By DR. UTTAM KUMAR DAS
What is more important for Bangladesh- preventing human trafficking or promoting safe migration?
To me, both deserve equal attention and appropriate interventions by the government and all concerned.
It is evident that neglecting one could instigate another and vise versa.
However, what do we see to happen? Especially, in Bangladesh, there is disproportionately more attention and emphasis on activities focusing on trafficking.
Human trafficking or Trafficking in Persons (TIP) is considered as a modern form of slavery. It turned to a global concern given its multi-dimension- criminal, legal, human rights, health, and moral aspects among others. There is political dimension as well.
There is a general believe that trafficking is contributed by the much known “demand and supply factors.” It has other sides as well.
No country is immune from this vise. Even, the United States, which is “monitoring performances of other States” with regard to prevention, prosecution, and protection of the victims, is not free from this. It is affected by trafficking crimes domestically and at cross-border levels.
Sex and labour trafficking is a huge problem there, as I understood during my recent stay in the country for a year. NGOs there are very much critical of government’s policies and actions.
Trafficking is not only driven by “demand and supply factors.” There are other reasons also: it is now widely acknowledged that human trafficking is an outcome of discriminatory global economic order and disproportionate sharing of wealth, and bad governance and lack of rule of law in a given country.
No other person, but the Chairman of the National Human Rights Commission of Bangladesh, Dr. Mizanur Rahman who himself is a Professor of International Law believes so; and mentioned this strongly in recent conversations with me.
According to him: “Trafficking or similar other phenomenons are outcome of the discriminatory global economic order.” Under the so-called globalization process, capitals are moving across borders; however, human beings are not allowed for the same, as he pointed out.
Also, the so-called counter-terrorism moves in response to 9/11 have prompted to make the border control stringent. That is why people now have more barriers to go out of his or her own countries and enter into desired ones for economic or other reasons.
Even, the asylum seekers and refugees fleeing from persecution have to face restrictions and barriers to move, which are in contradictions to set norms of international human rights regimes.
That is why people become desperate and look for an alternative to move from one place to another in clandestine ways, even paying enough to and relying on human smugglers and thus fall in the trap of traffickers. The intended movers have no other options but to fall in those traps.
Even developed countries allegedly don’t issue visa against the number of migrant workers they need for keeping their industry and economy operative in a given year. This trend insists people to find alternative ways; even sometime, risking own life.
Thus, in the migration process, some become victims of trafficking. However, we need to understand the abuses and exploitations in the migration processes and becoming victims of trafficking are not the same. Both might have cross-cutting elements, however, motives behind, purpose, mode, technique, and consequences are very different for the two.
Bangladesh is considered as a source country for human trafficking. Especially, trafficking of young girls, women and children are reported to be at a serious form. At the latest, human trafficking in the form of offering overseas jobs are becoming concerns. However, we don’t have any reliable statistics in this regard. The figure cited by NGOs, sometime, contradicts one another.
Poverty, over population, lack of livelihood options, illiteracy, lack of awareness, social discrimination, corruption, lack of rule of law and access to justice etc among others are considered as contributing factors to human trafficking.
However, is incidents of trafficking outnumber other forms of human rights violations in Bangladesh? It is the time to reflect on this.
I am not to diminish the seriousness of violations of human rights through trafficking. However, my point is whether we are paying more attention to the issue undermining other contemporary problems. What about child and bonded labour within the country, forced prostitution, violence against (garment) workers, hunger and poverty?
It is the fact that the “seriousness of human trafficking” brought to the forefront mostly by NGOs here (like other regions). However, it was not without a reason. There had been a connection between the flows of funding from the donor agencies-mainly the western ones and NGO initiatives.
For a decade or so, the developed countries have reportedly been investing to “anti-trafficking” initiatives as a mean to achieve goals for their broader border control strategies. Those aim so that people have been barred even to reach to their respective borders.
This could heavily contribute to impose restriction on people’s movement, mainly from developing countries like ours towards developed ones. That is why number of internally displaced persons (IDPs) in developing and under-developed countries is increasing while number of asylum seekers or refugees in developed countries decreased. Why this contradiction?
Developed countries now reportedly have to spend comparatively less for activities linked to processing asylum applications, detaining, maintaining or deporting “illegal immigrants among others,” since less people now could reach their territories.
As in the asylum system, developed countries have already introduced the so-called third country protection mechanism- meaning potential asylum seekers and refugees are barred to enter into their territory; instead they had to stay and live at detention centers for years under a so-called out-sourced mechanism in a third country having funding for allowing these activities. For example, Australia has used Nauru, and Italy used Malta for those purposes.
Coming back to Bangladesh, our government was under compulsion to act upon on trafficking issues under pressures from NGOs.
There was another reason as well- the “tier system” in the annual Trafficking in Persons Report published by the U.S. Department of State. For example, in 2010, Bangladesh is put in tier 2 watch lists, which reflected country’s inability to respond to the problem of trafficking as “expected”.
