Good governance and human rights

It is this awareness, that prompts one today, to examine whether enough effort has gone in to ensure availability of human rights and fundamental freedoms for the citizens of our country. This assumes importance because human rights are the primary building blocks for good governance and practice of democracy. They are the pillars on which we develop our human qualities, our intelligence, our talents and our conscience. They also help to satisfy our spiritual needs.

On the other hand, absence of fundamental freedoms contribute towards conditions of social and political unrest. It affects good governance and sows seeds of conflict within and between societies.

It is this significant factor that led the framers of the United Nations Charter to attach so much importance to human rights more than fifty years ago. In several Articles-1(3), 13 (1b), 55(c), 56, 62 (2), 68 and 76 (c), the UN charter notes the need for promoting and encouraging respect for human rights and fundamental freedoms for all without distinction to race, sex, language or religion.

The Bangladesh Constitution has similarly emphasised the ensuring of human rights for the people of Bangladesh. These have been enumerated in different constitutional principles.

Article 8(1) stresses on economic and social justice. Article 11 mentions that the Republic shall be a democracy where human rights will be guaranteed. Article 15 outlines the elements that will ensure 'improvement in the material and cultural standard of living' of the people -- right to food, clothing, shelter, education, medical care, recreation and social security. Article 17 mentions that the State shall create 'uniform' mass oriented and universal system of education for all children. Articles 19(1) and 29(1) emphasise on 'equality of opportunity.' Article 22 indicates that the State shall ensure the separation of the judiciary from the executive organs of the State. While Article 26 stresses that any law inconsistent with human rights is to be void, Articles 27 and 28 go a little bit further. There will be equality before law and no discrimination on grounds of religion, race, caste, sex or place of birth. Article 31 proposes right to protection of law and Article 33 safeguards an individual from arbitrary arrest and detention. Similarly, Article 35 provides protection in respect of trial and punishment and Articles 36 through to 39 ensure freedom of movement, assembly, association, thought, conscience and of speech. Article 41(1) underlines freedom of religion. However, the most important is probably Article 44(1) which stipulates enforcement of fundamental rights by moving the High Court Division in accordance with Clause (1) of Article 102.

These elements are impressive in their content and scope. On the other hand, they seem to be present in most situations in their absence rather than compliance.

Unfortunately, various international human rights watchdogs have, at different times, drawn the attention of Bangladesh authorities to violations that include torture, deaths in custody, arbitrary detention of government opponents and others, excessive use of force leading at times to extra-judicial executions, sporadic attacks against members of the minority communities and groups and also violence against women.

Their reports do not make pleasant reading. They tend to indicate that successive governments in Bangladesh have failed to curb serious human rights violations arising from the use of legislation and widespread practices in the law-enforcement and justice system which violate international human rights standards.

This becomes that much more serious when one considers that the country won its freedom protesting against injustice and intolerance. Consequently, how can we arbitrarily detain thousands of people every year under administrative detention laws which deny access to judicial remedies. Quite often, governments in power invoke the Special Powers Act, 1974 (SPA) to detain members of opposition parties. Such a step is further complicated by the discretionary powers of the District Magistrate who arbitrarily defines the commission of a 'prejudicial act.' Fortunately, more often than not, these views are declared as unlawful by the High Court. However, this is done mostly on procedural grounds and on the basis that the High Court has to be satisfied that a person has been detained under a lawful authority. The net result is that someone undergoes unnecessary harassment. We have over the years seen many calls for the repeal of the SPA, but till now that has not taken place. Every Opposition decries its use, but when in government, defend and maintain it.

Torture as an instrument is not permitted by the judicial process. Nevertheless, it is widespread and persistent. Routinely ignored by successive government, it continues to affect children, women, the elderly, opposition politicians, criminal suspects and sometimes even innocent bystanders in the street.

One notes with regret that impunity is probably the major reason why such acts continue. Sadly, government authorities have persistently failed to bring perpetrators of torture to justice. These allegations are rarely investigated, particularly when victims are members of the opposition parties. They are generally overlooked unless there is a public outcry arising out of a possible death in custody.

This has recently assumed a different dimension with the many reported deaths through 'crossfire' while in the custody of the RAB force. The situation has become complex given the fact that while our Constitution specifically forbids torture, and it is considered a criminal act under the Penal Code, yet Section 54 of the Criminal Procedure Code permits law enforcement agencies to arrest anyone without a warrant of arrest and keep him in detention for up to 24 hours on vaguely formulated grounds. This aspect has assumed enough seriousness to lead the High Court to recently issue a rule upon the government, to show cause as to why direction should not be issued for RAB to function within the purview of law.

It would also be pertinent at this stage to remark on the inhumane conditions that exists within the prisons. We have to remember that prisoners also have human rights and these need to be safeguarded. Modern prison facilities must go hand in hand with legal and judicial reform.

Another area that continues to be a source of disappointment is the inability of successive governments to separate the judiciary from the executive. By doing so, they are denying independence to the judiciary in structure and scope. The Supreme Court has rebuked the government for its failure. We have seen contempt proceedings drawn up against bureaucrats. However, the issue has still not been resolved. The authorities guided by their limited interests fail to appreciate that unless this element is guaranteed, governance will suffer. We must understand that the executive has to function under the directives of an elected legislature and the judiciary has to be able to monitor state action.

This factor becomes that much more important, given the persistent criticism that judges of proven quality, seniority and experience are not being brought into the judiciary.

Governance today leaves a lot to be desired. The situation has deteriorated because the ordinary citizen feels that a nexus not only exists between criminals and politicians but also that corruption has tainted judicial officials. They also believe that there has been erosion in basic values. Frustration has grown specially in the rural areas. Newspaper reports indicate that in many cases, affected persons face difficulty in filing suits or even persuading the police to institute a case. This has been most prevalent with regard to acid victims. Retribution, through judicial process has receded to the background.

We have been hearing for quite some time that an independent, impartial and competent human rights watchdog will be set up in the country. Constituting such a National Human Rights Commission has however remained a dream. It is also true that despite many seminars, workshops and public pledges, an Ombudsman remains just mere talk. These absences do not do us credit.

We have to understand that protection of human rights is inter-linked with good governance and removal of corruption. This has to be projected at all levels.

This might be achieved by giving adequate training to the police force, investigation and law enforcement agencies on how to interview and take statements from suspects and witnesses without coercion and on how to analyse and preserve forensic evidence. After all, they are the implementation agencies.

Monitoring also needs to be introduced to ensure that the police deal more sensitively with issues of violence against women and women victims of crimes. This will create an effective accountability mechanism.

Bangladesh, over the last three decades, has taken many important steps with regard to international human rights obligations. It has become a state party to the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women. This should, however, not be considered as enough.

We have to actively live up to the responsibilities associated with human rights. This has ramifications for our economic development. Bad governance, after all is directly responsible for hidden costs becoming an integral part of doing business in our country. There is no other option but cleaning up our stable. This is the first step towards eventual poverty reduction.

Muhammad Zamir is a former Secretary and Ambassador -- any response to mzamir@dhaka.net.