My research on State-led Rural Justice in Bangladesh (first phase) is complete. The report of the study entitled ‘Access to Justice through State-led Rural Justice System in Bangladesh: A Case Study in Kansat Union Parishad’ is submitted to the Research Initiatives Bangladesh, who funded it.

This study exposes the state of state-led rural justice system in Bangladesh, detects the strengths and weaknesses of the system, and recommends for improvement of the same.

For you copy of the research report, please contact:

Research Initiatives Bangladesh (RIB)

House No. 104, Road No. 25

Block A, Banani, Dhaka 1213

Bangladesh.

www.rib-bangladesh.org

E-mail: rib@citech-bd.com

Or write to

Ms Rana Sultana

Programme Officer,

Research Initiative Bangladesh

Email: aritroanan04@yahoo.com

Let us live our lives

GIVEN the multiple issues facing Pakistanis, the last thing we need is for a legislator to defend a heinous crime in the name of tradition. We don’t need the heinous crime either, in this case the murder of women who were apparently defying their families by trying to marry of their own choice.

The resistance of conservative families to expressions of autonomy by their daughters is an ongoing problem in patriarchal, conservative societies like ours. Some parents accept their children’s wishes. Others submit to the inevitable, cutting off inheritance or refusing to meet them.

In Pakistan, some misuse the legal system to gain submission, filing cases of zina (adultery) against daughters who elope, preferring to see them tried for a crime punishable by death rather than married to someone unsuitable. Others resort to physical violence in an effort to gain submission.

In extreme cases, some family member uses weapon to end the defiance once and for all — termed a ‘crime of passion’ in much of the world. Here, it is called ‘honour killing.’

The Human Rights Commission of Pakistan recorded over 600 cases of ‘honour killings’ or karo kari last year — just the reported incidents, compiled from reports appearing daily in the media. Over ninety such murders were reported in the first three months of this year alone. The actual number may be higher, as not all cases are reported.

Is the violence actually rising or is it just that the media is reporting such cases with greater frequency? The media boom is certainly instrumental in bringing more such stories to light. However, such cases may also be on the rise because of emerging conflicts within a rapidly modernising conservative, patriarchal society where women are seen as family property and the repositories of honour.

Greater exposure to media and more education leads to a heightened awareness of human rights issues. Those who defy the old order have greater support — legal, moral, and financial — from various non-government and even some government organisations.

Pitted against these developments are conservative elements fearful of their culture and traditions changing before their eyes, who then seek to codify tradition, until now fairly amorphous. This may be the context of the inexcusable justification that Senator Israrullah Zehri of the BNP presented in defence of the brutal murders reported in his home province Balochistan: five women reportedly beaten, shot and then buried alive for defying their families.

This is hardly the first time that culture and tradition, or even religion, were used to justify violence and suppression of women. The prosecuting lawyer in the Samia Waheed “love marriage case” argued that in the sect of Islam to which Samia belonged, a woman must seek the wali or guardian’s approval to marry “even if she is sixty years old.” Although she won the case, fearful for her life, she fled abroad along with the man she had eloped with.

In another infamous case, Saima Sarwar wasn’t so lucky. The young woman from Peshawar had left her abusive, drug-dependent husband. Her parents accepted that but drew the line at her intention to divorce him and re-marry. She took refuge at a women’s shelter in Lahore.

In April 1999, her mother asked to meet Saima at AGHS, the office of her attorney Hina Jillani, arriving with a manservant. As Saima entered the room, he pulled out a pistol and shot her dead. Her mother escaped in a rickshaw but a plainclothes policeman at AGHS shot the murderer dead as he attempted to flee.

What many found astounding was that Saima’s parents were not some illiterate people from a remote tribal area, but educated, influential, city dwellers. The father was a businessman who had headed the Peshawar Chamber of Commerce and Industry while the mother was a gynaecologist.

Then too, there was uproar in the Senate, when former law minister Iqbal Haider of the opposition Pakistan People’s Party initiated a resolution against the murder on August 2, 1999. Like Israrullah Zehri of the Balochistan National Party, which has secular, nationalist credentials, Ajmal Khattak, the supposedly progressive leader of the Awami National Party, also a secular, nationalist party, had shouted Mr. Haider down.