Earlier, Bangladesh was put in tier 3, which is considered as the worst performances.
In deed it is the fundamental rights for a citizen of Bangladesh, to enjoy right to life and personal liberty, equal protection of law, and to be free from exploitations (slavery) among others.
I am mentioning all these issues here, having observed the phenomenon that most of organizations earlier working in “anti-trafficking initiatives” are now moving towards “migration area;” again responding to donor’s choices and priorities.
All are free to work on an issue whatever makes them interested. However, question comes in whether someone has relevant capacity and skills for all works.
However, unfortunate point is that there is no preference to the national interest. Even, the governmental agencies are failing to respond in a right direction.
Given the context of Bangladesh, promotion of safe and regular migration deserves to get prime and outmost importance; however, it is not getting so (again there is no funding for such activities).
It is widely acknowledged that more than seven million Bangladesh-origin persons are now working or living abroad. In 2009, the country has earned US$ 10.72 billion as remittances through migration of 475,000 persons mostly as contractual labour migrants. There is a trend of 17 percent growth in remittances since 2001. The remittances are 13 percent of country’s GDP. Remittances are contributing to reduce 6 percent of poverty per annum. It (remittance) is 12 and 6 times higher respectively than the Overseas Development Assistance (ODA) and Foreign Direct Investment (FDI) in Bangladesh.
Though professionals from Bangladesh are going abroad with jobs, however, majority are of other categories-66 percent constitutes semi-skilled.
Given this huge contribution of migration, our successive governments are failing to respond adequately to meet the need and demand of this emerging sector- both from public and private sectors.
There are “huge activities” in respond to the human trafficking in Bangladesh. There are Inter-Ministerial Committee, Project Implementation Committee, Coordination Committees at District, Sub-districts, and union levels to coordinate “anti-trafficking activities.”
There are so-called awareness programmes up to village levels. One donor agency has reportedly spent US$ 1.7 million in three years for “technical training and raising awareness.” However, those activities did not get expected outcomes, since it has nothing to do with people’s economic or livelihood options. Also, those activities did not sustain since it was merely fund-driven.
On the contrary, what do we see in the migration sector- there are hardly such committees to promote and coordinate activities to promote safe migration from the capital to the village (except few initiatives by BRAC and others).
Even, there is likely no coordination among the activities of line ministries, i.e., Ministry of Expatriates’ Welfare and Overseas Employment (MOEWOE), Ministry of Home Affairs, Ministry of Law, Justice and Parliamentary Affairs, Ministry of Foreign Affairs among others.
I have been advocating for a high-powered committee under the Prime Minister’s Office (PMO) to coordinate and streamline activities. (I am informed that at the latest there is an initiative to coordinate activities by the Principal Secretary at PMO).
In a recent workshop (on 13 December) on migration issues organized by the Refugee and Migratory Movements Research Unit (RMMRU), the issue of over emphasizing on “anti-trafficking initiatives” came in at discussion.
Human Rights Lawyer Adilur Rahman Khan rightly pointed out that Bangladesh should take a caution so that it does not stop people’s right to movement (go out of the country, which is a fundamental right) in the name of preventing so-called human trafficking.
There is empirical evidences that expanding opportunities for people’s safe and regular migration could contribute to curbing human trafficking. If someone has opportunity to migrate safely, why he/she would take risk of his/her own life. However, we hardly look into this aspect.
That is why Bangladesh needs to move its main focus from preventing human trafficking to promoting safe migration.
Definitely, government should ensure effective mechanisms to prosecute crimes of human trafficking and similar other crimes and continue activities to raise people’s awareness on this.
However, in the name of prosecution, we should not come up with bunch of new laws prescribing “heavy-handed authorities.” We should be realistic in our own context and focus on the proper implementation of existing laws- if required there should be required amendment and modification to meet the need to the time. However, emphasis should be on implementation of existing laws and regulations. For this, logistics and training for investigators, prosecutors and judges are required.
A comprehensive law does not mean to bring a set of new laws and lofty ideas which are impractical to implement in our context. We are also becoming sectoral; none is looking into the criminal justice system as a whole.
Also, there are roles to play by the government, UN agencies, and inter-governmental and non-governmental organizations: to negotiate with prospective destination countries to expand opportunities for safe and regular migration. The government should also look into the matter of expanding skill and capacity of would be migrants.
© Dr. Uttam Kumar Das. Prior permission is required to republish or quote.
The writer is an Advocate (Attorney) at the Supreme Court of Bangladesh, and specializes on International Human Rights Law and Migration Issues. E-mail contact: udas1971@gmail.com.
Thursday, December 16, 2010
Opinion: International Migrants Day
December 18 is celebrated as the International Migrants Day. This is to mark the adoption on December 18, 1990 of the International Convention on the Protection of the Rights of All Migrants Workers and Members of their Families. The United Nations declared December 18 as the International Migrants Day through a resolution (No. 55/93) adopted on December 4, 2000.
