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Legislative and Institutional Developments


ASK Research Unit

This chapter discusses initiatives taken by the Government during the year for legislation impacting on human rights and related issues. It covers enactments adopted land, bills which were not tabled in Parliament even though there was an express public demand. As Bangladesh was elected in 2006 to the newly constituted UN Human Rights Council for a three year term, t he chapter also draws attention to Bangladesh’s obligations under international treaties, and in relation to its membership of UN bodies. In conclusion, the chapter reflects upon developments that had a bearing on human rights legislation.

Legislation Enacted

Major legislation enacted in 2006 that impacted on issues of human rights included the Bangladesh Labour Act, 2006, the Acid Control (Amendment) Act, 2006, the Censorship of Films (Amendment) Act, 2006 and the Madrassah Education (Amendment) Act, 2006. New legislation that had particular relevance for access to justice included the Code of Civil Procedure (Amendment) Act, 2006 and the Village Courts Act, 2006.

The past year saw only a limited debate on legislation in Parliament and in its Committees. S ix bills were tabled, for instance, on 27-28 September, 2006 and all six were passed on 3 October, amounting to a total of effectively three days spent on the passage of the laws.

In that time, eight opposition MPs proposed that the bills be circulated for public opinion, but their proposals were rejected by voice vote.

The Bangladesh Labour Act, 2006 1

Enacted in the penultimate days of the Ninth Parliament on 11 October, this Act was designed to consolidate and rationalize, into a holistic package, several existing laws relating to employment, employer-worker relations, fixation of minimum wages, payment of wages, compensation for injuries sustained in the course of duty, trade union activities, dispute settlement, workers’ health and safety, etc. Laws repealed by enactment of this law included, among others, the Employment of Labour (Standing Orders) Act, 1965, the Factories Act, 1965, the Shops and Establishment Act, 1965, the Payment of Wages Act, 1965 and the Workmen’s Compensation Act, 1923. This legislation being an omnibus law dispensed with the need for cross- references between different laws; and also largely cleared up incongruities in different laws having a bearing on similar or related issues.

The law has, however, been restrictive in some aspects as far as workers’ rights are concerned. It detracts from the ILO Conventions as well as the current discourse on child labour. For one, trade union rights of workers have been restricted. In fact, trade unions have been banned for the initial three years in a new establishment. CBA leaders previously could not be shifted to a different unit before the expiry of their term. The present law allows their transfer at any time. Again, unions that do not participate in CBA elections will lose their registration, making it mandatory for all labour organizations to participate in elections. The lowering of the age ceiling for workers from 60 to 57 will potentially see several thousand workers lose their jobs. For instance, on the first day of the laws taking effect, as many as 210 workers were laid off in the Bawany Jute Mills in Demra. Another issue of concern is the imposition of extra hours of work on garment workers. The new law has changed their work day from the existing eight hours to ten hours. As it is, garment workers have been working under the same wage structure for fourteen years, and now they would be required to work two extra hours every day without an increase in their minimum wage. Provisions relating to child labour need to be reviewed, especially with regard to the penalty for violation of codified standards.

The Acid Control (Amendment) Act, 2006

This amendment deleted the reference to ‘alkaline caustic soda’ from the list of controlled substances in Article 2(b) of the Acid Control Act, 2002, because the nature of ‘alkaline caustic soda’ is not acidic. 2 This has little effect on the substance of the law. However, since acid violence is seen as a brutal and repugnant form of violence against women, any relevant legislation deserves to be noted.

Village Courts Act, 2006

The Village Courts Act, 2006 replaces the Village Courts Ordinance, 1976 and provides for an institutionalised form of informal justice, both to ease pressure on the formal court system and to provide alternative more accessible remedies. It provides for limited appeal to a formal court of law and jurisdiction of such courts to transfer any case to a Magistrate’s court. This law, if implemented effectively, can significantly improve access to justice for petty civil and criminal disputes. It is intended to enable dispute settlement at the grassroots level. The law, however, only applies within Unions, as defined in the Local Government (Union Parishad) Ordinance, 1983, and therefore does not have any direct relevance in urban areas.

