The idea of a fair trial is central to human rights doctrine, not only as a right in itself, but because without this one right, all others are at risk; if the state is unfairly advantaged in the trial process, it cannot be prevented in the courts from abusing all other rights. It is not easy to reach agreement on what constitutes fairness in trials, although some elements are common to most definitions of due process (the more generalized category of rights covering fair trials). Thus the natural-justice doctrines of an impartial judge (and, where applicable, jury) and the right to be heard, to make one’s defence, are obvious. Disagreement arises over the exact procedure. Some insist that it must involve jury trial, but, outside the criminal process of the common law, juries in the English sense are rare, and this does not lead to serious doubts about the fairness of all other trial processes. Indeed, the English jury has taken on a rather mythical character: far from being age old, it did not begin in anything like its current form until around the middle of 19th century. Allowing the accused in a criminal trial the right to make a defence is often equated with the right to be heard, which in itself is often taken to imply the right to be legally represented, through some system of legal aid if necessary; however, most legal-aid systems cannot begin to afford the quality or sheer quantity of legal talent open to the state in its prosecuting team (see also right to counsel). For much of the history of English criminal law the defendant was not allowed to give evidence in his own case, giving rise to the development of the doctrine of the right to silence, and it could be argued that the advent of free legal aid to defendants has made the right to silence no longer necessary to a fair trial. In any case, the right to silence has been restricted in English trial for more than a decade, with no apparent change in conviction rates. The problems, and there are many more, arise because, despite its surface plausibility, the idea of ‘fairness’ in a trial should not be taken literally, in the sense of there being a ‘level playing field’ on which the best side will win. This analogy is inevitable given the Anglo-American adversarial trial system, where the aim is not to find the truth, but to select the better of two arguments against some doctrine of weight of evidence. What a fair trial means therefore depends on a prior choice between inquisitorial truth-finding and adversarial case-testing.
Many would argue that it is purely a historical accident that the countries where liberal democratic protection of human rights is most advanced have often been federations. Federations, like the USA, modern Germany, and one of the possible futures for the European Union, necessarily require written constitutions to set out the division of responsibilities and powers between the subordinate provincial-level governments and the national government. Equally they need some form of constitutional court to decide on disputes between these governmental units. In such a context it is highly likely that constitution drafters, already committed to the idea of limits on legitimate government power, will append some form of a bill of rights, placing further limits on what one or more levels of government can do even within what would otherwise be their legitimate sphere of activity. This does not have to be the case. Australia is a federal system with a High Court empowered to carry out judicial review, indeed one deliberately modelled in part on the US Supreme Court, but the constitution-makers there chose not to have a bill of rights. This has led, in recent years, to the High Court indulging in judicial interpretation to try to read one into the Constitution. Nevertheless, once the idea that government power must be limited is part of the political culture, along with the idea that it is acceptable for a non-elected court to decide fundamental political questions, it is highly probable that human rights will come to be protected more efficiently than in a political system where the idea of uncontrolled central power is taken to be the constitutional norm. The various forms and doctrines of federalism are, however, largely irrelevant to human rights; whether the centre has all powers not specified to the provinces or vice versa, or whether there can be co-ordinate or overlapping jurisdictions, are all technical details to the central rights-protecting notion that government is man-made for a purpose, and therefore can and should be limited. The greater safety of classic freedoms in a federation may, instead, stem largely from the existence of blocking or ‘veto’ players in the system. There is no firm reason to believe that citizens of the separate states within a federation will be better protected from their state governments just because the federal structure protects them from the central government. It must be remembered that, for the first century of its history, the US Bill of Rights (see Bill of Rights (USA)) applied only to the federal government, and not to state governments.
Felony was originally a crime in common law sufficiently serious to involve forfeiture of a felon’s property to the crown, and included such offences as murder, rape and robbery. The equation of felony to serious, and misdemeanour to less serious, crimes was never precise, and in large part the difference was one of criminal procedure, especially after forfeiture was abolished in 1870. In the United Kingdom the distinction was replaced altogether in 1967, the new distinction, reflecting seriousness more directly, being between a non-arrestable and an arrestable offence. Other common law jurisdictions continue a version of the felony/misdemeanour distinction, especially the separate criminal jurisdictions of the US states. There the distinction is usually based on the penalty for the offences, with felonies carrying a prison sentence, normally a minimum of one year.