However, the Convention came to effect on July 1, 2003 with the ratification by 20 State Parties. The number of ratifying states is now 44.
Given the context of being a migrant workers (majority are contractual labour for a specific period of time) exporting country, the Migrants Day has a great significance in Bangladesh.
Tough Bangladesh has signed the Convention back in 1998; however, it did not ratify the instrument in the last one decade. However, good news is that the present government has decided to ratify the Convention. This is a good move.
However, merely ratification will not bring any benefit unless the provisions of the Convention is adopted in the form of national legal framework and implemented effectively. There will be need for policy and administrative measures to streamline migration sector.
Though the Convention is a human rights instrument, however, it prescribes procedures for management and governance of migration and protection of rights of migrants both at the sending and receiving ends.
Despite of having a great potential and huge economic contribution, the migration sector in Bangladesh is apparently left neglected and is facing hurdle with tremendous challenges from lack of skills of would-be migrants, limitations in capacity and skills in managing migration both in public and private sectors, lack of governance, and growing trends of abuses and exploitation of migrants at home and abroad.
There is lack of political will supplemented by lack of administrative and legal measures. At the same time, the existing legal frameworks prove to be outdated to regulate and it is not taken to implement effectively.
The government should also focus all its activities to promote and expand safe-migration.
The so-called anti-human trafficking initiatives and drives, which tantamount to curtail people’s right to move, should be modified and turned to be focused on promoting safe and regular migration. That would contribute to curb trafficking.
The destination countries and development partners should also move forward in that direction.
Dr. Uttam Kumar Das
Advocate
Supreme Court of Bangladesh
Dhaka
E-mail: udas1971@gmail.com
Whither Legal Education in Bangladesh*
Dr. Uttam Kumar Das
Like many others, I am concerned with the standard of the legal education in Bangladesh. The low standard of this education is contributing to having graduates with skills below the expected and desired standard. The legal profession, judiciary and other services suffer when such people join the profession.
Then how can we compete in the global context?
However, this is not the reality for legal education only. The same also goes for other disciplines as well (with few exceptions). But our concentration here is on legal education.
According to renowned Indian legal academic, Professor N. R. Madhava Menon, ‘law as a discipline is to play multiple tasks in a society and lawyers are expected to act as change agents and social engineers in governance and development of the nation.
In a recent discussion, a former Judge of the High Court Division, wondered about the initiative from the Bar Council or the Bar Association which has produced lawyers like Dr. Kamal Hossain, Barrister Amir-ul Islam …with regard to our legal education and future of the legal profession. According to him, the legal profession should not be open for all but for those law graduates who have adequate legal knowledge, have sufficient skills and are conversant with the norms and ethics of the profession.
Again, Professor Menon who pioneered the global-standard legal education through establishing National Law School of India University in Bangalore, observes that the goal of the legal education is to provide: (i) competent lawyers, prosecutors, and judges to administer the judiciary, (ii) well-trained law personnel for providing legal services to the government departments and corporate institutions, (iii) legal researchers and academics for legal education, legal reform, good governance, and (iv) disseminate legal knowledge and culture conducive to the Constitution, rule of law, good governance, human rights, and democracy.
Therefore, what is the existing status of legal education here?
We all are talking about bringing culture of respect for human rights, rule of law, and democracy; however, we are not paying attention to the basic - the legal and human rights education.
The donor agencies, which have been partnering for awareness and training programmes are not paying attention to the root of the issue- the legal and human rights education. With regard to training, NGO initiatives are also not sufficient due to deficiency in their own capacity and expertise, lack of continuity and corruption.
The desired legal education, as visioned by Professor Menon, should be problem solving which would give opportunities to students for legal analysis and reasoning, research and writing, investigation and marshalling facts, communication, negotiating, counseling, alternative dispute resolution (ADR), and litigation. The graduates are expected to manage efficiently the legal work and will have right attitudes to the dignity of the profession of law and justice. They would nourish and fight to protect the professional values and integrity, and to promote and practice fairness and freedom from bias. How close or far away are we from those?
Recently, I was attending a seminar on the Alternative Dispute Resolution jointly organised by the Law Commission and the South Asian Institute of Advanced Legal and Human Rights Studies (SAILS) in Chittagong. The issue of the condition of legal education came up in the discussion. The Chairman of the Law Commission, Justice Abdur Rashid warned all of us that if we did not pay immediate attention then we shall have to pay heavily in future.
The existing scenario of the legal education has been documented by Professor Menon in a study almost a decade ago commissioned by a donor agency. He also come up with a comprehensive set of recommendations and plan for streamlining our legal education. However, there is no headway since then.
Professor Menon piloted the plan of Indian Bar Council for a world-class legal education through establishment of the National Law School of India University in Bangalore. The same model has been replicated all over India over the years; there are now more than 15 Law Universities in India. Even, Kathmandu Law School in Nepal has earned fame for its quality curriculum, teaching methods, research and publications. Unfortunately, we are far behind still now.
