Khadiza torture case Judgment: A wakeup call for NHRC

Back in 1993, the UN General Assembly adopted the Paris principles, which prescribed minimum standards for the operation of National Human Rights institutions all over the world. Our parliament enacted the NHRC Act in 2009 and the NHRC has crossed almost decade of its tenure with a belated claim that it has no "teeth but jaws". 

Under the legislative mandate of the NHRC Act, 2009, the commission is a unique expert body for examining and investigating the complaints relating to violations of human rights or abetment thereof or negligence on the part of any public servant or any individual in prevention of such violation. 

The Parliament in its best wisdom has bestowed with it some obligations and powers. However, very unfortunately the commission has remained inactive with negligent silence for a decade and this silence is deadly to the protection of human rights in the country. 

"The NHRC has been abusing its power although it has both powers and obligations under the Act." This is what the High Court Division opined in a recent judgment in Khadiza torture case (Children's Charity Bangladesh Foundation vs NHRC, 2019) (Full judgment yet to be published). This piece will highlight the observations made by the High Court Division.

Khadiza's case and the commission's delaying tactics

On International Human Rights Day back in 2013 it was reported in The Daily Star under a news head "Domestic Help Tortured" by her employer and the Mirpur Police Station did not take any step to file any case. Attaching the copy of the news item, Children's Charity Bangladesh Foundation filed a formal complaint before the NHRC. 

It registered the complaint and completed necessary inquiry on the allegations of gross violation of human rights of the victim Khadiza by police officers of Mirpur Police Station. The human rights commission found violation of human rights by Police and it sought report from Mirpur Police Station. Children's Charity Bangladesh Foundation observed that NHRC did not have any strategic plan to detect violations of human rights and it did not even frame any rule for handling of dispute on human rights violations. 

In an unreasonable span of five and half years, NHRC passed as many as 26 orders issuing directions to Home Ministry seeking reports. And even in the process of "report seeking", NHRC was derailed from the mandate and power given to it by the NHRC Act. Both the actions and inactions of NHRC were challenged in a Writ Petition by Children's Charity Bangladesh Foundation and a Bench of the High Court Division in a ground-breaking judgment on 11.11.2019 made some important observations and directions on inactions and negligence of the NHRC on handling of the violations of human rights. 

Observations of the High Court 

"In the instant case the orders passed by the commission will reflect how negligent the NHRC was and to what extent the NHRC did not apply its mind in passing various orders. By such a long delay of five years in conducting an inquiry or seeking report from the government the NHRC has allowed police and Ministry of Home to frustrate the proceedings of the commission. 

Although there is a non-obstante clause in section 18 with regard to handling of complaints of human rights violations against law enforcing agencies, nothing in the Act prevents the commission communicating its decision to the cabinet secretary or to the president of the republic or to the prime minister with regard to non-compliance of NHRC's order by government authorities.

Apart from section 18 there are many other apparatus in the act to deal with non-compliance of ommission's order but unfortunately the ommission remained silent. NHRC did nothing but sending reminder-letters one after another for a period of 5 years. Even on 25.03.2018 the Commission again started to seek explanation from the petitioner Children's Charity Bangladesh foundation. This shows total non-application of mind of the commission on its obligation. We are taken by surprise that neither the commission nor its Chairman has even applied their minds in the case concerned."

No reason for the NHRC to be inactive  

In addition to the above observations the High Court Division further observed on the negligence of NHRC as follows:

"No restriction has been imposed upon the commission to report its non-compliance by law enforcing agencies to Parliament, Hon'ble President and or Hon'ble Prime Minister. No restriction has been imposed on seeking mandamus from the High Court Division of the Supreme Court of Bangladesh. There is an age-old saying and the saying is "You can wake up a man who is sleeping but you cannot wake up a man who knows that he is sleeping". The NHRC commission is sleeping away over its duties. No words can justify such negligence by any sort of evidence. The orders passed by the commission are enough to show such inactivity and negligence.  

We are of the view that the NHRC is abusing its power under the statute. Bangladesh NHRC hold 'B' status in accordance with global efficiency. Even Indian and Nepal NHRC hold 'A' status with some statutory power and obligations. We are not concerned with any larger issue here. Problem is not with law but with the activities of the people who are mandated but do not desire to become active to the several apparatus created by the law. As stated above the negligence by the commission in this instant case is glaring. Victim Khadiza and her family have been manipulated or by this time they may have lost their faith on the commission. The report submitted by the Ministry of Home is the reflection of such manipulation and loss of confidence."

Directives issued by the court
The court finally issued some directives which are as follows: "At this stage as regards the negligence of the Commotion in this particular case we issue following directions:
1)    NHRC has failed to exercise its statutory obligations for 5 years without taking any effective step.
2)    NHRC has repeatedly failed to apply its mind in particular the duty to dispose of complaints within a reasonable time.
3)    Only initial by one of members of the commission in its order is not expected. Law requires a different treatment on dealing with human rights violations.
4)    When the Government agencies or members of disciplinary forces do not comply with the orders of the commission, it should seek resort to Article 102 of the Constitution."

Conclusion

In the light of the above decision by the apex court it is clear that the NHRC has not at all exercised its power and how can we say that the commission does not have power or "teeth"? Had the commission recommended for interim relief to Limon or Kader who had to be amputated due to torture by the law enforcement agencies, or Khadija, the DMP commissioner would not have dared saying to its Chairman that "we don't like to be engaged in loose talks with anybody". We hope the NHRC would be, unlike in the past, taking lessons from the above decision and undertake serious violations of human rights more actively and seriously.  

The writer is a Barrister at the Supreme Court and Chairman of the Children's Charity Bangladesh Foundation. He may be reached at [email protected]