From Law Desk
HR Commission: Always in manifesto, never in agenda
Sultana Razia
For the last fifteen years no government took the issue of establishing the human rights commission seriously. Though the political parties always promised people, especially the non-governmental organisations and the international community and also put this issue on their electoral manifesto. The latest BNP led alliance has also failed to keep its electoral pledge to form a national human rights commission during its rule. Their Law Minister Moudud Ahmed once said that the government had failed to of the commission due to non-co-operation from some ministers. The last government reportedly completed the process of drafting the legislation, no initiative was taken to approve the bill in Cabinet and present it in the Parliament.
Background
In late 1994 the process of establishing this institutions was initiated. The Institutional Development of Human rights in Bangladesh (IDHRB) project was formally launched in 1995. The work of drafting a law was continued during 1996-2001 under Awami League government. Later BNP-led alliance government on December 10, 2001 formed the committee headed by the law minister to examine the prospect of setting up of the commission. They proposed to enact a comprehensive law on the protection of human rights instead of legislating a bill for instituting a National Human Rights Commission only. After a series of meetings on January 23, 2003 committee finalised the draft and sent it to the Cabinet Division. Since then, the bill has not been placed before the cabinet meeting.
In an international conference in 2004, the former law minister informed that difference of opinion among the ministers was delaying the constitution of the institution. In the previous tenure of Awami League, their law minister was also promised to establish the institution during their tenure.
The draft bill stipulated a five-member commission led by a retired judge of the Appellate Division of the Supreme Court, which must have one-woman member. The commission is supposed to investigate any human rights violation and recommend actions. It could probe any such incidents by the defence forces. The human rights commission was also a demand of the international donors who thought good governance critically depends on the rule of law.
The process has been continuing for last the 12 years. May be the first country in world that is taking this long time to establish an effective institution. The non-governmental organisations and the civil society who were critical about the progress of this institution are also keeping their views confined in seminars and meetings with the international organisations.
In a country like Bangladesh where the violation of human rights by state agencies is rampant, the expectation from any such proposed institution is thus minimal. But at the same time, it might not be seen justified to spend donor money in a sector where the government is politically unwilling to set up the commission. Forming sub-committees, involving in prolonged discussion, or undertaking time consuming research study often delay the process underplaying government's international obligation and national commitment towards human rights.
UN approach
The establishment of a National Human Rights Commission consistent with the Paris Principles relating to the status of National Human Rights Institutions for the promotion and protection of human rights could have served as an effective mechanism to address gross and systematic human rights violations.
The concept of national human rights commission/institution is, however, very more specific--referring as it does to a body whose functions are specifically defined in terms of promotion and protection of human rights. The national institutions considered here are all administrative in nature--in the sense that they are neither judicial nor law making. As a rule, these institutions have on-going, advisory authority in respect human rights at the national and/or international level. Their purposes are pursued either in a general way, through opinions and recommendations, or through the consideration and resolution of complaints submitted by individuals or groups.
From the experience of the various national human rights commissions United Nations realised that no single model of national institution can, or should, be recommended as the appropriate mechanism for all countries to fulfil their international human rights obligations. Although each nation can benefit from the experience of others, national institutions must be developed taking into account local, cultural and human rights orientation of that region and legal traditions as well as existing political organisation.
The role of national governments in the realisation of human rights is particularly important. Human rights involve relationships among individuals, and between individuals and the State. Therefore, the practical task of protecting and promoting human rights is primarily a national one, for which each State must be responsible. At the national level, rights can be best protected through adequate legislation, an independent judiciary, the enactment and enforcement of individual safeguards and remedies, and the establishment of democratic institutions. In addition, the most effective education and information campaigns are likely to be those which are designed and carried out at the national or local level and which take the local cultural and traditional context into account.
Function of the human rights commissions
One of the most important functions of the commission is to receive and investigate complaints from individuals (and occasionally, from groups) alleging human rights abuses committed in violation of existing national law. In order to properly carry out its tasks, the commission will usually be capable of obtaining evidence relating to the matter under investigation. Even if only used rarely, this power is important in that it guards against the possibility of frustration through lack of cooperation on the part of the person or body complained against.
While there are considerable differences in the procedures followed by various human rights commissions in the investigation and resolution of complaints, many rely on conciliation and/or arbitration. In the process of conciliation, the commission will attempt to bring the two parties together in order to achieve a mutually satisfactory outcome. If conciliation fails to resolve the dispute, the commission may be able to resort to arbitration in which it will, after a hearing, issue a determination.
Usually they don't impose any legally binding outcome on parties to a complaint. However, this does not mean that the settlement or appropriate remedial steps recommended by the commission can be ignored. In some cases, a special tribunal would hear and determine issues outstanding from an unresolved complaint. If no special tribunal has been established, the commission may be able to transfer unresolved complaints to the normal courts for a final and binding determination.
Another important function of a human rights commission is to systematically review the government's human rights policy in order to detect shortcomings in human rights observance and suggest ways of improving it. The ability of a commission to initiate enquiries on its own behalf is an important measure of its overall strength and probable effectiveness.
Concluding remark
National human rights commission can work as the uppermost domestic mechanism and establish a remarkable role in UN mechanism. In Bangladesh an independent commission can raise voice against the human rights violations and force the state to be more accountable and comply with the international norms and standards. However critics say that our NGOs treat the human rights related works as their own responsibility and don't want to share it with government while lack of political commitment is hindering the way of establishing this institution.
Sultana Razia is editorial assistant, The Daily Star.
Source: Office of the High Commissioner for Human Rights
We dedicate December 9 and 16, 2006 "Law & our
rights" pages to the observance of "International
Human Rights Day".