He held that Saima Sarwar had disgraced her family who had acted according to Pakhtoon tradition. Some senators from Fata physically attacked Mr. Haider. Only four Senators stood in support of the resolution.Twenty-four Senators including the PML-Q’s presidential candiate Mushahid Hussain Syed (then with Prime Minister Nawaz Sharif’s PML) and other luminaries like the retired judge Javed Iqbal and former foreign secretary Akram Zaki stood to oppose it.

Flash forward to another democratic era barely a decade later. Another horrific murder, another voice raised in the Senate (this time by a woman), and another Senator’s justification in the name of tradition.

Whether the women were buried alive or whether they were already dead when buried is beside the point. The tragedy is not so much how they suffered. First of all, no one has the right to take another life. Second, the women’s crime to want to marry of their own choice was no crime under any law or religion.

Third, even if murdering women who disgrace their families is accepted in some areas, not every aggrieved family resorts to such action. And fourth but not least, slavery too was once a widely accepted custom. So was the burying alive of baby girls. Neither practice is condoned now, in any way, anywhere in the world.

Interestingly, both these Senate debates for and against the murder of women for honour took place after particularly gruesome crimes committed under a democratic dispensation. This is certainly not because there was less gender violence when the military was at the helm of affairs.

Violence against women has risen over the last decade. It was at its peak under Gen Ziaul Haq and his discriminatory religious laws that strengthened reactionary forces and reinforced negative stereotypes about women. But democracy, with elected representatives answerable to their constituencies, opens up spaces to discuss and debate such issues rather than sweeping them under the carpet.

Some would prefer not to discuss such issues because this brings a bad name to the country. They need to ask themselves who is responsible: those who perpetuate the violence, or those who are its victims? What would make us a better, stronger nation: dealing with the issue, or burying it in the sand?

Beena Sarwar, a freelance journalist and film-maker, writes from Karachi.

Source: The Daily Star, Bangladesh, September 8, 2008

http://www.thedailystar.net/story.php?nid=53715

On August 21, just a few hours before the eagerly awaited iPhone was launched in the country, a young man was walking the streets of central Delhi, pleading for help. He had been stabbed seven times. Bleeding profusely, his assailants still right behind him, Manmohan Singh desperately tried to flag down cars, buses, anyone who’d help. No one stopped. Finally, a passing autorickshaw driver took pity on Singh, taking him off the streets and straight to hospital.

Just three days before Singh’s ordeal on Delhi‘s unquiet streets, Nirmala Kadam died on a busy road in Mumbai. Hit by a taxi while crossing the road, Kadam was then run over by a bus. As she lay in a pool of blood, begging for water, the world turned a blind eye to Kadam’s distress. Even the constables who came ostensibly to help, treated her with callous neglect. She died on the way to hospital.

Singh and Kadam are not the only victims of our uncaring society. Almost every other day, on some mean street, in some madding city crowd, someone falls victim to the apathy of his fellow citizens. People refuse to help in the hour of crisis. They turn their backs or remain mute bystanders. What has happened to our sense of compassion? Did we ever have it at all?

TOO MUCH TROUBLE
“It’s not that people are lacking in compassion,” says sociologist Patricia Uberoi. “It’s just that they don’t want to get involved.” That’s because citizens generally fear the cops and don’t want to get embroiled in legal issues. On the streets, it’s hard to enforce the Supreme Court’s guidelines directing lay Indians never to ignore the injured and medical practitioners never to turn away victims of road accidents. Often, bureaucratic formalities engulf the Good Samaritan. Last month, Mumbai businessman Kirit Gada took the victim of a train accident to hospital. Much to his shock, he was fined Rs 1,200 by the police and labelled ‘drunk’ by the hospital authorities after he had an argument with a doctor over delayed assistance to the victim. Gada would now think twice before reaching out to another casualty.

“As long as accident cases involve bureaucratic hassles, nobody would like to help,” says social scientist Shiv Vishwanathan. “A lot of them may be keen, but shy away from coming forward.” If it’s a criminal incident, the legal system may deter people from offering a helping hand. “People in India are the same as anywhere else in the world. But it’s our system that makes them so callous. Our judicial system treats even a witness as a criminal. So why would a common man come forward to help?” asks Ved Marwah, former Delhi police commissioner. The infamous BMW incident (in which an industrialist’s grandson Sanjeev Nanda ran over six people in Delhi in January 1999) is a striking example — many of the witnesses in the case turned hostile in court.

