Fifty Years of Human Rights Enforcement in Legal and Political Systems in Bangladesh: Past Controversies and Future Challenges

Abstract

This paper provides a synopsis of the human rights enforcement in Bangladesh, which marks its 50 years in 2021 since its independence. After a theoretical background on how human rights are perceived as legal and political instruments, it critically discusses human rights provisions and explores the legal and institutional frameworks on human rights enforcement in Bangladesh—(re)construed in 50 years (1971–2021). Finally, it divulges the controversies in human rights enforcement and a roadmap to address them by making some suggestions: multiple legislative, administrative, and judicial reforms are required to tackle human rights abuses to ensure punishment for the abusers and restitution for the victims. The paper concludes with the notion that the positive will of the relevant stakeholders (legislature, executive, and judiciary) is the key to upholding and protecting the human rights of Bangladeshi citizens. The significance of this paper lies in exploring the complexities associated with the laws and insular national politics, which often debars the enforcement of human rights and crucially compromises Bangladesh’s ability to empower its citizens.

Introduction

Bangladesh has become one of Asia’s most remarkable success stories in recent years. It is in its near graduation from the least developed country category toward becoming a middle-income country (UNGA 2021). As an active participant in the international legal system and in its 50 years of independence (1971–2021), it has displayed considerable resilience in human rights enforcement (UNCESCR 2018). Without contesting these improvements, this paper contends that while Bangladesh has an existing legal framework on human rights realization, albeit in weak crucial areas, there remains a big gap between the legal text and the current practice. With human rights violations becoming a frequent occurrence and Bangladesh performing poorly in the Global Rule of Law Index ® (ranked 124th out of 139 countries) (WJP 2021), it needs to make significant efforts to improve the human rights situation.

This paper aims to provide a background on the legal and institutional frameworks on human rights in Bangladesh, identify the legal, institutional, and practical impediments toward effective human rights enforcement, and provide recommendations to overcome these impediments.

To achieve these aims, after a theoretical background on how human rights are perceived as legal and political instruments, it critically discusses human rights provisions (e.g., constitution, legislations, and ratified international human rights instruments) and explores the legal and institutional frameworks on human rights enforcement in Bangladesh—(re)construed in 50 years (1971–2021). Finally, it sheds light upon the controversies in human rights enforcement and presents a roadmap to overcome them. Overall, this article explores the nuanced interplay between the laws and the insular national politics of Bangladesh and how it creates a barrier toward enforcing the human rights of Bangladeshi citizens.

The paper follows a viewpoint methodology with a critical approach. It summarizes and critically analyzes the current human rights regime in Bangladesh for the readers. This is similar to a review, which presents “a scholarly and accurate summary of the topic, but like a “perspective” is expected to be sharply focused rather than comprehensive” (Pugh 2012).

Human Rights as Legal Instrument

Hadiprayitno (2010) submits that the traditional view of human rights perceives it as a means of protecting human dignity through enacting legislation. In this process, human beings are perceived as the subjects. By virtue of being human, they are entitled to specific rights. Such rights are enacted in state legislation to give effect to them. This is in consonance with the natural school of human rights, which conceives human rights as inherent to every human being from birth (Dembour 2010). As such, the legitimacy of human rights lies in the right holders (humans) having those rights and exercising them against the duty bearers (the legislator, the government, or the state) when the question arises regarding their implementation (Raz 1984).

Seen from this point of view, human rights are legitimized in the Bangladeshi legal system through provisions in the Constitution, which is considered a (social) contract between the government and the governed (e.g., citizen), a view originally propounded by the contrarian theorists such as Hobbes and Locke as a moral imperative (Hobbes 2004; Locke 1821). However, human rights as a legal instrument in Bangladesh loses some of its strength since only civil and political rights (CPR) are made justiciable, whereas economic, social, and cultural rights (ESCR) are made non-justiciable (Constitution of Bangladesh, Article 8(2)). The definition of human rights, as derived from the National Human Rights Commission Act (NHRCA), 2009, shows that more focus is given to CPR (some of them being directly mentioned in it) in comparison to ESCR (Sect. 2(f)). Nor does the institutional form of enforcement of human rights (via the National Human Rights Commission) have any specific mechanism relating to ESCR. In the last 50 years, the Supreme Court (SC) directly enforced ESCR only once, in Major General KM Shafiullah v. Bangladesh (2010), where it enforced Article 24 for the protection of national monuments.

In theory, it is the state’s obligation to guarantee all forms of human rights through legislation, as evident from the preamble of the constitution, where the state pledges to realize fundamental human rights and freedom for all (Habermas 2001). Thus, ESCR not being judicially enforceable makes it difficult to argue that total enjoyment of human rights is possible for all Bangladeshi citizens under the existing legal framework. Viewing human rights solely as a legal instrument keeps some rights away from the ambit of direct enforcement since laws (e.g., fundamental principles of state policy (FPSP) as enumerated in the Constitution of Bangladesh) may prohibit the judicial enforcement of some rights. Alternatively, perceiving human rights as a political instrument can empower citizens to realize rights beyond what is specified in the constitution and state legislations, as discussed next.

Human Rights as Political Instrument

Human rights as a political instrument is more concerned with the realization of human rights owing to the cogent call for action by individuals or groups. It upholds the view that the primary responsibility for the enforcement of human rights lies with the duty bearers. Once citizens endeavor to realize their human rights by pressing their claims against the government, the government, as duty bearers, eventually meet their demands, as is expected in a democracy, to uphold and protect those rights (Halpin 1997). Here, the government enacts legislation owing to the citizens’ demands in a democratic process. This is akin to the views of contemporary natural duty theorists of political obligation like Christiano (2008) and Stilz (2009). They propound that the fundamental principle of justice requires the equal advancement of people’s interests. Therefore, the government must enact laws as per democratic procedures, or refrain from enacting laws violating certain rights of individuals, or both (Stilz 2009; Christiano 2008).

