Chapter 4

Human Rights Education

CHAPTER 4
THE STATE/GOVERNMENT, ITS POLICE POWER, AND
HUMAN RIGHTS

 State - is defined as a territory with its own government and borders within a
larger country.

 Government - is the exercise of control or authority over a group of

people. ... The body with the power to make and/or enforce laws to control a
country, land area, people or organization.
What is police power in Philippine
Constitution?
 Police power
 has the power to promote the general welfare and public interest;
 to enact such laws in relation to persons and property as may promote public
health, public morals, public safety and the general welfare of each inhabitant;
 to preserve public order and to prevent offenses against the state and to
establish for the intercourse of citizen with citizen those rules of good manners
and good neighborhood calculated to prevent conflict of rights.

 The Police Officers must promote and protect human rights because this task
lies at the very core of maintaining peace and order, ensuring public safety,
and upholding the rule of law in the country.
State/Government obligation according to human
rights?

 The obligation to protect requires States to protect individuals and

groups against human rights abuses. The obligation to fulfill means
that States must take positive action to facilitate the enjoyment of basic
human rights
What are the obligations of States on
economic, social and cultural rights (ESCR)?

 Furthermore, in order to clarify the meaning of States’ obligations,

they are sometimes put under three headings: to respect (refrain
from interfering with the enjoyment of the right),
to protect (prevent others from interfering with the enjoyment of
the right) and to fulfil (adopt appropriate measures towards the full
realization of) economic, social and cultural rights.
HUMAN RIGHTS in the United States

Are legally protected by the ff.

 Constitution of the United States (particularly the Bill of Rights),
 state constitutions
 treaty and customary international law,
 legislation enacted by Congress
 state legislatures and
 state referenda and citizen's initiatives.
The Federal Government has, through a ratified constitution, guaranteed unalienable rights to
its citizens and (to some degree) non-citizens. These rights have evolved over time through
constitutional amendments, legislation, and judicial precedent. Along with the rights
themselves, the portion of the population granted these rights have expanded over time. Within
the United States, federal courts have jurisdiction over international human rights laws.
Treaty

 is a written agreement between states. Whether a non-state organisation can

be a party to a treaty has been a contentious question. In 1986, the UN
General Assembly convened a conference in Vienna with the purpose of
drafting the Vienna Convention on the Law of Treaties between States and
International Organisations or between International Organisations. However,
this Convention is not yet in force.
 Law-making treaties are international instruments that represent new general
rules of law amongst a large number of states.
 Example:
 United Nations Convention on the Law of the Sea (UNCLOS)
(Montego Bay 1982) (UN 1982a)
Treaty

 There are different types of treaties such as bilateral treaties between two states or those that are
multilateral between multiple states. A bilateral treaty is an agreement between two states
establishing mutual rights and obligations between them. Unless explicitly intended by the two
parties, bilateral treaties confer no rights or obligations on another state. A multilateral treaty is an
agreement between three or more states. Treaties are also known by multiple alternative names
including conventions, agreements, pacts and covenants. Whatever its name, a treaty is a
contractual form of agreement between its parties who are bound according to the terms of their
agreement. This poses the question, how can a treaty be a source of law beyond the obligations the
treaty represents. The answer is that some treaties have a general legal standing and effect as
opposed to more specific contractual agreements such as between two or a small number of states.
The former are viewed as law-making treaties.
 Law-making treaties are international instruments that represent new general rules of law amongst a
large number of states.
 Example:
 United Nations Convention on the Law of the Sea (UNCLOS) (Montego Bay 1982) (UN
1982a)
What is customary international law?