The Fifteenth Amendment is one of the post civil-war amendments to the US Constitution, the others being the Thirteenth and Fourteenth Amendments. It is a straightforward ban on denying the vote to anyone because of race or colour, or because he was previously a slave (see also voting rights). Although a fundamental principle, it has been of no further theoretical or practical importance in US human rights history, unlike the Fourteenth Amendment which has been the source of much more extensive human rights protection.
The Fifth Amendment to the US Constitution is possibly the most famous part of the US Bill of Rights (see Bill of Rights (USA)) because the clause against self incrimination has been immortalized in US gangster movies. In countless scenes a person has responded to a district attorney with the phrase ‘I take the Fifth!’, meaning: ‘I am advised to rely on my Fifth Amendment rights and to refuse to answer the question on the grounds that the answer may tend to incriminate me’. What the Amendment actually says is that no person ‘shall be compelled in any criminal case to be a witness against himself’. It has been left to Supreme Court interpretation to widen this immunity to the point that it can be used, for example, when interrogated by a Congressional Committee because the testimony might, at some later date, be used in a criminal trial. It is a very strong version of the right to silence found in some form or other in all legal systems based on adversarial trial processes, and historically arose because of the practice of courts like the English Star Chamber, where there was compulsion to give evidence. It is also part of the very logic of the adversarial system, where the aim of a trial is for the prosecution itself to prove guilt, not for the defendant to assume the burden of proof.
The whole of the Fifth Amendment is about controlling the use of state power, mainly in the context of criminal law. It contains a prohibition on double jeopardy trials, as well as a more or less technical requirement for the use of a grand jury in criminal trials. The most important clause, however, is that stating that nobody may be ‘deprived of life, liberty or property, without due process of law’. This due process clause, repeated in the post-Civil War Fourteenth Amendment to make it apply to the separate states as well as to the federal government, is at the heart of rights jurisprudence as it relates to criminal law and, through the idea of substantive due process, these protections against arbitrary state power have gone far beyond the criminal sphere. In some ways this is foreshadowed by the last clause of the Fifth Amendment itself, which forbids the state to take private property for public use without ‘just compensation’, an early protection against some forms of redistributive politics contained also in the slightly earlier French Declaration of the Rights of Man and of the Citizen. Even the Fifth Amendment, however, can be circumvented at times by a prosecution: if doing so guarantees impunity for any crimes revealed in testimony, the person questioned will then commit a form of contempt of court if he refuses to answer. Thus, while the Fifth cannot be breached to punish, it can be evaded to force testimony to be used against others.
Final Act of the Helsinki Conference
The Helsinki accords were international agreements covering three areas, referred to as ‘baskets’; basket three covered human rights and humanitarian issues, baskets one and two covered, respectively, security issues and economic matters. The whole process, which started in 1972 and was to grow into the regular meetings of the Conference on Security and Co-operation in Europe (CSCE—later renamed the Organization for Security and Co-operation in Europe), arose out of the USSR’s desire to secure acceptance for its political and military role in Europe. As part of wide-ranging discussions involving, initially, all European states (with the exception of Albania) plus the USA and Canada, the Western allies were able to secure public acceptance of basic human rights principles in return for what amounted to little more than recognition of a de facto situation on the security front. Initially the human rights emphasis was the result of Western European initiatives, as the USA at this stage was little more willing to tie human rights matters to security issues than was the USSR. Human rights was very broadly defined in basket three, and much of the subject matter was more directly political, involving an acceptance of the legitimacy of pluralism and basic democratic rights. Although the signatory nations from the Warsaw Pact changed little, if anything, of their domestic practices as a result of publicly accepting basket three, the fact that they had signed it acted as a rallying point for humanitarian-oriented dissidents. In particular, Charter 77 in Czechoslovakia was able to bring some pressure to bear on the communist regime, and ‘Helsinki monitoring groups’ sprang up in most signatory states; ironically, the persecution of these groups in the Eastern bloc countries helped further to draw world attention to the behaviour of the states. As part of the agreement itself required the publication of the agreement in all member states, and acceptance of the legitimacy of international surveillance of human rights issues, the recalcitrant states were actually forced to aid the process.
