Bangladesh should recognise the right to vote as a fundamental right in its Constitution | The Daily Star
12:00 AM, January 12, 2021 / LAST MODIFIED: 02:10 AM, January 12, 2021

Law Interview

Bangladesh should recognise the right to vote as a fundamental right in its Constitution

Kawser Ahmed is qualified to practise as a lawyer before the High Court Division of the Supreme Court of Bangladesh. In addition, he has served the Ministry of Foreign Affairs as consultant on matters relating to human rights since 2012. In this course, Mr. Ahmed drafted the state party reports of Bangladesh for the 2nd and 3rd Universal Periodic Review (UPR). Besides, he drafted the initial state party reports of Bangladesh on ICCPR, ICESCR and the UNCAT. Recently Law Desk, The Daily Star talks to him on the following issues.

Law Desk (LD): The parliament has recently amended law to impose death penalty for rape. The question that has remained largely undiscussed is to what extent this amendment is consistent with the human rights obligation of Bangladesh? What is your opinion in this regard?

Kawser Ahmed (KA): If you check the 2nd Cycle UPR report of Bangladesh, you will find that death penalty was reported to have been restricted to most serious and heinous crimes. In its 3rd Cycle UPR report, Bangladesh again categorically stated that it was gradually edging out death penalty. Despite the aforesaid stance, Bangladesh has consistently refused to accept any recommendation to become a party to the Second Optional Protocol to the ICCPR on the abolition of death penalty. Meanwhile, on 30 October 2018 the Human Rights Committee adopted the General Comment No. 36 on article 6 of the ICCPR that deals with right to life. In this general comment, the Human Rights Committee defines 'the most serious crimes' as the crimes of extreme gravity involving intentional killing. Crimes which do not result in direct and intentional death, for example, sexual offences, although serious in nature, were not deemed to serve as the basis for the imposition of the death penalty. Having regard to Bangladesh's earlier stance on capital punishment, one would naturally expect that Bangladesh will follow the Human Rights Committee's line of interpretation in regard to capital punishment. But, sadly enough this isn't the case right now. Of course, Bangladesh is not the only country in this bracket. Earlier, India and Egypt adopted laws providing for death penalty for crimes not resulting in direct and intentional death (A/HRC/42/28). Ironically, Egypt recommended to Bangladesh during the 2nd Cycle UPR in 2013 to maintain its good practice of restricting death penalty to the most serious crimes. We know that the general comments are not legally binding on states. Therefore, my presumption is that states which have not yet abolished death penalty will take more time to appreciate the General Comment No. 36.

LD: In the last few years, Bangladesh extensively engaged with the UN treaty body mechanisms. Between 2015 and 2019, Bangladesh submitted three initial state party reports respectively on the ICCPR, the ICESCR and the UNCAT – which remained overdue for quite a long time. How is Bangladesh benefitting from this engagement?

KA: During the 2nd Cycle UPR, Bangladesh accepted the recommendation that it would improve cooperation with the UN human rights mechanisms and submit the outstanding reports to the treaty bodies. In follow-up to this recommendation, the government submitted five initial state party reports including those you have just mentioned from 2015 onward. The two other initial reports were on the ICRMW and the ICRPD. At the same time the government continued to submit periodic reports on other human rights treaties.  Preparation of any kind of treaty body reports or UPR reports require a massive engagement of different ministries and authorities of the government. Numerous workshops, seminars and consultative meetings are held in connection therewith. These engagements have a cumulative sensitising effect within the government. Today, we frequently hear the head of the state or the head of the government make reference to human rights in their speeches. Furthermore, consideration of Bangladesh's initial reports on the ICCPR or the UNCAT received wide newspaper coverage. I believe this has contributed towards raising human rights awareness at least among certain classes of people. I can give one example. After submission of the initial report on the UNCAT in 2019, the newspapers increasingly featured incidents of torture and custodial deaths. During 2019-2020, the total number of cases filed for torture or custodial deaths is more than that of any time before. In the end, I would like to say that the National Human Rights Commission (NHRC), CSOs and NGOs should find out more ways and means to better utilise the state party reports and the treaty body recommendations.

LD: In your last interview with the Daily Star, you said that the concluding observations and recommendations of the UPR or any treaty bodies should be placed before the parliament for policy guidance. Apart from the parliament, which institution can take positive steps in this regard and how?

KA: The National Human Rights Commission (NHRC) can play a significant role in this regard. In fact, as an institution mandated to oversee the overall human rights situation in the country, the NHRC has a legal obligation to assist in implementing the UPR and treaty body recommendations. We shouldn't forget that the NHRC itself takes part in the review process, be it UPR or treaty body consideration, submits shadow reports and its opinion is duly taken account of. After each UPR or treaty body consideration, the NHRC can draw up reports detailing the action plan as to how to implement the recommendations. The NHRC in collaboration with the CSOs and the NGOs can identify what measures to be taken to implement the recommendations, transmit them to the government for consideration, and also can lobby with the government to facilitate the implementation process on the ground. 

LD: The initial state party report of Bangladesh on the ICCPR makes the impression that the Constitution, among others, gives effect to the ICCPR provisions in Bangladesh. However, the Constitution does not incorporate all of the ICCPR rights. If given options, which of the left-out ICCPR rights would you prefer to see as fundamental rights? 

KA: Probably, you will also have noticed that all of the ICCPR rights have not been reflected in the fundamental rights of our Constitution. For example, article 16 of the ICCPR, which provides that everyone shall have the right to recognition as a person everywhere can be said to have been reflected in article 11 of our Constitution, and this provision falls under fundamental principles of state policy. Additionally, in my opinion, there are a few ICCPR rights that have not been reflected anywhere in our Constitution. For example, there are no provisions in our Constitutions that are analogous to articles 10 and 11 of the ICCPR. Among all these provisions, I would recommend article 25(b) of the ICCPR to have the status of fundamental rights. Article 25(b) of the ICCPR recognises the right of the citizens to vote and to be elected by universal suffrage. Part of article 11 of our Constitution, which mirrors article 25(a) of the ICCPR, recognises effective participation of the people in governance through the elected representatives. However, there is no provision in our Constitution that is directly analogous to article 25(b) of the ICCPR. As a nation which sacrificed the lives of millions of its children for democracy in 1971, there is every reason that Bangladesh should recognise the right to vote as a fundamental right in its Constitution.

LD: The Committee on Economic, Social and Cultural Rights (CESCR) recommends Bangladesh to adopt anti-discrimination legislation. How do you view the importance of such law in the constitutional framework of Bangladesh?

KA: This is a long-pending matter. During the 2nd Cycle UPR, Bangladesh informed that an anti-discrimination law was in the offing to protect the rights of the socially marginalised groups. In 2017, this issue again came up during consideration of the initial report on the ICCPR. The Human Rights Committee while recommended for adoption of an anti-discrimination legislation also emphasised that such a legislation should protect against direct and indirect discrimination in the public and private sphere based on a comprehensive list of grounds for discrimination. Again in 2018, during the 3rd Cycle UPR Bangladesh accepted the recommendation concerning adoption of an anti-discrimination legislation. It is quite disappointing that the anti-discrimination bill is not yet ready to be placed before the parliament. The Constitution of Bangladesh envisages creation of a just and egalitarian society. Discriminations in the private sphere are the main stumbling blocks to achieve this goal. Hence, there is no alternative to a comprehensive anti-discrimination legislation.

LD: Thank you so much.

KA: You are welcome.

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