The earliest indication of treating human rights as political instrument is Bangladesh’s proclamation of independence. Afterward, the 1989 mass uprising to restore parliamentary democracy and the continuous struggle of non-governmental organizations (NGOs) such as the Bangladesh Environmental Lawyers Association (BELA) to ensure the right to a healthy environment as a fundamental right (FR), as held in Dr. Mohiuddin Farooque v. Bangladesh (1997), which led to the insertion of Article 18A in the Constitution of Bangladesh, are prime examples. The constant activism of NGOs to uphold CPR—criminalizing custodial torture and death (leading to the enactment of the Torture and Custodial Death (Prevention) Act, 2013), curbing arbitrary arrest and detention by police (as decided in Bangladesh Legal Aid and Services Trust (BLAST) v. Government of Bangladesh 2010, etc.), advocating for a plethora of issues on women’s rights, dignity, and safety (as decided in Mohammad Tayeeb v. Government of the People’s Republic of Bangladesh (2015); Bangladesh National Women Lawyers Association (BNWLA) v. Government of Bangladesh 2011, etc.), promoting and protecting child rights (as decided in BLAST v. Bangladesh 2010; State v. Metropolitan Police Commissioner 2008, etc.); etc.—are further instances of how collective actions by the right holders (citizens) have led to the duty bearers (state) upholding and protecting the rights.

However, most of these rights were already available in the broader constitutional and legal scheme or existed as Bangladesh’s commitments under its international human rights framework. Yet, the continuous violation of these rights is what led to the collective call for action by right holders against duty bearers to enforce them (Hadiprayitno 2010).

A recent example of human rights being perceived politically and their subsequent violation by the state actors is the enactment of strict laws on digital spaces, which stifle the right to freedom of speech and expression of the citizens under the garb of “maintaining public order and security of the state.” This has created censorship of content criticizing governmental actions, a sine qua non of democratic societies, thereby having a chilling effect on people’s exercise of their constitutionally guaranteed rights (Bari and Dey 2019). There have been collective calls from people to review some provisions that have been alleged to infringe upon the constitutional rights of citizens (Prothom Alo 2021). These violations also bring to the forefront the complementary role of the judicial or other institutional frameworks of human rights enforcement, e.g., national human rights institutions.

Perceiving human rights as political instrument has been the less-trodden path for their realization/enforcement in Bangladesh. For the last 50 years, most of the significant instances of human rights realization have been via judicial pronouncement. Human rights enforcement in Bangladesh has heavily relied upon legal texts and their interpretation by the judiciary to ensure the rights of the citizens, as discussed next.

Human Rights in the Legal System of Bangladesh

In post-independent Bangladesh, the first trace of human rights can be found in its Proclamation of Independence (Haque 2011). Following the liberation war, the new Constitution of Bangladesh came into force on December 16, 1972. The Bangladesh Constitution has been directly influenced by the UN’s model of the International Bill of Rights (which includes the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic Social and Cultural Rights (ICESCR)) (Haque 2011). At that time, the framers of the Constitution followed the UN’s path of splitting up the various human rights provisions into two broad groups—ESCR and CPR—by dividing them into FPSP and FR and placing them in parts II and III of the Constitution, respectively. Thus, part II of the Constitution largely reflects the provisions in ICESCR, while part III reflects those in ICCPR.

A plain reading of the preamble reveals that a general pledge has been made to establish a society where fundamental human rights and freedom of all citizens would be secured. The term “fundamental human rights” has not been defined or elaborated anywhere in the Constitution. However, it has its presence in the preamble of the UDHR. Hence, Haque deduces that the “fundamental human rights” mentioned in the preamble basically refer to the rights included in the UDHR and those that are incorporated and elaborated in the ICCPR and ICESCR, respectively (Haque 2011). Similarly, the pledge to secure “fundamental human rights” for all citizens in the Preamble refers to all the rights guaranteed in the International Bill of Rights (Haque 2011). The authors concur with this view and add that Article 25 of the Constitution and Bangladesh being a member state of the UN and having ratified ICCPR and ICESCR support the above claim.

Part II contains FPSP, which are fundamental to the governance of Bangladesh, including their application by the state in the making of laws and interpretation of the Constitution. FPSP under the Constitution has been classified into three categories (Basu 2015; Akkas 2020). The first category contains ideals that the state should strive toward. Nationalism, socialism and freedom from exploitation, democracy and human rights, secularism, and freedom of religion (Articles 9–14) generally fall under this category. The second category contains directions for the interpretation of the Constitution and other legislation, including provisions for necessities (Articles 15–19, 21, 22, and 25). The third category includes the socio-economic rights of the citizens, including the preservation of minor races, ethnic sects, and communities (Articles 20 and 23–24).

FPSP, as categorized above, are not judicially enforceable. However, over the years, judicial interpretation has given rise to enforcement of the provisions in part II of the Constitution by enlarging the ambit of the meaning of “right to life” enumerated in part III. The most important and wider implication of part II for the enforcement of human rights lies in Articles 11 and 25. Article 11 embodies the mandate of ensuring people’s effective participation in every action and inaction of the state, which is also evident in the whole fabric of the Constitution (Ahmed 1992). Democracy is theoretically based on the notion of equality of all citizens; only a democratic government can foster a comparatively higher degree of political equality (Rahman 2004). Hence, ensuring Article 11 paves the path for realizing other fundamental human rights for all.

Conversely, Article 25 speaks of “respect for international law and the principles enunciated in the UN Charter.” SC has resorted to this provision in Saiful Islam Dilder v. Bangladesh (1998), M Saleemullah v. Bangladesh (1995), etc. in basing its decisions to endorse the government’s actions, which ensured the promotion of peace, security, and solidarity with other nations. This provision is fundamental to ensuring harmonious relationships with other nations, an essential element to maintaining global peace, order, and human rights. Thus, it implies that the Constitution contains a provision that respects and reflects the mandate of the UN Charter and other relevant international law instruments. It is to be mentioned that the current Constitution contains no obligation for the state to ensure the direct application of international law (this applies to international human rights laws as well) provisions (Haque 2011). The primary reason behind this is that Bangladesh is a dualist nation (Alam 2021). However, such a provision was present in the Proclamation of Independence, which resolved to abide by the Charter of the United Nations (UN).

