Human Rights and Unstable Constitutionalism: Quo Vadimus?

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Offline sirazi

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Human Rights and Unstable Constitutionalism: Quo Vadimus?
« on: November 24, 2015, 07:22:04 PM »
    “[The object of my government is] non-injury, restraint, impartiality, and mild behaviour […] to all creatures” [Emperor Ashoka, 3rd Century BC, Ashokan Studies, pp. 34-35, edict XIII.]

In this note I seek to navigate, no doubt ambitiously, the relationship between Bangladesh’s unstable constitutionalism and the trajectory of recognition, protection, and discourse of human rights in the country.

The birth of Bangladesh is premised on the people’s longing and commitment for human rights that they were crudely denied in the pre-1971 regime. Quite naturally, therefore, the nation’s Constitution turned out to be one of the finest human rights instruments with the status of a supra-law. Bangladesh’s Constitution constituted “a democracy”, establishing a duty for the State and the individuals to respect human rights and the dignity of humans, and envisaged a rule-of-law-based society. More importantly, its Bill of Rights (Part III) contained the major civil-political rights and provided for an effective judicial power to remedy any breaches thereof. Yet the history of human rights protection in Bangladesh is a chequered one. Within 9 months of the Constitution’s entry into force, the 2nd amendment of it (22 Sept 1973) enacted provisions authorising preventive and hence extra-judicial detention of citizens, and provisions for emergency powers, which, put together, laid a wide template for a series of violation of personal liberty rights in the subsequent years. It also accorded immunity from judicial scrutiny to constitutional amendments on the ground of being inconsistent with “any provisions” of the fundamental rights part of the Constitution. By virtue of the 4th amendment later in January 1975, the people’s right to participate in the governance of the State was curtailed and their right to judicially enforce fundamental rights was done away with.[1]

In the above setting of a constitutional environment largely hostile to human rights, the country entered into a rather long journey of complete autocracy that blatantly misruled it until early 1991 since when (‘elected’) democracy has been in existence except for the two years of 2007-08 emergency. During these past years, human rights conditions in Bangladesh were shaped, influenced, or depreciated by the practice or absence of constitutionalism.  One is not taken by surprise by seeing no meaningful discourse of human rights during the extra-constitutional regimes. But how does one explain the controlled or, sometimes, restrained status of human rights entitlements during the ‘democratic’ regimes? The undeniable mutual influence of constitutionalism and human rights notwithstanding, it is quite intriguing to explain the relegated status of human rights in Bangladesh during democratic periods, sometimes reaching a level that is no better, but rather worse than that under autocracies. One would immediately recall the recent phenomenon of lawlessness often manifested in such instances as forced disappearances, unlawful and clueless detention of suspects, extra-judicial killings in an unprecedented pace and the associated illegitimate defence by senior law-enforcing officials of transgression by their forces, and so on.

Isn’t the human rights protection a matter of culture and ethics, and of substantive democracy that is based on morality in politics, not merely a set of positive laws prescribing norms without deeply dealing with the ‘facts’? As regards human rights, Bangladesh’s legal system seems to tolerate and even generate a gap “between facts and norms” (Habermas, 1996). This can be explained a little further by referring to certain examples of norms-facts gaps. As against the constitutional as well as legal prohibition of torture and other cruel, Inhuman or degrading treatment or punishment (art. 35(5) of the Constitution; the Torture and Custodial Death (Prevention) Act 2013), one sees the nasty legacy of torture and inhuman/degrading treatment of citizens by both State agencies and private individuals. Despite the unconditional constitutional ‘right to life’ and the legal prohibition of extra-judicial killing (in the Penal Code 1860, the anti-torture law of 2013 and other laws), therefore, the State continues to immunize, not infrequently, those who would have been otherwise held liable (note, e.g., the Joint Drive Immunity Act 2003, and the complete absence of State prosecution of allegations of extra-judicial killing by law-enforcing agencies). In the same vein is the example of establishing human rights or good governance institutions and their co-existence with the grim ‘facts’ on the ground. The establishment of the National Human Rights Commission is particularly interesting. Apparently responding to the pressure of international human rights bodies and of local rights groups, the government agreed to establish the Human Rights Commission, but its constitutive legislation was so designed that this independent body would have no power whatsoever in any real sense of the term to enforce human rights.

I now turn to another example of modern Bangladesh’s backward-looking stance in the area of human rights promotion and protection. In recent times, a whole new challenge for governments across the world has emerged in the context of nine eleven in the USA. The challenge for Bangladesh is to strike a right balance between the security/terrorism concerns and the need for protecting the liberty, lives, and rights of citizens. This is a difficult challenge indeed, at the least because those in power often tend to assume an exaggerated role of maintaining ‘peace and order’ at the cost of everything else. As the recent developments in Bangladesh vis-à-vis human rights reveal, the State has shown clear traits of failure to meet the challenge of managing the tension between security or ‘law and order’ concerns and the need for citizens’ protection. The same type of failure is glaringly conspicuous in the field of criminal justice administration, where the basic constitutional guarantees of those suspected or arrested are more often than not violently denied. The balancing task has become apparently difficult for Bangladesh as the country has arguably embraced, and is now nurturing, a culture of force-based power as opposed to “communicative” or transformative power.

