The Whole Nine Yards
[Daily Star, May 30, 2008]
Sara Hossain speaks to Hana Shams Ahmed about the state of human rights in various sectors of the country and the administration’s role in creating a congenial atmosphere where human rights can be ensured for every person.
Sara Hossain is a lawyer and practices in the Supreme Court of Bangladesh. She was educated at Oxford University, called to the Bar from Middle Temple in 1989, and enrolled as an Advocate of the Dhaka Bar in 1990. Her main areas of practice are constitutional law, human rights law and family law. She has been an outspoken campaigner against extra-judicial killings, human rights violations in the Chittagong Hill Tracts, minority marginalisation, wrongful detention of free thinkers and violation of women’s rights.
Hossain is an active member of Ain o Salish Kendra, a national human rights and legal aid organisation based in Dhaka. She also undertakes pro bono work with Bangladesh Legal Aid and Services Trust, the leading national private legal services organisation. From 1997-2002, she headed the South Asia Programme at the London-based International Centre for the Legal Protection of Human Rights (INTERIGHTS).
The Star: Since the 1991 general elections we have only seen power being shifted from one party to the other. In recent times, the general public seemed to have accepted the dynastic form of politics that ensued since the fall of Ershad’s military dictatorship. Do you think a caretaker government was a positive step towards ensuring a democratic political culture?
Sara Hossain: The creation of the caretaker system is a paradox in itself because it emerged from a realisation that we in Bangladesh weren’t able to do what is in much of the rest of the world a normal, democratic transition from one elected government to another. Because that democratic process failed we had to put in a caretaker system as a bridge. This emerged as a result of a failure of democracy — and in particular the refusal of the ruling party to relinquish power and respect the rules of the game. The evolution of the caretaker system has been another paradox. In its evolution we have seen that a mechanism which was intended to enable a transition to democracy itself became captured and distorted in a very deliberate fashion precisely to prevent a healthy transition. So what we’ve seen is that whichever party has been in government before a caretaker comes into place has done their best to manipulate the latter’s composition. And also to manipulate the composition of the administration which that caretaker would have to work with. All this so that the outgoing government could best attempt to achieve favourable outcomes for itself in the upcoming elections. And we saw this kind of gross rigging of the manipulation sink to its lowest depths in October 2006. When the four advisers resigned, it was obvious that even in that caretaker government there had been people who had been trying genuinely to make a transition possible, but who had not been able to do so in the face of obstruction from the very top and from continuing manipulation by the outgoing Four Party Alliance.
Whether the caretaker system will prevail in the future is now a very big question and that is tied up with the processes of reform in political parties and how these will play out. A real challenge now is to move beyond an unrepresentative government in the form of the caretaker and to ensure effective and accountable elected representation. And in doing this, we have to tackle not just the ‘yes-sir/madam’ culture which we live in and the politics of sycophancy and self-interest which has imbued institutions and political parties alike, but also to demand information and openness and an end to decisions and action taken outside the ambit of the law and constitution.
TS: How effective was the CHT Peace Accord in minimising the violence against the Paharis? How much of the Peace Accord did we actually honour?
SH: Before we talk about whether it was effective or not we need to see how necessary it was. Given that up to 1997 there was ongoing conflict and basic denial of the rights of people within the region and effective army occupation, a resolution of some sort was essential. Of course the Accord did not put in any provisions regarding accountability for human rights violations committed during the period of the conflict. That was a very major limitation. But it was effective in reducing very significantly the level of violence in the region. And whatever its limitations, it is a recognition of an end to a three decade long conflict, and has been passed in full consonance with our Constitution, which mandates that special measures may be taken for disadvantaged communities, including providing for a measure of political representation and autonomy for the Paharis of the CHT. I believe that to build peace and to begin to restore basic rights in the CHT it is essential to implement the Accord without any further delay.
The basic concept of the Accord is that there will be settlement of the ongoing land disputes. But the Land Commission, set up post Accord, has met barely once in the last 11 years! Just recently the Government announced it would reactivate the Commission and I hope they will act on this. Another big issue was about giving full power to the Regional Council and the Hill District Councils, representative bodies for the CHT. We are ten years and counting but this has also not been fully done
The other important concern is about representation in these bodies and in other administrative structures — for example in the local police force. Only limited action has been taken. As a result there is still a sense of grievance that although there is an agreement in place for Paharis to be part of the machinery of justice and administration but that hasn’t been put in place.
Another issue is regarding the full withdrawal of the army camps, also connected to the empowering of the civil administration, which is in a state of stagnation.
So the Accord has not been successful in the sense that it hasn’t been implemented properly by any Government from 1997 till now. But it has been effective in terms of significantly reducing the level of violence although there have been serious incidents of violence of course since including the terrible arson attacks in Mahalchari under the last Government, and those more recently in Sajek (April 20, 2008).
TS: The Right to Information Act is a precondition to good governance and the ultimate democracy of a country. Do you think it is possible to effectively implement this Act in Bangladesh?
