Laws which impose stringent restrictions on rights do not reflect interest of the people

Barrister Jyotirmoy Barua is a leading human rights lawyer practicing in the Supreme Court of Bangladesh. He is one of the panel lawyers for Bangladesh Legal Aid and Services Trust (BLAST). Barrister Barua has been on the front-line of many leading human rights cases, specially in the field of women’s rights and freedom of expression. On the occasion of World Human Rights Day 2019, Psymhe Wadud and Tahseen Lubaba from Law Desk talk to him on the following issues.

Law Desk (LD): Human rights have faced an array of challenges through different world orders. How is the discourse on human rights changing in the present world order?

Jyotirmoy Barua (JB): When speaking about laws and legal framework in general, the state of economic as well as political world order has always been relevant. However, even until more recent times, the relationship between law and politics has been absent from the discourse. Needless to say, however, the political situation of a country mostly determines what the laws will be and whether these laws will guarantee the rights of the people.

The compliance with human rights for a country, thus, largely depends on its political landscape. Looking at the global picture, we can say that the discourse on human rights has progressed since the adoption of the Universal Declaration of Human Rights, meaning the concept of human rights has been expanded and newer rights have been recognized. Many subsequent instruments have strengthened the human rights jurisprudence.

Countries around the world have ratified and incorporated these instruments and have continued to recognize newer rights. Recently, the Constitution of Nepal has included the right to food as a fundamental right. While the Indian Constitution does not specifically recognize this right, they have adopted the National Food Security Act in 2013 recognizing the right to food. Therefore, it can be said that positive changes are in fact emerging. However, there are negative impacts of political turmoil on human rights too.

LD: What are some of the challenges to human rights compliance in the present context?

JB: One of the biggest challenges to human rights compliance is the absence of a proper political structure which can harness dissenting voices. A-State has various institutions which need to function effectively in order to ensure a check and balance so that the Static authority itself does not transgress its power.

For instance, in our context, as per Article 7 of the Constitution, the people are the source of power and therefore, the laws created should reflect the interests of the people. Laws which impose stringent restrictions on the rights and liberties of the people do not reflect the interest of the people.

LD: How do you assess the role of the National Human Rights Commission (NHRC) in protecting people’s rights?

JB: The National Human Rights Commission Act 2009 creates some deficiencies which obstructs the effective functioning of the NHRC. The Commission does not have sufficient autonomy, it cannot even employ its own officials. The Act gives the Commission the power to recommend the State for initiating legal proceedings in connection with a violation – this does not allow for a proper check and balance mechanism for ensuring accountability. The NHRC Act needs to be reviewed in order to provide the Commission with the powers needed to protect the people.

LD: What do you think about the national enforcement mechanism for human rights, i.e. judiciary in our country?

JB: The High Court Division does considerable work under its power. While similar power cannot be granted in the lower courts, there may be other mechanisms through which these courts can be resorted to in public interest. One such mechanism is through representative suits. However, when there is a matter of interpretation of the law, the lower court does not have any authority to hear the claims. There have been many landmark decisions handed down by our higher judiciary with regard to human rights, but courts should not be the only forum of redress. The legal system should provide for easier and alternative remedies.

LD: The national, as well as international NGOs, are seen quite often as defenders of human rights. How do you judge their vigilance in our country’s context?

JB: There are a few organizations that work very well in this area and have made great achievements. One example of the contributions made by NGOs is related to combating acid violence. In the 90s, acid violence had become widespread and gained a horrific form. NGOs worked across the country to raise awareness against acid attacks alongside the government. As a result, it has been possible to bring down the number of acid attacks. NGOs are also playing a proactive role in gender justice and working in the field of violence against women and children. However, these NGOs cannot often achieve their ends due to the social and political structure.

Courtesy: The Daily Star, Published: 11 Aug 2021