For a human rights culture

Professor Dr. Mizanur Rahman

Our constitution has pledged to establish human rights, democracy and worth of human person. But the wide gap between law and justice insulates this noble vision. The success of state depends upon the ability of actualization of social justice and upholding of human dignity---the core underpinning of modern human rights jurisprudence. The state is to ensure the functional success of equality, dignity, life and liberty beyond the catchwords and clichés of political demagogy. In the line of state's optics, there should have been the presence of suppressed and tortured, grossly discriminated, child soaked in blood, farmer and labour riddled with toil, tears and sweat. The question is: does the state feel the sufferings of these people seriously or does the state mechanism take the constitutional pledge honestly? Or do we find an egalitarian social order, where essence of human dignity is reminded in the rubric of national life? Should the state machinery interpret and translate this essence of human dignity in its fundamental principles of state policywhich are constitutionally said to form the basis of all state-actions?

Mechanism to build a human rights culture
When human rights are at stake, it is the inherent human dignity that is offended. It is the humanity that suffers. Therefore, comes the question of protection, promotion and realization of human rights and fundamental freedoms. The paradox is: state is obligated to defend the life, liberty, property, reputation, dignity of the countrymen, but that very state appears to be the leading encroacher of human rights. So, in the strident clamor of different alternative mechanisms to sentinel the rights of people, involvement of people themselves come forward to fight the discriminatory legal system and rallying power of law. In the mid-nineties, the international community felt that state should make such watchdogs to oversee the status of people's sanctity and rights which would hold the string of omnipotent state's power to make it accountable to the people. National Human Rights Institutions (NHRIs), it was suggested amongst other things, could satisfy this need to vanguard the liberty and freedom of the citizenry. Among many catalysts of human rights defense, NHRIs were considered to be the hyphens between and among the actors of the state which can voice, investigate and remedy human rights malady. Indeed, after 1993 states have been encouraged to conform to the 'Paris Principles,' as it is widely known, a set of minimum criteria endorsed by the General Assembly of the United Nations, designed to ensure the independence, effectiveness and pluralism of societal views. Since then the global momentum towards the establishment of NHRIs has conditioned the protection and promotion of human rights and dignity.

The potential benefits, it is argued, of embedding a dedicated human rights institution within the state are many. In the context of Bangladesh, three benefits may be of particular significance. First, members of a national institution remain in a position to work closely with the government in implementing strategies to realize human rights. Second, members of the human rights institution are acutely aware of the socio-cultural context into which the panoply of human rights must be translated. Third, the non-state actors and people at large feel a sense of ownership in the human rights institution and the principles it embodies. In the long run, the Human Rights Commission can contribute to create a culture of human rights.

The NHRC Bangladesh
The National Human Rights Commission of Bangladesh was established in 2009 as a national advocacy institution for human rights promotion and protection. It was the culmination of a long-drawn battle of the human rights organizations, civil society concerns and mass people's expectations. It is committed to the accomplishment of human rights in a broader sense, including dignity, worth and freedom of every human being, as enshrined in the Constitution of the People's Republic of Bangladesh and different international human rights conventions and treaties to which Bangladesh is a party. The purpose of establishing such splendid institution is to contribute to the embodiment of human dignity and integrity as well as to the safeguard of the basic order of democracy so that inalienable fundamental human rights of all individuals are protected and the standards of human rights are improved in the country.

The governing law on the point is National Human Rights Commission Act, 2009. In consonance with Bangladesh's commitment to international human rights law, the Commission purports to serve as a mechanism for the enrichment of the realization of human rights. Its journey is aimed at creating a culture of human rights through public enlightenment on diverse human rights issues so that the people of the country can contribute to larger peace and security keeping in pace with the 'progressive aspirations of human kind.'

Photo: Andrejs Zemdega

Principles of NHRC
The working principles of human rights commission can best be expressed by some self-explanatory catchwords: accessibility, plurality, impartiality, transparency, independence, participation. The governing legislation accommodates these principles signifying the resplendent commitment for protection and promotion of human rights. The mandate of the NHRC necessarily emanates from the Constitution of the People's Republic of Bangladesh, the Human Rights Commission Act and the international human rights instruments to which Bangladesh is a party. As per the Constitution the fundamental objective of the state is to establish an egalitarian society where equality and social justice would be guaranteed for all citizens. It envisages that Bangladesh shall be a democracy where fundamental human rights and worth of human persons of all would be ensured. In line with these objectives, the National Human Rights Commission Act in its preamble [read with section 2(f) of the Act] has reflected that the National Human Rights Commission is being established in order to protect, promote and foster human rights as envisaged in the Bangladesh constitution and international instruments.

What role for NHRC?
The NHRC is endowed with comprehensive mandate outlined in the National Human Rights Commission Act, 2009. The glimpses of the functions of the Commission are: investigation and inquiry, recommendation, legal aid and human rights advocacy, research and training on human rights laws, norms and practices. The first task, it is envisaged, to develop human rights policies through conducting human rights research and issuing legal and administrative policy recommendations. It is in this parlance, the commission wants to gain credibility by a candid diagnosis of the pathological depths of the truth of injustice. The commission can rehumanise and transform a human rights sense in the corpus of policy making. Investigating human rights violation cases and providing access to justice and devise a remedy is the area next to follow. Developing or even providing a remedy in a given violation case is perhaps the most critical point for the NHRC. For, access to justice is to be understood in the light of the limitations of jurisdictional, procedural and remedial flaws of judicial justice, thereby, paving a people-oriented demand for legislative and executive justice.

Justice Krishna Iyer rightly says, 'justice is what justice does and not what it pretends'. Therefore, crux function of the NHRC is to constantly make a fervent appeal for structural re-organization of state instrumentalities directed towards a new remedial creative justice delivery system.

