Law analysis
Implementing international human rights law in national
jurisdiction: The Bangladesh case
Mohammad Bulbul Ahmed
International concern with human rights is a phenomenon of comparatively recent origin. Although it is possible to point to a number of treaties or international agreements affecting humanitarian issues before the second world war, it is only with the entry into force of the United Nations Charter in 1945, that it is possible to speak of the advent of systematic human rights protection within the international system. None the less, it is clear that the international protection of human rights has its antecedents in domestic efforts to secure protection for individuals against the arbitrary excesses of state power.
Even today, the protection of human rights at both the national and international level is intimately connected, if not symbolic. All international instruments require states domestic constitutional systems to provide adequate redress for those whose rights have been violated. It is only when those states' own internal protective systems falter or where, in extreme cases, they are non-existent, that international mechanism for securing human rights come into play. In a sense, therefore, international mechanisms operate to reinforce domestic protection of human rights and to provide redress when the domestic system fails or is found wanting.
Most of the instruments on human rights have created mechanisms for the enforcement of human right at international level. The reporting system, inter state communications, individual communication to be made before the human rights committee, set up by the United Nations International Covenant on Civil and Political Rights (ICCPR), additional protocol to the ICCPR, International Committee on Economic Social and Cultural Rights (ICESCR) are such mechanisms. In addition, there are some regional human rights treaties, such as the European Convention for the protection of human rights and fundamental freedoms and the American convention on human rights and the American declaration on the right and duties of man, the African charter of human rights and people's rights which have created mechanisms for the protection of human rights at regional level.
In a country like Bangladesh, which is among the poorest in the world, the concern for human rights assumes much greater importance. The constitution of Bangladesh has guaranteed to all its citizens some basic rights of individuals. There are no problems relating to those human rights, which have not been mentioned in the constitution. Being a follower of dualistic theory Bangladesh cannot enforce human rights norms of international instruments in national jurisdiction directly.
Bangladesh constitution has recognised the rights, which have been embodied in the International Bill of Human Rights, the bill comprises of four important documents namely the Universal Declaration of Human Rights, 1948 (UDHR), the International Covenant on Civil and Political Rights, 1966 (ICCPR) the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR), and the optional protocol to the ICCPR, 1966. These international instruments on human rights have been ratified by Bangladesh. But no enabling legislation has been passed for the implementation of these instruments. Part III of the constitution contains civil and political rights, under the title "fundamental rights" most of which echo the provisions of the ICCPR. The economic, social and cultural rights are dealt with in part II as “fundamental principles of state policy”. This part contains the rights, which are almost similar to the provisions of the ICESCR.
The judiciary of Bangladesh in some recent cases has delivered judgments in favour of the implementation of socio-economic rights, relying on the judgment of the Indian Supreme Court. In the case of Ain O Salish Kendra (ASK) and other v. Government of Bangladesh and others the judges adopted a strategic approach in enforcing socio-economic rights contained in the fundamental principles of state policy by way of incorporating these rights within the domain of the fundamental rights.
Recommendations
The primary responsibility for implementing human rights law rests upon the judiciary of a state. But the judiciary having many other functions is not sufficient to deal with all kinds of violations of human rights, thus it is required to be supported by other useful mechanisms. A national institution like human rights commission may be established as an alternative mechanism for the domestic implementation of the internal human rights obligations of the states, which will assist in strengthening human rights protection. A national human rights commission is a body, which is established by a government under the constitution or by legislation for the specific purposes of promoting and protecting human rights.
Bangladesh does not have any human rights commission still now. Once it is established this commission would be able to implement human rights norms, which the constitution fails to recognize. Where the judicial system is weak, politicised, and slow or otherwise incapacitated, national human rights commission may play a central role. As the judiciary may be overburdened and full of numerous problems, Bangladesh is in need to have a human rights commission.
In Bangladesh where judicial system is full of problems and most of the people are poor the establishment of a human rights commission will be beneficial. A project entitled “Action research study in the Institutional Development of Human Rights in Bangladesh” (IDHRB) commenced in April 1995 in order to make recommendation on the establishment of a human rights commission. Following the project a fifteen-member committee was established which started functioning in November 1996. Finally a bill for setting up of the National Human Rights Commission was prepared which was supposed to be presented before the parliament in 1998, but this bill has not yet been placed in the parliament.
The obligation to implement human rights norms should not be imposed upon a human rights commission alone. The state organs ought to play a vital role in this regard.
The writer is a PhD Fellow, University of Dhaka and Lecturer, Department of Law, World University of Bangladesh.
