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THE interim government has recently made public its draft law concerning amendments to the National Human Rights Commission.Ìý However, before we delve into this draft, we need to understand how and why this institution was created.

One of the principal purposes of the United Nations — albeit a much debated one today — is the promotion and protection of human rights. The principles of human rights, covering all aspects of life, are housed in numerous conventions, treaties and covenants necessary to maintain levels of human dignity universally. The United Nations also has machinery solely focusing on human rights that also provide assistance to states. However, the reach of the United Nations for all practical purposes, is limited as is its resources. There are three regional human rights systems that assist the UN in this work, in Europe, the Americas and Africa. Other support systems include local, regional and international human rights organisations. These are the eyes and ears of the UN and, in fact, very effective for bringing the ‘westernised’ UN human rights system down to eye level with the historical, social, legal, political and cultural issues of the countries and the region.

When a state ratifies a human rights treaty or convention, it is agreeing to abide by the obligations housed therein. A common phrase in equity law is ‘equity imputes an intention to fulfil an obligation’. This means that when a person signs a commitment, it shows he has an intention to fulfil his duties. The term ‘equity’ in law means that which is just or fair. This seems an appropriate term to use when signing a document regarding human rights protection obligations. After a state has ratified one or more human rights treaties, who will be given the responsibility to monitor whether human rights and dignity are being protected and respected? Where do victims of violations go? How will they feel safe from further persecution by the state?

In 1960, the Economic and Social Council of the UN passed a resolution recognising the role national level institutions could play in promoting, monitoring and protecting human rights and encouraged governments to set these up. In 1978 the Commission on Human Rights organised a seminar on national and local institutions, the aim being to draft guidelines for the functioning of such human rights bodies. This seminar was held in Geneva and some of the guidelines that emerged were that these national institutions should act as a source of human rights information for the people and the government; they would make recommendations on any matter relating to human rights proffered by the government; they would study, research and review all legislation, decisions, policies and administrative arrangements to ensure they complies with human rights norms and report to the government; they should function for both the government and for any member of the public; be manned by persons representing a wide cross section of the nation; have the assistance of local or regional advisory organs in discharging the functions, if required. A large number of national institutions were established during this time.

In 1990, the Commission on Human Rights held a workshop with the national institutions to discuss the forms of cooperation between them and the UN human rights mechanisms. This concluded in the creation of the ‘principles relating to the status and functioning of national institutions for the protection and promotion of human rights’, or the Paris Principles. The recommendations were endorsed by the UN General Assembly on December 20, 1993. The key pillars of the Paris Principles are: pluralism, independence and effectiveness – all required to promote and protect human rights freely and without discrimination.Ìý A broad mandate is necessary to promote all forms of human rights and wide functions are a must to enable national human rights institutions to deliver their mandated responsibilities. It is quite obvious that the institution needs to be independent. A human rights institution under the control of a repressive and violative regime is not going to function with much credibility. As for the issue of pluralism, this ensures that the institution reflects civil society engaged in the promotion and protection of all forms of human rights. Any self-respecting government keen on ensuring the human rights of its people and ensuring they have the means to seek redress and reparation, will form a national human rights institution based on the Paris Principles and will formulate a law that governs the institution based on these as well.Ìý

In Bangladesh, the National Human Rights Commission was established in 2007 during the military-backed caretaker government. It was later re-established and formally recognised through the passing of the National Human Rights Commission Act in 2009. This law is riddled with flaws and is the reason why the interim government is working on an amendment. What were the flaws in the 2009 law? Firstly, under this law, how does the Commission envision ‘human rights’? According to Section 2 of the 2009 National Human Rights Commission Act, ‘human rights’ are the rights to life, liberty, equality and dignity, guaranteed by the constitution and international human rights instruments of which Bangladesh is a state party, and which are enforceable ‘by the existing laws of Bangladesh.’ This is, in fact, the first flaw. Not all rights, such as the right to shelter, education, freedom from all forms of exploitation, right to health, right to social security, right to equal opportunity, the right to work and employment, etc, are judicially enforceable under the constitution of Bangladesh. Persons deprived of such rights cannot seek redress in the courts of law. Therefore, the basic foundation on which the commission rests is not a strong one as it will not be able to do much if such rights are, and they are, violated by the state.

Who runs the commission? According to the 2009 act, there is a seven-member commission headed by a chair. Of the members, ‘at least one is to be a woman and one shall be from an ethnic group’. There is no mention of persons with disabilities or religious groups. One would think that a national human rights body would have an empathetic set-up representing, as far as possible, a wide cross-section of society — but no. There is no pluralism. According to Section 7 of the 2009 act, a selection committee has to be set up to recommend the chair and members of the commission. The committee has to be comprised of the speaker of the parliament, minister of law, the chairman of the Law Commission, a cabinet secretary and two members of parliament — one of whom must be from the opposition. What has this selection committee looked like in the last 15 years? For one, all these committee members represented the government, a regime that has consistently perpetrated human right violations, including crimes against humanity such as enforced disappearances and extrajudicial killings. A regime that has also made the judicial system dysfunctional through politically-appointed judges and staff. Members of this regime were responsible in listing candidates for the commission. Probably one of the most glaring shortcomings of the commission is, therefore, the lack of transparency in selecting the persons who will run it. For example, in September 2019, the government appointed the current commission members without a merit-based approach. Such a selection procedure is against the Paris Principles.