Part III (Articles 26–47A) consists of FR guaranteed under the Constitution. These rights incorporate many of the rights enumerated in the UDHR, including the right to equality and nondiscrimination, the right to protection of law, protection of right to life and personal liberty, safeguards as to arrest and detention, freedom of movement, freedom of assembly, freedom of association, freedom of thought, conscience, and of speech, freedom of profession or occupation, and freedom of religion. Some of these rights are absolute, while some (the rights guaranteed under Articles 36, 37, 38, 39, 40, 41, 42, and 43) are subject to certain restrictions.

Apart from these constitutional provisions, Bangladesh is also a party to numerous international law instruments, which have created certain obligations upon Bangladesh. Besides the International Bill of Rights, Bangladesh has also ratified some core international human rights treaties (with reservations to specific provisions), such as the Convention on the Prevention and Punishment of the Crime of Genocide 1948, the Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW), the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment 1984 (CAT), the Convention on the Rights of the Child 1989 (CRC) as well as other international human rights instruments (UNHRC 2012).

The next discussion deals with the enforcement mechanisms of human rights in Bangladesh.

Human Rights Enforcement in Bangladesh

In Bangladesh, the enforcement of human rights is done broadly through two mechanisms –judicial and institutional—as discussed next.

Judicial enforcement

Article 44(1) (enforcement of FRs) read together with Article 102(1) (writ jurisdiction of the HCD) of the Constitution reveals a clear picture of the judicial enforcement of FRs in Bangladesh. Hence, aggrieved individuals, when their FRs under part III are violated, approach the High Court Division (HCD) for remedy. Over the years, the SC has interpreted the phrase “any person aggrieved” to expand its ambit, a concept known as liberalizing the locus standi (Chowdhury 2020).

The text of Article 102(1) states that the HCD “may give such directions or orders… as may be appropriate for the enforcement of any of the fundamental rights.” The HCD, in CCB Foundation v. Government of Bangladesh (2017), has endorsed the view of the Indian SC in MC Mehta v. Union of India (1987) that it is at liberty to issue any “direction, order, or writ necessary in a given case, including all incidental or ancillary power necessary, to secure enforcement of the fundamental right.” Hence, in recent years, apart from the regular remedies of injunction, declaration, etc., compensation has also been awarded to aggrieved persons. CCB Foundation v. Government of Bangladesh (2017) is a prime example in this regard.

Conversely, Article 102(2) speaks of judicial review of legislation, executive actions, and quasi-judicial orders. Deriving powers from the supremacy of the Constitution, as enshrined in Article 7(2) (supremacy of the Constitution), and the provision on laws (existing and newly enacted) inconsistent with FRs to be void, as enshrined in Article 26, the HCD provides five types of remedies under Article 102(2): prohibition, mandamus, habeas corpus, certiorari, and quo warranto. However, for any application under Article 102(1) to succeed, it must prove the violation of FRs under part III.

Throughout the years, numerous pronouncements of the SC have attempted to protect and promote the FRs of Bangladeshi citizens under Article 102 (1) and (2). In doing so, the SC has tested legislation, executive actions, quasi-judicial orders, etc., against the supremacy clause of the Constitution as well as its part III. Since the independence of Bangladesh and till now, Public Interest Litigations (PIL) have been filed over a plethora of issues: arbitrary arrest and detention, custodial torture and death, policy brutality in remand, violation of the rights of children (including children in conflict with the law), unreasonable delay in trials of prisoners, women’s rights, etc. (Hoque 2011; Ahmed 1999).

Looking beyond the rigid textual interpretation of Article 8(2) (limitation on justiciability of FPSP), SC, in recent years, has enthusiastically endeavored to implement FPSP in part II by bringing them under the garb of the rights in part III. It did so by enlarging the ambit of some of the FRs. SC most prominently enlarged the ambit of the right to life in Dr. Mohiuddin Farooque v. Bangladesh (1997) to include “the protection and preservation of the environment, ecological balance free from pollution of air and water, sanitation without which life can hardly be enjoyed.” Since then, it has gone on to pronounce important verdicts relating to ESCR similarly (invoking the right to life to interpret FPSP): prohibiting the government from evicting slum dwellers without prior written notice and alternative guarantee for rehabilitation (as decided in Ain o Salish Kendra v. Government of Bangladesh 1999), banning advertisement of cigarettes (as held in Professor Nurul Islam v. Government of Bangladesh 2000), banning imposition of value added tax (VAT) on health services at hospitals, diagnostic labs, clinics, etc. (as held in Chairman, National Board of Revenue v. Advocate Zulhas Uddin 2010), declaring forcible eviction of sex workers from their residence as illegal (as decided in Bangladesh Society for the Enforcement of Human Rights (BSEHR) v. Government of Bangladesh 2001), etc.

However, such a practice of enforcing ESCR, termed “piecemeal protection,” has been deemed inadequate (Chowdhury 2011 and 2012) and criticized heavily (Waheduzzaman 2014). Experts have questioned this practice since it blatantly disregards the express bar in Article 8(2) and flouts the basic principles of rule of law, constitutionalism, and separation of power (Islam 2012; Waheduzzaman 2014). Critics opine that courts only interfere to enforce these rights when prolonged cases of extreme and exceptional degradations have taken place (Chowdhury 2011 and 2012). In instances where CPR is inextricably linked to violations of ESCR, critics submit that courts remain reluctant to intervene, leading to breaches of both sets of rights (Chowdhury 2011 and 2012).