In our country, we have four streams of legal education. There are law departments in four public universities. Around 35 private universities have law departments or schools. There are 70 law colleges under the National University all over the country. There are external programmes of a few British universities as well.
The curriculum and teaching methods are mostly outdated (with exceptions for few courses in few public/private universities). Very few institutions have schemes to engage students so that they could learn legal research and writing skills with regard to a social problem.
The law schools also follow a faulty selection process for teachers. There is no faculty tenure, service conditions, evaluation processes etc.
Professor Menon rightly observed, years of experience do not make a good law teacher unless the experience is grounded on experimentation, endeavour, and creativity.
In the United States, law schools provide extra credits in selecting faculty members to those who have experiences in research works, publications, advocacy and pro bono works, and working experience for international and national legal or human rights organisations alongside the academic excellence.
Here in Bangladesh, though the law schools/departments have their “journals” (not regular in publication), those follow the rule of “limiting the knowledge.” In case of public university, only the respective faculty members could contribute articles (but no question about independent review and competitive selection process). Those publications are also not available for public, even with payment. (At least I have that experience on a couple of occasions).
Bangladesh Bar Council, the statutory body to look after the standard of legal education and ethics in legal profession has also been failing to play its due role. It has reportedly no activity with regard to research and experiment on legal education, curriculum and related professional issues. According to some observers, the Council has turned into a place of “clerical activity” for issuing licenses to advocates and a “political platform for a section of lawyers” to compete with each other. But it should be above and beyond political divisions. The agency has no innovation and creativity with regard to academic and research activities for quality legal education and related matters for legal profession. It has no regular research projects and publications as well.
Given my recent experience in the United States, I found out how an NGO like the American Bar Association (ABA) is serious with regard to development of the quality of legal education, research, publication and above all quality of the graduates coming out of law schools. There, the Bar Examination Board and respective State Supreme Courts are the authority to take examinations for fresh law graduates and to issuing license as an Attorney (Advocate in Bangladesh). However, the law schools have to have accreditation from the ABA who inspects law schools on a cyclic order. State and County Bar Associations also have lot of activities for the professional development.
Recently, I had had a discussion with M. Professor Shah Alam, Member of the Law Commission. He had been my teacher at the University of Rajshahi (before he had moved to establish the Department of Law at the University of Chittagong). I find the same concerns as of mine in Professor Alam. He is also worried about the quality of legal education and absence of initiative for improvement. This seasoned legal academic expressed his anguish regarding no help from the related ministry and others concerned in this regard.
I came to know from Professor Alam that he and Professor Mizanur Rahman (presently the Chairman of National Human Rights Commission) was commissioned by the World Bank almost a decade ago for conducting two studies on the legal education and clinical legal education in the country. Following that the Law Commission (Professor Alam was a Member earlier as well) has submitted a completed proposal for streamlining the legal education to the Ministry of Law, Justice and Parliamentary Affairs. However, there is no progress in this regard so far. There is no vision and direction on legal education in the newly adopted Education Policy as well.
Then, how we would get skilled personnel to compete and negotiate in a globalised world in government dealings, trades and business.
I wonder, given a good number of our policy makers having background in law and being in legal profession, how come the matter is getting ignored for years. This is high time for us to move on and take up the issue immediately. Otherwise, our dream for a pro-active and pro-people legal and judicial system would remain a distant dream. We should aim to make the “legal studies intellectually stimulating, socially relevant and professionally significant,” as Professor Menon observes.
Writer is an Advocate (Attorney) in the Supreme Court of Bangladesh. He is also a researcher and analyst on legal and human rights issues.
* Originally appeared in the Daily Sun, Dhaka, 14 December 2010; link: http://www.daily-sun.com/index.php?view=details&type=daily_sun_news&pub_no=67&cat_id=&menu_ id=17&news_ type_id=1&index=0&archiev=yes&arch_date=14-12-2010
Like many others, I am concerned with the standard of the legal education in Bangladesh. The low standard of this education is contributing to having graduates with skills below the expected and desired standard. The legal profession, judiciary and other services suffer when such people join the profession.
Then how can we compete in the global context?
However, this is not the reality for legal education only. The same also goes for other disciplines as well (with few exceptions). But our concentration here is on legal education.
According to renowned Indian legal academic, Professor N. R. Madhava Menon, ‘law as a discipline is to play multiple tasks in a society and lawyers are expected to act as change agents and social engineers in governance and development of the nation.
In a recent discussion, a former Judge of the High Court Division, wondered about the initiative from the Bar Council or the Bar Association which has produced lawyers like Dr. Kamal Hossain, Barrister Amir-ul Islam …with regard to our legal education and future of the legal profession. According to him, the legal profession should not be open for all but for those law graduates who have adequate legal knowledge, have sufficient skills and are conversant with the norms and ethics of the profession.
