BANGLADESH: Incommensurable with the rule of law

May 22, 2014

A Statement by the Asian Legal Resource Centre

BANGLADESH: Incommensurable with the rule of law

The international community continues to invest effort in developing governance systems in countries like Bangladesh. Understanding the dynamics of the country where resources are invested thus remains a quest. Human rights experts hailing from countries with mature democracies and functioning rule of law institutions tend to be well-versed in the behaviour of their country’s institutions. But, such prisms can have little meaning elsewhere.

The realities for a citizen in a rule of law nation and realities for a citizen in a country like Bangladesh are incommensurable. In a functional rule of law system, a victim of ill-treatment has theoretical and practical guarantees of getting justice and reparation from the state. The criminal justice system makes such actions possible. In Bangladesh, it is the other way around. Endemic torture, without any redress or justice, is the way of life; it is the norm. This simple and foundational difference in realities is often missed when discussions take place between the citizens of a rule of law state and those of Bangladesh.

Bangladesh claims to be democracy. Reflecting only on the constitution, one could make such an argument. The constitution does appear to direct that the nation be governed democratically, guaranteeing fundamental rights.

However, democracy and fundamental rights cannot exist, grow, or be guaranteed, without a functioning system of the rule of law. Checking for the existence of the rule of law in a jurisdiction, taking factual reality and universal standards into consideration, is a useful exercise. Citizen victims know well whether the rule of law exists, in parchment or reality.

In Bangladesh, assuming office of government is understood to mean having the licence to do and undo whatever the regime wishes to do, legally or illegally. The institutions of the state function as powerful tools to benefit the regime in fulfilling its needs and desires. The bureaucracy, the police, the military, the prosecution, the judiciary – all conjoin their efforts to comply with the regime in power. Either by sweetening or serving, the law-enforcement agencies, public servants, and the relevant professionals reciprocate their individual gains.

How did a country having a policing system neck-deep in coercion, torture, and public extortion come to be accepted as a rule of law state? The police and paramilitary forces literally compete with each other in extrajudicial executions. The country’s criminal investigation system has no credibility. Victims of torture still have no access to any complaint mechanism. Criminalizing torture has had absolutely no effect.

Politicisation has completely replaced even the vestige of merit in recruitment, promotions, and postings of the police, judges, and public officials. A politicised and disposable prosecutorial and attorney system – surviving as nothing but a slave to the regime – benefits the criminal perpetrators of ruling elites and their goons. The concept of fair trial does not exist in Bangladesh. Inordinate delay – starting from registration of the complaint to disposal of a criminal case – cripples life, mounting the misery of citizens. Only those having financial and political influence can afford ‘judgments’. The ‘have-nots’ have no resort.

The judiciary, lacking in a judicial mindset, in commitment, and in any trace of efficiency, does not have the moral, intellectual and infrastructural ability to administer justice. Rather, the entire criminal justice apparatus survive as a facade to cover the criminality of the rulers.

The nexus between corruption and politics has engulfed the entire state apparatus. The culture of impunity sustains, as a priority, above any obligation of justice and dignity. The legislature, the executive, and the judiciary, in fact, join hands with each other to deny fundamental human rights and undermine the rule of law.

The Bangladesh civil society appears happy to be polarised, competing for narrow interests. Rights activism is centred on event reporting, either by choice or as a result of repression. Comprehensive analysis of the functionality of rule of law institutions is absent. The politically polarised thought process amongst professionals indicates the depth of the problem. In absence of any critical mass for change, flatterers to the regime are omnipresent.

Extreme fear is rooted in society. Silence persists. People have become conditioned to survive in fear-stricken silence.

Citizens of the developed rule of law nations do not understand why Bangladeshi victims of human rights abuse do not cry out for, and avail, justice, despite the existence of courts, constitutionally enshrined fundamental rights, and an apparently democratic government?

There is thus serious disconnect in the understanding of citizens of developed rule of law nations and that of Asian nations like Bangladesh. Asian rights organisations hardly raise this gap in comprehension and its ramifications in international forums.

Many international human rights organisations sincerely wish to work for the protection of human rights defenders. Such work cannot be effective without an understanding of the realities of the local institutions supposedly obliged to uphold the rule of law.

The very concept of protecting human dignity is absent in Bangladesh. For extending effective support to defenders, and citizens in general, understanding local realities is what is needed: in particular, the functionality, ability, intention, and attitude of the criminal justice institutions; the relationships of politicians with the criminal justice institutions and the relevant professionals expected to uphold the rule of law. The international community might be interested in knowing the truth: it is politics as practiced in Bangladesh that determines whether the rule of law should exist in, or disappear from, the country.

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About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.

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The Asian Legal Resource Centre (ALRC) works towards the radical rethinking & fundamental redesigning of justice institutions in Asia, to ensure relief and redress for victims of human rights violations, as per Common Article 2 of the International Conventions. Sister organisation to the Asian Human Rights Commission, the ALRC is based in Hong Kong & holds general consultative status with the Economic & Social Council of the United Nations.

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