Additionally, the appellate division (AD) of the SC also possesses the power to do “complete justice” under Article 104. It must exercise this power sparingly and in extraordinary circumstances to cure manifest and undoubted injustice (Islam 2012). This principle was established in Ekushey Television v. Dr. Chowdhury Mahmood Hasan (2003). A remarkable instance of the AD’s exercise of this power under Article 104 was during the COVID-19 pandemic when litigants could not access courts due to their indefinite closure in Bangladesh. This resulted in the expiry of the limitation periods in many cases. Then, AD in Md Fazlul Haque Sarder v. Grameen Phone Limited (2019) extended the limitation period for filing petitions/applications/suits/appeals/revisions/all other proceedings, civil, criminal, or administrative, under general or special laws, which expired on or after March 26, 2020, till August 31, 2020. This ultimately helped uphold FRs (notably enshrined in Articles 31: right to protection of law, 32: protection of right to life and personal liberty, 33: safeguards as to arrest and detention, 35: protection in respect of trial and punishment, etc.) of Bangladeshi citizens when strict/rigid observation of the legal texts would have resulted in the violation of such rights.

Another aspect of judicial enforcement of human rights is how the SC incorporates principles of international human rights law. SC decided in HM Ershad v. Bangladesh (2001) and BNWLA v. Bangladesh (2011) that these principles can be applied in the domestic jurisdiction where the domestic law remains silent or is ambiguous on a particular issue and when the international law obligation matches with the domestic law provisions. In multiple instances, the SC has resorted to these principles while delivering verdicts: endorsing the application of the principles of the UN Charter in M. Saleemullah v. Bangladesh (1995), principles of international environmental law (Rio Declaration of 1992) in Dr. Mohiuddin Farooque v. Bangladesh (1997), resolutions of World Health Organization (WHO) in Professor Nurul Islam v. Government of Bangladesh (2000), principles of UDHR in Tayazuddin v. the state (2001), etc. With the development of international human rights jurisprudence in recent years, this is now a growing practice in our SC (Hasnat 2013). Very recently, the HCD in Refugee and Migratory Movements Research Unit (RMMRU) v. Government of Bangladesh (2016) held Article 33 of the 1951 Convention Relating to the Status of Refugees to be part of customary international law and thus binding upon Bangladesh.

Institutional enforcement

The National Human Rights Commission (NHRC) was established in 2009 under NHRCA. The Preamble of NHRCA 2009 states the purposes of setting up NHRC precisely: to establish a Commission for protecting, promoting, and ensuring human rights. Section 12(1) of NHRCA 2009 contains the list of the powers and functions of NHRC. The provision lists, broadly, 19 functions of NHRC. NHRC also has the function of receiving references from the SC regarding any application made under Article 102 and providing an inquiry report on them. In instances of human rights violations that have been unearthed after NHRC’s inquiry, it has the power to resolve such issues via mediation and conciliation. NHRCA 2009 also outlines the steps to be undertaken by the NHRC if mediation or conciliation efforts fail. The NHRC also has the power of inquiry, the power to investigate a complaint, and the power to issue summons (NHRCA 2009, Sects. 12, 13, 14, 16, 17, and 21).

Section 19 of NHRCA 2009 empowers NHRC to recommend the government to prosecute or take any other legal action against a perpetrator if the allegations are proven to be true after inquiry. Section 19(2) further empowers NHRC to file a petition on its own or on behalf of the aggrieved person to HCD if any order or instruction is tenable under Article 102. A remarkable provision in NHRCA 2009 is that it empowers NHRC to recommend the government or the concerned authority to grant interim relief in the form of temporary grants to an aggrieved person or his family, as it deems appropriate (Sect. 19(2)). It provides temporary relief to the victim, who may require emergency intervention, while the justice system eventually hears their case and delivers a verdict—a time-consuming process. Moreover, this mechanism holds the government liable for failing to ensure the human rights of Bangladeshi citizens. Unfortunately, NHRC has taken recourse to this provision only twice (NHRC 2020 and 2022) amidst multiple human rights violation complaints since 2009.

A glimpse into its first decade of operation (2010–2019) indicates that NHRC received 5771 complaints in total. It resolved 5190 complaints during this period (NHRC 2019). The complaint disposal rate during this decade stands at 89.9%. However, no details are available on the specific issues or types of complaints that are yet to be resolved, which led to rekindle several controversies regarding human rights’ enforcement in Bangladesh.

Controversies in Human Rights Enforcement

The controversies surrounding human rights enforcement in Bangladesh require exploring the roles played by the government, judiciary, and other institutions entrusted to protect and uphold both ESCR and CPR.

Controversies in enforcement of ESCR

The biggest controversy in the enforcement of ESCR lies in the last clause of Article 8(2) of the Constitution, which states that such rights “shall not be judicially enforceable.” What has further exacerbated this controversy is the insertion of Article 7B (unamendability clause), which places part II under basic provisions of the Constitution, stating that they “shall not be amendable by way of insertion, modification, substitution, repeal, or by any other means.” It blocks the authority of future parliaments to work toward realizing FPSP (Halim 2014). Article 8(2) obliges the state to promote these rights, subject to the scope and extent of its economic capability. However, Article 7B halts the proper implementation of this provision (Halim 2014).

Another controversy regarding FPSP is that AD, in Kudrat-E-Elahi Panir v. Bangladesh (1992), clearly stated that provisions in part II of the Constitution were not judicially enforceable when the constitutionality of a law inconsistent with Articles 9 and 11 was challenged. However, as Chowdhury (2017) submits, this was a pessimistic interpretation of Article 7(2) along with Article 8(2). A liberal approach, while also reading Article 47(1) (savings clause), makes it clear that the Constitution does not bar striking down a law that conflicts with any of its provisions in part II.

