Ensuring Government’s Human Rights Accountability: Is the NHRC Fulfilling Its Mandate?

 

The National Human Rights Commission, Bangladesh has to ensure that they are fully exercising their mandate to ensure accountability of the government in promoting and protecting human rights of its’ citizen in line with the constitution and international human rights standards. Speakers expressed such an opinion during an online discussion on, ‘Ensuring Government’s Human Rights Accountability: Is the NHRC fulfilling its Mandate?’, arranged by Ain o Salish Kendra (ASK). ASK arranged the discussion to share the draft country chapter of the Asian NGO Network on National Human Rights Institutions (ANNI) report 2021.

ANNI is a network of non-governmental organisations and human rights defenders engaging with national human rights institutions all over Asia and, publishes annual reports on the functioning of national human rights bodies.

ASK has developed this report by analysing relevant information from both primary and secondary sources and through communication with the Commission. The aim of the online discussion was to accumulate opinions about the performance of the institution from experts and relevant stakeholders to further enrich the report. Around 90 participants- comprising of academics, legal professionals, activists, human rights defenders, students, and journalists were present in the session. Nina Goswami, Director-Programme, ASK, moderated the discussion.

The findings for the report were presented by Tamanna Hoq Riti, Assistant Coordinator, Media and International Advocacy, ASK. In the presentation, both the Commission’s achievements and challenges were brought to attention. At the end of the presentation, recommendations to the Commission, the government and the international community, were shared.

Opinions of Speakers

Md. Abdul Halim, Barrister, Supreme Court of Bangladesh

According to Barrister Halim, from the very beginning, there has been major concerns and debate regarding the Commission’s mandate. Many have deemed the Commission to be a ‘clawless tiger’. There still remains confusion regarding the Commission’s power to investigate. In the 11 years since its inception, the Commission has still not been able to create a guideline/rule under Section 30 of the NHRC Act 2009. Disposing complaints without such a guideline is contrary to the principles of natural justice.  He further stated that the Commission does not provide clear information about the complaints handling proceedings of human rights violations. They very rarely upload fact-finding reports on their website and there is a lack of proper record keeping.

He commented that the Commission itself does not understand the extent of its power that it can exercise being a quasi-judicial body. The Commission has no power to provide any judgment on a case; the Commission should have rather exercised its power to investigate the abuses of human rights a survivor may face- was s/he able to seek justice under the legal system, had s/he been provided with support from the police or law enforcement agency, whether the medical investigators carried out their jobs properly, etc.

He opined that the Commission cannot differentiate between a crime and violation of human rights. The commission is not in charge of preventing offenses related to human rights; rather it has a duty to hold the government accountable for violating human rights and to challenge their inaction. Despite being a recommendatory body, the Commission can approach the Supreme Court to ensure that the government is applying their recommendations. The Commission has the mandate for conducting fact-finding and providing reports on violations of human rights but does not hold the power to investigate. After the occurance of a crime, the Commission’s primary responsibility is to find the abuses of human rights related to that incident.

Mohammad Golam Sarwar, Assistant Professor, Department of Law, University of Dhaka

Golam Sarwar mentioned that the former chairperson of the Commission, at its inception, had stated that one of the main aims of the Commission was to establish a culture of human rights in the country. Two main branches have an important role to play in creating this culture- (a) duty bearer, the agents of the state and (b) rights holders, the citizens in the society. However, even 10 years later, the human rights literacy in the society is disappointing; more than 50% of the society are not familiar with the concept of human rights. This may have stemmed from the fact that the legal definition of human rights in the NHRC Act, 2009 is problematic and insufficient.

Like the Commission, which seems to be confused as to what its mandate is, even the ordinary citizens are unsure of when one’s human rights are being violated. The Commission’s role in not being able to actively address such confusion in the past 10 years has been disappointing. As a result, we have been unable to create an accountable institution in the country, resulting in duty bearers not being held liable for violating human rights.

Golam Sarwar reiterated that the problem of flawed appointment process of the Commission members due to its biasness towards government employees and lack of civil society representation in it. He shared his fair share of concerns regarding the Commission’s willingness to investigate law enforcement agencies, and how they are unlikely to exercise such power if and when given. According to him, the Commission has seldom shown respect towards upholding human rights. Simply providing the power without bringing about any change in such attitude is unlikely to bring any meaningful changes.