Many believe that Indians lack a strong sense of civic duty. “We have become comfortable in ignoring our basic duty,” says Maxwell Pereira, retired senior police officer. He argues that fear of the cops and the legal system is misplaced. The police just do their duty, he says, but it’s our sheer cussedness and attitude that prevents us from helping out. “It’s sad that when a person is lying on the road, we prefer to look the other way. It speaks volumes about our sense of duty towards our fellow citizens.”

WE JUST DON’T CARE
At times, it’s about passing the buck — “let somebody else help, I’m in a rush.” Says Harman Singh Sidhu, who was once a victim of an accident and now heads Chandigarh-based NGO ArriveSAFE, which helps people like Delhi‘s unfortunate Manmohan Singh. “At least 90% cases (the NGO has helped) are those where people have refused to help the victim,” he says.

It’s an alarming statistic. But more shocking by far is the callousness of those the state pays to be Good Samaritans — ambulances, police and hospitals. Sidhu recalls seeing ambulances heedlessly whiz past accident victims. It is common enough to hear of hospitals turning casualties away.

In Delhi recently, one hospital demanded a Rs 40,000 deposit from the person who brought in an accident victim. When the Good Samaritan refused, he was asked to take the casualty elsewhere. A scuffle ensued and the police were called in. It was revealed that the hospital had a history of denying admission to accident victims.

But it’s an incident in Kolkata which takes the cake and shows how far we can fall. When security guard Kadam Prasad Panth was taken ill on a bus, the driver stopped. Panth was brought out of the bus and made to lie on the pavement. People crowded around; no one did anything to help or offer water. Meanwhile, police from two different areas squabbled over which jurisdiction applied to Panth. By the time they sorted out their differences, the old man was dead.

What explains such callousness? “The visuality of the situation forces us into becoming spectators. A complete sense of non-involvement takes over,” reasons Vishwanathan. We switch off and rush away to resume our busy lives.

But some believe it may also have something to do with our sense of social status. “The higher we are in the social pecking order, the lower we are in our compassion quotient,” says Subroto Das, founder, Lifeline Foundation. “In most cases, it’s usually the villager or the poor man on the cycle who will help. The excuse given by big car owners is that the upholstery of the car will get spoilt or that they don’t have time to waste,” he adds.

Das should know. Ten years ago, his car rammed into a tree on a highway in Gujarat. His wife and a friend in the back seat were badly injured. Though he was badly hurt too, Das managed to work his way out of the car. He spent four hours trying to flag down vehicles on the highway. It was much later that a milkman stopped and helped Das get on a bus. Today, Das’ NGO provides an ambulance service and basic medical aid within the ‘golden hour’ (the hour immediately after an accident). The service covers 1,476 km of highways across Gujarat, Maharashtra, and West Bengal.

LIMITED COMPASSION
Natural calamities and riots often produce a crop of touching stories. During the Mumbai floods of 2005, the worst in living memory, residents famously handed out bread and water to the weary and threw open their homes to complete strangers. And yet Mumbai ignored Nirmala Kadam as she lay dying on the street.

Vishwanathan believes Indians are generous when all that’s needed is food and shelter, but mean-spirited if an incident could end in a police station or court of law. Our Gandhigiri appears to stop at donating money to victims of natural disasters. But we would rather not take a casualty off the roads and to hospital. At least part of the callousness may be a habit ingrained by years of clandestine help during communal riots. As Pereira says, those who help, do it because they don’t want more riots. “But in accident cases, people just don’t want to help.”

The fact that people can be caring sometimes and callous at others puzzles Uberoi. “It’s a question that needs to be asked. How can people be so caring with family and friends, but not towards his fellow man, even if a stranger? It’s almost like the need to keep oneself and one’s homes clean but not your surroundings. It’s a strange contradiction,” she wonders.

Everyone agrees it is time the state created institutional mechanisms to ensure the good Samaritan is hailed, not harassed. Till then, we may carry on, turning our backs on civic duty.

(With inputs from Kumar Sambhav, Mumbai and Krishnendu Bandyopadhyay, Kolkata)
Email: meenakshi.kumar@timesgroup.com

 From: http://timesofindia.indiatimes.com/Sunday_Specials/Our_uncaring_society/articleshow/3426504.cms

The deceased was identified as Amir Mollah, 40, son of Ali Mollah of Agrabhulat village.

BDR sources said when a group of 7/8 cattle traders were retuning to their village from the border area, BSF troops of Jhaudanga camp fired on them, killing Amir Mollah on the spot.

The border guards of India took away the body into their territory.

Tension has been prevailing along the border.

Source: The Daily Star, Bangladesh,  August 29, 2008.

