Editorial
RMG plants: more tragedies coming?
Once again, on Wednesday and Thursday, trouble flared up in garments factories outside Dhaka for poor pay, long working hours and unpaid dues. This has come in the wake of a week of workers’ protests at factories across Dhaka and Gazipur in which 17 factories were reportedly damaged by agitating workers, the damage according to the industry leaders amounting to up to $14 million. To the credit of the BGMEA — the industry’s apex trade body — it has ostensibly recognised that there is a need to review the minimum wage for the sector, set as it was in 1994 by a tripartite commission that included the government and labour representatives.
On Thursday the government formed a new tripartite committee to this end, and earlier in the week, through government mediation, the BGMEA accepted a 10-point charter of demands from labour groups. Those demands include a review of the minimum wage, the enforcement of a compulsory weekly holiday for workers, as well as the release of the workers arrested during last week’s agitations. Unfortunately, these mollifications may have come too little too late, and may serve to plunge the garments sector into further peril if longer-term action is not taken to address the core issues of workers’ grievances. The ad-hoc-ism of making compromises only when they are pushed hard is sending a clear message out to the workers in the sector that the BGMEA only responds to violence and agitation, and there is danger in this.
One of the principal reasons why the BGMEA is landed in this predicament is that none of the entrepreneurs allows trade unions to grow inside their plants, thus having no one to pacify or negotiate with when violence erupts. Secondly, it is not enough to say that the minimum wage in the sector will be reviewed soon, since this is exactly the kind of deceitful promise that finds the sector in its present crisis. If the BGMEA are sincere in their talk, they must also press the tri-partite committee to announce dates of when the review will happen. Lastly, the trade body and its members must realise that they no longer live in a world where labour relations are such that factory-owners can live in an insulated world that allows excess and luxury, while their workers’ are a stark contrast filled with poverty and misery.
Democracy and social justice are not words, they are powerful concepts that liberate minds and take societies forward, either willingly or by force. By all means the garments entrepreneurs deserve respect for the incredible successes that their sector has enjoyed in capturing global apparel markets, but if they do not allow their workers to become — even nominally — stakeholders to this success, there will be many Gazipur tragedies in the days to come.
Doings of private hospitals
THAT medical treatment is becoming increasingly costly is every person’s experience. This is especially true of the private clinics and diagnostic centres; and as for government hospitals, though these are not money spinners these do not even provide basic treatment, let alone specialised treatment. This being the situation one has learnt to live with the reality that the private treatment centres have come to stay and that they charge exorbitantly and have thus kept the poor out of their ambit.
While the reality itself is harsh some fresh scandals have lent an added sting to it. An upmarket hospital and diagnostic centre at Dhanmondi has invented a new trick of exaction called ‘therapy charge’ over and above the normal consultation fees. An old man from Rongpur suffering from severe pain in his waist was referred to that private hospital for specialised treatment, according to a report in a Bangla daily. After a few days’ stay he was relieved of his pain but the bill of Taka 50,000 included an item listed as therapy charge costing Taka 10,000 which astonished the patient. This amount was in addition to the total consultation fees for daily rounds, etc.
On further enquiry the patient was told that the therapy charge was due to five injections which were administered by nurses under direction of the specialist doctor. The doctor had not even touched the patient but it was claimed that the doctor was supervising the ‘pushing’ of this special kind of injection from a distance by the telephone.
A lady teacher of Dhaka University wrote on Friday in a newspaper why she had to file a lawsuit against another upmarket private hospital in the city. She took her mother after a late-night heart attack to that private hospital. But to her consternation the patient remained undiagnosed and unattended till noon of the next day although this hospital advertises availability of round-the-clock medical attention, and the doctors were rude and uncaring. She further alleges that when her mother was dying there was not even any nurse in attention.
Not everyone has the resources and tenacity to resort to legal action. In neighbouring India there is consumer court where victims can prosecute errant doctors at low cost and can expect speedy result. No such court exists in this country and the normal lawsuits are expensive and time consuming. But why should the onus lie on the common people to fight it out in the court, what is the government doing to protect the patients, what is the medical council doing? It is alleged that no government surveillance of the doings of these private hospitals exists and these profit hunters are having their own way in everything.
