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Everyone has the right to a fair trial

  • Published at 12:01 am July 24th, 2019
Law
Innocent until proven guilty BIGSTOCK

Why human rights and civil liberties are essential for democracy

In a lecture to the United Nations Audiovisual Library, Dr Kamal Hossain of Bangladesh remarked that “human rights had been evoked by Asians and Africans of different faiths and cultures in their sustained and ultimately successful movements for independence, against colonialism and against apartheid.” 

It is a poignant observation in a world where many decolonized nations have poor records on human rights.

Human rights and civil liberties are essential for democracy. There is an obligation to protect human rights under international law. In the Chattin case between Mexico and the United States, it was observed that a right to a fair trial is an obligation for any civilized country. The right to a fair trial would include the presumption of innocence, the right to legal defense, and cross-examining witnesses. 

In the Albanian minority schools case, the Permanent Court of International Justice observed that the royal government of Albania did not have a solid rationale to ban private schools for the Greek minority. A public school system should not undermine a minority community’s linguistic and religious education. These cases are among the early instances of enforcing international human rights obligations. 

The international bill of rights evolved after World War II and the founding of the United Nations. The Universal Declaration of Human Rights was adopted in 1948. India and Pakistan (including East Bengal) were among the original signatories of the declaration from the sub-continent. After the independence of Bangladesh, the constitution included a list of fundamental rights inspired by the declaration. 

The other instruments of the international bill of rights include the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Bangladesh has been a state party to both covenants. However, Bangladesh has not ratified the Second Optional Protocol of the ICCPR concerning the prohibition of capital punishment. 

Civil and political rights are among the first generation of human rights. One example is the right to own property and the protection of property. An independent judiciary to uphold civil liberties is essential for economic freedom and is a pillar of a free market economy. 

Various treaties have been adopted to develop international  human rights law. For example, Bangladesh is a state party to UN conventions on racial discrimination and the rights of women, children, migrant workers, and disabled people. Bangladesh is also a state party to the Torture Convention of 1984. In the Pinochet case, the British House of Lords discussed whether perpetrators of state torture could be liable to universal jurisdiction -- whether they can be tried in a court of any country in the world. 

Lord Browne-Wilkinson stated: “I have no doubt that long before the Torture Convention of 1984 state torture was an international crime in the highest sense ... the Torture Convention was agreed not in order to create an international crime which had not previously existed but to provide an international system under which the international criminal -- the torturer -- could find no safe haven.” 

Despite hosting one of the largest refugee populations in the world, Bangladesh is not a state party to the Convention Relating to the Status of Refugees. But due to customary international law, Bangladesh is still bound by the convention in refugee matters. Bangladesh should develop its asylum policy by joining the convention and harmonizing its refugee management with international standards. 

The refugee convention lays down standards such as the right to access courts, the right to primary education, the right to work, and the right to documentation, including a refugee passport. The convention includes principles of non-discrimination, non-penalization, and non-refoulement. Asylum-seekers requesting refugee status should not be discriminated on the basis of race, religion, country of origin, sex, age, disability, or sexuality. 

Non-penalization is the prohibition of penalties for illegal entry (for example, arresting a harmless Myanmar citizen crossing the Naf River would be a violation of the non-penalization principle). Non-refoulement is the prohibition of expulsion and forced return of refugees to unsafe territories. 

It is conspicuous that Bangladesh is not a state party to the International Convention for the Protection of All Persons from Enforced Disappearance (CPED). Under Article 2 of the CPED, an “enforced disappearance is considered to be the arrest, detention, abduction, or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support, or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”

Article 5 of the CPED states: “The widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law, shall attract the consequences provided for under such applicable international law.” 

For Bangladesh to move forward, a political consensus must be formed on safeguarding human rights and civil liberties under international law. Parliament can enact statutes to convert international conventions into domestic legislation. 

Human dignity was one of three principles espoused in the Proclamation of Independence in 1971. The preamble written in the Bangladeshi constitution in 1972 also speaks of international responsibilities for the country. 

Umran Chowdhury is a student of the Sorbonne-Assas International Law School.