President Iajuddin Ahmed
People’s Republic of Bangladesh
Re: National Human Rights Commission
Dear Mr. President:
Human Rights Watch is a non-governmental organization that monitors human rights in more than 70 countries around the world.
In light of the recent promulgation of the National Human Rights Commission Ordinance of 2007, we would like to share with you some of our concerns about the ordinance based upon international standards and our experience with similar institutions in other countries.
There is little doubt that national human rights commissions can contribute significantly to the promotion and protection of human rights. However, there are also examples of how such institutions have served to undermine these rights by covering up abuses and thereby contributing to prevailing patterns of impunity for those in positions of power and influence.
A well-developed legal framework is an essential component in ensuring that a human rights commission can perform its functions with effectiveness, integrity, and impartiality. Certain provisions of the National Human Rights Commission Ordinance unfortunately fail to meet the standards set out under the Principles Relating to the Status and Functioning of National Institutions for Protection and Promotion of Human Rights (the “Paris Principles”), endorsed by the United Nations General Assembly in 1993,1 and falls significantly short of best international practice.
If Bangladesh is to have a credible national human rights commission that meets the Ordinance’s stated goals of protecting, developing and ensuring human rights, a more appropriate legal framework must be adopted. This should be done in close consultation with a broad range of Bangladesh’s civil society organizations in the field of human rights, international experts, and the United Nations Office of the High Commissioner for Human Rights.
Human Rights Watch’s main concerns when reviewing the National Human Rights Commission Ordinance against the Paris Principles and best international practice are set out in detail in the appendix to this letter. Our primary concerns are:
- The process for selecting the chairperson and members of the Commission: At a minimum, a much broader Selection Committee which represents a wide segment of society must be provided for in order to guarantee the independence and impartiality of the Commission.
- The insufficient restrictions on Commission appointments for persons holding other posts: Current members of the security forces and political party officials should not be eligible for Commission membership because their dual roles would conflict, or be seen to conflict, with an independent, impartial, and effective commission.
- The Commission’s power to “coordinate” the work of nongovernmental organizations (NGOs): While it may be legitimate for the Commission to promote and encourage the activities of NGOs, it should not have a coordinating role. The independence and autonomy of NGOs must be respected and upheld.
- The absence of any obligation for the Commission to make its annual report available to the general public: The annual report should be easily accessible to the public. This is important in the interests of the right to information for Bangladeshis, for the sake of transparency, and for the Commission to provide a public leadership role on human rights.
- The limited sources from which the Commission can obtain funding: As with most government authorities, the Commission should have the right to seek and receive financial and technical support from international donor agencies.
Should you wish to discuss these issues further or require any clarifications, I am of course at your disposal.
Human Rights Watch’s Comments on the National Human Rights Commission Ordinance, 2007
April 8, 2008
The following analysis derives from the the Principles Relating to the Status and Functioning of National Institutions for Protection and Promotion of Human Rights (the “Paris Principles”),2 endorsed by the United Nations General Assembly in 1993, and other internationally recognized best practices, and aim to contribute to ensure an independent, impartial and competent national human rights commission in Bangladesh.
1. Selection of Members
Section 6 provides that the Commission should consist of a chairperson and two members, appointed by the President of Bangladesh. The president is to base his decision on the recommendation of a selection committee. The Selection Committee is made up of:
(a) One judge from the Appellate Division of the Supreme Court, as nominated by the Chief Justice;
(b) The Cabinet Secretary, the Cabinet Division;
(c) The Attorney General;
(d) The Controller and Auditor General of Bangladesh;
(e) The Chairman of the Public Service Commission; and
(f) The Secretary, Ministry of Law, Justice and Parliamentary Affairs.
All but one of these people are members of the executive branch of government.
Independence is the single most important feature of any national human rights commission. The biggest threat to the independence of such commissions invariably comes from the branch of government most likely to be targeted for investigations, namely the executive branch, and particularly elements of the police, army, intelligence services, and related ministries. This means that safeguards must be in place to ensure that the commission can carry out its mandate without any undue influence from the executive branch, as well as other institutions, organizations, and individuals.
The appointment process should be transparent, ensure pluralism and diversity, and avoid politically motivated appointments. Ultimately, the way in which members are appointed gives a clear signal to the public regarding the level of independence a commission enjoys and the credibility it deserves as an oversight body.
A process that is dominated by the executive will lack credibility, both in Bangladesh and abroad. The internationally recognized Paris Principles state that:
The composition of the national institution and the appointment of its members, whether by means of an election or otherwise, shall be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society) involved in the protection and promotion of human rights.
This includes participation by members of NGOs and other civil society actors.