In contrast to the traditional dispute resolution or shalish, the Village Court is to be constituted of five members, including at least three elected members of the Union Porishod (UP), the chair usually being the UP Chairman. Given the presence of elected women UP members, their inclusion in the Village Courts would also increase women’s participation in the judicial process . Furthermore, the mandate of the Village Courts and their areas of competence have been set within limits under the law. In the interest of quick disposal, decisions of the Court are binding and cannot be re-opened in any other court if these are unanimous or if there is only one dissenting member. Scope for appeal is provided only if there are two dissensions against three. Of course, the District Magistrate retains the power to transfer any dispute to a regular court on the grounds of public interest or if the situation so warrants.

Engagement of lawyers is prohibited in Village Courts, ostensibly to avoid costs for the parties and long drawn out legal battles. The Village Courts have been established precisely to provide an alternative to the hassles of the regular court system. It must, however, be flagged that this expediency and the easier access to justice leaves it open to potential flaws. In the course of the Court’s proceedings, there is no one to direct the members to the relevant points of law, with the risk that the Court may be moved to decide not on merit but on other exigencies.

The Censorship of Films (Amendment) Act, 2006 3

This Act is designed for stricter enforcement of the provisions of the law, especially with regard to exhibition of uncertified films (or abetment thereof) and of unapproved publicity material. Three observations come to mind. First, the law continues to arrogate the right to determine public morals and public good to the Film Censor Board, which has to date generally not seen the appointment of competent and knowledgeable persons. A further question arises as to whether a Censor Board should be allowed to determine morality. Second, the Act does not address the demands of a more rational and implementable classification code for films. Third, in recent years, non-mainstream (meaning not produced by the Film Development Corporation) films have been successful and earned laurels for the country. These films are, by and large, the product of film-makers associated with the film society movement spanning four decades, and their creativity as well as the interest of discerning filmgoers has been sustained through film festivals organized on a regular basis in the country. The law, however, does not provide a waiver for certification of films entered in these festivals, which is a disincentive for many top film makers submitting their films to festivals. The certification process is also time consuming and there is not always sufficient time for clearing customs’ declarations before the film is screened.

The Cable Television Network Regulatory Act, 2006 4

This is the first regulatory legislation for cable channel service providers. Under the new law, the Government reserves the right to proscribe any cable channel at any time within the territory of Bangladesh. Although public interest is invoked, there is no clear set of parameters nor has any independent or competent body been established to consider such issues. The law prescribes fourteen points for disqualification of any programme from being aired. Curiously, many of these are not definitive and can be subject to interpretation; and, given the political barometer in Bangladesh, can have absolutely opposite connotations depending on the political dispensation of the day. For instance, item (i) includes anything antithetical to “the spirit and ideals of the War of Liberation,” and (ii) is about “fundamental principles of State policy and State principles.” The Proclamation of Independence clearly states that the People’s Republic of Bangladesh was constituted “… in order to ensure for the people of Bangladesh equality, human dignity and social justice.” L ikewise, the Constitution in its original form stated that nationalism, democracy, secularism and socialism were fundamental principles. The latter two were replaced by a martial law ordinance in 1979 and subsequently by the Fifth Amendment to the Constitution. The High Court Division recently declared the Fifth Amendment unconstitutional; an appeal is pending in the Appellate Division. Furthermore, it is not clear if the reference to religious values in serial (iv) of the list refers to values of only one or the various religions practiced in Bangladesh. On occasions, it has been seen that existing religious programmes on Bangladeshi channels have given air time for dissemination of opinions disrespectful of other faiths. And finally, with reference to ‘national security’ in serial (v), there have been instances where the Government has confused the State with the Government; and consequently even legitimate and peaceful dissent against the Government has been branded as anti-State. Such an imprecise negative list cannot promote national interest nor meet the demand for free flow of information.