Language(s): English only

HUMAN RIGHTS COUNCIL
Ninth session

Written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general consultative status

INDIA: The Border Security Force — India‘s killing machine

15-year-old Shilajit Mondal was neither an illegal Bangladeshi immigrant trying to cross the Indo-Bangladesh border at night or a cross-border smuggler. Shilajit was the son of Mr. Golok Mondal, a farmer, who lives near the Indo-Bangladesh border. Yet Shilajit was shot at close range by the Border Security Force (BSF) officer Mr. Islam on July 23, 2008. Islam is a BSF officer stationed at Ranjanagar Border Out Post Camp in Murshidabad district of West Bengal State in India.

Islam and his colleagues were reportedly chasing a group of cross-border smugglers when they spotted Shilajit sitting in front of his hut. Islam approached Shilajit and asked whether he had seen any persons running away from the direction the BSF officers came. The officer was speaking in Hindi, a language Shilajit did not understand. Shilajit could not reply. The officer shouted filth at Shilajit, pulled him up and started assaulting him. When Shilajit cried out loud due to pain and fear, local villagers rushed to the scene asking the officer to leave the boy alone. The officer pushed Shilajit to the ground, walked a few steps away, lifted his rifle and shot Shilajit dead.

The Asian Legal Resource Centre (ALRC), and its sister-organisation the Asian Human Rights Commission (AHRC), have documented at least two dozen similar cases of murder committed by the BSF from Murshidabad district alone in the past two years.

In addition to the cases that are brought to the attention of the AHRC and ALRC through local organisations like MASUM, there is reasonable suspicion that there are many other cases that go unreported because of the fear the BSF have instilled in the area. If a complaint is made, the victim or the victim’s family members are usually threatened by the BSF to either withdraw the complaint or to remain silent.

Such was the experience in Mr. Dwijen Mondal’s case. Dwijen, the son of Mr. Hridoy Mondal, was allegedly murdered by the BSF on May 3, 2008. Dwijen was arrested for questioning by the BSF and taken to the BSF Out-Post No.3. There the officers assaulted and tortured Dwijen, who died the next day. Local villagers protested violently, however, the case was silenced by the BSF officers, who threatened the victim’s family into withdrawing their complaint.

The BSF is a notoriously violent paramilitary unit and is stationed in areas that the government of India considers to be sensitive and where the local police require additional help. It is accused of committing crimes including rape, torture and murder wherever they are posted in India, notably in North-Eastern states like Manipur and in West Bengal.

The BSF is stationed along the Indo-Bangladesh border in West Bengal to prevent cross-border smuggling, infiltration of insurgents, illegal migration and other illegal activities along the international border between India and Bangladesh. The BSF is also required to assist the local police in maintaining law and order.

In practice however, the BSF with the connivance of the representatives of the Communist Party of India (Marxist) (CPI-M) and the local police is engaged in cross-border smuggling. The CPI-M is ruling the West Bengal state for the past three decades. The local police, particularly police officers the posted at border police stations like the Jalangi Police Station are notorious for aiding the BSF in cross border smuggling. Yet the West Bengal state government declared the Jalangi Police Station as one of the best police stations in the state in February 2008. This allegation of corruption is however not limited to officers stationed at Jalangi Police Station.

On February 15, 2008 Mr. Mohammad Aptarul Hossain was shot on his leg by a BSF constable Mr. Birendra Kumar Singh. When Hossain lodged a complaint at the Gaighata Police Station, the police accused Hossain that he is an illegal Bangladeshi immigrant and registered a false case against Hossain.

The records at the police station says that Hossain is charged under Sections 186 (obstructing public servant in discharge of public functions, 307 (attempt to murder), 353 (assault of criminal force to deter public servant from discharge of his duty) of the Indian Penal Code, 1860 (IPC) and Section 14 of the Foreigners Act, 1946 at the behest of the BSF.

Hossain is an Indian, born on May 12, 1993 and his parents hold Indian identity cards issued by the Election Commission of India bearing numbers WB/14/097/279442 and WB/14/097/279426.

The AHRC, the ALRC and the AHRC’s local partner the MASUM have been bringing these cases to the notice of the West Bengal state administration as well as the government of India. However, thus far the state as well as the government of India have taken no action against the BSF officers in any case.