 Customary international law, derives from "a general practice accepted as

law". Such practice can be found in official accounts of military operations
but is also reflected in a variety of other official documents, including
military manuals, national legislation and case law. The requirement that this
practice be "accepted as law" is often referred to as "opinio juris". This
characteristic sets practices required by law apart from practices followed as
a matter of policy, for example.
 Opinio juris denotes a subjective obligation, a sense on behalf of a state that
it is bound to the law in question. ... As with customary international law,
opinio juris is an unsettled and debated notion in international law.
 Customary International Law: Research Guides & Background Information

 Customary international law “... consists of rules of law derived from the consistent conduct of States acting
out of the belief that the law required them to act that way.” (Shabtai Rosenne, Practice and Methods of
International Law 55 (1984)). The elements of customary international law include:

 the widespread repetition by States of similar international acts over time (State practice);
 the requirement that the acts must occur out of a sense of obligation (opinio juris); and
 that the acts are taken by a significant number of States and not rejected by a significant number of States.
 In 1950, the International Law Commission listed as evidence of customary international law: treaties,
decisions of national courts and international tribunals, national legislation, diplomatic correspondence,
opinions of national legal advisors, and the practice of international organizations (“Report of the
International Law Commission to the General Assembly (Part II): Ways and Means of Making the Evidence of
Customary International Law More Readily Available,” [1950] 2 Y.B. Int’l L. Comm’n 367, ILC Doc. A/1316).
HUMAN RIGHTS in the United States

 The CIRI Human Rights Data Project places the US 38th overall in human
rights.
 The United States also has a high degree of press freedom, with the 2017
Freedom of the Press report by Freedom House labeling the level of press
freedom in the United States as "free" and ranking it 33rd (tied with Slovenia)
out of the 199 countries analyzed.
 CIRI stands for Cingranelli and Richards (CIRI) Human Rights Data Project
Despite the fair to high rankings in reports on human rights,
the United States also receives significant international
criticism for its human rights record

 Criticisms include lower labor protections than most western countries,

 imprisonment of debtors, criminalization of homelessness and poverty, invasion of its citizens' privacy
through mass surveillance programs,
 police brutality, police impunity and corruption,
 incarceration of citizens for profit, mistreatment of prisoners, the highest number of juveniles in the
prison system of any country,
 some of the longest prison sentences in the world, continued use of the death penalty despite its
abolition in nearly all other western countries,
 abuse of both legal and illegal immigrants (including children)facilitating state terrorism, a health care
system favoring profit via privatization over the wellbeing of citizens,
 the lack of a universal health care program unlike most other developed countries, one of the most
expensive and worst-performing health care systems of any developed country,
 continued support for foreign dictators (even when genocide has been committed), forced
disappearances, extraordinary renditions, extrajudicial detentions, the torture of prisoners at
Guantanamo Bay and black sites, and extrajudicial targeted killings.
Code of Conduct for Law Enforcement
Officials
Adopted by General Assembly resolution 34/169 of 17 December 1979
Article 1
Law enforcement officials shall at all times fulfil the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts,
consistent with the high degree of responsibility required by their profession.

 Commentary :
(a) The term "law enforcement officials", includes all officers of the law, whether
appointed or elected, who exercise police powers, especially the powers of arrest or
detention.
(b) In countries where police powers are exercised by military authorities, whether
uniformed or not, or by State security forces, the definition of law enforcement
officials shall be regarded as including officers of such services.
(c) Service to the community is intended to include particularly the rendition of
services of assistance to those members of the community who by reason of personal,
economic, social or other emergencies are in need of immediate aid.
(d) This provision is intended to cover not only all violent, predatory and harmful acts,
but extends to the full range of prohibitions under penal statutes. It extends to
conduct by persons not capable of incurring criminal liability.
Article 1
Law enforcement officials shall at all times fulfil the duty imposed upon them by
law, by serving the community and by protecting all persons against illegal acts,
consistent with the high degree of responsibility required by their profession.

 This means that police officers should at all-time respect and protects the
law. Not only local or domestic legislation but also internationally accepted
standards and practices. All police officers should respect the human rights of
all suspects, besides that they should also protect the human rights of every
person, for example, against abuse by other officials. This is also applicable
during the election period.
Article 2
In the performance of their duty, law enforcement officials shall
respect and protect human dignity and maintain and uphold the
human rights of all persons.