The Madrassah Education (Amendment) Act, 2006

This was enacted in the light of a Government decision to accord equivalence to madrassah degrees at the undergraduate and graduate levels as well as to accord affiliation to non-government madrassahs, known as Kawmi madrassahs. The decision drew wide criticism because it had nothing to do with raising standards or harmonizing systems of education. The fact that these madrassahs outnumber the affiliated madrassahs and that their curriculum is not supervised by any of the education boards has raised serious concerns.

In any event, the mainstream expectation has been that there will be greater uniformity in education with the integration of the madrassah system into the regular curriculum. This has the potential of throwing back the process by years because while the madrassah system may acquire parallel status, its degrees, in substantive terms, may be no where close to an equivalence with the mainstream system.

The Chemical Weapons (Prohibition) Act, 2006

This is a necessary piece of legislation consequent upon Bangladesh becoming a party to the Chemical Weapons Convention (CWC). As weapons of mass destruction, chemical weapons fall under the category of inhumane weapons. The provisions of the law are in keeping with Bangladesh’s obligations under the treaty. The new Act establishes a national authority with the Principal Staff Officer, Armed Forces Division as Chairman and includes representatives from relevant Ministries/agencies as members.

Bills Drafted but not Tabled

The Law Commission and the Ministry of Law, Justice and Parliamentary Affairs had separately drafted bills on the right to information, protection from domestic violence and citizenship laws as well as contempt laws. Some of these drafts were circulated amongst select organizations for discussion. The draft Bill on the Right to Information sought to codify the principle of maximum disclosure and included a strong presumption in favour of access. The draft Bill on Domestic Violence recognized the gravity of domestic violence and addressed the responsibility of the State to prevent such violence. The Bill on Citizenship provided for consolidating existing laws into a comprehensive new law for acquiring, terminating and renouncing citizenship.

Draft Bill on Right to Information

The Law Commission prepared a working paper on the proposed Right to Information Bill, 2002. In August 2005, the Commonwealth Human Rights Initiative (CHRI) offered the Government its support in reviewing the Official Secrets Act, 1923 and drafting a Right to Information Bill. 5 In April 2006, the Law Ministry advised the CHRI that the Government was reviewing the working paper for a Bill for submission to Parliament. The CHRI had made a detailed analysis of the draft, and a committee constituted by Manusher Jonno also prepared an alternative draft.

Draft Bill on Domestic Violence

In view of the extensive reporting on and concern with domestic violence, the Law Commission undertook research on the issue and prepared a draft Bill. ASK and BNWLA submitted detailed comments on the Bills which were discussed with judges, lawyers and others at meetings coordinated by the Action Network to Combat Violence against Women and by BNWLA. While appreciating the Law Commission’s initiative and the steps taken by the Ministry of Law to prepare the Bill, and, in particular, its focus on civil remedies, ASK emphasized that the successful implementation of the legislation would depend upon a wide range of policies and programme interventions to tackle domestic violence, and suggested drawing upon lessons learned from other jurisdictions, in particular India and South Africa. The Bill, if enacted, would go some way to meet the recommendations made by the Committee on the Elimination of all Forms of Discrimination against Women (UNCEDAW) at their meeting in July 2004, which had urged States parties to adopt, “…a comprehensive approach to address violence against women and girls,” and “…specific legislation on domestic violence within a clear time frame.” 6

Draft Bill on Citizenship

The Ministry of Law drafted a proposed Bill on citizenship which provided for consolidating existing laws and enacting a comprehensive new law for acquiring, terminating and renouncing citizenship. The Bill also contained provisions for transfer of citizenship to children of Bangladeshi women married to foreign nationals, in conformity with the recommendation of the CEDAW Committee in 2004. Ain o Salish Kendra (ASK) and the Bangladesh Mahila Parishad (BMP) reviewed and submitted comments on the draft Bill. However, the Bill was not ultimately tabled in Parliament.

Draft Bill on Contempt of Court 7

The Contempt of Court Bill, 2006 was tabled in the 21 st session of Parliament on 2 May 2006. It proposed repealing the Contempt of Court Act, 1926 and its replacement by a comprehensive law. In accordance with usual practice, the Bill was sent to the Parliamentary Standing Committee for the Ministry of Law for further scrutiny.

