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August 31, 2003 

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On institutions of good governance and their (invisible) advocates

Shahdeen Malik


Whatever 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 changes a
nd 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!

Human Rights Commission
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.

Anti-Corruption Commission
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.

Local Government
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.

Dr. Shahdeen Malik is an advocate of the Supreme Court of Bangladesh.


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