When state violates the ‘right to privacy’
We know that every person has a right to defend his own person, property or possession against an unlawful curtailment. This may even be done for a wife or husband, a parent or child, a master or servant. Basically privacy has always been considered as an intangible and inalienable right of human being as declared by the Universal Declaration of Human Rights in 1946. It is one of the preconditions for human beings to live with dignity. But the said Act clearly violates these
universal and constitutional norms of ‘rule of
law’, writes KM Sabir
From cradle to grave a man comes face to face with one or more statutes covering every aspect of life and all these statutes confer enormous discretionary power on the public functionaries. Every power and every discretion granted in favour of the governmental authorities makes a corresponding incursion into the freedom of individuals. Existence of unfettered and uncontrolled power of the government will have a disastrous effect on the rights and liberty of the people. For this reason the concept of constitutionalism has been developed. A state may have constitution, without constitutionalism. Constitutionalism recognises the need for limited government with checks and balances on the exercise of power by the governmental authorities. And at the heart of constitutionalism is the concept of the rule of law. The rule of law presupposes absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government i.e tyrannical law.
The above pre-emptive words are prompted by the fact that the cabinet on January 29, 2006 approved Bangladesh Telecommunication (Amendment) Act 2006 providing for control on the use of mobile and telephone as well for combating crime as foretold in its preamble. It will be an Act to be enforced very soon just because the cabinet okayed it. This Act could be termed as ‘Tele-tapping Act’ or ‘Warrant-less Tele-taps Act’ as it is perceived from most of its clauses. We assume that it will be applied to harass mainly the opposition and journalists rather than to nab criminals.
We know that every person has a right to defend his own person, property or possession against an unlawful curtailment. This may even be done for a wife or husband, a parent or child, a master or servant. Basically privacy has always been considered as an intangible and inalienable right of human being as declared by the Universal Declaration of Human Rights in 1946. It is one of the preconditions for human beings to live with dignity. But the said Act clearly violates these universal and constitutional norms of ‘rule of law’. Article 11 of our constitution declares, ‘The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed,. . .’. The State is not people, and although we anthropomorphise it in common speech, by saying that states make decisions or take actions, it is not a moral agent of the people.
This Act in the context of Article 7 and 26 is ultra vires to the constitution of Bangladesh and I foresee that very soon it will be challenged before the supreme court of Bangladesh on its legality as one was challenged in Dr Nurul Islam V Bangladesh, 33 DLR (AD)201. In such case the government can be sued by the individuals and article 146 clearly states the position.
From jurisprudential viewpoint, the Act itself is a malafide one for not observing the due process in the law making. A mere passage in parliament doesn’t make a law. A prior consultation with the Law Commission of Bangladesh for receiving the stamp of expert opinion in the law making process is absent in the present Act. The ‘ due process’ requires that the governmental actions as well as the laws made by the legislature must not be arbitrary and must be reasonable and no man should be adversely dealt with without being given an opportunity of being heard. Thus Article 31 together with other fundamental rights incorporated in Chapter 3 of our constitution recognises the modern view of the rule of law that ‘law’ does not mean any law passed by the legislature; such law must not be arbitrary, discriminatory or unreasonable. This is the qualitative aspect of checking ‘law’ that the framers of the constitution provided in Article 32 : ‘No person shall be deprived of life or personal liberty.’
In Bachan Sing V State of Punjab, AIR 1982 the Supreme Court of India observed, Law in the context of the rule of law does not mean any law enacted by the legislative authorities, howsoever arbitrary or despotic it may be …. What is a necessary element is that the law must not be arbitrary of irrational and it must satisfy the test of reason and the democratic form of polity seeks to ensure this element by making the framer of the law accountable to the people. The concept implies that the ruler must also be subject to law.
The Act itself gives immense, uncontrolled and discretionary power to the law enforcing agencies to try anybody without any warrant from the court of justice. It is a black law as well as an incomplete one for not providing any guideline.
Right to information vs right to privacy
We are aware that information is power and it works as the spirit of democracy and personal liberty. It circulates like blood in public life. The people’s ‘right to know’ is one of the safeguards of our sacred constitution. It makes public life more meaningful through the increasing transparency and accountability and smoothens the functions of state and governance. It has been adopted as fundamental human rights in most countries’ constitutions after officially making it basic rights of humanity by the Universal Declaration of Human Rights. But it is not implemented or even realised by our government till today. It is still dividing the people into haves and have-nots. The power player uses, misuses but publicly remain untouched. From colonial masters to present day the ruling elites in governments have made a lot laws and acts. But the reality is that masters and governments never drafted acts on the basis of public pulse and people’s interest.