Again, Professor Menon who pioneered the global-standard legal education through establishing National Law School of India University in Bangalore, observes that the goal of the legal education is to provide: (i) competent lawyers, prosecutors, and judges to administer the judiciary, (ii) well-trained law personnel for providing legal services to the government departments and corporate institutions, (iii) legal researchers and academics for legal education, legal reform, good governance, and (iv) disseminate legal knowledge and culture conducive to the Constitution, rule of law, good governance, human rights, and democracy.
Therefore, what is the existing status of legal education here?
We all are talking about bringing culture of respect for human rights, rule of law, and democracy; however, we are not paying attention to the basic - the legal and human rights education.
The donor agencies, which have been partnering for awareness and training programmes are not paying attention to the root of the issue- the legal and human rights education. With regard to training, NGO initiatives are also not sufficient due to deficiency in their own capacity and expertise, lack of continuity and corruption.
The desired legal education, as visioned by Professor Menon, should be problem solving which would give opportunities to students for legal analysis and reasoning, research and writing, investigation and marshalling facts, communication, negotiating, counseling, alternative dispute resolution (ADR), and litigation. The graduates are expected to manage efficiently the legal work and will have right attitudes to the dignity of the profession of law and justice. They would nourish and fight to protect the professional values and integrity, and to promote and practice fairness and freedom from bias. How close or far away are we from those?
Recently, I was attending a seminar on the Alternative Dispute Resolution jointly organised by the Law Commission and the South Asian Institute of Advanced Legal and Human Rights Studies (SAILS) in Chittagong. The issue of the condition of legal education came up in the discussion. The Chairman of the Law Commission, Justice Abdur Rashid warned all of us that if we did not pay immediate attention then we shall have to pay heavily in future.
The existing scenario of the legal education has been documented by Professor Menon in a study almost a decade ago commissioned by a donor agency. He also come up with a comprehensive set of recommendations and plan for streamlining our legal education. However, there is no headway since then.
Professor Menon piloted the plan of Indian Bar Council for a world-class legal education through establishment of the National Law School of India University in Bangalore. The same model has been replicated all over India over the years; there are now more than 15 Law Universities in India. Even, Kathmandu Law School in Nepal has earned fame for its quality curriculum, teaching methods, research and publications. Unfortunately, we are far behind still now.
In our country, we have four streams of legal education. There are law departments in four public universities. Around 35 private universities have law departments or schools. There are 70 law colleges under the National University all over the country. There are external programmes of a few British universities as well.
The curriculum and teaching methods are mostly outdated (with exceptions for few courses in few public/private universities). Very few institutions have schemes to engage students so that they could learn legal research and writing skills with regard to a social problem.
The law schools also follow a faulty selection process for teachers. There is no faculty tenure, service conditions, evaluation processes etc.
Professor Menon rightly observed, years of experience do not make a good law teacher unless the experience is grounded on experimentation, endeavour, and creativity.
In the United States, law schools provide extra credits in selecting faculty members to those who have experiences in research works, publications, advocacy and pro bono works, and working experience for international and national legal or human rights organisations alongside the academic excellence.
Here in Bangladesh, though the law schools/departments have their “journals” (not regular in publication), those follow the rule of “limiting the knowledge.” In case of public university, only the respective faculty members could contribute articles (but no question about independent review and competitive selection process). Those publications are also not available for public, even with payment. (At least I have that experience on a couple of occasions).
Bangladesh Bar Council, the statutory body to look after the standard of legal education and ethics in legal profession has also been failing to play its due role. It has reportedly no activity with regard to research and experiment on legal education, curriculum and related professional issues. According to some observers, the Council has turned into a place of “clerical activity” for issuing licenses to advocates and a “political platform for a section of lawyers” to compete with each other. But it should be above and beyond political divisions. The agency has no innovation and creativity with regard to academic and research activities for quality legal education and related matters for legal profession. It has no regular research projects and publications as well.
Given my recent experience in the United States, I found out how an NGO like the American Bar Association (ABA) is serious with regard to development of the quality of legal education, research, publication and above all quality of the graduates coming out of law schools. There, the Bar Examination Board and respective State Supreme Courts are the authority to take examinations for fresh law graduates and to issuing license as an Attorney (Advocate in Bangladesh). However, the law schools have to have accreditation from the ABA who inspects law schools on a cyclic order. State and County Bar Associations also have lot of activities for the professional development.
Recently, I had had a discussion with M. Professor Shah Alam, Member of the Law Commission. He had been my teacher at the University of Rajshahi (before he had moved to establish the Department of Law at the University of Chittagong). I find the same concerns as of mine in Professor Alam. He is also worried about the quality of legal education and absence of initiative for improvement. This seasoned legal academic expressed his anguish regarding no help from the related ministry and others concerned in this regard.