The courts in India are also taking an adverse stance against suspected Bangladeshi immigrants. Two recent judgements delivered by the Indian courts, first by the Assam High Court and the Delhi High Court speaks this language. Both courts in judgements delivered in July and August, 2008 have said that illegal Bangladeshi immigrants are a threat to India. This opinion expressed by the courts serves as a blessing in disguise for the BSF. For the BSF every person murdered or tortured is an illegal Bangladeshi immigrant. By declaring so, the BSF escapes all liabilities under the Indian law for these criminal acts.

The domestic law that regulates the operation of the BSF is the Border Security Force Act, 1968 and its associated Rules, 1969. These laws however do not provide adequate procedures for any remedy for a civilian who has a complaint against a BSF officer. On the contrary, the above laws provide impunity to the BSF officers.

Section 47 of the Border Security Force Act, 1968 says: ‘ person subject to this Act who commits an offence of murder or of culpable homicide not amounting to murder against, or rape in relation to, a person not subject to this Act shall not be deemed to be guilty of an offence against this Act and shall not be tried by a Security Force Court unless he commits any of the said offence, – (a) while on active duty‘.

The rider attached to this Section “while on active duty” stands in way of the possibility of a case to be taken up against the BSF officer in a civilian court. In all cases involving the BSF, which amounts to more than two dozen cases each year since 2003, the ALRC’s experience shows that the BSF after a murder or torture of a civilian immediately approaching the local police and filing a false case against the victim. In most cases the BSF accuses the victim, whether the victim is dead or alive, that the victim when approached by the BSF officers in ‘active duty’ tried to either prevent the officers from carrying out their duty.

The engagement of the BSF and their power to arrest, detain and question civilians in non-war situations is governed by the Criminal Procedure Code of India, 1973 (Cr.PC). This law that regulates the operation of law enforcement officers, including paramilitary units like the BSF in a civilian settings, is practically useless to take actions against a BSF officer. For the BSF officer to avoid any actions against him for breaching the provisions of the Cr.PC, it is enough that the officer allege that he engaged the civilian when the civilian prevented the officer from discharging his duty.

The case of Mr. Bishnupada Roy, aged 32-years, who was murdered between 9 and 9:30 pm on December 10, 2007 is an example. According to the BSF officer Mr. Narayan Khatry who shot Roy with his special issue assault rifle, Roy tried to attack Narayan with a pocket knife. The local police refused to take any action against Narayan, but registered a case against Roy, accusing him of obstructing a BSF officer from discharging his duty.

The atrocities committed by the BSF in India has thus far been left unaccounted for. The officers enjoy complete impunity against any acts of crime these officers regularly commit against innocent civilians. As of now there are no practical means available in India by which the BSF officers could be brought to justice and punished for the crimes they commit against innocent villagers. The BSF Act and Rules and the provisions therein, circumvents the Cr.PC.

Moreover, the Security Forces Court to be constituted by the BSF in an action against a BSF officer is not an open court where the accused as well as the witnesses could expect equal and impartial proceedings. The Security Forces Court is a military court where the victim or the witnesses in a crime against a BSF officer has no role to play. The prosecution, defence and adjudication is all carried out by the BSF officers.

The operation of the BSF with such impunity also contradicts the Constitutional guarantees of an Indian, particularly Article 21 that guarantees the right to life. The impunity enjoyed by the BSF in India also violates Article 6 (1) of the ICCPR that India has ratified. To make matters worse India has been refusing the requests for invitation by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions since 2000. India has also not honoured the request for invitation by the UN Rapporteur on Torture.

As early as in 1997, the issue of impunity and the arbitrary use of force by the BSF has been noticed by the UN agencies. The Human Rights Committee in its concluding observations (CCPR/C/76/Add.6) dated April, 4, 1997 has expressed concern by stating “… however, that all measures adopted must be in conformity with the State party’s obligations under the Covenant “.

While this is the reality, India in its voluntary pledge to the Human Rights Council has reiterated that it is taking all possible measures to guarantee to the citizen not only the ‘covenant rights’ but also to ensure that a violation of any such rights have the possibility of appropriate domestic remedies.

Being a state that has ratified the ICCPR and a member of the Human Rights Council, India has not only the legal obligation to abide by the covenant obligations, but also a moral duty to ensure that such obligations are fulfilled at the domestic level.

