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QUESTION TWO
Introduction
The protection of the fundamental rights of individuals has been a matter of grave concern to civil society organizations in many countries. Every individual has inalienable dignity and value which must be respected. Every individual is governed with a set of laws that are concerned with equality and fairness. Each person has the freedoms to make choices as individuals and to develop themselves. People are governed by a set of principles that attach importance to equality and fairness. These laws attach value to giving each person the right to live a life free from fear, discrimination or harassment. Human rights are a set of statutes world over that are universally agreed on as essential. They include but not limited to the right to life, the right to a fair trial, freedom from cruel and inhuman treatment and other forms of torture, freedom of speech and religion and rights to education, health and reasonable living standards. These basic human rights are fundamental and apply to people of all walks of life, race, age, gender or region. This is what makes human rights universal. In a bid to make the citizens enjoy these rights, governments come up with legislations that ensure the citizens are offered enough protection against any violations against these rights. This paper looks at the First Amendment, Fourth Amendment, Fifth Amendment, the Law of Torts and the Contractual laws and how each of these laws offers protection or fail to protect the people.
The First Amendment
The first amendment of the bill of rights of the United States of America that was legislated by the Congress on September 25, 1789, and ratified on December 15, 1791, gave every person living in the United States the right to an objective hearing of any matter and to make their conclusions without government interference. It passed to individuals the freedom to speak, read, publish, view what they like, worship or decide not to worship as they please, associate with anybody they choose to, gather together and even ask the government to make changes in any areas that the citizens consider to be wronged in the society. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (Loveland, Ian 35). The first amendment addresses the right to speak and publish which has been widely used to offer protection to the citizens against the government attempts to suppress the free flow of information and ideas and so stop the government from interfering with the freedom to write and publish books, newspapers, magazines, music, films and other materials on the internet. In 1965, the Supreme Court held that this amendment gave credence to the right to receive information which is closely related to the right to speak.
This law offers enough protection to the citizens as it guarantees the fundamental freedoms that are in agreement with human rights. Freedom of speech, freedom to write, read and publish is vital for the free flow of information. The government is closely guarded against infringing on the rights of the people by legislation and court rulings (Loveland, Ian 35).
The Fourth Amendment
The fourth amendment was legislated to protect people against unreasonable searches and seizures by the government. This in no way means that all searches and seizures are prohibited, but only those that are considered to be unreasonable under the existing laws. The criteria for judging whether a search is reasonable or not depend on a balancing act of two interests. There is a comparison between intruding into an individual’s Fourth Amendment rights on one hand and legitimate government interest like public safety on the other hand of the scale. The extent to which this right can protect an individual depends partly on the location of the search or seizure (Minnesota v. Carter 525). Any searches and seizures conducted within a home environment must be accompanied by a search warrant without which it is considered to be unreasonable (Payton v. New York 445). But there are some exceptions to this law. A search without a warrant nay still is considered lawful if the officer is given the consent to search, if the search is incidental to a lawful arrest, if there is a probable reason to search to elucidate the circumstances of a particular case or if the items to be seized are in plain and clear view. Concerning an individual, when an officer realizes unusual conduct which makes him make a reasonable conclusion that some criminal activity may be in the offing or has just been committed, the officer is allowed by law to briefly stop the person and make reasonable enquiries which may either confirm or dispel the suspicions of the officer. School officials don’t under any circumstance need to obtain a warrant before searching for a student who is under their authority; rather, a search of a student need only be reasonable under all the circumstances (New Jersey v. TLO 325). Searches and seizures can also be conducted in personal cars or public service vehicles so long as the officers conducting the searches or seizures have a reasonable cause to justify their actions. In as much as this law gave rights of privacy to the people, the court rulings have watered down the earlier good intentions in that the police have been given more leeway to do searches and seizures without warrants because of their ability to give a justification of a reasonable ground for the search of seizure.
The Fifth Amendment; Self-Incrimination
The Fifth Amendment protects criminal suspects from having testifying if they may incriminate themselves through their testimony. A suspect or witness may decide to “plead the Fifth” and therefore not answer if he believes that answering the question may be self-incriminatory. Any time the law enforcement officers take a suspect into custody; they must ensure the suspect is informed of all his rights. These rights include the right to remain silent if he so wishes, the right to be represented by an attorney or the right to access a government attorney if he cannot afford the services of one. The courts have slightly narrowed these rights because according to this amendment, police are not allowed to interrogate a suspect before taking them to court and educating them about all their rights including the right to remain silent. In fact, in some cases, the police take being silent by a suspect as an admission of guilt. This has been used to the detriment of the suspect whose rights get violated.
The Law of Torts
A tort is considered to be an act of omission or commission other than a breach of contract which causes an injury or harm to another party and is considered to be a civil wrong for which the courts impose a liability to the offender. This implies that a wrong has been committed and courts have an obligation to a monetary remedy for the damages caused. Torts are of three categories; acts of negligence, torts that are intentional and those of strict liability. In as much as they differ in elements, the process of litigating them is basically similar. For civil tort cases, the standard proof for proper litigation in a court of law is the preponderance of the evidence. The presence of a logjam of evidence implies that there is a legal reason to believe that the defendant is responsible for the plaintiff’s injuries. If the plaintiff has a fistful of the evidence above 50% against the defendant, the jury must give a verdict in favour of the plaintiff. This is a justice to the aggrieved party as the injured party gets adequately compensated.
The Law of Contract
When contractual laws have been breached, the damage is considered to have been done. The party that has broken the contract is liable to compensate the other party an amount determined by the contractual laws governing the particular scenario. Several remedies exist for breach of contract, like award of damages, specific performance, rescission, and restitution. In a court having limited jurisdiction, the general remedy is an award of damages. When a breach of contract is proved in court, two types of damages may be awarded. Compensatory or actual damages may be awarded to cover the losses that the other party that did not breach the contract incurred and were related to the breach of the contract. This amount awarded is generally to replace the loss caused by the breach of the contract. The compensatory damages can be general damages or special damages. General damages directly cover the losses cause by the breach of the contract. In contrast, special damages cover any loss incurred as a result of the breach of contract because of exceptional circumstances that are not ordinarily predictable. Courts can also award punitive or exemplary damages as a punishment to the party that breached the contract willfully, maliciously or fraudulently. These damages are intended to punish the wrongdoer for egregious behaviour and award the other party as compensation for the broken contract.
Conclusion
For a long time, the First Amendment has been viewed to offer the protection of the basic human rights to individuals. The Fourth and Fifth amendments also offer protection to people against unfair legal procedures, but they are prone to abuses by the enforcement officers. The people need to be well educated to know their rights and obligations and also to safeguard them against violation of their rights. The law of torts and contract laws have brought civil order and respect of contractual agreements that are necessary for societal order. By and large, it time the amendments and the contractual laws take their place in terms of strict implementation to afford more rights to citizens.
Cited Works
Davis v. United States, 328 U.S. 582 (1946)
Loveland, Ian, ed. Importing the First Amendment: Freedom of Speech and Expression in Britain, Europe and USA. Bloomsbury Publishing, 1998.
Maryland v. Macon, 472 U.S. 463 (1985).
Minnesota v. Carter, 525 U.S. 83 (1998).
Minnesota v. Dickerson, 508 U.S. 366 (1993)
Payton v. New York, 445 U.S. 573 (1980)
Terry v. Ohio, 392 U.S. 1 (1968)
United States v. Robinson, 414 U.S. 218 (1973)