificate entries are to be given by "the minister", where the minister is defined in Section 41 of the same Act as meaning the Chancellor of the Exchequer.[7]

The ambiguous wording of the Act has led some to accept their birth certificate for value (since it is printed on bond paper and has a CUSIP number), and use it to file commercial liens and to set off public debt. The evidence for this actually working in practice is shaky.

Unfortunately, the ambiguous wording of the Act makes it difficult to obtain a solid definition of this term - it could mean any number of things, as definitions in UK legislation are very flexible. The Act itself does not provide a definition. In such a case it is common practice in the UK to revert to a textbook definition.

Matters are confused further, since the UK is a Common Law jurisdiction, meaning that interpretations may be derived from precedent(s) set in earlier cases.

References

  1. ^ Rhona K.M. Smith, Textbook on International Human Rights, second edition, Oxford University Press, 2005, p. 240.
  2. ^ Smith, p. 245.
  3. ^ Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, 981.
  4. ^ Hogg, 983.
  5. ^ http://www.opsi.gov.uk/ACTS/acts1998/ukpga_19980042_en_3#sch1
  6. ^ http://www.statutelaw.gov.uk/SearchResults.aspx?TYPE=QS&Title=human+rights+act&Year=&Number=&LegType=All+Legislation
  7. ^ http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1953/cukpga_19530020_en_5







Got something to say? Make a comment.
Your name
Your email address
Message