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institutions of good governance and their (invisible) advocates
happened to the institutions of good governance Ombudsman, National Human
Rights Commission, Independent Anti-Corruption Commission, Independence
of the Judiciary and (more effective) Local Government?
In many ways, this is becoming a banal question, as we are becoming too
familiar with the answer: "its happening, i.e., we are trying our
best". Sometimes the answers, in various formulations, make us optimistic,
sometimes we are on the verge of giving up they simply wouldn't do it!
Those in power always talk about the complexities of these issues and
institutions. And those of us who have understand 'corridors of power'
only in the literal and physical senses, i.e., the corridors of the Secretariat
Building in central Dhaka, alas, can not comprehend these complexities.
The Constitution had promised us an Office of the Ombudsman more than
three decades ago. A law for setting up of this Office of Ombudsman was
enacted a quarter of a century ago, with the proviso that it would come
into effect when the government so decides. During this last quarter of
a century, governments came and went, but none had the time to decide!
This law has been visited and re-visited. The Law Commission has suggested
amendments and everybody seem to agree that the old law may need some
amendments; nothing major but something needs to be done to make the Ombudsman
more effective. Then towards the end of the tenure of the last government,
a rumour was circulated, or got circulated, that it had approached one
particularly respectable and admired person to become the Ombudsman and
he had declined. So the implied conclusion was that: we have done our
best, but the best person refused, and there is no one else in the country
fit enough to be the Ombudsman! Another variation of the excuse was that
the Ombudsman has to be acceptable to all political parties and since
the major political parties don't talk to each other, it's meaningless
to proceed on this front.
For the present government, the later of the above two 'positions' seems
more acceptable. There is no consensus, or rather there is no scope for
a consensus among the political parties about amendments to the Ombudsman
Act nor an acceptable Ombudsman. Hence, it is not prudent to activate
the law and appoint an Ombudsman!
Yes, yes, we are working on it! There is a Cabinet Sub-Committee, which
is looking into the draft bill, section by section. Many variants of such
status reports are frequently circulated. Sometimes, the Cabinet has forwarded
it to a Sub-Committee, sometimes the Sub-Committee has scrutinised and
finalised the first ten sections, twenty sections, or all the sections.
It has sent or about to send it back to the Cabinet for final approval;
the bill is ready; or about to ready --- and on and on and on. This has
been going on for at least five years now.
Meanwhile, there had been ample seminars and workshops, opinion column
writings, criticisms, and plenty of trips to lands far and away, both
for us who are supposed to be involved from outside (civil society) as
well as for those who are 'examining and scrutinising' it from the inside,
i.e., government officials and cornered ministers and MPs.
Don't we all love to talk about corruption all the time. We do talk about
corruption in addas, in election campaigns, in righteous writings and
seminars and on and on. One must thank Transparency International, Bangladesh
Chapter for making corruption the sexiest topic in town for at least three
years now, with commendable contributions from the then Finance and other
high and mighty Ministers. On this score, the venerable current Finance
Minister does not like to lag behind his predecessor. The Heads of all
sorts of Bilateral and Multilateral Institutions and Organisations are
also particularly fond of this topic and they don't seem to miss any single
opportunity to bring the topic up.
Again, the Law Commission had submitted a draft bill for a new anti-corruption
law and other suitable legal instruments. I think progress on this particular
front is slightly better because the draft bill for the formation of an
Independent Anti-Corruption Commission has already been placed in the
parliament in the last session and it is supposed to be enacted in the
next session of the Parliament in September.
There is, however, the familiar caveat in the proposed law. After the
enactment of the law, it is again upto the government to decide when it
would actually form the Commission. The same caveat of the Ombudsman Act.
Independence of the judiciary
The less one talks about it now, the better. At least this is an issue,
which has now clearly convinced us that governments are not the animals,
which would swallow this pill easily.
