FOCUS December 1999 Volume 18
A National Human Rights Commission for Bangladesh
The Cabinet of the Government of the People's Republic of Bangladesh at last gave the green signal. On April 12, 1999, it approved the draft bill for the establishment of a National Human Rights Commission. It also formed a cabinet subcommittee to review the proposed bill. The subcommittee so far held two meetings to examine some of the provisions of the proposed bill. It is learned that the government is planning to establish a national human rights institution some time next year after the bill has been enacted into law by the House of the Nation.
The idea of a national human rights institution in Bangladesh has been around for several years. In April 1995, the Government of Bangladesh approved a project to assess the need for such a body and make recommendations on its establishment. The project entitled "Action Research Study on the Institutional Development of Human Rights in Bangladesh (IDHRB)" formulated initially was to start in July 1995, but it was reportedly delayed due to prolonged political crisis in the country. It was revived in March 1996 when an agreement was signed between the government and the United Nations Development Programme (UNDP). Under the agreement, the Ministry of Law, Justice and Parliamentary Affairs is to supervise, monitor and evaluate the IDHRB project, which formally began in July 1996. The project is financed by the UNDP. The main objective of the project was to prepare the grounds for the eventual establishment of a viable institutional mechanism to promote and protect human rights as guaranteed under the constitution of Bangladesh.
The IDHRB Project formulated a draft bill (The Bangladesh National Human Rights Commission Act 1999). The draft bill proposes that a National Human Rights Commission will be set up "for Bangladesh for the protection, promotion and creation of the conditions for the enjoyment of human rights and for matters connected therewith or incidental thereto." Referring to the government's commitment to protect and promote human rights, the bill states that an effective mechanism for the protection, promotion and creation of the conditions for the enjoyment of human rights should be evolved to implement the constitutional commitment. The bill specifically mentions the fundamental principles of state policy enshrined in the constitution of Bangladesh.
From the preamble of the bill it appears that:
- The government is aware of the increasing global concern for human rights and the need for its institutional protection; and
- It has come forward to install such institution as part of its constitutional commitment.
However the national institution will not be a constitutional mechanism. Like many other institutions, it will get a statutory footing.
Reactions from the human rights community
The human rights community at the non-government level has been watching the process carefully since its inception. The IDHRB project has, so far, arranged a number of public programs to generate awareness and interest on the proposed national institution in different segments of civil society. Unfortunately they have not attained much success due to lack of meaningful and adequate participation by all stakeholders of human rights. The project directly controlled by the Ministry of Law, Justice and Parliamentary Affairs of the Government of Bangladesh, failed to create needed enthusiasm in public domain. Some of the mainstream legal and human rights NGOs expressed their concern, as they were not properly consulted in the process. Political parties also expressed their apprehension of creating another pro-government institution to defend and justify government acts or omission.
Salient Features of the Proposed NHRC
A brief analysis of the draft bill reveals the following core features:
Definition of Human Rights: "Human Rights" includes the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution of the People's Republic of Bangladesh and such rights embodied in the International Human Rights Instruments adopted by the General Assembly of the United Nations which have been acceded to and ratified by the People's Republic of Bangladesh [Sec. 2(d)].
Constitution of NHRC: The President in consultation with Committee consisting of the-
- Prime Minister
- Speaker of Parliament
- Chief Justice
- Leader of the Opposition in the Parliament
shall constitute the National Human Rights Commission. The Commission shall consist of a chairperson and four members. At least one member should be a woman. [Sec 3 (1) (2)].
Qualification: The chairperson and the four members shall be appointed from among persons having knowledge of, and practical experience in, matters relating to human rights. [Sec. 3(2) (a)]
erm: The term of chairperson or members of the said commission will be five years and shall not be eligible for further reappointment. (Sec. 5)
Remuneration and conditions of service: The salaries and allowances of the Members of the Commission shall be determined by the Parliament and shall be charged in the Trust Fund. (Sec. 7)
Removal: The chairperson or any other Members of the Commission shall only be removed from his office by order of the President on the ground of proved misbehavior or incapacity after the Supreme Judicial Council, consisting of the Chief Justice of Bangladesh, and two next senior judges of the Supreme Court, on reference being made to it by the President, has on inquiry held in accordance with the procedure prescribed in that behalf by the Supreme Judicial Council, reported that the Chairperson or such other Member, ought on any such ground to be removed. [Sec. 4 (1)]
The President may by order remove from office the chairperson or any other member in case of judgment of insolvency, involvement with gainful employment, infirmity of mind or body unsoundness, or conviction involving moral turpitude [Sec. 4 (2)].
