The Asian Human Rights Commission (AHRC) is writing to you today to request your serious attention to the non-independent lower judiciary of Bangladesh, and seek your active involvement in order to overcome persistent delays in separating the courts from other branches of government there.
As you may be aware, on August 3 the AHRC wrote the first of five letters to the UN Human Rights Council articulating reasons for which Bangladesh’s membership should be subject to review (AHRC-OL-38-2006). That first letter specifically turned its attention to the failure of the government of Bangladesh to separate its magistrates and district court judges from the executive branch, as it has promised for the last 15 years. Even a 1999 Supreme Court order that the government make good on its promises to cut loose the lower judiciary has so far come to nothing.
All judges in Bangladesh, with the exception of those in the Supreme Court and its High Court bench, are answerable to between one and four government ministries. For instance, the metropolitan magistracy is entirely under the Ministry of Home Affairs, the same ministry that is responsible for the police. Magistrates in other areas are responsible for duties under a range of ministries, including home affairs, finance, establishment and law, justice and parliamentary affairs. They perform multiple functions, deciding cases, supervising police investigations, collecting taxes and overseeing government property, among other things. It is no exaggeration to say that outside of the Supreme Court there is no one that can be properly called a “judge” in Bangladesh. Rather, there are government functionaries who perform a role with the external appearance of a judge while undertaking a range of day-to-day activities on behalf of the state.
The non-independence of the lower judiciary is the main obstacle to the enjoyment of human rights in Bangladesh. On the basis of the many cases of torture, killing and illegal detention that the AHRC has documented as having occurred in Bangladesh, it can state unequivocally that victims and their family members face overwhelming obstacles when attempting to take cases to the courts due in large part to their non-independence. As a consequence, the notion of judicial redress for abuses committed by the police or other state officers is all but non-existent in Bangladesh. At most, victims can expect that a judicial probe will be ordered to investigate and reach a conclusion that may lead to limited disciplinary action against lower-ranked officers.
The complete political control of the prosecution in Bangladesh is another cause for concern. Prosecuting attorneys are replaced en masse every time that a new government comes to power. As a result, they serve the bidding of their political masters loyally and do not accumulate experience or build an institutional legacy to pass from generation to generation. The skills needed for proper prosecuting do not develop, political bias dominates and the country’s so-called courts are sunk further into this morass.
As the authorities in Bangladesh have failed to fulfil their commitment to separate the judiciary and executive and the highest–and only independent–court has been unable to enforce compliance, the AHRC is of the opinion that much greater outside efforts must be directed towards the government of Bangladesh to obtain a result. The AHRC believes that concerted activities by UN rights bodies would do much to contribute to a change.
In this respect, we are surprised to find very little attention paid to the situation of Bangladesh by your mandate on the independence of judges and lawyers. Indeed, apart from a few cursory exchanges between your mandate and the government, there does not appear to be any consideration of the country at all. There has not been any country report on Bangladesh under the mandate, and nor is there any request for a visit pending. We strongly feel that this situation must change.
The Asian Human Rights Commission urges your direct involvement to address the failure of the government of Bangladesh to make its judiciary and prosecution independent. We request that this intervention take four forms. First, we request that you obtain and study in detail the many documents and reports through the UN system and independent agencies speaking to this failure, despite years of promises to the contrary, and the consequences. Secondly, we request that you obtain from the government an explanation as to why it has failed to separate the judiciary from the executive despite years of promises that it would do so. Thirdly and most importantly, please seek an opportunity to visit Bangladesh at the nearest possible opportunity and see the situation yourself. Fourthly, publicly report your findings and carry the same to other UN agencies with the intention that growing international influence be applied to the government of Bangladesh to oblige it to act.
We sincerely believe that the people of Bangladesh and waiting and hoping for the intervention of you and other UN experts and their offices. Years of efforts on their own part to bring about a change to the dreadful way in which their country is being mismanaged by one corrupt and self-interested government after another have not yet obtained the expected results, and they need your support.
We look forward to your involvement and stand ready to assist at any time and by whatever means at our disposal.
Yours sincerely
Basil Fernando
Executive Director
Asian Human Rights Commission, Hong Kong
