Security of person
Encyclopedia
Security of the person is a basic entitlement guaranteed by the Universal Declaration of Human Rights
, adopted by the United Nations
in 1948. It is also a human right explicitly mentioned and protected by the Constitution of Canada
, the Constitution of South Africa
and other laws around the world.
In general, the right to the security of one's person is associated with liberty
and includes the right, if one is imprisoned unlawfully, to the remedy of habeas corpus
. 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.
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."
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 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 Committee
s 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 question
s.
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,
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.
, 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 Zealand
er the right to not take medical treatment.
. This version is the latest incarnation of the Act, though there have been minor edits since. This new act represents one aspect of Tony Blair
's 'Constitutional Reform'.
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
, adopted by the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
in 1948. It is also a human right explicitly mentioned and protected by the Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
, the Constitution of South Africa
Constitution of South Africa
The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...
and other laws around the world.
In general, the right to the security of one's person is associated with liberty
Liberty
Liberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...
and includes the right, if one is imprisoned unlawfully, to the remedy of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
. Security of person can also be seen as an expansion of rights based on prohibitions of torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
and cruel and unusual punishment
Cruel and unusual punishment
Cruel and unusual punishment is a phrase describing criminal punishment which is considered unacceptable due to the suffering or humiliation it inflicts on the condemned person...
. Rights to security of person can guard against less lethal conduct, and can be used in regard to prisoners' rights.
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 lifeRight to life
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
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
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
(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 CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
in the Canadian Bill of Rights
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
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
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
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
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, 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
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
." Security of the person in section 7 consists of rights to privacy of the body and its health and of the right protecting the "psychological integrity" of an individual. That is, the right protects against significant government-inflicted harm (stress
Stress (medicine)
Stress is a term in psychology and biology, borrowed from physics and engineering and first used in the biological context in the 1930s, which has in more recent decades become commonly used in popular parlance...
) 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
Abortion in Canada
Abortion in Canada is not limited by the law . While some non-legal obstacles exist, Canada is one of only a few nations with no legal restrictions on abortion. Regulations and accessibility vary between provinces....
was legalized in R. v. Morgentaler
R. v. Morgentaler
R. v. Morgentaler [1988] 1 S.C.R. 30 was a decision of the Supreme Court of Canada wherein the abortion provision in the Criminal Code of Canada was found to be unconstitutional, as it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms to "security of person"...
(1988) after the Supreme Court found the Therapeutic Abortion Committee
Therapeutic Abortion Committee
A Therapeutic Abortion Committee refers to a Canadian committee of three medical doctors who would decide whether an abortion fit an exemption to the Criminal Code of Canada, which only permitted lawful abortion if continuation of a pregnancy would cause a woman medical harm...
s 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
Operation Dismantle v. The Queen
Operation Dismantle v. The Queen [1985] 1 S.C.R. 441 is a decision by the Supreme Court of Canada where the court rejected a section 7 Charter challenge against the government for allowing the US government to test cruise missiles over Canadian territory....
(1985) cruise missile
Cruise missile
A cruise missile is a guided missile that carries an explosive payload and is propelled, usually by a jet engine, towards a land-based or sea-based target. Cruise missiles are designed to deliver a large warhead over long distances with high accuracy...
testing was unsuccessfully challenged as violating security of the person for risking nuclear war
Nuclear warfare
Nuclear warfare, or atomic warfare, is a military conflict or political strategy in which nuclear weaponry is detonated on an opponent. Compared to conventional warfare, nuclear warfare can be vastly more destructive in range and extent of damage...
. In Chaoulli v. Quebec (Attorney General)
Chaoulli v. Quebec (Attorney General)
Chaoulli v. Quebec [2005] 1 S.C.R. 791, was a decision by the Supreme Court of Canada where the Court ruled that the Quebec Health Insurance Act and the Hospital Insurance Act prohibiting private medical insurance in the face of long wait times violated the Quebec Charter of Human Rights and...
(2005), some Supreme Court justices even considered Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
's ban on private health care
Health care
Health care is the diagnosis, treatment, and prevention of disease, illness, injury, and other physical and mental impairments in humans. Health care is delivered by practitioners in medicine, chiropractic, dentistry, nursing, pharmacy, allied health, and other care providers...
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 question
Political question
In American Constitutional law, the political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and...
s.
South Africa
In 1996 the government of South AfricaSouth Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
adopted a constitutional Bill of Rights
Constitution of South Africa Chapter 2: Bill of Rights
Chapter Two of the Constitution of South Africa contains the Bill of Rights, a human rights charter that protects the civil, political and socio-economic rights of all people in South Africa...
which recognized a right to security of the person in section 12. Here, it was combined with a "right to freedom
Freedom (political)
Political freedom is a central philosophy in Western history and political thought, and one of the most important features of democratic societies...
." 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,
Turkey
The Constitution of TurkeyConstitution of Turkey
This article relates to a current event. See also the Turkish constitutional referendum, 2010The Constitution of the Republic of Turkey is Turkey's fundamental law. It establishes the organization of the government and sets out the principles and rules of the state's conduct along with its...
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
Extradition
Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
, 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
Next of kin
Next of kin is a term with many interpretations depending on the jurisdiction being referred to. In some jurisdictions, such as the United States, it is used to describe a person's closest living blood relative or relatives...
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 ActNew Zealand Bill of Rights Act
The New Zealand Bill of Rights Act 1990 is a statute of the New Zealand Parliament setting out the rights and fundamental freedoms of the citizens of New Zealand as a Bill of rights...
, 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 Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
er the right to not take medical treatment.
United Kingdom
Security of person is mentioned in Schedule I Article 5 of the Human Rights Act 1998Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
. This version is the latest incarnation of the Act, though there have been minor edits since. This new act represents one aspect of Tony Blair
Tony Blair
Anthony Charles Lynton Blair is a former British Labour Party politician who served as the Prime Minister of the United Kingdom from 2 May 1997 to 27 June 2007. He was the Member of Parliament for Sedgefield from 1983 to 2007 and Leader of the Labour Party from 1994 to 2007...
's 'Constitutional Reform'.