The authors reiterate the view of the SC in Kudrat-E-Elahi Panir v. Bangladesh (1992) that FPSP must be realized gradually in Bangladesh. Article 7B totally puts this interpretation and the intention of the drafters of the constitution to death. FPSP would remain unenforceable even in the instance of the country being rich in resources and the state having the capability to enforce these provisions. Even institutional mechanisms to realize FPSP remain absent in the legal system of Bangladesh. Regrettably, NHRCA 2009 omits FPSP/ESCR entirely while defining human rights. The realization of FPSP thus lies solely in the hands of the government, which is subject to the ministerial whim, availability of necessary resources, and other socio-legal impediments—most notably, corruption. Bangladesh ranks 147th, with a score of 26/100, in Transparency International’s Corruption Perception Index 2021 (TI 2022). It is relevant to mention that approximately 2–3% of the gross national income is wasted annually in Bangladesh owing to corruption. Hence, fewer resources remain to be allocated for fulfilling the basic needs of Bangladesh citizens, thereby amounting to nonfulfillment of the obligations in part II by the government, as reported in TBS (2022).

Controversies in enforcement of CPR

Firstly, the exclusion clauses of the Constitution limit the enforcement of CPR. For example, Article 39 of the Constitution, which talks about freedom of thought and conscience, states some exceptions regarding the enjoyment of the right: “in the interests of the security of the state, friendly relations with foreign states, public order, decency, or morality, or in relation to contempt of court, defamation, or incitement to an offense.” The ICCPR, in its corresponding provisions in Articles 19 and 20, impose limitations on grounds of “respecting the rights or reputations of others, protecting national security or public order (ordre public), or public health or morals, prohibiting propaganda for war, and prohibiting advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence.”

Thus, friendly relations with foreign states and public decency are exceptions that go beyond the global mandate on the freedom of thought, conscience, and of speech. It gives the government a wider margin of appreciation, resulting in the enactment of the earlier Sect. 57 of the Information and Communication Technology Act, 2006 (now repealed) and the Digital Security Act (DSA), 2018. Sections 25, 28, 29, and 31 of DSA clearly encroach upon the right to freedom of speech (FoS) of the citizens as they go beyond the mandate of Article 39 and Bangladesh’s commitment under ICCPR (ARTICLE 19,2019). While the direct enforcement of ICCPR is not a point of contention of the authors, they emphasize that fundamental human rights, being inherent rights of the citizens of Bangladesh, cannot be whittled down by the Constitutional text or by other laws that further limit the enjoyment of such rights. Moreover, vague and overbroad definitions of these offenses, along with reproducing offenses already existing in the Penal Code (PC), 1860, and providing stricter punishments, have a chilling effect on the enjoyment of the fundamental right to FoS (ARTICLE 19 2019).

The adverse effect of such legislation is readily visible (Bari and Dey 2019). Amnesty International’s briefing in July 2021 reports that since the enactment of DSA 2018, more than 1300 cases have been filed under it against about 2000 people. Nearly 1000 people have been arrested under DSA (AI 2021). A total of 142 arrests have been made under DSA 2018 throughout 2020 (Odhikar 2021). Shockingly, in July–September 2021, 81 arrests were made under the DSA for allegedly posting critical posts against high-ranking officials of the government during the Indian Prime Minister’s visit to Bangladesh on social media (Odhikar, 2021a). These figures prove that such laws, as well as the exception clause in Article 39 on maintaining friendly relations with foreign states, are a threat to FoS for Bangladeshi citizens.

Secondly, despite right to life and personal liberty being upheld sacrosanct by the Constitution and in various pronouncements by SC, it has been repeatedly violated throughout the years, especially by law enforcement agencies. Due to a surge in custodial violence, Bangladesh enacted the Torture and Custodial Death (Prevention) Act, 2013 (the 2013 Act) to prevent custodial torture and death, with provisions for a maximum punishment of life imprisonment along with fine and compensation to be provided to the aggrieved persons (Sect. 15). But it was only in 2020 that a Bangladeshi subordinate court held policemen guilty of custodial death under the 2013 Act for the first time. Ever since the enactment of the 2013 Act, only 17 cases have been filed under it (Mashraf 2020). Odhikar (2021), however, reports 196 crossfires and 76 deaths in jail in 2020 alone. The figures are 35 and 54, respectively, till September 2021 Odhikar (2021a).

Moreover, despite Constitutional provisions (Articles 31, 32, 33, and 35) and explicit prohibition by the SC in Bangladesh v. BLAST (2016) and Saifuzzaman v. State (2004) on issues such as torture during remand, arbitrary arrest, and detention by law enforcement agencies, etc., law enforcement agencies have repeatedly resorted to Sects. 54 and 167 of the Code of Criminal Procedure (CrPC), 1898, and Sect. 3 of the Special Powers Act, 1974, to arrest and detain individuals. Odhikar (2021) reports 31 instances of enforced disappearances in 2020 and 18 till September 2021 Odhikar (2021a). Bangladesh faced severe criticism globally when the UN’s Committee against Torture (UNCAT) expressed serious concerns on issues such as inadequate investigation procedures against complaints of custodial torture, unacknowledgement of detention and disappearances, frequency of enforced disappearances, lack of procedural safeguards to detainees during remand and while in custody, poor conditions of detention, etc. (UNCAT 2019).

Thirdly, violence against women is rife in Bangladesh. Despite the 2020 amendment to the Women and Children Repression (Prevention) Act, 2000, increasing the maximum punishment for rape and death due to rape, etc., violence against women has still been on the rise. Total number of rapes stands at 1538 for 2020 Odhikar (2021) and 1152 till September 2021 Odhikar (2021a). A rule issued by the HCD on March 10, 2019, asked the Inspector General of Police and other concerned authorities to respond to why the court should not order them to pay compensation worth BDT 50 lac to a young woman who was raped by two police officers in Manikganj in February 2019. Huda (2019), thus, argues that this ruling, on principle, recognizes rape as a violation of the FRs of a woman as enshrined in Articles 32 and 36 for the first time in our legal system. The remedy sought in this case under Article 102 is in the form of compensation. Huda (2019) submits that the ruling changes our thought pattern on perceiving rape not only as a mere crime but also as the state’s breach of its duty to protect the FRs of its citizens. If HCD makes the rule absolute, a precedent will be established, making the state liable due to its breach of duty in protecting the FRs of its citizens. Thus, the government cannot shy away from its liability merely by enacting laws to punish perpetrators of rape without taking adequate measures to fulfill its duty to uphold the right to life and personal liberty and the freedom of movement of its citizens.

