Challenges Human Rights Commission faces

The violation of human rights (HRVs) of the ordinary people by disciplined forces, particularly, by police, jail authorities and other service-providing agencies of the government is rampant in the country and the ordinary people as victims have no accessible door to put their complaints. Incidents of gross HRVs by law enforcers, elected representatives, public companies, corporations, slum evictions and so on take place regularly. How many, if any, of these cases has the National Human Rights Commission (NHRC) taken up for action? Although over five years have passed, the NHRC is yet to institutionalise its statutory obligations and mandates.
NHRC AND RIGHTS VIOLATIONS: The present Commission has completed its five-year term with a tardy claim that it has no real power under the law. This claim seems tenuous from the understanding of the law. The NHRC is not a court but its activism under the law can prove itself more powerful than the court. The Commission cannot punish anyone but it has power to trigger punishment and compensation for HRVs and this power of awarding compensation is such a tool that it can compel all state agencies to be accountable to people.
It may be noted that the NHRC India has, in last 20 years, recommended for compensation of Rs. 70,41,535 billion (70,41,53,500) in 3,214 incidents of HRVs and has ensured the payment of this staggering amount.
While the NHRC Bangladesh enjoys more power than the Indian NHRC, it has not yet recommended for any compensation although it has found violation of human rights in a number of cases, nor did it make any recommendation for departmental actions against the violators.            
PURPOSE OF NHRC: The main purpose of the establishment of a Rights Commission in a country is to give remedy in the form of compensation for violation of human rights to its ordinary citizens with a speedy and effective mechanism. Poor and ordinary citizens cannot enjoy their guaranteed rights either from the Supreme Court or from ordinary courts because enforcing rights through normal judicial system is lengthy, cumbersome and very costly.
The NHRC is a quasi-judicial body which is empowered by law to give relief for violation of human rights against state bodies promptly and without resorting to long-drawn judicial process. No formal evidence needs to be produced and no lawyers need to be engaged before the NHRC. All that matters is the 'satisfaction' of the Commission on the matter of violation of rights. When an allegation of violation of human rights is brought before the Commission, it is the Commission's responsibility to inquire about, if needed, and ask for explanation from the violating persons or authorities. If the Commission is not satisfied with the explanation given, it can straightway go for recommendation for compensation. No formal inquiry and no formal investigation is needed under the law where there is gross violations in sight.
THE LAW AND THE POWER OF COMPENSATION BY NHRC: Apparently, section 18 of the NHRC Act may give an impression that the Commission has no power other  than asking for reports from the authorities. This impression is completely wrong:
First, the provisions of section 18 of the NHRC are almost identical with those of section 19 of the Indian NHRC Act. But the proviso "if the Commission is satisfied" is found in our law while it is absent in the Indian Act. This proviso gives more power to the NHRC, Bangladesh compared to its Indian counterpart regarding HRVs by disciplined forces.
Second, construing the provisions of sub-sections 18(1), 18(2), 18(3), 18(4) and 18(5) with other provisions and preamble will give clear idea that in recommending for compensation the power of the Commission is not limited in any manner. The reasons are:
(i) Section 18(2) states that when the Commission receives any complaint of HRVs by any member of the disciplined force, it can seek report from the concerned authority and the authority must supply report to the Commission. There is no time frame for submitting report and as such the Commission can set time within which the concerned authority must supply report.
(ii) If the Commission does not receive any report within the stipulated time, it is not powerless. In such a case it can treat non-submission of report as non-satisfaction of the Commission and can send show cause notice to the concerned Ministry or disciplined force as to why such and such amount of compensation shall not be awarded to the victim or victims of HRVs.
(iii)    Sub-section 18(3)(a) specifies that if the Commission is satisfied with the report then it will not take any further step. However, what will happen when the Commission is not satisfied with the report? This is not mentioned in the law and this is where the power of the Commission lies.
(iv) The phrase "If the Commission is satisfied" has legal explanation and effect. If a report by disciplined force is not appended with the facts and documents, how will the Commission be satisfied that the disciplined force has not kept some facts undisclosed? The powerful weapon of protecting human rights remains within the strategy of "asking for report" and "examining report". However, unfortunately the Commission has not been able to develop any skill in seeking and examining reports so far.
(v) The way the Commission deals with the complaints of HRVs is questionable. It has not even framed rules on how to deal with complaints in last five years even though the apex court has issued rule in this regard. When the Commission does not receive any report against HRVs, it does not go for issuing show cause notice for compensation; rather it rests with sending letter one after another asking for reports. There has been instances that the Commission did not receive any report within three years and it continued sending letters only as if the Commission is so powerless whereas the Act has not been enacted to make the Commission so idle and passive.
ACTIVISM OF INDIAN NHRC: It is pertinent to mention here two Indian incidents of HRVs and activism of NHRC, India.
First, in 2000 the Commission received a complaint that BSF killed two people by shooting. NHRC asked for reports from the Indian Home Ministry. Ministry gave report but NHRC not being satisfied with the report issued show cause notice as to why compensation of Rs. 2,00,000 should not be paid to the victims. Both the Ministry of Home and BSF challenged this power of the Commission. The Commission set a date for hearing and BSF chief and the Secretary of Home Ministry were asked to appear before it for hearing. Both the Ministry of Home and BSF chief argued that section 19 of the Act (equivalent to section 18 in Bangladesh) did not empower the Commission to award compensation. However, the NHRC contended that once the government and authorities send report and there is indication of HRVs in it, the power of NHRC in awarding compensation would not be barred by section 19. Commission further explained that the power given in sub-section 19(1)(b) [section 18(3)(b) in Bangladesh] is very wide and this power includes the power to award compensation to victims. Both the Ministry of Home and BSF accepted the explanation of the NHRC and eventually paid compensation of Rs. 2,00,000 to the victims. The most recent of such example is the order for compensation of Rs. 5,00,000 to the family of Felani who was killed by BSF.
Secondly, the doctrine of Res ipsa loquitor (where the incident itself describes the facts) is a recognised and often-used tool for awarding compensation in tort cases. Using this doctrine the NHRC, India took a revolutionary step in taking cognizance of Guzarat riot of 2000 as gross violation of human rights on a suo motu basis.
CHALLENGES AND INSTITUTIONALISATION OF NHRC IN BANGLADESH: Although over five years have passed, NHRC is yet to institutionalise its statutory obligations and mandates. In fact, the Commission has not at all exercised its power. So, how can it say that it lacks power? Had the Commission recommended for interim monetary compensation for glaring cases of torture by police and RAB on Limon, Kader, for tragic death of child Zihad, Rana plaza incident, brutal torture by police over Israt Zahan on the  New Year eve, people would have seen the Commission's real activism. The Commission's mandates in the law are:  
(i) Making recommendations for compensation as interim relief to the victims or for taking departmental actions against violators to work as deterrent against future violations;
(ii) File cases under article 102 of the Constitution to compel dilly-dallying violators to comply with prompt responses to Commission's show-cause notices.  
(iii)  Framing rules on receiving and dealing with complaints on HRVs;
(iv) Making rules on mediation under section 15;
(v) Developing proper modus operandi on investigation and inquiry under sections 16 and 17;
(vi) Prioritising various HRVs with realistic classification in receiving complaints from the public;
(vii)    Establishing MoU with NGOs working for protection of human rights;  
(viii)    Devising directives or rules addressing all courts, tribunals and other judicial or quasi-judicial bodies that in all HRV related issues, the Commission should have representations in that forum.
The writer is a Bar-at-Law. [email protected]