Human rights and governance: Local and global perspectives

In our Constitution we have used the term 'governance' only once. Art. 8 (2) states that the principles set out in Part II describing the fundamental principles of state policy shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh, and shall form the basis of the work of the State and of its citizens, but shall not be judicially enforceable.

These principles can well be very good guidelines for governance of any state. We have not tried enough to follow them. Legalists have discouraged and waned us that they are not judicially enforceable. In the business of governance more good can be done in good faith than raising or joining issues and seeking court's decision.

The concept of human rights is evolving in an expanding manner and there is a growing unanimity in the matter. These days Indians and Arabs do not claim exclusive intellectual property rights to the numerals or the algebra. They are now a part of human heritage. The benefit of the writ of habeas corpus is universally acclaimed. It is now not all that necessary, apart from its historical context, to know the name of the country of its origin. It does not matter whether the cat is made of wood; it is enough if it catches rats. There was a time when the lawyers did not take any fees on a habeas corpus brief. And the habeas corpus petitions were used to be heard expeditiously, the time has changed. Once an expeditious remedy, now it is both expensive and time- consuming.

To a large extent the Universal Declaration of Human Rights (UDHR) is based on the earlier western civil rights instruments. It is of great difficulty for us to internalise them in our thought process.

In the developing countries, particularly in South Asia, there is a tendency to cover up violation of human rights. The US government, constrained in a very tight position, faced a little awkwardly the questions of violations of human rights in Guantanamo Bay, and in Ghraib prison in Baghdad, and tried to make some amends. In Bangladesh during the operation clean heart more than forty persons died in custody. Instead of facing that uncomfortable situation boldly we closed all door of enquiry by passing an indemnity bill.

In Bangladesh there are more than 45 different ethnic groups making up approximately two percent of the population. There are no special or separate constitutional provisions for the minorities. With regard to the right to equality and equal protection before law art. 28(4) says that provision shall not prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens.

It has been said that the Achilles heel of majoritarian democracies is the exclusion and marginalisation of minorities. Perhaps the most persistent weakness of majoritarian democracies is discrimination against minorities and worsening of horizontal inequalities. Societal attacks against religious minorities are not effectively checked. Legal constraints and inadequacies in law enforcement and justice systems are responsible for this.

The obligations of governance of a democratic state has been well emphasized in the UNDP's: "the state is omnipresent in any discussion of human rights, as culprit and protector, as judge, jury and defendant. It often has to be ready to act against itselfif, say, extra judicial killing or torture is carried out by its police. A democratic state can fulfil its human rights obligations only if it ensures the rule of law. The institutions that curb the arbitrary exercise of power are a democratically elected legislature an independent judiciary and an executive that can retain a reasonable professional independence in implementing laws and policies. These key elements of democratic governance are embodied in the separation of powers. And their existence enhances the accountability of the state."

During Pakistan time we were against detention without trial. Many of our leaders were detained under various preventive laws. At the commencement of our Constitution there was no provision for preventive detention. The Constitution was soon amended. The Special Powers Act was passed in 1974. The electoral promise to abolish that law was forgotten. Now the alleged miscreants are liquidated without any trial, getting killed in crossfire Two years back in the Operation Clean Heart 45 persons died of heart failure in custody in such questionable circumstances that we had to pass an indemnity law. We are assured that no such legislative exercise will be needed this time.

We have belatedly decided to get a report on every death in cross fire. The report is to be made under the Police Regulations. We ought to have asked for the report when the first incidence of death in crossfire occurred. That would have made the law and order men more cautious. Unfortunately, the law and order situation in the country is so horrendously bad that even amongst the educated people there is outpouring of glee for the summary liquidation of miscreants. Police Regulations were made by the colonial rulers for a colonized people for protecting the good name of the colonial administration. When the colonized people freed themselves they neglected to apply those regulation for the protection of the basic rights of the people against the abuse police power.

We often forget that the reputation of a country does not depend on how severely the miscreants are dealt with, rather it depends on what treatment is meted out to the accused, the malcontents and the deviate in custody, and after trial in prison.

For preserving the independence of the judiciary, the Election Commission and the Office of the Comptroller General and Auditor General there are sufficient directions in the Constitution. We have not acted in aid of these three organs of the State by making necessary laws and supplying adequate logistic support. We often take steps after lot of foot-dragging and then again not for the good of the people, but often for avoiding annoyance of the donors that in Unfortunately the fundamental rights are often suspended. Disputes concerning them get highly charged. The decisions of the Supreme Court are not always received with due deference to the constitutional obligations of the executive functionaries of the state. In Bangladesh the Supreme Court's directions with regard to facilitating the separation of the judiciary from the executive, to make necessary changes in provisions for the police power of arrest on reasonable suspicion or for establishing local government at the district level have not yet been complied with though some of the directions were made quite a few years back.

We are luckier than quite a few countries in Africa and Asia. By and large human rights are violated all over the world. Despite the presence of well-structured legal institutions, sophisticated investigating and prosecuting agencies, and citizens' general awareness of their rights in European and North Atlantic countries, violations of human rights are taking place. We do not think there will be any end to such violation so soon. We are to take continuous measures, both remedial and preventive against this human disease.

Muhammad Habibur Rahman is former Chief Justice and head of caretaker government