The First Amendment to the US Constitution, which is also the first article of the US Bill of Rights (see Bill of Rights (USA)), is a portmanteau statement containing protections for three quite separate sets of rights. Their joint selection to be of first importance reflects the mood of the times in which they were drafted. The first section covers religious freedom, and breaks down into what US constitutional lawyers call the ‘establishment clause’ and the ‘free exercise clause’. The first clause states: ‘Congress shall make no law respecting an establishment of religion’, responding to very specific anxieties expressed in many of the new states which had been settled by religious dissenters from Europe. There was considerable fear that the new federal government would attempt to create an established church as a mirror to the role of the Church of England. This clause has been interpreted very strongly by the Supreme Court both against the federal government, and, after the incorporation of the Bill of Rights to the states, against state governments. No government ever has attempted establishment, though some of the states did initially have established churches; instead the Court has been involved in striking down almost any form of state aid to religion. This goes so far as to prohibit a state government allowing its funds to be used in partial support of the Christian Student Movement on university campuses, and has always been held to prohibit tax concessions for parents who send their children to religious schools instead of free state-provided schools. Any governmental support for religion, however indirect, as in allowing Christian symbols like nativity scenes on public property, has been outlawed, and the impetus for such bans has come usually not from members of some other religion, but from what Europeans would call ‘free thinkers’, and others ‘militant atheists’, often supported by the American Civil Liberties Union (ACLU). The extent to which those hostile to religion have been able to extend this position is demonstrated well by the fact that, at the time of writing, the Supreme Court was scheduled to hear a case in which the purely secular Oath of Allegiance ceremony in state schools may be banned because it has always contained a statement that the USA exists ‘under God’. The ‘free exercise’ clause has been slightly less important, largely because no state power has ever seriously tried to influence people’s religious behaviour in a country noted for both the intensity and the pluralism of religious sectarianism. It has been used to prevent the state forbidding religious education, and indeed to defend one religious group, the Amish, from the obligation to send their children to formal schools at all after the eighth grade (roughly equivalent to the age of 14), but has not prevented, for example, laws against bigamy nor, in some cases with Christian Scientists, compulsory medical treatment. There has developed something of a tension between the free exercise and the establishment clauses, however, as for example over the question of whether a state may grant scholarships to people wishing to undergo ministerial training. The current Supreme Court ruling is that, while a state may do so if it wishes, as the establishment clause does not prevent this, another state may make religious professional training an exception to a generally available scholarship scheme, as the free exercise clause does not require such provision.
The second concern of the First Amendment has been with freedom of speech and press, which Congress is forbidden to ‘abridge’. Though this clause has been interpreted more strongly than similar protections elsewhere, as for example with the European Convention on Human Rights, it has never been taken to be absolute, though some members of the Court have fought for a very strict interpretation. Instead the Supreme Court has recognized an area of what is often called ‘protected speech’, and allowed acts of communication outside that area to be subject to some limitations; the US law on libel is weaker in important respects than its counterparts in most European countries. Out of a sense of the political importance of free criticism of authority, the Court has fashioned a libel law where what otherwise would be a libel, a false statement damaging to the reputation of a public figure, may not be treated as such unless actual malice, rather than negligence, can be shown; the idea is that those choosing to enter the public arena must take the consequences. (Such an interpretation has been strongly argued for in the South African Constitutional Court, as well.) Similarly there are laws restricting speech which is labelled sedition, but only where the government can show a clear and present danger of serious and dangerous unrest. The Court has been very unwilling to allow censorship in the form of ‘prior restraint’, and although a newspaper may possibly be prosecuted for some form of security offence if it publishes national security matters, it will not be prevented from the publication itself, as was demonstrated during the Vietnam War when the New York Times published the highly damaging Pentagon Papers. The area where there is the least clarity is in state prohibition of pornographic or obscene material, because, not raising any sort of clear and present danger, such material has largely been treated as part of protected speech. The Court has at times tried to craft some form of test, famously along the lines that such material must be ‘utterly without redeeming social value’, before it can be prosecuted, but with little long-term success. Speech has been widely interpreted to include virtually every form of symbolic communication, including, in a famous example, the right to burn the national flag as part of a political demonstration.
The final provision in this very political set of human rights is the right to ‘freely assemble, and to petition the government for a redress of grievances’ (see freedom of assembly