It is because of the adoption of proceduralist approach to democracy and ‘power’ that the law in Bangladesh continues to be used increasingly as a disproportionate limit on individual rights and autonomy, to the extent that is unwarranted in a democracy. Take, for example, the scope of s. 57 of the Information and Commutation Technology Act 2006, which provides for a minimum seven years’ term for “tarnishing the image of any person or the State” or for the act of “defamation” through publishing anything electronically. What is especially noticeable is that such a draconian punishment for an almost undefined offence was inserted quite recently, in 2013.[2] Not surprisingly, the abuses of this anti-liberty law have already become more real than apparent, leading, also, to a virtual negation of the rights of freedom of expression or conscience.

Against the odds of human rights conditions as glimpsed above, however, there are few positive developments. First notable of them is Bangladesh’s commitments, expressed at the international level, to live up to the global human rights standards. Bangladesh has ratified almost all core human rights instruments, which has brought her within a certain level of international oversight of responsibility. The ratification of human rights treaties has also empowered the civil society actors, social impact organizations, and the senior judiciary with an additional tool to apply in the realization of their respective roles vis-à-vis human rights. Second, the government has in recent years resorted to making a number of rights-based laws such as those guaranteeing the right to information, or the laws relating to women’s and children’s rights including the ones against human trafficking or domestic violence.

Good efforts notwithstanding, the human rights discourse in Bangladesh continues to remain deficient in an ameliorative vision, a preferred theoretical approach, and in qualitative insights. At one level, the State seems to be refuting the existence of human rights beyond and except under its ‘authority’, a rigid Machiavellian approach. At another level, the individuals and the non-state institutions engaged in the promotion and protection of human rights seem to be preoccupied with the cases concerning breaches of entrenched rights only, especially the civil and political rights violated by State-agencies. Within this nebulous discourse, therefore, one does not see any significant focus on the rights of the most vulnerable people such as dalits, Bangladeshi migrant workers abroad, workers in the garment and other industries, aboriginals, minorities, the persons with disability, and so on. This is reflected in State inertia in the field of affirmative action programmes meant for un-advanced people under article 28 of the Constitution. Nor is there any meaningful voice or action regarding the people’s rights to democracy, to a clean administration, and to a multiparty election for substantive democracy.[3] Moreover, apart from few social welfare or poverty alleviation programmes, taken inconsistently over the years, the social, economic, and cultural rights of the people are put almost in a state of denial. The poor themselves are so busy in making livelihood that they cannot afford the luxury of claiming a space in the governance and some civic rights for them. This phenomenon has, silently, added extra fuel to the government’s ‘authority’ to rule without assigning any notable prominence to human rights – civil and social.

In fine, I would attribute the current state of human rights to the absence of substantive democracy, or, to what can be called unstable or authoritative constitutionalism in Bangladesh. With regard to the protection of human rights in Asia (particularly in South-East Asia), some claim particularism as opposed to universalism, citing the so-called ‘Asian values’ that are defined to emphasize responsibilities over rights and social order over individual autonomy. While these aspects of ‘Asian values’ are innocent and truly protective in approach, the claim of ‘Asian values’ is often made in fact to deny the people’s participation and supremacy and to exert the State authority or “despotism” instead. It is this approach to power of the people conjoint with the rulers’ lack of willingness to be bound by the principle of participation that has rendered human rights concerns so shallow. By contrast, successive governments in Bangladesh, both autocratic and elected, have often failed to realise the rich ‘(South) Asian values’ of promoting “tolerance”, defending “freedom”, and supporting “equality” (Sen, 1997: 183), which were endorsed by ancient native rulers of this land such as the Emperors Akbar and Ashoka.

If one has to elevate the impoverished state of human rights in Bangladesh, one must regard the promotion and protection of human rights as an inseparable part of democracy and must direct all State measures, policy actions, and the lawmaking towards the closure of the gap between ‘norms’ and ‘facts’ that currently exists in Bangladesh.[4] Human rights protection should be seen not only as an attribute of the rule of law, but rather as a means to achieve it.

————–

[1] See the Constitution (Second Amendment) Act 1975, ss. 3 and 16 substituting respectively articles 44 and 102 of the original text with new provisions that made the enforcement of fundamental rights dependent upon a law to be made by parliament and removed the judicial power to enforce these rights.

[2] The original text of this statute provided for any term in prison not exceeding ten years, and thereby keeping a margin of appreciation for the court intending to apply discretion.

[3] Vidmar (2014) has recently shown that human rights courts have clearly established a requirement for multiparty elections as a condition for democracy or democratic rights under relevant human rights treaties. The current inclusion of certain political parties in the governance of Bangladesh seems to be generating autocratic pluralism in the sense that they have in effect become subsumed in the ruling party, with no effective opposition at any rate.

[4] In order to suggest the closure of norms-facts gaps, Habermas (1996) took an ambitious project of reconciling law, justice, rights, and democracy, placing legitimate laws at the centre of the web of other phenomena.

The writer is Dr. Ridwanul Hoque, Associate Professor, Department of Law, University of Dhaka.

Offline Sonali_Rani

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Re: Human Rights and Unstable Constitutionalism: Quo Vadimus?
« Reply #1 on: November 28, 2015, 03:09:36 PM »
Nice write up. it is very true that the unstable constitutionalism create huge anomaly in our society.

Offline Ferdousi Begum

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Re: Human Rights and Unstable Constitutionalism: Quo Vadimus?
« Reply #2 on: February 09, 2016, 03:04:56 PM »
Constitutional phrase, great.