Fourthly, the state actors (notably the legislature and the executive) have to abide by the well-established doctrine of separation of powers and not interfere in the judiciary’s activities. Regularly superseding senior judges to appoint candidates who have a soft corner for their political parties by parties in power has undermined the independence of the apex judiciary of Bangladesh (Bari 2016). The subsequent events following the scrapping of the 16th amendment of the Constitution, which had handed over powers of impeachment of SC judges to the Parliament, has de facto created an impression in the minds of the citizens that the judiciary is unable to function independently (Bari 2022).

Apart from the above, the institutional framework of human rights brings some controversy regarding the enforcement of human rights. Despite being empowered legally, NHRC faces major limitations institutionally, statutorily, and financially. Multiple bureaucratic appointments in the NHRC have led to it being staffed predominantly by people from the executive, leading to accusations of being lenient toward the government (Riti and Ahmed 2020; Odhikar 2021a). Owing to such visible interference by the government in the activities of NHRC and their indifference toward implementing the recommendations of NHRC, several human rights organizations have reportedly complained that the government uses NHRC to further its political agenda and depict a rather whitewashed version of the human rights situation of the country (US Department of State 2022).

A strong criticism against the NHRC is that it is yet to frame rules for handling complaints or for conciliation or mediation to resolve complaints, activities essential to fulfill its mandate under the act (Riti and Ahmed 2020). What makes it appalling is that HCD, in Md. Mozammel Haque v. National Human Rights Commission (2013) had issued a rule to NHRC in 2013 asking why NHRC should not be directed to frame rules. Again, in Children’s Charity Bangladesh Foundation (CCB Foundation) v. National Human Rights Commission (2018), HCD opined that NHRC should frame rules not only to deal with complaints but also to effectively use all apparatus in NHRCA 2009.

Moreover, NHRC’s complaint handling procedure and disposal rate have come under criticism. It has only disposed of 1 out of 26 custodial death complaints, 10 out of 34 custodial torture complaints, and 7 out of 43 complaints about extrajudicial killing, as evident from its annual reports of 2015–2019 (Riti and Ahmed 2020). NHRC repeatedly points to the limitations under Sect. 18 of NHRCA 2009 as an impediment toward resolving complaints against law enforcement agencies. In this connection, the HCD observed in CCB Foundation v. National Human Rights Commission (2018) that Sect. 18 has made NHRC a “teeth-less tiger to some extent.”

However, the most vehement criticism of NHRC came from HCD in CCB Foundation v. National Human Rights Commission (2018) when it found NHRC to be inactive and negligent about fulfilling its statutory duty in handling Khadiza’s case. HCD came down heavily upon NHRC, saying that it had been sleeping despite being awake and, thus, failed to discharge its statutory duty by delaying proceedings without taking appropriate measures for 4/5 years.

NHRC is oblivious that even if crimes are tried in courts and pending verdicts, human rights violation is an issue that still requires to be dealt with, and the victims have the right to a remedy in the form of compensation for this (Riti and Ahmed 2020). Due to these shortcomings and multiple other factors, the Global Alliance on National Human Rights Institutions (GANHRI 2022) has given NHRC “B” status.

While NHRC finally recommended compensation to Khadiza under Sect. 19(2) of NHRCA 2009 (Rahman 2020), it became the first instance of applying this provision. The government subsequently paid her full compensation. However, this is only one instance of the government paying heed to the NHRC and fulfilling its obligation. The government cannot shy away from its overall role, citing one or two such implementations of the NHRC’s recommendations.

Recommendations

Although in the Bangladeshi legal system, human rights are ideally perceived as legal instrument, in cases where their continuous violation is visible or where rights are yet to be recognized in the domestic legal framework, perceiving human rights as political instrument can be the path for their realization. It then raises a question: whether the Bangladesh Constitution, despite claiming to be the solemn expression of the people’s will (Article 7), has indeed fully embodied the will of the Bangladeshi citizens. The non-justiciability of a set of human rights suggests that the answer is negative. Thus, when the state fails to realize the rights of its citizens, the only path for citizens to realize such rights is by perceiving human rights as political instrument: pressing their claims against the state and negotiating a remedy for violation of their rights (An-Na’im 1998). It is undeniable that while such political path has the potential to ensure human rights, it also bears the risk of creating mistrust between the government and governed. Thus, the authors suggest perceiving human rights as legal instrument for their noncontentious realization and accordingly suggest some recommendations to uphold, protect, and promote human rights in Bangladesh.

On ESCR

It cannot be denied that the insertion of Article 7B has hugely restricted any sort of change to the provisions in part II. While compelling arguments exist that the 15th Amendment would be struck down if its constitutionality is challenged (Halim 2014), the authors do not intend to trend that path here. The authors submit that even under the existing restrictive interpretation, it is possible to enforce FPSP.

Chowdhury has argued that the clause “but shall not be judicially enforceable” means that the court cannot compel the state to take progressive measures to enforce FPSP if the state is unable to enforce them (Chowdhury 2017). The clause merely states that the constitution has left it upon the executive to determine the order, time, place, and mode of execution of FPSP (Chowdhury 2017). Hence, enforcement of FPSP lies with the government. They cannot disregard this solemn duty laid out in the constitution. The judiciary only has a limited role in this instance. In recent years, there has been a surge in interpreting FPSP under the garb of FRs to implement the provisions. While the authors do not shun this approach, they however submit that it is unsustainable. The SC should also bear in mind not to extend this judicial activism to a point that it transforms into judicial overreach. It must always exercise judicial self-restraint (Vishweshwaraiah 2017).