I came to know from Professor Alam that he and Professor Mizanur Rahman (presently the Chairman of National Human Rights Commission) was commissioned by the World Bank almost a decade ago for conducting two studies on the legal education and clinical legal education in the country. Following that the Law Commission (Professor Alam was a Member earlier as well) has submitted a completed proposal for streamlining the legal education to the Ministry of Law, Justice and Parliamentary Affairs. However, there is no progress in this regard so far. There is no vision and direction on legal education in the newly adopted Education Policy as well.
Then, how we would get skilled personnel to compete and negotiate in a globalised world in government dealings, trades and business.
I wonder, given a good number of our policy makers having background in law and being in legal profession, how come the matter is getting ignored for years. This is high time for us to move on and take up the issue immediately. Otherwise, our dream for a pro-active and pro-people legal and judicial system would remain a distant dream. We should aim to make the “legal studies intellectually stimulating, socially relevant and professionally significant,” as Professor Menon observes.
Writer is an Advocate (Attorney) in the Supreme Court of Bangladesh. He is also a researcher and analyst on legal and human rights issues.
* Originally appeared in the Daily Sun, Dhaka, 14 December 2010; link: http://www.daily-sun.com/index.php?view=details&type=daily_sun_news&pub_no=67&cat_id=&menu_ id=17&news_ type_id=1&index=0&archiev=yes&arch_date=14-12-2010
Safe Migration and Bangladesh- Potentials, Possibilities and Problems*
By DR. UTTAM KUMAR DAS
This brief paper aims to discuss potentials of Bangladesh as a country of origin for migrant workers and (focuses) on challenges as well. It will also look into some other related issues and propose a set of recommendations accordingly.
The term migrant workers refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national (Art. 2 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990).
For the purpose of this paper, we would refer to migration as movement of Bangladeshi nationals out of the country (i.e., emigration) with a job overseas for a certain period. The out-migration of students, spouses or dependents and others is not in the consideration here.
Again, there is no definition of safe migration in the respective international instruments including the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990. However, for the purpose of the paper, safe migration would mean a situation and condition for a migrant worker where s/he would not be fallen into an “irregular situation” and could enjoy her/his due human rights as a migrant worker, and would be free from all forms of exploitative situations.
Safe migration is a human right. I would argue that, for a citizen of Bangladesh, it (safe migration) is a fundamental right as well.
Article 31 of the Constitution of Bangladesh guarantees for equal protection of law; while Article 32 guarantees right to life and personal liberty, Article 33 freedom from arbitrary arrest and detention, Article 34 freedom from slavery, and Article 36 (guarantees for freedom of movement.
Importance of Migration Sector in Bangladesh
Bangladesh is a labour surplus country. On an average, 2.7 million people are reportedly added to the existing work forces.
The rate of current unemployment is 3.7 percent. There is an estimated 30 million unemployed people in Bangladesh (as in 2008). However, by 2015, the total number of unemployed would be about 60 million, as ILO forecasted. Since both the public and private sectors have no capacity to absorb all the coming up workforces, therefore, we need to find out an alternative.
Having this scenario, our working population, especially the young ones have to find a way to manage job overseas, which is now turning to a vital sector to earn foreign exchange for the nation.
The country has huge potentials in this ever-growing migration sector; however, there are challenges as well.
There are estimate that more than seven million Bangladeshis are now working and living abroad. This migration for want of work, in a formal process, started in late 1970s.
Countries in the Western Europe, North America, Africa and even in the Eastern Asia need migrant workers to meet up their need to run industries, construction works, health, hospitality, and other service sectors among others.
Though the economic recession has imposed a negative impact on the flow of migrants, however, it is to stand up soon.
Bangladesh has earned a record amount of US$ 9.6 billion as remittances during 2008-2009 fiscal year.
In the full year of 2009, the amount was again nearly US$ 10 billion (74,000 crore Taka) though the period was hit by the global economic recession (which hardly had any negative impact to the total remittance flow to Bangladesh). The remittance remained almost steady though the number of migrating population get down to almost half (475,000) in 2009.
The migration sector has a huge contribution in the foreign exchange earnings of the country, however, the sector is not getting adequate attention of the government, and there is no well-coordinated planning so far.
The growth of remittances flow since 2001 is 17 percent per year on an average. The official remittances flow is 13 percent of GDP, as Dr. Zafar Ahmed Khan, Secretary to the Ministry of Expatriates’ Welfare and Overseas Employment (MOEWOE) disclosed at a seminar in Dhaka on 11 October this year.
The remittances are 12 and 6 times higher respectively than the Overseas Development Assistance (ODA) and Foreign Direct Investment (FDI) in Bangladesh.
There are prediction that by the year 2015, Bangladesh can earn an annual amount of US$ 30 billion as remittances given the new job market is explored, migrant workers’ skills are enhanced, and remittances are sent through officials channels.
There are opportunities to expand female migration provided with adequate skills and language training. According to official record, the ratio of female migrants is around 4 percent. However, if the “undocumented” are added in the ratio would be around 15 to 20 percent.
There are demands for qualified nurses, and trained housekeepers, and maids in North American and European countries. Only the United States will require 1.4 million nurses by 2014, as media reported.