Under these circumstances the ALRC request the Council to:

1. Urge India to ensure that the deployment, operation and daily engagement of the BSF in India meets India‘s legal obligations under the ICCPR and to review the operational procedures of the BSF;

2. Encourage the India to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and to come up with necessary national legislations to implement the Convention at the domestic level;

3. Strongly suggest to the government of India to immediately look into the complaints filed by human rights groups in specific instances of human rights violations committed by the BSF;

AND

4. Encourage the government of India to accept the request for invitations by the mandate holders of the UN Special procedure mechanism, particularly the UN Special Rapporteurs on extra-judicial, summary or arbitrary executions and on Torture.

# # #

About 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 local and national levels throughout Asia.

According to the said report, 5,63,344 cases were pending with the judicial magistracy as of November 1, 2007 and 34,131 cases were filed in November 2007, while the magistrates disposed of 33,104 cases. On December 1, 2007, the judicial magistracy had 5,64,371 cases pending and 87,789 cases were filed in December 2007, while 49,987 cases were disposed of. On an average, 137 cases were disposed of by each of the 242 judicial magistrates in November, in a month after the judiciary became independent of the executive.

However, while there are a huge number of cases pending and the rate of filing cases is greater than the rate of disposal indicating increase of caseload every year, it is certain that judiciary will have to bear the huge backlog of cases on its shoulder for an uncertain period of time unless special steps are taken to heal the cancer of the judiciary.

Understandably, this problem is not just a setback of the judiciary, but it is a great predicament of any nation. Backlog of cases obstructs the ‘access to justice’ which is considered to be the ‘most basic human rights’, as ‘access to justice’ does mean not only the presence of justice mechanisms like courts, tribunals etc. but also the ability of those mechanisms to deliver affordable and timely justice to the citizens. Backlog of cases does not only delay the disposal of cases and impose huge expense on the justice seeker but also perpetuates tensions among litigants.

For this reason fighting against this judicial handicap is getting more and more importance globally day by day. Bangladesh realizing the gravity of the problem started tackling the problem long ago. First attempt to tackle the backlog of cases was to establish a number of tribunals to deal with disputes from some specified areas. The underlying assumption for establishing various tribunals was that in the existing adversarial judicial system the formal trial procedure takes a longer period of time. This is because of their strict following of Code of Civil Procedure or Code of Criminal Procedure. By contrast, the tribunal as a special justice mechanism following suitable speedy procedure for dealing with some disputes of specific areas could be better equipped to deliver timely and inexpensive justice. But it seems that the history of tribunal does not confirm this assumption. Bangladesh‘s special tribunals have failed to contribute in improving the caseload situation of Bangladesh judiciary.

The next attempt, that was taken more than a decade ago, was to introduce ADR (Alternative Dispute Resolution) mechanisms, which includes mediation and conciliation, among others. In Bangladesh‘s adversarial judicial system, trial procedure is dominantly controlled by the lawyers of the both sides of litigation, where the judges play minimal role to control the trial. Lawyers takes repeated time to make them well prepared for dealing with the case, or for sometimes to frustrate the aim of the case itself by delaying its progress. ADR is introduced against this backdrop. One example of that is introducing mediation in the family courts of the country. It is claimed that the ADR programme in family courts is a great success, and following that success scope for ADR is created in all other civil courts by amending the Code of Civil Procedure. The previous government was even planning to introduce ADR in criminal courts also.

It is mentionable that there are serious arguments against ADR; however, I am not going to rehearse that discussion here. Simply put my argument is that given the nature of disputes and cases, all these cannot be sent to be resolved through ADR mechanisms. Moreover, Moreover, if Bangladesh‘s social structures, power practice and litigants’ mind are taken into account, how much ADR can contribute in other critical civil and criminal cases is uncertain. Moreover, sociologists such as Laura Nader have argued that even the American ADR models, which are often cited in India and Bangladesh now, actually divest the poor of justice. Similarly Galanter has argued that the informalism introduced by Lok Adalats is a debased form of informalism since it bypasses law rather than ensure that good law is available to all. Hence, the demand for strengthening the formal courts of law than relying on ADR finds persuasion in these arguments.

However, the point to discuss here is that all the times there were some attempts of legislative changes to deal with the backlog of cases. Time to time, various special laws and procedures have been made, and both Code of Civil Procedure and Code of Criminal Procedure have been overhauled to respond the need of speedy justice. But evidently Bangladesh judiciary has failed to deal with its enormous backlog of pending cases, denying its citizens right to justice.

