IN BANGLADESH, if there is anything the last 15 years under an increasingly repressive, corrupt and divisive regime have highlighted, it is the importance of human rights and what happens when a nation that is not at war or under occupation is persistently deprived of civil, political, social, economic and cultural rights. It is a fact that civil and political rights need social, economic and cultural rights to thrive and vice versa. Depriving a nation of one group affects the other category, too.
Rights to life, livelihood, education, shelter, health, free and fair trial, the freedom of expression, religion, privacy and more have been trampled on through the passing of controversial laws, farcical national and local elections, corruption, directions from those with command responsibility, the politicisation of law enforcement and other organs and branches of professional and administrative organs and dysfunctional institutions.
One such dysfunctional institution is the National Human Rights Commission, a toothless creature with a fancy title. The commission should have been on high alert during every large-scale rights violation perpetrated by the state organs. It should have carried out investigation, published reports, maintained and updated a web site and organised workshops and training programmes. What was done with all the foreign funds it received? Had it even been asked for accountability?
How does the commission envision 鈥榟uman rights鈥�? According to Section 2 of the National Human Rights Commission Act 2009, 鈥榟uman rights鈥� are the rights to life, liberty, equality and dignity, guaranteed by the constitution and international human rights instruments of which Bangladesh is a state party, and which are enforceable 鈥榖y the existing laws of Bangladesh.鈥� This is, in fact, the first blow. Not all rights, such as the right to shelter, education, freedom from all forms of exploitation, right to health, right to social security, right to equal opportunity, the right to work and employment, etc, are judicially enforceable under the constitution of Bangladesh.
As per Article 8 of the constitution, such rights, if violated by the state, cannot be enforced through the judicial system. Therefore, the basic foundation on which the commission rests is not a strong one as it will not be able to do much if such rights are, and they are, violated by the state. There is no provision in the commission as to how to respond to such matters because, as per its governing law, they are out of the hands of the commission.
Who runs the show? According to the National Human Rights Commission Act 2009, there is a seven-member commission headed by a chair. Of the members, 鈥榓t least one is to be a woman and one shall be from an ethnic group鈥�. There is no mention of persons with disabilities or religious groups. One would think that a national human rights body would have an empathetic set-up representing, as far as possible, a wide cross-section of society 鈥� but no.
To be fair, the act of 2009 does state that the chair and members will be selected from persons 鈥榳ho have remarkable contribution in the field of legal or judicial activities, human rights, education, social service, or human development.鈥� However, to date, the show in the commission has been run by persons retired from government service or representing government and non-governmental organisations there to do the regime鈥檚 bidding. How did this happen? A look at who selects the commission members may make it clear.
According to Section 7 of the act, a selection committee has to be set up to recommend the chair and members of the commission. The committee has to be comprised of the speaker of the parliament, ministers of law and justice and of home affairs, the chairman of the Law Commission, a cabinet secretary and two members of parliament 鈥� one of whom must be from the opposition. What has this selection committee looked like in the last 15 years? For once, all these committee members represent the government, an autocratic regime that had remained in power for more than 15 years through farcical elections and with no viable opposition in the parliament.
A regime that has consistently perpetrated human right violations, including crimes against humanity such as enforced disappearances and extrajudicial killings. A regime that has made the judicial system dysfunctional through politically-appointed judges and staff. Members of this regime were responsible in listing candidates for the commission. Probably one of the most glaring shortcomings of the commission is, therefore, the lack of transparency in selecting the persons who will run it.
People loyal to the regime and who will keep silent were the optimum choices, regardless of whether they were qualified or not. For example, in September 2019, the government appointed the current commission members without a merit-based approach. This in no way makes the commission a 鈥榮tatutory independent body鈥� either. Furthermore, such a selection procedure is against both the Paris Principles and the recommendation of the Global Alliance of National Human Rights Institutions Sub-Committee on Accreditation, made to Bangladesh when it was accredited with 鈥楤 Status鈥� in 2015.
There are other issues that hamper the functioning of the commission, which are unfortunately embedded in the law. For example, the commission has to make recommendations to the government to initiate legal proceedings against the perpetrator after an inquiry into a complaint. The commission has not been given the power to take direct legal action if it finds the complaint is true after concluding the inquiry. There are no legal aid services in the commission.
Furthermore, the commission cannot take action against law enforcement and can only ask for reports from the government on the allegation of human rights violations by the disciplinary force or any of its members. However, the act of 2009 does not stipulate what the commission can do if these forces do not submit such reports. It just mentions that if it deems necessary, the commission may make recommendations to the government for actions to be taken into the matter, which the latter has ignored.
Section 12 of the act grants the commission a mandate to protect and promote rights in the country by conducting investigations or inquiry on receiving petitions or exercising suo moto power; inspection of prisons, correctional centres, and other places of confinement; making recommendations, reviewing laws, and examining new legislation to assess their compliance with international standards and norms. According to Section 17(2) of the act, the commission has the right to investigate any matter any time when the government fails to respond to its request for a report. Predictably, the commission has continued to disregard exercising its existing mandate to the fullest extent.
Thousands of people have been deprived of their rights over the past 15 years, as both victims and members of victim families. In order to give them justice and for the future of human rights in Bangladesh, this is definitely not the right human rights commission. What is then required? Obviously, the most pressing need is the amendment of the National Human Rights Commission Act along the lines of the Paris Principles and the recommendations from the sub-committee on accreditation. Checks and balances need to be in place to make the commission truly independent as well.
Sub-committees or offices within the commission need to be established to investigate reports on missing persons and possible enforced disappearances, matters pertaining to inability to access justice, to conduct visits to jails and other places of detention as well as other pressing, thematic human rights issues. There must be a legal wing and the commission must be allowed to file writ petitions and give legal aid to those who require it most. It must be able to coordinate with other legal aid organisations too, for assistance and collaboration. The commission must coordinate an independent UN-led fact-finding mission into the incident of July and August 2024 and re-open investigations into other, similar human rights violations. It must also assist the United Nations in establishing accountability mechanisms such as special tribunals.
Given the extent of the chasm created by this divisive regime, and the huge number of violators, it may also be necessary for the commission to assist in the creation of a UN-led truth and reconciliation commission to bring a modicum of closure to victim families and victims. The commission will greatly benefit from the support of relevant UN bodies, especially in the areas of training, publications, reporting procedures and, of course, funding. It has been observed that some UN entities and development partners that need to work with the government have ignored glaring discrepancies and violations in order to complete programmes and write reports. This practice encourages violation to continue and further undermines the work of the commission. It has to stop.
Above all this, the commission must be approachable by all the people of Bangladesh. It must be a forum where everyone can seek aid and assistance and it must be completely focused on ensuring both the human rights of the people of Bangladesh and offering assistance to those seeking justice for violation. It must be able to function independently as a watchdog and be seen as a monitor for good governance.
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Saira Rahman Khan is a professor of law in BRAC University.