However, so far, there is no noticeable progress in this regard. According to a senior official of the Bureau of Manpower, Employment and Training (BMET), the country would reach an amount of US$ 15 billion as remittances by 2015 if the existing trend of migration continues.
At the same time, the migration sector has been facing a great numbers of problems, which I will be exploring further in the later part of the paper.
In addition, given the threat of the climate changes and its consequences, Bangladesh needs to explore more opportunities for people to migrate as workers and in other capacities.
Problems in Migration Sector
There are a great number of problems and challenges, which are, contributing negatively to the potentials of the migration sector of Bangladesh.
I would like to categorize those problems in two broad types: (i) Problems with regard to governance of migration sector, and (ii) Problems with regard to protection of migrant workers.
Problems with Regard to Governance of Migration Sector
Over last four decades, the number of migrant population from the country has expanded hugely. However, the management and governance capacity of the government did not progress accordingly. Though, there is a separate ministry now, however, it and subsidiary offices have been facing lack of required personnel and from other shortcomings.
The private sector, i.e., Recruitment Agencies (RA) has a significant contribution in booming the sector, however, they also lack in their capacity, honesty and transparency in their respective works.
In the public sector (i.e., Ministry and respective Departments etc), problems include lack of required policy, resources, work force, and transparency in the system.
The existing personnel also lack required capacity, skills, motivation, and some of them lack transparency in their works (as required by existing laws and rules).
Though managing and regulating migration is a technical task (compared to general administrative works), however, there is no permanent cadre thereby. The technical officials responsible for managing and regulating migration like Labour Attachés (LA) are deputed from the Administrative cadre and other departments on ad hoc basis. However, the job of an LA requires some sort of special knowledge and skills. The same goes for other positions in the respective ministry. Therefore, there is a need to have a specialized pool of officials dedicated to work in the migration sector. They would serve in various positions through promotions.
The migration cost is apparently sky rocketing (compare to Nepal, India or Cambodia) and our government has no control on this. The Recruiting Agencies and their dalals are unabated in this regard. Though government has fixed amount, however, the reality is totally different.
It is evident that for going to Malaysia or the U.A.E., a migrant has to pay Taka 200,000 to 300,000 (where government prescribed amount is Taka 80,000); however, one could earn maximum half of the amount already spent, if really get a job, during the contracted year ranging from one to two.
This factor insists the migrants to look for to earn more through changing the jobs, if possible, and in other means. Thus, they turn to “unlawful emigrant,” or “irregular,” and their job also turn to “illegal.”
With regard to regulatory framework, the core legal framework to deal with labour migration issues is the Emigration Ordinance, 1982 supplemented by three Rules of 2002.
Those instruments have already proved to be outdated and failed to meet the need and complexities of the time. The Ordinance is failing to address the growing trend of migrant trafficking- abuse and exploitations in the guise of offering jobs overseas. However, there is no statistics on this.
Although to prosecute those new forms of crime (i.e., human trafficking in the forms of migration which included deception, coercion, fraud, abduction, confinement, slaver, rape, forced prostitution etc), several sections of the Penal Code and other special laws can be applied; however, there are lack of understanding, knowledge and appropriate training among the law enforcers, prosecutors and judges concerned.
In addition, there is hardly any example of prosecuting or punishing (other than “imposing fine” or “suspending” or “canceling” licenses) perpetrators who are responsible for cheating or exploiting the migrants.
Though the existing laws (i.e., Ordinance and Rules) require monitoring of activities of the Recruiting Agencies, however, those hardly happen due to so many reasons. The laws also lack any timeframe in this regards. Thanks to the lack of required work force in concerned departments and lack of innovation, motivation and dedication in the available work forces.
In addition, lack of skill of the potential migrants is a huge challenge. It is empirically proved that skills of the migrant workers could significantly contribute to reduce their vulnerabilities.
It is reported that 50 percent of our labour migrants are unskilled; and in total 66 percent are reportedly semiskilled.
In case of Philippines, 58 percent of the migrants are skilled where as 9.6 percent are professionals, and 32.4 percent is unskilled.
That is why, Philippines, in 2008, earned US$ 33 billion as remittance sending fewer number of migrants compared to us.
Therefore, Bangladesh needs a comprehensive approach to enhance the skills of the potential migrants including setting standards for those involved in such trades in comparison with global need and demand.
Protection of the Migrant Workers
The Constitution of the country guarantees for an “equal protection of law” for all citizen. The migrants are citizens at the same time.
The major legal instrument, the Emigration Ordinance, 1982 (complemented by three Rules in 2002), does not have sufficient scope to protect the rights of the migrant workers in case of violations of their rights.
There is lack of remedial measures and activities due to “narrow provision” in related laws, and also lack of understanding and training on other alternative laws.
Therefore, there is a growing acknowledgement for adoption of a comprehensive legal framework to regulate the sector efficiently (i.e. along with a law penalizing human trafficking in the form of labour migration).