Again, we have an Upazilla Act from 1998 and Zilla Parishad Act from 2000,
both with caveats that the government will decide when to conduct elections
for these local government bodies. The Supreme Court had directed the
government to hold elections for all tiers of local government bodies
more than a decade ago. Who cares!
When they don't want to do something, governments are excellent in coming
up with ingenious explanations (excuses) and obfuscate the matter. Recent
Gram Sarkar is a very good example. The present government had to be seen
to be doing something about local governments but did not want to do anything
about the Upazilla Parishad (ditto for the last government, which seemed
to have done its bit by enacting the laws). And, hence, came the Gram
Sarkars and they seem to be coming by their hundreds and thousands!
The obvious question is: why isn't anything worthwhile happening on these
fronts? Why don't we have an Ombudsman, a National Human Rights Commission,
an Independent Anti-Corruption Commission, powerful Local Government Bodies
and, after all these years, why isn't our judiciary completely independent?
Obviously, one doesn't know the answer. Obviously, we blame the governments,
talk about political will or lack thereof and, generally, go on with our
pontificate of various hues, colours and tastes.
For understandable reasons, our governments' concern for the welfare of
the people is less than their more over-riding concern for their own well-being,
prosperity of their party stalwarts, followers and supporter and in retaining
and continuing in power. In principle, that's understandable also; the
only difference being that there doesn't seem to be any limits of the
extent to which the governments would go to achieve these goals. In different
societies, it has always been upto the civil society to continue to advocate
and pressurise the governments to establish these institutions of check
balances and the task has never been easy.
In recent times, advocates and their associations have been most vocal
and even vociferous in support of the independence and separation of the
judiciary. They have held large demonstrations, initiated quasi-boycott
of courts, filed public interest litigation and, generally, have kept
up the pressure on the government to implement the Mazdar Hossain judgement
for the independence and separation of the judiciary. Given the centrality
of this issue for lawyers, on some occasions even some of the sympathisers
of the government party have (often silently) supported their professional
colleagues. But advocates are not succeeding in drawing on vocal and committed
support of other groups, professions and bodies. Hence, the goal still
seems far and distant.
As for the other institutions, the local government bodies do not seem
to have any natural support/advocacy constituency for enhancement of their
power vis-à-vis the central bureaucracy and Dhaka based political
party mechinaries and hierarchies. The progress on this front, therefore,
is the most lacklustre.
The other institutions, i.e., Ombudsman, National Human Rights Commissions
and Independent Anti-Corruption Commission, do not seem enjoy the support
of any persistent, vocal and strong lobbying groups of the civil society.
These institutions of check and balance have consistently and persistently
lacked continuous and sustained 'constituency' support, which is essential
to 'persuade' any government to set up such organisations. Media has been
the only exception in so far as it has steadily and steadfastly kept the
issue of the establishment of these organisations and the independence
of the judiciary in the centrefold of public discourse.
It seems to me that for most civil society organisations, trees have obscured
their views of the forest. The specific and particular violations, oppressions,
denial of rights and crimes such as (I) rape, acid-burns and trafficking;
(ii) slum-evictions; (iii) torture and death in police custody; (iv) awareness
campaign against religious extremism and fatwa; (v) saving fields, parks
and rivers; (vi) training union level elected officials and others including
police personnel and sensitising them to the concerns of the poor; (vii)
legal literacy and mediation; (viii) election observation and monitoring
and so forth have so much consumed the energies of the civil society groups
that they, in the process, may have lost sight of the institutions of
check and balance.
Nevertheless, it is the institutions (macro) which, at the end of the
day, can do more than all our collective efforts and attempts at ensuring
justice for those who have individually suffered injustices (micro). A
balance between actions against specific wrongs and injustices, on the
one hand, and efforts to 'persuade' the government to establish institutions
of check and balance, on the other hand, has been the missing link in
our collective efforts and the primary cause of our failures. This imbalance
needs urgent and aggregated attention.
Shahdeen Malik is an advocate of the Supreme Court of Bangladesh.