Despite constant pressure from public bodies, civil rights and citizens groups, journalists and editors, lawyers and professionals for repealing of laws which restrict people’s rights of access to information like Official Secrets Act 1923, Penal code of 1860, Evidence Act 1872, the Code of Criminal Procedure 1898, the rules of business 1996, Special powers Act 1974, Indemnity Ordinance, Public Safety Act, Speedy Trial Act, Tele-Tapping act etc, they still exist. People of this land never wanted these odd legislations but these were promulgated in their name in public interest, whereas what the public sentiment wants and public bodies demand have never been assumed and fulfilled. Constantly for a long time public bodies, citizens and rights groups have been pleading for enactment of a legislation ensuring people’s right to information. India in this regard respected the public sentiments and pressure and enacted a new law titled ‘People’s Right to Information Act 2004 superseding the previous Freedom of Information Act 2002 where there were many loopholes and limitations. It declared that the people’s right to information is an essential element for the functioning of good governance and the union’s whole mechanism and to ensure public accountability and transparency in government appointments, expenditures.
On the other hand, in order to remove the veil of secrecy of government departments and its functionaries, the Law Commission of Bangladesh drafted a Bill to ensure and protect people’s right to information. But the proposed bill is still gathering dust in the law ministry. To evade the responsibility of passing this bill the law ministry repeatedly told that they didn’t yet get the scrutiny clearance form the Ministry of information and the office of the Prime Minister. The government bodies are playing fast and loose with the people. Still we don’t even know or are aware of the provisions and contents of the proposed drafted Bill. In framing it, the Law Commission has not been invited nor are the concerned public bodies consulted, like leaders of civil societies, jurists, NGOs, editors and journalists, development partners, strategists and professional bodies. The government taking a long time to enact such a public oriented legislation. In contrast, in other fields they are too prompt and speedy in promulgating or passing Bills and Orders. We’ve witnessed a lot in the last few years. A weak, divided government, has enacted laws like Speedy Tribunal Act, Civil Procedure (Amendment) Act etc. which have changed the face of justice in this land. Our much-trumpeted constitutional separation of powers, checks and balances have decayed to the point where they no longer work, and a whipped, misguided, parliamentary majority is free to play with our liberties whenever it suits their political purposes. This is what has happened. The insolence of the ruling politicians, pushing through this constitutional change in the face of the united opposition of every significant legal body or association in this land, is just the kind of abuse of power they sought to control.
Bangladeshi civil rights activists need to start building up a set of organisations with the cross section of people and professionals that can protect civil liberties and speak out against the passage of excessive laws. We the people are now over-burdened with a lot of laws from colonial time till today. Some ministers and ruling BNP-JAMAAT MPs are frank about it and launch barbed attacks on the country’s media accusing them of tarnishing the government’s image by publishing what they called ‘fake news, excessive and distorted items and threatened to enact tough laws to punish journalists and newsmen. Not only that, the president, the prime minister, information, local government and public works ministers declared openly their intentions to amend the provisions of the Press Council Act regarding the power to warn, admonish, censure and punish the press and journalists.
Though the effect of the Act seems to be a private affair of the state but ultimately it is verily public affairs. And privacy is not an issue for the hypocrite public official. They should be exposed.
Spying or tele-tapping on those in public life has always been the business of journalists. We believe a journalist is justified in using whatever means he can to expose those who profess one thing and do something entirely different. There is far too much skulduggery going on and it’s the duty of journalists to expose it. It needn’t be just politicians but anyone—-civil servants, businessman, holy men or woman. Of course, the criterion is that the journalist must be strictly above board—there have been instances in the past where journalists have ended up as blackmailers. On the whole, we think journalists have been playing a very positive role, be it exposing Zainal Hajari MP, the justice of the High Court Fayezee to Divisional Special judge Rezaul Karim Chunnu. Law Minister Moudud Ahmed in self-defence said that he never previously knew Mintu, secretary of BNP’s Sweden chapter and a life convict in a triple murder case, later frivolously or extra judiciously granted presidential mercy, first ever in the history of Bangladesh. We believe they had to be exposed for the sake of public morality. Think of Tehelka or MP’s of Indian parliament who were caught red handed taking money for questions to be put in the parliament session. This would never have been possible except for this new advanced technology and forensic journalism. These sting operations of journalists are permissible provided it upholds the public and state interest.
