Md Abdul Halim
The incidents of gross human rights violations (HRVs) by law enforcers, particularly police, RAB, elected representatives, public companies, corporations, slum evictions and so on are pouring in on a daily and hourly basis, and the ordinary people as victims have no accessible door to put their complaints. How many, if any, of these cases has our National Human Rights Commission (NHRC) taken up for action? Although over five years have passed, NHRC is yet to institutionalize its statutory obligations and mandates.
The main purpose of the establishment of Rights Commission in a country is to give remedy in the form of compensation for violation of human rights to its ordinary citizens with speedy and effective mechanism. Poor and ordinary citizens cannot enjoy their guaranteed rights either from the Supreme Court or from ordinary courts because enforcing rights through normal judicial system is lengthy, cumbersome and very costly. NHRC is a quasi-judicial body which is empowered by the law to give relief for violation of human rights against state bodies promptly and without resorting to long drawn judicial process. No formal evidence needs to be produced and no lawyers need to be engaged before NHRC. All that matters is the 'satisfaction' of the Commission on the matter of violation. When an allegation of violation of human rights is brought before the Commission, it is the Commission's responsibility to inquire about, if needed, and ask for explanation from the violating persons or authority. If the Commission is not satisfied with the explanation given, it can straightway go for recommendation for compensation. No formal inquiry or investigation is needed under the law where there is gross violation in sight.
The present Commission has completed its five-year term with a tardy claim that it has no real power under the law. This claim seems baseless from the understanding of the law. It is true that NHRC is not a court but its activism under the law can prove itself more powerful than the court. True it is that Commission cannot punish anyone but it has power to bring punishment and compensation for HRVs and this power of awarding compensation is such a tool that it can compel all state agencies to be accountable to people. To be noted that NHRC India has, in last 20 years, recommended for compensation of Rs 704,153,500 in 3,214 incidents of HRVs and has ensured the payment of this staggering amount. Only in June, 2014 NHRC India recommended for compensation of Rs 2,650,000; Rs 6,100,000 in July; Rs 3,155,000 in September; Rs 4,800,000 in October. Reluctantly and very regrettably NHRC Bangladesh, enjoying more power than Indian NHRC, has not recommended for any compensation although it has found violation of human rights in a number of cases; nor has it made any recommendation for departmental actions against the violators.
Apparently, section 18 of the NHRC Act may give an impression that the Commission has no other power but asking for reports from authorities. This impression is completely wrong:
First, the provisions of section 18 are identical with those of section 19 of the Indian NHRC Act. To be noted that the words "if the Commission is satisfied" is absent in the Indian Act although Bangladesh Parliament has used the words in the Act deliberately and as such these words give more power to NHRC Bangladesh, compared to its Indian counterpart regarding HRVs by disciplined forces.
Second, construing the provisions of sub-sections 18(1), 18(2), 18(3), 18(4) and 18(5) with other provisions and preamble will give a clear idea that in recommending for compensation the power of the Commission is not limited in any manner as it has not been found limited to the Indian counterpart. The reasons are:
(i) Section 18(2) states that when the Commission receives any complaint of HRVs by any member of the disciplined force, it can seek report from the concerned authority and the authority must supply report to the Commission. If the Commission does not receive any report within time, it is not powerless because in such a case it can treat 'non-submission of report' as 'non-satisfaction of the Commission' and the Commission can send a show cause notice to the concerned Ministry or disciplined force as to why such and such amount of compensation shall not be recommended for the victims of HRVs.
(ii) The phrase "If the Commission is satisfied" has mandatory legal effect. If a report by disciplined force is not appended with the facts and documents, how will the Commission be satisfied that the disciplined force has not kept some facts undisclosed? The powerful weapon of protecting human rights remains within the strategy of "asking for report" and "examining report." However, very reluctantly the Commission has not so far been able to develop any skill in seeking and examining reports.
(iii) The way the Commission deals with the complaints of HRVs is questionable. It has not even framed rules on how to deal with complaints in last five years even though the apex court has issued rule in two writ cases. When the Commission does not receive any report against HRVs, it does not go for issuing show cause notice for compensation; rather it rests with sending letter one after another asking for reports. There has been instances that the Commission did not receive any report within three years and it continued sending letters only as if the Commission is so powerless whereas the Act has not been enacted to make the Commission so idle and passive whiner.
It is pertinent to mention here two Indian incidents of HRVs and activism of NHRC, India: First, in 2000 the Commission received a complaint that the Border Security Force (BSF) killed two people by shooting. NHRC asked for reports from Indian Home Ministry. Ministry gave report but NHRC not being satisfied with the report issued show cause notice as to why compensation of Rs 200,000 should not be paid to the victims. Both the Ministry of Home and BSF challenged this power of the Commission. The Commission set a date for hearing, and the BSF Head and the Secretary of Home Ministry were asked to appear before hearing. Both the Ministry of Home and the BSF Head argued that section 19 of the Act (equivalent to section 18 in Bangladesh) did not empower the Commission to award compensation. However, the NHRC contended that once the government and authority send report and there is indication of HRVs in it, the power of NHRC in awarding compensation would not be barred by section 19. Commission further explained that the power given in sub-section 19(1)(b) [section 18(3)(b) in Bangladesh] is very wide and this power includes the power to award compensation to victims. Both the Ministry of Home and the BSF accepted the explanation of the NHRC and eventually paid compensation of Rs 200,000 to the victims. The most recent of such example is the order for compensation of Rs 500,000.00 to the family of Felani who was killed by BSF.
Secondly, the doctrine of Res ipsa loquitor (where the incident itself describes the facts) is a recognized and often-used tool for awarding compensation in tort cases. Using this doctrine NHRC India took a revolutionary step in taking cognizance of Gujarat riot as gross violation of human rights in 2000 on a suo motu basis.
Although over five years have passed, NHRC Bangladesh is yet to institutionalise its statutory obligations and mandates. In fact, the Commission has not at all exercised its power and how can it say that it lacks power? Had the Commission recommended for interim monetary compensation for glaring cases of torture by police and RAB on Limon, Kader, for tragic death of child Zihad, Rana plaza incident, brutal torture by police over Israt Zahan on New Year eve, people would have seen the Commission's real activism and that is what the mandate of the law is. The Commission's long overdue mandates are:
(i) Making recommendations for compensation as interim relief to the victims or for taking departmental actions against violators to work as deterrent against future violations;
(ii) Filing cases under article 102 of the Constitution to compel dilly-dallying violators to comply with prompt responses to Commission's show-cause notices;
(iii) Framing rules on receiving and dealing with complaints on HRVs;
(iv) Making rules on mediation under section 15;
(v) Developing proper modus operandi on investigation and inquiry under sections 16 and 17;
(vi) Prioritizing various HRVs with realistic classification in receiving complaints from the public;
(vii) Establishing Memorandum of Understanding with Nongovernment Organizations working for protection of human rights;
(viii) Devising directives or rules addressing all courts, tribunals and other judicial or quasi-judicial bodies that in all HRV related issues, the Commission should have
representations in that forum.
Md Abdul Halim is an Advocate, Supreme Court of Bangladesh. He is the author of a recently
published book "Jatio Manobadhiker Commission: Problems and Expectations."
Email: [email protected]