The draft bill contained 21 sections. Section 2C of the Bill proposed a four-point definition of contempt of court:

"Any wilful act, statement or expression by words or visible sign that may be considered as a violation of any verdict, decree, order, writ or warrant issued by a court, or may undermine any court, or obstruct the process of justice, will constitute an offence of contempt of court. The slander or libel of a court and personal criticism of a judge while performing judicial functions will also constitute an offence of contempt."

Section 3 of the Bill detailed seven activities that would not constitute contempt, including any innocent and fair comment and publication of information on proceedings and functioning of the court in good faith and in public interest. The other sections related to jurisdiction of courts, procedures, punishments, self-defense, tendering qualified or conditional apology before the court, contesting the case along with tendering apology, special provision for Government officials and rule making power of the Supreme Court.

Institutional Developments

Bangladesh was elected to the newly constituted Human Rights Council in 2006. Although Bangladesh reaffirmed its commitment to the universality of human rights and the interdependence between development, security and human rights as a foundation for UN activities, there were incongruities in its pronouncements which could impact on the pace and direction of human rights legislation at home. For example, the Government noted that its support for human rights was “holistic, with particular emphasis on the right to development.” It called for identifying human rights parameters that support economic development. The Bangladesh representative at the Human Rights Council clarified the country’s position thus : “It is important to see human rights not just as an end in itself, but also as a means to an end. It would not be in our best interest to accept ‘absolutism’ in human rights.” It stressed the need for regular reporting to treaty bodies, but failed to submit its own reports to three major treaty bodies, the ICCPCR, the ICESCR and CAT.

Introducing Human Rights Legislation

In 2006, Bangladesh recommended modalities for adherence to international human rights instruments that it had yet to adopt . Ahead of the UN Human Rights Council election, it made a set of voluntary pledges, again with a commitment to enacting legislation to establish a National Human Rights Commission as soon as possible and to separate the judiciary from the executive.

Neither saw the light in 2006, although the first Bill on the National Human Rights Commission was drafted in 1999, and all necessary ground work for the separation of the judiciary was completed during the office of the Caretaker Government in 2001.

There are several elements relevant to human rights legislation that have continued to be under scrutiny in the international context. First, there has not been any forward movement until the end of 2006 on major recommendations by the UN Committee on CEDAW in their review of Bangladesh’s Fifth Periodic Report in 2004, specially with regard to incorporating provisions of the Convention into domestic law and withdrawal of the remaining reservations.

Amnesty International has also flagged several issues consistently over the years. The voices joining them are growing in number, both domestically and internationally. For one, Amnesty International, reinforcing the calls of national organizations, has urged the Government to establish clear and enforceable safeguards against abuse of Sections 54 of the Code of Criminal Procedure and other detention procedures resulting in torture. It has also encouraged the creation of a National Human Rights Commission, and urged the Government to ensure from the outset that such a Commission is empowered as an independent body to investigate all instances of human rights violations impartially and competently, regardless of the identity of the perpetrator or their links to political parties.

Developments Regarding the Constitution

At the end of the five year term of the Four Party Alliance Government in October 2006, President Iajuddin Ahmed assumed the office of the Chief Advisor to the Caretaker Government without exhausting the constitutional provisions in Article 58 for selection to this post. 8The elected Government had been accused of politicizing the top levels of civil government, the Election Commission, judiciary, law officers and the army command. Questions had been raised about the heavily flawed voters’ list prepared by the Election Commission contrary to the directions of the Supreme Court. There were serious misgivings that the Government had raised the retirement age for judges, ostensibly to ensure that a particular individual become the Chief Advisor to the Caretaker Government.

The Attorney General had been criticized by the Bar for his partisan conduct. Even the former Chief Justice, Syed JR Mudassir Hossain was criticized for passing arbitrary stay orders, reconstituting Benches or limiting the scope of matters to be heard by a Bench in ‘sensitive’ cases.