There are other issues that hamper the functioning of the commission, which are unfortunately embedded in the 2009 law. For example, the commission has to make recommendations to the government to initiate legal proceedings against the perpetrator after an inquiry into a complaint. The commission has not been given the power to take direct legal action if it finds the complaint is true after concluding the inquiry. There are no legal aid services in the commission. The commission cannot take action against law enforcement and can only ask for reports from the government on the allegation of human rights violations by the disciplinary force or any of its members. However, the act of 2009 does not stipulate what the commission can do if these forces do not submit such reports. It just mentions that if it deems necessary, the Human Rights Commission may make recommendations to the government for actions to be taken into the matter, which the latter has ignored.

Has the recently published draft of the amendments to the commission law made any drastic changes? Does it adhere to the Paris Principles? Let’s take a little look. First and foremost, the same issue of what constitutes ‘human rights’ remains. The proposed draft states that ‘human rights’ means those rights guaranteed in the Constitution and any other law of the land and those contained in the international human rights instruments ratified by the government of Bangladesh which conform to the laws of the country. The same issues regarding several internationally recognised human rights, that cannot be judicially enforceable, remain. Something else to keep in mind is that Bangladesh has reservations regarding some key articles in some of the international conventions it has ratified – including the conventions relating to children, torture and against discrimination against women. These in themselves are violations.

Secondly, who constitutes the selection committee for the commissioners? According to section 7 of the recent draft of amendments, the chair of the selection committee will be a judge from the Appellate Division of the Supreme Court. Other members include two members of parliament — one from the ruling party and one from the opposition; a female university professor selected by the University Grants Commission; and internationally renowned human rights defender; the secretary of the National Press Club; and a representative of a minority group selected by the president. Again, this criterion raises some questions. Firstly, independence of judiciary is still miles away and it is not uncommon for high level judicial officers to be politically bias. Secondly, there is no representation from those citizens who are differently abled. Thirdly, there is space for only one member from a minority group on the selection committee. Who refers names to the president from the minority community — and which community or group will he or she be representing? How does the University Grants Commission select a female professor from the hundreds of academics? What criteria is that based on? There is only one human rights defender on the committee, and this is a national human rights commission! These selections can be easily influenced by the party in power — making the selection committee a bias one and calling into question their choices of commissioner. The checks and balances attempted here are not strong enough. Even more so as the draft law states that the decisions of the selection committee cannot be questioned.

Next comes the activities of the rights commission, found in section 13 of the proposed 2025 draft. At a cursory glance, the commission seems overly burdened in making recommendations, organising seminars and doing lots of reading. The very first clause raises questions. The clause deals with persons against whom claims of human rights violations can be made. This includes ‘any person, state or government organisation, establishment or association…’ Now, it is to be noted here that it is the state or state machinery who perpetrates what is known as a human rights violation when any of its representative or organs violates the rights of a person or persons. When a member of the public harms another it is a crime, to be investigated and dealt with by the police as per the Code of Criminal Procedure. Why does this clause include the phrase ‘any person’? Crimes are not the mandate of any human rights commission. The same section in another clause states that the rights commission can conduct mediations and arbitrations based on complaints of any human rights violation that has occurred or might occur, after it has investigated the same. This is explained more in detail in section 16, where it basically mentioned that even if a case has already been filed in court, a mediation between the parties can still be held before the judgment is passed. Let me remind the readers that this is a human rights violation — essentially a criminal act committed by a government entity, including law enforcement. How does one mediate such a travesty of justice? On what grounds? Is a decision that comes through mediation stronger or more compelling than one that comes through litigation? How does one appeal if the perpetrator continues to violate rights? Furthermore, the draft amendments do not clearly state if the National Human Rights Commission will have a litigation wing that can represent victims and victim family members in the court of law. This is very important, as these lawyers will be able to build an expertise in all things human rights and human rights law, in the national and international arena.

I am sure that those who deal with human rights-based litigation may have more comments on these amendments including the procedural issues. Do the amendments adhere to the Paris Principles? Perhaps not yet. The objective of a rights commission is to protect and promote human rights but for all practical purposes, it must be manned by people who know what they are doing, who take this matter seriously, fearlessly and with a united mandate. A rights commission is a watchdog that must also protect human rights defenders and, most importantly, there must be no political affiliation. Given the history of the commissions that have functioned in the past and the recommendations sent by UN human rights bodies, we should know by now what we do not want. The question is, are we ready to make come out of the rut of political manipulation and do what is right?

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Saira Rahman Khan teaches Law at BRAC University.