 Commentary :
(a) The human rights in question are identified and protected by national and
international law. Among the relevant international instruments are the
Universal Declaration of Human Rights, the International Covenant on Civil and
Political Rights, the Declaration on the Protection of All Persons from Being
Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, the United Nations Declaration on the Elimination of All Forms of
Racial Discrimination, the International Convention on the Elimination of All
Forms of Racial Discrimination, the International Convention on the Suppression
and Punishment of the Crime of Apartheid , the Convention on the Prevention
and Punishment of the Crime of Genocide, the Standard Minimum Rules for the
Treatment of Prisoners and the Vienna Convention on Consular Relations.
(b) National commentaries to this provision should indicate regional or national
provisions identifying and protecting these rights.
Article 3
Law enforcement officials may use force only when strictly necessary and
to the extent required for the performance of their duty.

 Commentary :
(a) This provision emphasizes that the use of force by law enforcement officials should be
exceptional; while it implies that law enforcement officials may be authorized to use force as is
reasonably necessary under the circumstances for the prevention of crime or in effecting or
assisting in the lawful arrest of offenders or suspected offenders, no force going beyond that may
be used.
(b) National law ordinarily restricts the use of force by law enforcement officials in accordance
with a principle of proportionality. It is to be understood that such national principles of
proportionality are to be respected in the interpretation of this provision. In no case should this
provision be interpreted to authorize the use of force which is disproportionate to the legitimate
objective to be achieved.
(c) The use of firearms is considered an extreme measure. Every effort should be made to
exclude the use of firearms, especially against children. In general, firearms should not be used
except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of
others and less extreme measures are not sufficient to restrain or apprehend the suspected
offender. In every instance in which a firearm is discharged, a report should be made promptly
to the competent authorities.
Article 4
Matters of a confidential nature in the possession of law enforcement
officials shall be kept confidential, unless the performance of duty or the
needs of justice strictly require otherwise.

 Commentary :
By the nature of their duties, law enforcement officials obtain
information which may relate to private lives or be potentially harmful to
the interests, and especially the reputation, of others. Great care should
be exercised in safeguarding and using such information, which should
be disclosed only in the performance of duty or to serve the needs of
justice. Any disclosure of such information for other purposes is wholly
improper.
Article 5
No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel,
inhuman or degrading treatment or punishment, nor may any law enforcement official invoke
superior orders or exceptional circumstances such as a state of war or a threat of war, a
threat to national security, internal political instability or any other public emergency as a
justification of torture or other cruel, inhuman or degrading treatment or punishment.

 Commentary :
(a) This prohibition derives from the Declaration on the Protection of All Persons from Being Subjected to
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General
Assembly, according to which:
"[Such an act is] an offence to human dignity and shall be condemned as a denial of the purposes of the
Charter of the United Nations and as a violation of the human rights and fundamental freedoms
proclaimed in the Universal Declaration of Human Rights [and other international human rights
instruments]."
(b) The Declaration defines torture as follows:
". . . torture means any act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or
a third person information or confession, punishing him for an act he has committed or is suspected of
having committed, or intimidating him or other persons. It does not include pain or suffering arising only
from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum
Rules for the Treatment of Prisoners."
(c) The term "cruel, inhuman or degrading treatment or punishment" has not been defined by the General
Assembly but should be interpreted so as to extend the widest possible protection against abuses,
whether physical or mental.
Article 6
Law enforcement officials shall ensure the full protection of the health of
persons in their custody and, in particular, shall take immediate action
to secure medical attention whenever required.

 Commentary :
(a) "Medical attention", which refers to services rendered by any medical
personnel, including certified medical practitioners and paramedics, shall
be secured when needed or requested.
(b) While the medical personnel are likely to be attached to the law
enforcement operation, law enforcement officials must take into account
the judgement of such personnel when they recommend providing the
person in custody with appropriate treatment through, or in consultation
with, medical personnel from outside the law enforcement operation.
(c) It is understood that law enforcement officials shall also secure
medical attention for victims of violations of law or of accidents
occurring in the course of violations of law.
Article 7
Law enforcement officials shall not commit any act of corruption.
They shall also rigorously oppose and combat all such acts.