The authors agree with the proposal of Alam and Karim (2013) that realizing ESCR via budgetary allocations is an effective mode of enforcement of ESCR. The authors endorse the proposal that adding the realization of ESCR as a separate objective and head of expenditure in the national budgetary allocation would ultimately lead to the implementation of the “progressive realization of ESCR” (Alam and Karim 2013). Linking enforcement of ESCR in this way would also ensure accountability of the elected representatives to the people they represent in their constituencies (Alam and Karim 2013). The authors further add that this method of accountability will ensure sincere efforts from the government to allocate adequate resources for the enforcement of ESCR. If they fail to fulfill the mandate of the people’s will, they risk being voted out of power in the national elections. Thus, the parliament can adopt this sustainable model of enforcement of ESCR to fulfill their duty under part II.

Another method of enforcement of ESCR in the twenty-first century is by achieving the goals and targets set out in the UN’s Sustainable Development Goals (SDGs). All 17 SDG contain provisions relating to ESCR (as well as CPR) (Office of the United Nations High Commissioner for Human Rights 2021). Bangladesh has made significant strides in achieving the targets and goals of SDGs by 2030 (Ministry of Planning, Government of the People’s Republic of Bangladesh 2020). As a result, if the government implements the recommendations, best practices, and the next steps in achieving the targets diligently, as outlined in the voluntary national reviews prepared by the Ministry of Planning, the government of the People’s Republic of Bangladesh (2020) would achieve significant progress in the implementation of SDGs. Consequently, it will lead to the gradual enforcement of the provisions in part II of the constitution, thereby ensuring the implementation of ESCR. Nevertheless, one must note that both the mechanisms mentioned above (budgetary allocation of ESCR and achievement of SDGs) do not ensure full enforcement of ESCR. Instead, they are a continuous process. Even in the absence of specific development goals set by the UN, the government should review and revise the budgetary allocation of ESCR every fiscal year to ensure their enforcement, guaranteeing the nation’s progressive socio-economic development.

Moreover, on the institutional enforcement of ESCR, the authors propose to amend the definition of human rights as provided in NHRCA 2009 and explicitly mention ESCR as human rights. Under Sect. 12(1) of the NHRCA 2009, NHRC should, of its own volition, include ESCR in all its human rights obligations. It should work as a strong pressure group on the government, as per its mandate under NHRCA 2009, to ensure protection and promotion of human rights of Bangladeshi citizens. NHRC already has an existing committee on economic, social, cultural, civil, and political rights (NHRC 2020). Until now, the NHRC’s limited mandate and role in working toward the realization of ESCR have drawn strong criticism from the UN Committee on Economic, Social, and Cultural Rights (CESCR) as well as the civil society (Riti and Ahmed 2020). Hence, with a holistic definition of human rights, the relevant committee and NHRC as a whole should focus extensively on its mandate of working to secure ESCR for Bangladeshi citizens.

On CPR

The existing mechanism of enforcement of CPR in Bangladesh is extensively faulty and requires a major overhaul. Some of the limitation clauses in the provisions of FRs do not meet the international standards of human rights guaranteed for people globally. The embargo put by Article 7B is again an impediment toward amending the provisions in part III of the constitution. Once again, the authors submit that it is possible to protect and uphold the FRs of Bangladeshi citizens even under the existing constraints. Any limitation to FRs should be strictly interpreted by courts. Courts should put an end to the abuse of laws such as DSA and arbitrary application of the limitation clauses in the FRs to uphold the CPR of Bangladeshi citizens. In interpreting the limitation clauses, courts should narrowly construct them by having the highest regard for FRs. These limitation clauses to FRs should be applied and interpreted narrowly so that they do not contradict people’s enjoyment of their FRs guaranteed in the constitution.

Moreover, laws in operation that contradict with FRs are already void to the extent of their inconsistency with part III of our constitution. It is also a duty of the government not to enact laws contradicting with FRs in part III (Article 26). Nevertheless, the government, of its own volition, should repeal draconian provisions in laws that interfere with people’s enjoyment of their FRs. If the constitutionality of such legal provisions is challenged in the HCD, the HCD should have the highest regard toward people’s enjoyment of their rights as enshrined in the constitution and abide by Article 26.

The authors further note that the culture of resorting to Article 102 to file writ petitions seeking remedies for violation of FRs when there are alternate remedies readily available in other statutes, needs to stop. Laws such as the Fatal Accidents Act, 1855, the Bangladesh Labor Act, 2006, the Torture and Custodial Death (Prevention) Act, 2013, the Women and Children Repression (Prevention) Act, 2000, etc., already contain provisions for compensating victims. Moreover, Sect. 545 of CrPC 1898 already enables/empowers courts to order expenses or compensation out of fines to be paid to victims. Trial courts should extensively make use of such provisions. One may raise a question that the amount of compensation mandated under these statutes is insufficient in the twenty-first century. It is the duty of the government to amend the relevant provisions and provide adequate compensation as a remedy to the crimes under the abovementioned laws, which also have connotations of human rights violations. Even when these provisions are challenged in the HCD, it has the power to ask the government to review the provisions on compensation and take the necessary steps. For example, recently in BLAST v. Government of Bangladesh (2021), the HCD asked the government to respond to why it should not direct them to take necessary steps to amend chapters XII and schedule 5 of the Bangladesh Labor Act, 2006, to ensure adequate compensation for workplace death and injuries.

When the government amends statutory provisions on seeking compensation for crimes that amount to human rights violations of citizens, the citizens will no longer approach SC frequently for human rights violations as other equally efficacious remedies will be readily available in the relevant statutes. This will strengthen the justice delivery system of the subordinate courts too.