One of the most controversial attempts to ‘rewrite legal history’ was the publication, on 1 August 2006, of a new edition of the Constitution with a preface by the former Law Minister, Moudud Ahmed. In this edition the Proclamation of Independence had been deleted, although in earlier versions it was included as an annexure.

Bangladesh came into existence de jure on 26 March 1971. The Constitution was adopted and enacted on 4 November 1972 by the Constituent Assembly - 20 months after independence and eleven months after the surrender of the Pakistan forces in Bangladesh. What set in motion the Constitution making process, and defined the state parameters in the interim, was the Provisional Constitution of Bangladesh Order 1972. This Order provided the composition of the Constituent Assembly and was issued on 11 January 1972 by Sheikh Mujibur Rahman as the President of the People’s Republic of Bangladesh. In issuing this Order, he invoked the Proclamation of Independence, 9 dated 10 April 1971, and referred to the authority invested in the President by the said Proclamation. The Constitution is valid because it is the document drafted and adopted by the Constituent Assembly, charged to do so by the President with authority drawn from the Proclamation. No Constituent Assembly, no Constitution; no Provisional Constitution of Bangladesh Order 1972, no Constituent Assembly; no enabling powers of the President, no Order; and no Proclamation, no President or his legal authority. This is a critical chain, in which no link can be removed.

Whenever the question of constitutionality is invoked, it is important to bear this sequence of authority - Proclamation investing the President with powers, the President convening the Constituent Assembly by promulgating the Provisional Constitution of Bangladesh Order 1972, the drafting and adoption of the Constitution in the name of the people of Bangladesh. As long as this Constitution is valid, so is the authority derived from the Proclamation. Since the Proclamation cannot be amended it was targeted entirely for omission

An event of serious import during 2006 relates to the unusual stay order issued by the Chief Justice just prior to a rule being issued, in the petition challenging the appointment of the Chief Advisor. This action raises the question of the limits of inviolability of any office of the Republic, however high and sanctified. 10

Another development that could have had implications for human rights laws and future legislation concerns the memorandum of understanding signed between the Awami League and the Islamic Khelafat Andolon (Caliphate Movement) which contains policy commitments that run counter to the fundamental rights to freedom of religion, freedom of expression and equality enshrined in the Constitution. 11

Recommendations

Following from the foregoing discussion, it is recommended that the Government:

  • Hold public consultations with relevant sections of society on draft legislation, especially those impacting on human rights.
  • Disseminate recommendations of treaty bodies and commitments made by the State, and incorporate these into legislation, policies and programmes.
  • Engage Members of Parliament in a more positive legislative role relieving them of supervision of local government functions. This would entail, as a first step, amendment of the Upazilla Porishod Act, 1998 requiring local government bodies to function under the overall guidance of the local MP.
  • Review and reform the procedure for appointments to constitution al posts to ensure independence from the executive.
  • Appoint an Ombudsperson for ensuring effective oversight of administrative action.
  • Set up an human rights commission with independent powers of investigation and scrutiny.

Notes

1. See Chapter 10, p.114-121.
2. Acid Survivors Foundation.
3. See also Chapter 6, p.68.
4. Ibid.
5. The CHRI has been collaborating with Manusher Jonno , a local NGO, to promote greater awareness amongst legislators and the public about the value of the access to information legislation. Manusher Jonno is an NGO support organization that promotes human rights and good governance. As a facilitating body it formed a core group to comment on the draft prepared by the Law Commission and suggest revisions.
6. OHCHR, Concluding Comments of the UN Committee on CEDAW: Bangladesh. 18/08/2004. A/59/38(SUPP) paras.228-267, para 242. See also Chapter 11, p .
7. See also Chapter 6, p. 69
8. See Article 58 of the Constitution.
9. Whereas by the Proclamation of Independence Order, dated 10 April 1971 provisional arrangements were made for the governance of People’s Republic of Bangladesh…Now therefore, in pursuance of the Proclamation of Independence Order, dated 10 April 1971, and all other powers enabling him in that behalf, the President is pleased to make and promulgate the following Order…”
10. See Chapter 2, p.26-27.
11. See Chapter 12, p.161.