Functions: The Commission shall perform all or any of the following functions, namely:
- inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, into complaint of -
- violation of human rights or abatement thereof or
- negligence in the prevention of such violation, by a public servant:
- intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;
- visit any jail or any other institution under the control of the Government, where persons are detained or lodged for purposes of treatment, reformation, protection or welfare to study the living conditions of the inmates and make recommendations thereon:
- review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend the adoption of new legislation, the amendment of the existing laws and the adoption or amendment of administrative measures for their effective implementation;
- review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures;
- study treaties and other international instruments on human rights and make recommendations for their effective implementation;
- examine the draft bills and proposals for new legislation to verify their conformity with international human rights standards and to ensure the compliance with the international human rights instrument;
- encourage ratification of international human rights instruments or accession to those instruments, and ensure their implementation;
- assist in the formation of programs for the teaching of, and research into, human rights and to take part in their execution in educational and professional institutions.
- spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;
- encourage the efforts of non-governmental organizations and institutions working in the field of human rights;
- freely consider any questions falling within its competence, whether they are submitted by the Government or taken up by it without referral to a higher authority, on the proposal of its members or of any petitioner;
- such other functions as it may consider necessary for the promotion of human rights. (Section 10)
- The Commission and every member of its staff shall function without political or other bias or interference and shall be independent and separate from any party, government, administration, or any other functionary or body directly or indirectly representing the interests of any such entity.
- To the extent that any of the personnel of the entities referred above may be involved in the activities of the Commission, such personnel will be accountable solely to the Commission (Sec. 16)
Annual and Special Reports:
- The Commission shall submit an annual report to the President and may at any time submit special reports on any matter which, in its opinion, is of such urgency or importance that it should not be deferred till submission of the annual report.
- The President shall cause the annual and special reports of the Commission to be laid before the Parliament for discussion and consideration. (Sec. 19)
The Commission will be financed through a Trust Fund, which shall hold all money appropriated by Parliament and all money donated or contributed to the fund from any source. (Sec. 20, 21)
A Critical Review
The following points need to be clarified or considered before placing the bill in the parliament:
- Justice VR Krishna Iyer, former judge of the Supreme Court of India, in an exclusive interview with this writer (the interview was published in the 'Law and Our Rights Page' of The Daily Star of Bangladesh on June 1, 1997) urged that, "Bangladesh could do well if it establish its proposed National Human Rights Commission through a constitutional amendment rather than by a statutory act. If the commission has a constitutional mandate, then it becomes more powerful, effective and would be free from any interference by other institutions or organs of the government." It seems the Government ignored this idea for reasons best known to them. Is there any scope to examine this idea of having a National Human Rights Commission as a constitutional body? A statutory footing is fine as long as it assures that the Commission can be independent and autonomous. This means having the independence to have its own personnel, especially its own investigators and a budget that does not come through the bureaucracy that make its own decisions or through a ministry that can bully it. Its budget must be reasonable in comparison to other ministries and should come from a consolidated fund. Its operation must be transparent rather than secretive. It should not give reports to the government, which the government may or may not publish. Its commissioners should be on the scale of high public servants but should not be bound by civil service rules, especially of secrecy.
- The definition of human rights in the draft bill is not comprehensive. It should specifically include basic economic and social rights and the rights of women should be recognized as human rights. Its preamble can make this explicit otherwise people will argue over it forever.
- The draft bill does not require special qualification for the members of the Commission except knowledge of, and practical experience in, human rights. This qualification is quite vague. There must be some previous experience of public work or public record that shows that the person has a commitment to human rights. The word 'demonstrable' should be inserted before 'knowledge' in the draft bill. If the person cannot show from the public record that she/he has a commitment to human rights how can this qualification be verified? Without some defining category that can be tested before the public and a selection process that relies entirely on politicians, the commission's appointments will again be a place for political bargains and deals.
