This is the first of five open letters that the Asian Human Rights Commission (AHRC) feels compelled to write to the UN Human Rights Council concerning the horrible human rights situation in Bangladesh, and its causes. We are doing this as we are deeply concerned for the integrity and credibility of the Council if Bangladesh is permitted to sit as a member for the coming three years as intended.
In this first letter we wish to refer the Council to the seventeenth voluntary pledge given by the Government of Bangladesh in its aide memoire of 13 April 2006: “[To] separate the judiciary and executive as soon as feasible.”
The Government of Bangladesh finds it necessary to make this pledge as except for the higher judiciary, judges in Bangladesh are actually petty bureaucrats. In neither district courts or magistrates courts can there be anyone who can be properly called a judge. The same person will in the morning be a tax collector, in the afternoon a magistrate, and in the evening caretaker of a government property. The courts are in fact run by two to four government ministries and the so-called judges answer to all of these.
This overlap of functions is ruining Bangladesh. It denies all possibility of redress for victims of human rights abuse and guarantees impunity for alleged perpetrators. Magistrates and district judges are little more than the agents of whichever political party is in power at the time, and are completely compromised where the accused are police or other state officers. And as all criminal cases must first go through magistrates, they act as an enormous obstacle to countless legitimate complaints of abuse. Even where a case may be heard and in some instances a judicial probe commission is ordered invariably the end result is nothing.
Take the case of Shahin Sultana Santa, a pregnant woman who was brutally tortured by police in Dhaka on 12 March 2006, causing her to miscarry her child. After she made a complaint, the magistrate ordered a probe commission to follow the case. It concluded that the police had committed an offence. But the magistrate, apparently acting under pressure from other parts of government, decided that as there was not enough evidence of some allegations the entire case should be thrown out. Santa has now lodged a writ in the High Court. Like many others, she has not bothered to seek a review of the case at the district level, knowing that it would lead to nothing. Unlike most others, she has the means to be able to approach the higher judiciary in the hope that it alone can offer some form of redress.
The Government of Bangladesh says in another part of its submission for a seat on the UN Human Rights Council that, “The Separation of the Judiciary from the Executive is currently under active process.” What does this mean? When is “as soon as feasible”? The Council members may be unaware that this so-called process has been “active” for the last 15 years. In 1991 the Bangladesh National Party (BNP) promised to separate the judiciary from the executive after the country emerged from nine years of military rule. All major parties made the same commitment at the 1996 elections, but the Awami League, which won, did not bother to make good on its promise throughout its five years in office. This was despite a Supreme Court order in 1999 to the same effect. A caretaker government in 2001 began work, but was advised to leave it for an elected government. The political paddle wheel brought the BNP back into office again with a strong pledge to make the judiciary separate from other parts of government. Needless to say, its five years are also nearly up and virtually no progress has been made. In fact, the administration has done all it can to resist reform: there have been over 23 requests for extension of time in response to the Supreme Court ruling. In 2005 the court finally ran out of patience and said that no more extensions will be given. What this means in real terms remains to be seen; however, contempt of court proceedings are underway.
The separation of judiciary and executive also depends upon the effective functioning of the prosecution. Unfortunately, this is an area that is completely unaddressed by the Government of Bangladesh in its pledges to the UN. At present, prosecutors across the country are replaced each time the major political parties switch places. Many of these political appointees are incompetents, or worse, clever manipulators. Until the prosecution also is reformed to stop its abuse by politicians, talk of an independent judiciary will anyhow remain of limited value.
The AHRC seriously doubts the pledge of the Government of Bangladesh to separate the judiciary and executive. Had the government been sincere about this commitment, it could have begun work years ago, and by now been well upon the way to completing the necessary steps for independent courts of justice in all parts of Bangladesh. Unfortunately, untold numbers of victims like Shahin Sultana Santa are up to today continuing to suffer injustice heaped upon abuse by the country’s so-called magistrates. For those persons “as soon as feasible” cannot come soon enough; for many, it is already too late.
The fifth pledge given to the UN Human Rights Council by the Government of Bangladesh is: “[To] remain prepared to be reviewed under the universal periodic review mechanism during its tenure in the Council”. The Asian Human Rights Commission now urges the Council to call on that pledge, and review the status of Bangladesh as a member of the Council as soon as the means is established to do so. The failure of the government in its commitment to separate the judiciary and executive is a failure of unestimable proportions. It is daily causing misery to the people of Bangladesh and undermining their confidence in all aspects of administration and justice in their country. It is denying the possibility of respect for all human rights. It is the characteristic not of a country that wishes to join the global community in a new movement for human rights into the 21st century, but rather the characteristic of a primitive society that is still unable to move itself beyond feudal notions of power and violence.
I request that your office transmit this letter to all members of the Council for their consideration.
Yours sincerely
Basil Fernando
Executive Director
Asian Human Rights Commission, Hong Kong