Understandably, all these abovementioned attempts were made considering only some aspects of the backlog of cases. In other words, these attempts were piecemeal ones to tackle the judicial malaise. Consequently success was also piecemeal, not comprehensive or overwhelming. It otherwise reveals that for an overwhelming development of the ‘caseload situation’ there is a need for a comprehensive approach to analyse the entire situation and take comprehensive actions that will weightily take into consideration the administrative and financial aspects, among others, of the judiciary.

Generally, the state of court administration is considered a great contributing factor in the backlog of cases. In the case of Bangladesh, we see the judge-population ratio is one of the lowest in the world. I don’t have exact data in my hand this moment, but I guess the ratio is not more than 12/13 judges per million population. Comparing to developed world’s judiciary, the ratio may evoke disbelief among many of us. A paper shows that even twelve years ago the numbers of judges for per million people were 41 judges in Australia, 75 in Canada, 51 in England and 107 in the USA.

In developed country’s judiciary, along with judge- population ratio, another aspect which is taken equally importantly or more importantly is the ratio of case management staff number of cases. Court administration cannot succeed without the unstinted support of the Court staff and its Registry. In fact, they are the backbone of the system and the administrative burden really falls on them. Though there is no data as to this ratio in Bangladesh, undoubtedly it is also one of the lowest in the world.

While the unjustified shortage of court staff is contributing mismanagement of trial, proceedings and records, the ancient or traditional management technology have been worsening the situation. Most of the case management work – for example maintaining case files, keeping records of document and evidence, writing warrant, summons, notice, order, judgment etc is done manually, following century old format. Many developed courtiers, like USA, Australia, United Kingdom, Canada, who had faced same type of case management problem due to shortage of staff have been gradually overcoming this by introducing ‘e-management’ of cases. Their experiences show that by using modern information technologies like computer data base and internet etc. these case management problems can be overcome to a great extent even with the existing ‘insufficient’ number of staff. Hopefully, ‘modern technology has been introduced in the management of court and cases that will help in bringing transparency to the judiciary’, as the immediate past chief justice of Bangladesh recently said at the launch of the 2007 annual report of the judiciary.

Along with all these comes the role of law enforcing agencies, i.e., the police department. Criminal justice system is very much dependent on police and thana administration. Corruption in the Bangladesh police administration contributes heavily in the malaise of Bangladesh legal system. Without taking care of this department, nothing good can be expected overnight from the present independent judiciary.

No doubt, for improving court administration, the number of judges and management staff and infrastructure development is must, for which huge financial investment is necessary. In Bangladesh, the expenditure on judiciary in terms of GNP is again one of the lowest which is not more than 0.5 percent I guess. On the contrary it is 4 per cent on the average in other developed countries. Considering this trivial financial care of the judiciary, the poor administration of justice in Bangladesh is not inconsistent.

While this is a general discussion on the causes underlying the backlog of cases Bangladesh judiciary, the concerned experts are expected to reveal more causes. The point here is that for getting rid of the backlog of cases all these expressed and hidden causes have to be taken into account.

Now Bangladesh Judiciary is separate from executive. This separation is a result of a long struggle. It is now the responsibility of the judiciary to reap the benefits of being independent and to stand by the justice hungry people of the country. However, after separation of judiciary form executive, the judiciary is theoretically independent; practically it is still dependent upon the other partners in government, i.e., the executive and legislative branches of government, specifically in cases of legislative changes, police cooperation, allocation of national budget for judiciary etc.

In such a position judiciary must make a clear vision of how much time and in which way it wants to overcome the suffocating backlog of cases. Then it has to convey its vision to other partners of the government and convince them so that they cooperate to fulfil that vision. And at the same time judiciary must update the common citizens on this vision for upholding their confidence in judiciary. But, above all, the judiciary must be cautious that it does not sacrifice access to ‘justice’ for the sake of ‘access’ to justice.

The writer, an advocate of the Supreme Court of Bangladesh, is currently with the Centre for the Study of Law and Governance, JNU, New Delhi. Email at: zahid.bangladesh@gmail.com

Source: The Daily Star, Section: Law & our Rights, Issue no. 74, June 28, 2008.

See: http://www.thedailystar.net/law/2008/06/04/index.htm

UPI Asia Online [ http://www.upiasiaonline.com ]
HONG KONG, China, August 26, 2008
 
Hundreds of migrant workers from Bangladesh have been deported by force from Kuwait and Saudi Arabia in the last few weeks, following protests against wages lower than what their employers had initially agreed to pay.