 Commentary :
(a) Any act of corruption, in the same way as any other abuse of authority, is
incompatible with the profession of law enforcement officials. The law must be
enforced fully with respect to any law enforcement official who commits an act of
corruption, as Governments cannot expect to enforce the law among their citizens
if they cannot, or will not, enforce the law against their own agents and within
their agencies.
(b) While the definition of corruption must be subject to national law, it should be
understood to encompass the commission or omission of an act in the
performance of or in connection with one's duties, in response to gifts, promises
or incentives demanded or accepted, or the wrongful receipt of these once the act
has been committed or omitted.
(c) The expression "act of corruption" referred to above should be understood to
encompass attempted corruption.
Article 8
Law enforcement officials shall respect the law and the present Code. They shall also, to the best of their
capability, prevent and rigorously oppose any violations of them.
Law enforcement officials who have reason to believe that a violation of the present Code has occurred or is
about to occur shall report the matter to their superior authorities and, where necessary, to other
appropriate authorities or organs vested with reviewing or remedial power.

 Commentary :
(a) This Code shall be observed whenever it has been incorporated into national legislation or practice. If legislation
or practice contains stricter provisions than those of the present Code, those stricter provisions shall be observed.
(b) The article seeks to preserve the balance between the need for internal discipline of the agency on which public
safety is largely dependent, on the one hand, and the need for dealing with violations of basic human rights, on the
other. Law enforcement officials shall report violations within the chain of command and take other lawful action
outside the chain of command only when no other remedies are available or effective. It is understood that law
enforcement officials shall not suffer administrative or other penalties because they have reported that a violation of
this Code has occurred or is about to occur.
(c) The term "appropriate authorities or organs vested with reviewing or remedial power" refers to any authority or
organ existing under national law, whether internal to the law enforcement agency or independent thereof, with
statutory, customary or other power to review grievances and complaints arising out of violations within the purview
of this Code.
(d) In some countries, the mass media may be regarded as performing complaint review functions similar to those
described in subparagraph (c) above. Law enforcement officials may, therefore, be justified if, as a last resort and in
accordance with the laws and customs of their own countries and with the provisions of article 4 of the present Code,
they bring violations to the attention of public opinion through the mass media.
(e) Law enforcement officials who comply with the provisions of this Code deserve the respect, the full support and
the co-operation of the community and of the law enforcement agency in which they serve, as well as the law
enforcement profession.
Article 8
Law enforcement officials shall respect the law and the present Code. They shall also, to the best of their
capability, prevent and rigorously oppose any violations of them.
Law enforcement officials who have reason to believe that a violation of the present Code has occurred or is
about to occur shall report the matter to their superior authorities and, where necessary, to other
appropriate authorities or organs vested with reviewing or remedial power.

 Commentary :
(a) This Code shall be observed whenever it has been incorporated into national legislation or practice. If legislation
or practice contains stricter provisions than those of the present Code, those stricter provisions shall be observed.
(b) The article seeks to preserve the balance between the need for internal discipline of the agency on which public
safety is largely dependent, on the one hand, and the need for dealing with violations of basic human rights, on the
other. Law enforcement officials shall report violations within the chain of command and take other lawful action
outside the chain of command only when no other remedies are available or effective. It is understood that law
enforcement officials shall not suffer administrative or other penalties because they have reported that a violation of
this Code has occurred or is about to occur.
(c) The term "appropriate authorities or organs vested with reviewing or remedial power" refers to any authority or
organ existing under national law, whether internal to the law enforcement agency or independent thereof, with
statutory, customary or other power to review grievances and complaints arising out of violations within the purview
of this Code.
(d) In some countries, the mass media may be regarded as performing complaint review functions similar to those
described in subparagraph (c) above. Law enforcement officials may, therefore, be justified if, as a last resort and in
accordance with the laws and customs of their own countries and with the provisions of article 4 of the present Code,
they bring violations to the attention of public opinion through the mass media.
(e) Law enforcement officials who comply with the provisions of this Code deserve the respect, the full support and
the co-operation of the community and of the law enforcement agency in which they serve, as well as the law
enforcement profession.
Discrimination

 refers to the unfair, unequal or prejudicial treatment of individuals or groups,

for example on the basis of their age, sex, ethnic background or
ability/disability. All citizens have equal rights and must be treated equally in
front of the law. Ensuring equality and non-discrimination may at times mean
treating people differently in order to ensure that they are able to exercise
their rights.
 Example:
assisting people with disabilities (PWD) in accessing services, or ensuring elderly
people or pregnant women are not exposed to strenuous situations (e.g. queuing
for hours at a ballot box)
Police officers are in a very unique
position.