It is also high time to establish human rights courts as per the constitution’s mandate of Article 44(2). The current number of cases in the HCD (as of 2020) stands at 452,963 (Manir, 2021). As such, exercising powers under Article 102(1) will only add to the existing case backlog. While jurists argue the need for constitutional courts too, which will have powers to hear matters on enforcement of FRs (Rahman and Ahmed 2016), the authors submit that our recommendation is limited to the text of Article 44(2) only. The government must fulfill this mandate without further delay. Such courts, for the time being, should only exercise powers under Article 102(1). This will create a separate forum altogether for enforcement of human rights, leading to a reduction in the HCD’s case backlog. As a result, our justice delivery system benefits significantly. Bangladesh may see the positive effects of the establishment of human rights courts when cases get resolved quickly in both the HCD (since the burden of hearing writs under Article 102(1) is lifted now) and the human rights courts (they are only empowered to hear petitions under Article 102(1)). It is better if a separate law is enacted to give effect to Article 44(2). The presiding judges in these courts can be retired SC judges, or more judges can be elevated to SC and be allocated to human rights courts. HCD may only hear appeals from human rights courts. However, it should formulate a strict approach to hearing appeals and impose exorbitant costs to litigants filing frivolous appeals so that litigants do not resort to such tactics to waste the court’s time or delay the execution of judgments of the human rights courts.

Apart from this, the limitation clause in Article 102(2), “if satisfied that no other equally efficacious remedy is provided by law,” should also be inserted in Article 102(1) for human rights courts. The amended Article 102(1) would thus read:

The human rights courts, on the application of any person aggrieved, and if satisfied that no other equally efficacious remedy is provided by law, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental rights conferred by Part III of this Constitution (emphases added).

If the earlier recommendation on amending provisions relating to compensation in the existing statutes is adopted and the government updates the quantum of compensation in those statutes based on the current socioeconomic condition of the country, then equally efficacious remedies will be readily available in trial courts. Hence, litigants will approach the human rights courts only in severe instances of human rights violations and when equally efficacious remedies are unavailable in our existing laws. This will also contribute toward swift delivery of justice and reduction in case backlog in the courts.

The human rights courts should also devise innovative mechanisms to ensure justice. One instance can be ordering compensation from the government for gross human rights violations based on its strict and vicarious liability. Moreover, the courts can order continuous mandamus in instances of human rights violations so that the concerned authorities report from time to time about the measures taken to address such violations. This enables courts to monitor progress in any particular case. Conversely, once compensation under statuary laws has been provided unless it is insufficient or not equally efficacious a remedy or there is a different petitioner or respondent in a human rights violation case, the human rights court should not order further compensation to be paid by the same respondent to the same petitioner. This will resolve the issue of ordering compensation from the same perpetrator both under statutory provisions and under the constitution. The human rights courts generally should not shy away from ordering compensation in appropriate cases. However, they must remember the observation of the Indian SC in MC Mehta v. Union of India (1987) that it is an exceptional remedy and not a substitute for seeking compensation from civil courts.

The government (especially the legislature and the executive) should strongly abide by the doctrine of separation of powers and refrain from encroaching upon the judiciary’s jurisdiction. While this is easier said than done, it remains upon the judiciary to check all such (mal)practices every time an allegation is raised since it has the necessary legal tools to do so.

Lastly, on the issue of institutional enforcement of human rights by NHRC, the government must first ensure its institutional, legal, and financial independence based on the Principles Relating to the Status of National Institutions (The Paris Principles). NHRCA 2009 should be amended based on the best practices outlined in the Paris Principles. The government must also respond swiftly to communications relating to alleged human rights violations by members of law enforcement agencies and disciplined forces. It should adhere to the time limits prescribed in NHRCA 2009. Moreover, the government should hold debates and discussions on the annual report of NHRC in the parliament to ensure its accountability (Riti 2021).

NHRC too has a significant role to play in strengthening itself as an independent institution. Without further ado, it must frame all the relevant rules under Sect. 30 of NHRCA 2009. If NHRC is not satisfied (this should be interpreted as objective satisfaction of NHRC) in any communication from the government under Sect. 18(4) of NHRCA 2009, it must respond swiftly and appropriately under Sect. 19. NHRC should also abide by the prescribed time limits in NHRCA 2009. In appropriate cases, it must recommend for compensation in exercise of its powers under Sect. 19(2). If NHRC properly fulfills its functions under Sect. 12, it will result in a strong, independent body ensuring regular accountability of the government about human rights violations throughout Bangladesh. Consequently, it will lead to reduced human rights violations and extensive protection of human rights of the citizens. Some recent instances of the NHRC recommending compensation to be paid to victims of human rights abuses (Khadija’s torture case, person losing eyesight due to shooting by the Border Security Force of India, unlawful detention of multiple individuals, etc.) are a welcoming sign. The government also paid heed to the recommendation in Khadija’s case and paid her the compensation in full (Karim 2022). These incidents should not be mere exceptions; rather they should be the norm going forward.

Conclusion

Recent reports on the human rights regime in Bangladesh paint a gloomy picture. The role of all the stakeholders (legislature, executive, judiciary, statutory autonomous bodies, etc.) can be rightfully questioned due to their combined indifference and inaction to contain and curb such human rights violations. The paper critically focused on certain major aspects of human rights violations in the country, identified the loopholes in the laws and their implementation/enforcement mechanisms, and proposed informed recommendations to the stakeholders to effectively address issues of human rights in the country. These recommendations, despite operating in the restrictive ambit of the current constitutional scheme, will enable the government, judiciary, and other institutions entrusted with the duty to promote, protect, and enforce human rights to fulfil their legal and constitutional duties sufficiently. The positive will of all the stakeholders is the only prerequisite in this regard. Each institution must fulfill its role to the fullest to witness visible changes in the human rights regime in Bangladesh.

Declarations

Conflict of Interest

The authors declare no competing interests.