So no one can be opposed to a legitimate investigation. But when it is used to invade privacy, the line of decency is crossed.
Yes, we’d been talking of this. By dint of this Act i.e Bangladesh Telecommunication (Amendment) Act 2006 the government has taken all sorts of preparations to invade privacy by watching and tele-tapping and thereby crossing the line of decency of the country’s citizens. With spycams, camera and recording equipment freely available, what is clear is that anyone could be watching anytime. Everyone is a potential victim. This peeping- tapping Peter-Tom syndrome has got beyond the politicians, journalists, celebrity threshold to invade the lives of lesser mortals too. It doesn’t just end there. Anyone could be penalised on the basis of the materials recorded and merits.
At the time our Censor Board and Ministry of Information blocks release of some film marking it has crossed the line of decency and public morality. Now where does this explanation stand when the government itself crosses the line of decency and infringes on its own citizens’ right to privacy?
So what are our defence vis-à-vis privacy laws? Still today, they are not well defined. So anyone with any recording device can shoot anyone else. The constitution of Bangladesh, the supreme law to the state, in fact, does not expressly say anything about the right to privacy. However, there is a right to privacy implicit in the constitution under Article 32 which safeguards personal liberty. Personal liberty of individual citizens’ right to live with decency and privacy under Article 21 of the constitution of India is the most precious fundamental right which cannot be jeopardized by any agency or institution whatsoever. The redress of the victim is not absolute. While unlawful attacks on the reputation of a person can invite action in court, a comprehensive legislation on convergence (Tele tapping, tele print, internet, radio, TV) is still not in consideration. However, we’re not seeing any attempts or efforts by the government or public bodies in this regard. There is no regulatory authority either to check abuses.
This type of vindictive attempts of the rulers to gain advantage over someone has never been successful in history. In 1919 bombing of the Attorney General’s Office by anarchists took place in the United States because thousands of immigrants were rounded up and deported. The civil liberties apparatus at that time was not strong enough to protest. Again during the Second World War, thousands of Japanese-Americans were sent to internment campus because their movements and loyalty were in question. Crucial to debates about Government Surveillance of the U.S citizens is the 4th Amendment to the Constitution, which states: ‘The rights of the people to be secure in their persons, houses, papers, phones, against unreasonable searches and seizures shall not be violated, and no warrant shall be issued but upon probable cause, supported by oath and affirmation.’ Two noted landmark decision of the Supreme Court of U.S.A might be appropriate to be cited in this regard. Berger vs. New York (1967) and Katz vs. United States (1967)
And if intelligence agencies have no monitoring of their own activities, who will guarantee that they will not abuse those privileges? These questions are being raised through successful legal challenges and activism by groups as diverse as ——CENTER FOR CONSTITUTIONAL RIGHS, ACLU-American Civil Liberties Union, DRUM-Diesis Rising Up and Moving, AALDEF-Asian American Legal Defense and Education Fund, FAMILIES FOR FREEDOM, Not in our Name etc.
Our views on tele-tapping and sting operations of the Government are that every citizen has the right to privacy and anyone who invades it, be he a law enforcing or intelligence agent, deserves to be punished. We pledge to everybody. primarily lawmakers from both sides, legal experts, civil society leaders, leaders of professional’s bodies, media and newsmen and the conscious people of the country to protest and foil the passing of tele-tapping law.
In a way the government’s effort to try to manipulate state mechanism over others is not new. These were the practices of the military regime in the then Pakistan and during the Martial Law regimes of General Zia and Ershad in Bangladesh. It is quite undesirable on the part of a democratically elected government to frame such an oppressive and ill- motivated legislation which gives law enforcing and intelligence agencies a license to invade privacy of citizens.
We’re living in a crucial epoch in our nation’s history. The civil law is already inaccessible to more than 75 percent of the total population of the land—— they either can’t afford it or they can’t get legal aid and we are throwing away our criminal protections with both hands and we have lost virtually all control against high-handed executive action. We are still smarting under the shameful miscarriage of justice that came to light in recent years. So, we, the professionals and workers, particularly the lawyers and advocates have a heavy responsibility. If we fail to recognise that our justice is under severe threat, and if we don’t try to do something about it, there’s no one else who will. We are in desperate need of excellent, fearless voices to uphold people’s right to justice that starts with right to privacy.
The writer is a practising lawyer in the Supreme Court of Bangladesh
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