 They work with people who break the law and abuse other people’s human rights.
 During election time even more so where different opposition parties try to
undermine each other and try to stop each other from having meetings, rallies,
marches where they express their rights to freely express themselves or associate
with their own political parties. During this period police officers have to be even
more vigilant not to be seen to side with one group or political party.
 Police officers must therefore not only be impartial but must also be seen to be
impartial.
 In the context of elections, they need to ensure citizens are able to
vote/participate otherwise in political processes, free from discrimination, verbal or
physical abuse, harassment, and violence, including of a sexual or gendered nature.
When police deal with members of the public especially if these people
are suspects police have a very important responsibility to respect,
protect and promote the basic human rights of every person.

 Unfortunately, police officers are not only in the position to respect and
protect human rights, but also to abuse the human rights of people.
 It is therefore very important for police officers to know and understand their
role in respecting and protecting human rights.
 Police officers should not only know the human rights of suspects or people in
detention, but should also know how to apply these rights, and should also
know how to protect and respect these rights against abuse by others,
including violations of rights by other police officers
Another aspect of human rights that is equally important for police
agencies is the fact that police officers are also human beings, and
therefore also have basic human rights that should also be respected and
protected.

 Example:
Would be the right of police officers to have good working conditions.
This also includes the right of all officers to be treated with respect and without
discrimination regardless of rank; position; age; sex; social, religious or ethnic
background and ability/disability.
Police services also need to be provided in a way that is in
line with regulations and enables people with particular
needs to access on such cases.

 Example:
 Those cases of sexual and gender-based violence (SGBV) and child abuse (CA)
need to be handled in an environment which guarantees confidentiality, while
for example elderly and persons with disabilities may not be able to access
offices if lengthy staircases are involved
 Police officers can be seen as the first line of protection of
human rights. These rights cannot be taken away arbitrarily
and without legal justification.

 In certain instances, for example when a person breaks the law and commits a crime
some human rights may be limited by police officers, by for example arrest,
detention, use of force, searches, to name a few.
 When these rights are limited there are important issues that have to be taken into
account. Limitations should be necessary, they should be legal, justifiable and
proportional, police officers’ behavior should also be ethical, and it is also important
to realize that the police officers may be held accountable for their actions.
 Police officers should know and understand the rights of every person in society.
The reason for this is that police officers should be able to understand, respect and
protect the human rights of every person that they deal with or who is under their
control or in their custody or care.
 When they arrest suspected criminals they should be able to understand how they
should apply the human rights principles and under what circumstances for the seek
of human rights.
POLICE POWER

 It is the power vested in the legislature by the Constitution to make, ordain,

establish all manner of wholesome and reasonable laws for the good and welfare of
the State and its people.

 Basic Purposes/Aspects Of Police Power:

1. to promote the general welfare, comfort and convenience of the people;
2. to promote and preserve public health
3. to promote and protect public safety;
4. to maintain and safeguard peace and order;
5. to protect public morals;
6. to promote the economic security of the people.
POLICE POWER VS. POWER OF EMINENT DOMAIN.

 The power of eminent domain is the inherent right of the State to condemn or
to take private property for public use upon payment of just compensation while
police power is the power of the state to promote public welfare by restraining and
regulating the use of liberty and property without compensation;
 In the exercise of police power, enjoyment of a property is restricted because
the continued use thereof would be injurious to public welfare. In such case, there
is no compensable taking provided none of the property interests is appropriated for
the use or for the benefit of the public. Otherwise, there should be compensable
taking if it would result to public use.
 Properties condemned under police power are usually noxious or intended for
noxious purpose; hence , no compensation shall be paid. Likewise, in the exercise of
police power, property rights of private individuals are subjected to restraints and
burdens in order to secure the general comfort, health and prosperity of the state.
Tests for a valid exercise of police
power
 the interests of the public, not mere particular class, require the exercise
of police power; (LAWFUL SUBJECT)

 the means employed is reasonably necessary for the accomplishment of the

purpose and not unduly oppressive to individuals. (LAWFUL MEANS).
Thank You.