- An appointment in the Commission disqualifies a person from further government appointment. Ideally a person appointed to the Commission should not be eligible to hold other office afterwards because this removes any temptation to play the government's game. But it also means that many people would not want to be in the Commission knowing they cannot do anything more with the government afterwards.
- According to section 13 (1) of the bill, the Commission shall have its own investigating agency. But there is nothing mentioned in the Bill about the nature and composition of the Commission's "own investigation agency." There has to be money allocated; numbers defined; training needs specified. The Commission can do this. But if this is so then it is all the more necessary that the Commission has a strong and credible leadership, which is seen to be so by the public at large.
- The proposed Commission would be basically a recommendatory body. Section 10 enumerates as many as thirteen broad functions of the commission including inquiry and investigation, monitoring and intervention whenever necessary. It will also submit annual and special report to the President. But no decision or findings of it has any binding force. So what would be the case if government ignores its recommendation? The South African Human Rights Commission has a mandate to get a report from each government department each year to find out what they have done to promote human rights in their work. This is really a great provision. It allows the Commission to look at the functioning of each department to make a sort of human rights assessment. This is linked to the performance of that department. In India, obeying the orders of the Commissions has become a convention though it is still a pretty border line case. The recommendations and orders of the women's commission of India, however, are routinely ignored.
- The recommendations of the Commission should be legally binding upon all. According to section 17(3) it can "recommend to the Government or authority for the grant of such immediate interim relief to the victim or members of his family." But the reality testifies that such mere power of recommendation is not enough. It should have powers to ensure effective remedies, including interim measures to protect the life and safety of an individual and free medical treatment where necessary. The Commission should ensure that full and prompt compensation is paid and necessary measure of redress and rehabilitation is taken. The government will have to make sure that any recommendatory reports and annual reports are public documents and not dependent on being placed before parliament before they can become so.
- In Bangladesh, defense forces are considered very sensitive and hence remain beyond any public scrutiny. It is not clear from the draft bill whether the Commission follows the same suit. The Commission should have specific power and jurisdiction to investigate any complaint against defense forces. In a democracy they can not remain above the law.
- In India there is specific provision to set up Human Rights Courts to provide speedy trial of offences arising out of violation of human rights. This idea can also be incorporated in the proposed bill. But considering the Indian experience, it may prove to be a pretty useless provision if there is no specialized training for the judges and a court is just designated as a human rights court in a district with the same delays and the same judges who know nothing about human rights. We need more than the mere setting up of a human rights court. But there is an issue here: how far can 5 people sitting in Dhaka reach out to people in need? In India, the NHRC has 30,000 cases in arrears already. And yet 90% of the country doesn't even know who they are. If a Commission is to be known and effective, it must travel, or have outposts, across the country. The Indian commission is appointing special rapporteurs and reviving human rights cells in police stations but without adequate infrastructure and training, they end up using the same people of the bureaucracy who in another two years after going back to their posts will be the violators.
- The result of the Commission's investigation should be referred to appropriate judicial bodies without any delay. The draft bill should have such mechanism.
- The Commission should establish and maintain close official relations with non-governmental organizations involved in the promotion and protection of human rights.
Instead of a Conclusion
National human rights institutions are being set up in many parts of the world. While the powers of these national institutions in the different countries vary, there seems to be a "core concept" emerging. In many countries, such national institutions have not matched the expectations they generated when they were first set up. On the other hand, in some other countries, where the expectations were not so great, national institutions have yielded some positive results.
No doubt national human rights institutions can be effective consolation, but without power to adjudicate and issue binding commands they may be turned to be "glorified ciphers and promise of unreality" as rightly termed by Justice VR Krishna Iyer. Only the real political will of the government, the opposition groups and the civil society as a whole can help reach the cherished destination. The decision of the Bangladesh Government to set up a National Human Rights Commission is a welcome development. But again the success of the proposed commission will largely depend on the true political will of the government. At the same time, we cannot solely depend on political will of the ruling class. We need a good process, which will ensure that the Commission is born properly and can grow independently as a people's commission and not a quasi-governmental body.
A. H. Monjurul Kabir, an independent researcher, is an Executive Member of ODHIKAR, a coalition for human rights in Bangladesh.
E-mail address: "A H Monjurul Kabir"