Lastly, Golam Sarwar opined that in order to carry out its duty, the Commission should speak up about legislations that go against human rights, and pay further attention to educating society about their human rights.

Md. Zahid Hossain, Human Rights Officer, United Nations Resident Coordinator’s Office, Bangladesh

Zahid Hossain shared that many UN treaty bodies have recommended ways to strengthen the Commission. Further, the government is bound to implement recommendations made during the Universal Periodic Review (UPR). During the 3rd UPR cycle, 10 recommendations were made regarding the Commission, 7 were supported while 3 were noted. However, not much progress has been made in implementing these recommendations. As a member of the Human Rights Council, Bangladesh has made a pledge to strengthen its National Human Rights Commission. However, no actions have been taken towards strengthening the NHRC.

He further stated that expectations will only be fulfilled when these various challenges are dealt with. Further expectations consist of the NHRC working towards establishing rule of law, educating the society to create a culture of human rights. He believes actively working towards such changes will also close the huge gap that currently exists between duty bearers and right holders and ultimately create a society that respects human rights.

Kazi Arfan Ashik, Director, Admin and Finance, NHRC

Kazi Arfan Ashik stated that the Commission has always welcomed criticism and believes constructive criticism will help the Commission function better moving forward. He then mentioned how after the appointment of the new chairperson, Nasima Begum, NDC, the pace of work has changed slightly; however, he also expressed that she has been advocating for much-needed changes within the institution. Although, the Covid-19 pandemic has also created complications for the Commission for which it has not been able to function smoothly.

Reflecting on the opinions of the speakers and discussants, he shared that they have been actively working towards achieving A status. He claimed the Commission to be a completely autonomous body with financial independence. According to him, there exist some limitations, a prime one being the shortage of human resources, which slows down progresses. However, he believes that by the end of the year, there will be visible progress from the Commission. Recently, the Commission has also been in contact with the Ministry of Law, Justice and Parliamentary Affairs to bring an amendment in the founding Act. He acceded to how such an amendment are made the NHRC will be able to function much more effectively.

Recommendations

To the NHRC:

  • Amend Section 7, making selection & appointment process more accountable, transparent, pluralistic and participatory through the inclusion and involvement of civil societies;
  • Amend Section 18(1), to allow the Commission to investigate the allegations of human rights violations against the members of the law enforcement agencies;
  • Move the High Court Division when the recommendations made to the authorities are not implemented within the stipulated time;
  • Recommend compensation under Section 19 of the NHRC Act and do effective follow-up;
  • Develop a sufficient and specialised fact-finding team within the Commission;
  • Undertake a national inquiry or public hearing on persistent human rights violations;
  • Increase the number of inspections/visits to the places of detention and limited liberty, meet with prisoners and detainees, and monitor the conditions and their treatment;
  • After inspection, make specific recommendations to the government, adopt specific advocacy strategies to expedite the implementation of the recommendations – inform the public and the media, liaise with civil society organisations and follow up.
  • Make recommendations to the Government regarding the compliance of draft bills, action plans, existing laws, etc. with international human rights law and standards.

To the Government:

  • Amend the relevant provisions of the NHRC Act, 2009;
  • Ensure an accountable, transparent, pluralistic and participatory selection process that is free from governmental influence;
  • Ensure representation of civil societies in the selection process of the Commission’s members;
  • Clearly establish the Commission’s mandate to investigate allegations of rights violation against members of law enforcement and security agencies and ensuring a more effective role of the honorary members;
  • Act upon the recommendations of the Commission immediately and adequately and when action is not taken within the specified time, explain why it was not taken;
  • Arrange discussion on its annual report in the National Parliament, in order to make the Commission more effective in fulfilling its mandate, and also to ensure its accountability.

To the International Community:

  • Continue advocacy with the Commission and the Government to amend the NHRC Act, 2009;
  • Provide skills development assistance to the Commission, civil society organisations and human rights activists to fulfil their role effectively.