Many of these workers were brutally tortured by police before deportation. They were allegedly rounded up on a random basis from their workplaces and compelled to leave the oil-rich countries without even collecting their belongings and savings or due salaries.

Most of the migrant workers returned home bruised and injured, and deeply frustrated over losing the employment for which they had invested their family assets. There are allegations that some workers were sent back immediately after arriving in those countries. They have been plunged into deep despair about their economic futures.

It is shameful that Bangladesh’s diplomatic missions abroad failed to protect the rights of their own people. Serious criticism has been leveled against the government and its missions in the two Middle East countries over this failure.

The unemployed poor are easily trapped by the brokers of private manpower exporting agents across the country. The brokers tempt people with fairy tales about the work and the benefits they will get. They imply that by paying a fee and registering with their company, a worker can get rich in a few months.

In a country where more than 20 million educated people are unemployed, the uneducated worry about survival. The assurances of the brokers offer a ray of hope that a poor worker can find a brighter future. But first, they must pay a fee.

The agonizing hardships of their lives influence frustrated people to gamble with their fates and the last assets their families possess. They start collecting money according to the requirements of the brokers.

If a family has a piece of land, it is promptly sold, often to a moneyed person waiting for the opportunity to get the land cheaply. An unmarried man thinks about getting married to a woman who can pay a dowry equivalent to what he needs to get employment abroad.

Some people insist that their in-laws should pay the required fee, and use physical and psychological assaults on their wives to force them to pay. Some married people attempt to marry again to “earn” a dowry from the second wife’s relatives. Some sell their wives’ ornaments, whether or not the women agree. Some go to the microcredit companies to borrow the whole amount or a certain portion of it at a huge spiraling interest rate.

The manpower exporting agencies make passports for the workers by paying bribes to the police and the relevant bureaucrats; then they keep the passports in their possession, although this is unlawful. The broker informs the client that his passport is ready and sometimes shows the passport to ensure his credibility, as getting a passport has been made a difficult job due to corruption and harassment by law-enforcers.

The client pays more money to the agent following repeated insistence. At some point the client becomes desperate at the long process, fearing deception, and may try to get his money refunded.

In the end, some people manage to get employment and some do not. It helps if migrant relatives abroad play an active role in helping to find jobs. The poor work hard to earn bread and butter for their families as well as for the nation, in most cases on their own.

The government of Bangladesh knows that there are thousands of so-called agents of manpower exporting companies. The media regularly covers such stories. Some of these companies belong to members of Parliament from big political parties. They send 500 people abroad and cheat a few thousand more innocent illiterate job-seekers; and they build high-rise towers in the cities and drive luxurious vehicles of various brands.

The government of Bangladesh, in declaring its national budget every year, boasts of earning huge amounts in remittances from expatriate Bangladeshis, as if this were its own achievement. In July the country reported that more than US$8 billion was remitted to Bangladesh from migrant workers in the last fiscal year.

While migrant workers have been contributing so much to the nation, the Bureau of Manpower, under the Ministry of Labor and Manpower, and the Ministry of Expatriate Welfare – which are supposed to have well-designed plans to promote employment abroad – have been completely irresponsible, initiating no realistic programs to prevent the abuse of workers. Neither the law-enforcement agencies, Ministry of Home Affairs or the Finance Ministry have done anything meaningful to address the situation.

The diplomats abroad refer to migrant workers as “sons of beggars” and treat them inhumanly, whereas they are supposed to ensure the protection of their own nationals through bilateral negotiations at the state level. After all, their own salaries and benefits are paid by those hardworking poor people.

The Ministry of Foreign Affairs has no adequate policy to protect the rights of migrant workers around the world. There is no credible coordination among the departments responsible for assisting job-hunters at home and migrant workers abroad. No action is taken against the corrupt public officials and cheating manpower exporters.

The government policymakers must rethink their perverted policy of slumbering and remaining silent when the best contributors to the nation’s economy are in need. The authorities must have a pro-people policy to correct the system and protect the rights of their compatriot workers around the world.

–

(Rater Zonaki is the pseudonym of a human rights defender based in Hong Kong working at the Asian Human Rights Commission. He is a Bangladeshi national with a degree in literature from a university in Dhaka. He began his career as a journalist in 1990 and engaged in human rights activism at the grassroots level in his country for more than a decade. He also worked as an editor for publications on human rights and socio-cultural issues and contributed to other similar publications.)

http://www.upiasiaonline.com/Human_Rights/2008/08/26/bangladeshi_migrant_workers_mistreated/2593/