Photo: A.M.Ahad

The NHRC is still passing its nascent stage. The Commission has made very positive and significant surveillance on general as well as on specific human rights situations in the country in the immediate past couple of months. It has tried vigorously to draw the attention of the concerned authorities to the incidents of extra-judicial killings, custodial torture, detention of the accused without trial for a long period of time, inhuman conditions of living in the prisons, the malady of medical negligence, deplorable conditions of socio-economic rights etc. The Commission has condemned the tendency of 'extra-judicial killing' by the law enforcement agencies. The government though is very miser to admit the presence of such killings, it seems scrupulously committed to address the problem. It seems that we are beset with a truth-myth syndrome about 'extra-judicial killings' asking to ourselves: 'If you are not a myth/whose reality are you? /If you are not reality/Whose myth are you?' 'Extra-judicial killings' are the testimony of a shaky confidence of the state behaviour. It is not a panacea, rather a Pandora's Box. The Commission is concerned about rights of the physically challenged, women rights, migrants' rights, child rights, the rights of the adivasis and so on. The Commission condemns the culture of impunity and very much keen to see the perpetrators of international crimes of 1971 are brought to justice in due process of law.

The challenges
We try to understand and advocate human rights in a society where remedy against rights violation is taken merely in a judicial justice sense. Administration reshapes but the justice system continues with the same judges, same lawyers, same laws, same procedures and perceptions. When we see the cry for medical justice, gender justice, juvenile justice, disablement relief justice, environmental justice, rehabilitative justice, economic justice and housing justice, we understand in what vacuum we do live in. So, the test for the NHRC is to turn the denial and deprivation of rights into a creative alertness and shame the injustices with crucial exposure to the curative sunshine of public debate.

The dominant institutional challenges for the NHRC would be to develop the complaint mechanism. It is because of the reason that the effective complaint mechanism is the heart of this type of human rights bodies. The success of the Commission, as Professor Shah Alam, Chairman, Law Commission, in one of his recent papers has mentioned, will fundamentally depend on designing the procedure of accessibility of the aggrieved persons to the Commission including general dissemination of information and knowledge about the availability of the Commission to the people; institutional framework and procedure for monitoring and investigation of human rights violations; and making of correct recommendations to appropriate authorities.

Photo: AFP

The dawn of each day presents a new challenge to the Commission, as human rights situation dwindles everyday; solution fades in the light of new thinking and applications. The future represents a unique challenge for the Human Rights Commission and other national institutions to make an imprint in history where challenges are opportunities that call national institutions to rise above the everyday treadmill to set a standard for generations to come.

The opportunity
The potential strength and effectiveness of the Commission lies with the fact of enabling legal framework. The NHRC Act 2009 incorporates the elements for effective functioning of the Commission which is readily accessible to the public; promotes and protects the interests of society and clearly defines the jurisdiction and adequate investigatory and remedial powers. Therefore, the Commission has reason to be optimistic---optimistic to have the faith on the political will of the present government.

The rejuvenation of the NHRC in June 2010, is an ample example of the present government's commitment towards human rights agenda. The NHRC is interested to exploit this commitment fully for the benefit of the country's human rights record. Ratification of international treaties, for example, the International Criminal Court (ICC) Statute, is nothing but a manifestation of will of the present government towards peace and security and its firm renunciation of the culture of impunity. Restoration of original principles of the constitution (democracy, secularism, nationalism, socialism) in the light of judicial observation and parliamentary scrutiny have provided an ample environment of practicing the general law of freedom and dignity.

The higher judiciary of Bangladesh is being described as more pro-active than any time in the past. A bunch of pro-active judges in the apex court are rendering pro-people judgment on the issues like custodial death, extrajudicial killings, ethnic rights, restoring secular character of the constitution, environment, freedom of press, fatwa etc., which in turn has extended an opportunity for the NHRC to work in a larger canvas of freedom and justice.

The mass-media seems to be vibrant in revealing breach of human rights, assisting NHRC in creating a culture of human rights, moulding public opinion on diverse issues i.e. extra-judicial killings, environment issues, ending the culture of impunity, discouraging any further military takeover of the state-power, ethnic right and sensitization on minority issues and so on. It is evident that the media, civil society and the people at large want to see a lively and dynamic Human Rights Commission. They are ever prepared to provide support to the activities of the Commission. This would in the final count be the main source of strength and inspiration of the Commission. The vigor of the Commission coupled with the cooperation from all quarters can turn its recommendatory powers to something having 'immense substantive value and impact'. The present NHRC is being widely acclaimed and hailed by the human rights organizations, hence in a better position than ever-before to work for protection and promotion of human rights.

Reflecting thoughts
Today, there is widespread disenchantment about the role of law and general cynicism about the rule of law. Violation of human rights is frequently defended by state mechanisms in the subterfuge of administrative trappings. The challenge for Human Rights Commission, therefore, is the paraphrase of the challenge of governance and justice system. The NHRC would continue its relentless effort to argue for a justice delivery system---socially inspired, people oriented. It would aspire to see a society where progressive arts of innovative justicing are tuned to the conditions of the common man. Change being the ultimate desire, the grave-stone of the old and the foundation-stone of the new must be laid down. In the larger canvas of our history, the goals and means of justice are the compulsions of human masses hungry for social justice. Human Rights Commission in this journey is set to work as a caravan for those many-millions who are eternal tenants of an exploitative system. The government machinery can imprint an impression of prudence and secure public confidence by bearing with the constructive criticisms and extending hands with the endeavors of NHRC.

Professor Dr. Mizanur Rahman Chairman, National Human Rights Commission of Bangladesh