The appointment process should involve both women and men. If the chairperson and members of the Commission were to be appointed today, the process would be entirely dominated by men. There is currently no woman holding any of the positions in the Selection Committee. While the Chief Justice is to appoint a judge of the Appellate Division of the Supreme Court as chairperson of the Committee, there are no female judges among the members of the Appellate Division.
2. Qualifications of the Chairperson and Members
Section 7(2)(b) of the Ordinance states that the chairperson and members can be removed from their positions if they become engaged in any other gainful employment.
The above provision recognizes that commissioners who have dual loyalties are less likely to be independent, impartial, and effective advocates of human rights. For the credibility of the Commission there should not even be the appearance of conflicting loyalties. As such, current members of the armed forces, police and political party officials, as well as anyone else whose position could be seen to be in conflict with the goals of the Commission, should not be considered for membership.
Section 5 of the Ordinance stipulates that the chairperson and the members of the Human Rights Commission should be no less than 50 and no more than 72 years old, and that they should have experience from the judiciary, the field of human rights, social work, or human development.
The aim of the selection process should obviously be to ensure that the best possible candidates are appointed as chairperson and members of the Commission. There is no reason to believe that these persons necessarily have to be between 50 and 72 years of age. Age alone is not indicative of relevant experience. It should be taken out.
3. Relationship with nongovernmental organizations
Section 11(1)(k) states that the Commission should encourage and coordinate the work of nongovernmental organizations (NGOs) and institutions operating in the field of human rights.
While it may be legitimate for the Commission to promote and encourage the activities of NGOs, it should not have a coordinating role. The independence and autonomy of NGOs must be respected and upheld.
4. Matters before the Courts
Section 11(2)(a) prohibits the Human Rights Commission from working on matters currently under trial or being considered by a judge or court.
It is obviously important to keep the powers of the judiciary and the Commission separate. However, where the Commission finds that a case raises a significant human rights issue, it should, with the leave of the court in question, have the right to make an oral or written submission concerning that issue.
While the Commission should not work on the substance of a criminal case being tried in court, it should have the powers to examine issues relating to the human rights of any person being put on trial. For instance, the fact that a criminal case has been brought to court should not prevent the Commission from investigating allegations that the suspect has been tortured while in custody.
5. Mediation and Arbitration
The Ordinance should clarify that the Commission has no authority to conclude settlements that would infringe upon the prosecution of criminal offenses.
6. Public Access to Reports, Findings, and Recommendations
Section 19 provides that the Human Rights Commission shall submit its annual activity report to the President.
The Ordinance should be amended to explicitly state that the annual report should also be made public. This is important in the interests of the right to information for Bangladeshis, for the sake of transparency, and for the Commission to provide a public leadership role on human rights. The Paris Principles state that a national human rights institution shall “Address public opinion directly or through any press organ, particularly in order to publicize its opinions and recommendations.”
Section 21 provides that the Human Rights Commission will be able to obtain funding from (a) annual grants allocated by the government and (b) contributions/grants provided by the local authorities.
A shortage of financial resources has often seriously hampered the work of national human rights institutions. It is the responsibility of the government to ensure that the Commission is provided with sufficient resources to fulfill its mandate effectively. As with most government authorities, the Commission should also be enabled to seek and receive financial and technical support from international donor agencies. The importance of this for the functioning of national commissions has been widely recognized.3
In accordance with the Paris Principles, the Commission should have adequate funding to ensure its independence:
The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding should be to enable it to have its own staff and premises, in order to be independent of the Government and not be subject to financial control which might affect its independence.
The Ordinance should include safeguards that ensure the Commission’s access to funding is not under the control of the government in power.
8. Dual role of the Controller and Auditor General
Section 23 states that the Controller and Auditor General will be responsible for auditing the accounts of the Commission.
As mentioned above, the Controller and Auditor General is also a member of the Selection Committee tasked with providing the President recommendations for the appointment of the chairperson and members of the Commission. This dual role given to the Controller and Auditor General constitutes a conflict of interest and he/she should, therefore, hold no position on the Selection Committee.
1. National institutions for the promotion and protection of human rights, G.A. res. 48/134, 48 U.N. GAOR Supp. (No. 49) at 252, U.N. Doc. A/48/49 (1993) ("Paris Principles"), available at http://www1.umn.edu/humanrts/resolutions/48/134GA1993.html.
2. National institutions for the promotion and protection of human rights, G.A. res. 48/134, 48 U.N. GAOR Supp. (No. 49) at 252, U.N. Doc. A/48/49 (1993) ("Paris Principles"), available at http://www1.umn.edu/humanrts/resolutions/48/134GA1993.html.
3. See for instance International Council on Human Rights Policy, Assessing the Effectiveness of National Human Rights Institutions, 2005 (co-published by the International Council on Human Rights Policy and the Office of the United Nations High Commissioner for Human Rights), available at http://www.ohchr.org/Documents/Publications/NHRIen.pdf.