SH: Effective implementation of any law requires a multi-pronged effort, including actions to use the law. It’s too early to say now, but I think it’s a good start that we’ve begun a discussion on the right to information and legal protection. The RTI Act is trying to move away from a government culture that says you don’t have to give anyone any information or any reasons to a culture where the government will be bound to respond to citizens’ demands. It’s a great idea in theory, but in practice, it will be a long haul to changing the prevailing culture of secrecy and non-disclosure that prevails within the administration. And of course there are many no-go areas even under the proposed law, where no information will be given up. So these are real blocks to effective implementation. Another issue is that we, that is citizens, will also have to adapt to asking questions more seriously and rigorously. In many cases, even where there are no restrictions on the media from asking all kinds of questions about all kinds of things, how much real investigative journalism do you see happening that reflects the real lives or concerns of people? With honourable exceptions, a cursory scan of most nightly news bulletins or front page stories indicate that Bangladesh exists within the confines of Dhaka, and probably within the press club and CIRDAP. The fact that there are more than 139 million people in our country, many facing serious violations of basic rights in daily life, you don’t necessarily need the RTI Act to start investigating that more seriously.
TS: Do you think the debate over National Women Development Policy is politically motivated or religiously motivated? Do you think there will be major changes in a woman’s socio-political and legal position as a result of this policy? How would you characterise the political strength and alliance of the opposition, and the supporters?
SH: There are lots of pious, believing people of all faiths who firmly believe that women have equal rights with men and do not find those two beliefs incompatible. I don’t think these protests against the Policy are about religion. They are clearly a motivated political campaign, part of a short term agenda by the religious right to delegitimise any action by this Government, however benevolent, and part of a longer term agenda by them to challenge women’s advancement. The Policy provides a very important framework for understanding how to secure women’s empowerment in practice, through concrete actions by the state. It also provides the detail that builds on and elaborates the constitutional mandate for gender equality.
Those who oppose the Policy do not have great electoral strength, but through patronisation by the state and by powerful political parties, and through their being permitted to breach existing laws without impunity and their abuse of places of worship (when they preach khutbas against the policy and more importantly against women’s rights and therefore against the constitution) they have been able to make their voices heard. In contrast I think the broad majority of the women’s movement which has been most vocal in supporting the policy is also backed by the majority of people . It is a great pity that the government has chosen to give space and opportunity to the extremist organisations, which have opposed the policy, and has not taken appropriate action against them for the violence and intimidation that have accompanied their demands. I believe that those who oppose the policy have every right to express their views, but not to do so by threatening others, and they certainly have no authority to be arbiters of religious law or belief, to nor to threaten others with divine wrath simply for supporting the Policy.
TS: Domestic workers are still unrecognised in legislation. In some states of India, there are labour unions for domestic workers. But in Bangladesh they are still the most unprotected and denigrated in society. What kind of a movement is needed in Bangladesh to give domestic workers labour rights?
SH: The first things we need are to create wider public understanding of the position of domestic workers, along with essential introspection about our own behaviour, attitudes and actions. The media could help. They show exposés of scenes of working conditions in our factories but not yet have never looked at working conditions in homes. Almost all of our homes are places where there is no regulation of the rights of domestic workers, of working hours, conditions of work, or protection from abuse and to violence. Even those of us who work on human rights leave these at the door when we enter our homes — I don’t suppose we can identify any home where there are contracts of employment, fixed terms of employment, working hours or holidays. We need to start questioning how we behave and act and how we can bring about changes in our own homes.
TS: How important do you think is it for the caretaker government to initiate an actual process of the trial of the war criminals? Or do you think this is the provenance of a democratically elected government? What lessons can we learn from the groundswell of popular support this movement has received?
SH: Ideally, a democratically elected government should be the one to take up all issues. But in the world we live in, in Bangladesh today, we have to acknowledge that democratically elected governments have also failed to take up many issues, including war crimes trials. So I don’t find myself convinced that a democratically elected government will necessarily do this, even if the main parties make promises now. Just recently, we’ve seen the two major political parties having demands echoed by the Jamaat-e-Islami; but sadly neither has taken any step to distance itself from the JI. There’s a risk that this kind of tactical approach to the issue, rather than a principled one, will predominate even after an election? We should wish for the best — that the democratically elected government will hold these four decade-overdue trials. In the meantime, if the present Government starts the process, for example by initiating a Commission on War Crimes, or seeking UN assistance in this regard, that should make it more difficult for others elected to office later on to back out, and everyone who believes in an end to impunity and accountability for gross human rights violations should take up the opportunity to press for that.
TS: Separation of judiciary from the executive is described as a precondition for sound and independent judiciary. How successful has this separation been in other countries of the world? What can we learn from landmark cases in this regard in other countries?
SH: In many countries separation has been ensured in compliance with a constitutional mandate and has not required the kind of prolonged efforts from the Bar, supported by the Bench, that we have seen. Unfortunately, we still don’t have full separation in the sense that we don’t have independent-minded judges in all courts. On the one hand, there are still too many reports that someone or the other is breathing down a judge’s neck. Earlier it was political leaders, now there are other forces. On the other hand, we also see many judges who do not take decisions according to the law and constitution with its mandate of equality — but who give full rein to their biases, whether these are politically partisan biases, or gender biases, or racial or religious biases.
The lessons from other countries are many. They include a focus on ensuring that the judiciary is not just independent but accountable also and to the people at large. This means that it must allow more open public criticism and comment on its decisions and actions, it must allow public scrutiny for example by publishing regular information on its activities, case dockets etc — and it must be ready to act in cases of complaints regarding judicial behaviour and actions. To ensure independence and effective of action, judges should not be dependent on the executive for preferment of any kind. In other countries in South Asia and South East Asia, one way has been to improve judges’ terms and conditions of work and to enhance their salaries. Another way — more lateral to ensure independence is to also make judges more effective, to set up systems of judicial education, including social context education, for judges at all levels, to ensure that they can truly deliver justice to all.