The number of victims should not be an issue; if a single individual is exploited in the migration process that deserves attention and actions of all concern. And state is primarily obligated to respond and to take actions to ensure protection and prosecution of the perpetrators.
The reported corruption by those who are managing and running the migration activities needs to be intervened and investigated properly.
This is allegedly happening in processing recruitment order, issuing clearances and completing other formalities.
Bangladesh also did not ratify the major human rights treaty dealing with the migrants’ rights, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990 (the Convention).
The country has signed it on 7 October 1998, though the Law Commission had recommended for its ratification.
Tough migrants are contributing hugely to the exchequer through their hard-earned remittances, however, they are apparently not getting due protection from the state in terms of safeguarding their rights (i.e., right to life, right to personal security, freedom from exploitation etc).
There are likely apparently, lack of political will of the successive governments, lack of legal and administrative mechanisms, and reported indifferent attitudes of the concerned officials are held responsible.
According to recent press reports, the President of Indonesia has formed an investigation committee and taken a tough position following death of a female migrant worker in Saudi Arabia from his country (The Daily Star, 20 November 2010, page no. 7).
Unfortunately, we hardly see any strong urge for a proper investigation in case of the so-called accidental or unnatural death of Bangladeshi-origin migrants.
As reported, during the period from 2002 to 2008, 12,307 death bodies of migrants have been sent to Bangladesh.
The year-wise breakdowns are 788 in 2004, 1,248 in 2005, 1,402 in 2006, 1,673 in 2007 and 2,237 in 2008. However, the number jumped up to 1,044 from the period between January 2009 and May 2009, according to an article by Md. Abu Raihan and S. M. Mostafa Kamal in the January 2010 issue of BIISS Journal.
Respective researchers and activists believe that the actual number of the so-called accidental or unnatural deaths of Bangladeshi-origin migrants would be higher than which are documented or come to public.
The reasons hold responsible for those deaths included job insecurity, tensions at workplace, and poor, unhealthy and risky working conditions among others. The average age of the dead migrants are estimated between 25 and 30 years.
The foreign employers allegedly reported those dead migrants as “illegal workers” to avoid their responsibilities. This deprived the respective families to get due compensation from the respective employers, the article mentioned.
The abuses and exploitations in the process of migration (at home, transit and destination countries) are going on. The types of exploitations include- deception, coercion, arbitrary confinement, illegal detention, deprivation of right to life and personal security, deprivation of dignity, deprivation from right to work and earn, sexual exploitation, deprivation of right to safe migration. Sufferings and experiences of some of the victims tantamount to that of the victims of trafficking, as this writer documented.
There are nearly 800 Recruiting Agencies (RA), who are also failing to contribute in protecting the rights of the migrants.
We are very much focused on the total amount of the remittances earned annually; however, unfortunately, we are not focusing on the individual exploitations and violations of rights of an individual migrant. That is why there is need to make a balance between the two.
Though the Constitution of the country guarantees equal protection of law, and freedom from all forms of exploitations, unfortunately, those guarantees are not working in case of sufferings of the migrant workers. The respective state machineries are failing in this respect. The National Human Rights Commission should take note of that.
Way Forward
As mentioned earlier, there is a lack of effective legal framework and non-implementation of the existing ones to regulate the migration sector.
However, in the name of adopting a new law, we should not go for so-many complex provisions, which prescribe, for “heavy-handed authority” or “other structure” and thus go for creating so many layers in the judicial system. Rather, we should focus on how we could go for implementation of the existing legal frameworks effectively along with look for an appropriate amendment.
Bangladesh should also ratify the International Convention on the Protection of the Rights of the Migrant Workers and Members of their Family, 1990. However, merely, ratification would not bring any benefit unless it’s very provisions and spirits are translated into the national legal framework and implemented.
The Government should go forward with its own vision and priority rather than to fall in the “trap of projects.” It should draw up short and long-term strategies and for their implementation. It should have a well coordination among various ministries and departments.
Government should not sit idle on the duplication of so-called studies and researchers. It should review the already done studies and review the viability of recommendations with an aim to implementation.
Immediately, the Government should allocate required financial and other resources for better management and governance of the sector, deploy required human resources and enhance their capacity and skill, amending obsolete legal framework and their proper implementation.
Government should also make effective partnership with private sector including NGOs in awareness raising and skill training. For this, best practices should be promoted and replicated. In this regard, I would like to refer to the awareness programme on safe migration undertaken by BRAC, which has covered 1.7 million migrants and their family members over four years.
Given the importance of the sector, there is a dire need to establish a center of excellence, devoted to training, research, publication and advocacy on migration related issues at national, regional and international level.
In addition, a high-level authority under the Office of the Prime Minister should work to bring coordination among respective ministries and departments.
There should be initiatives to incorporate migration related courses at our mainstream education from higher to university levels (i.e., as part of social science, human rights and legal course).
Curriculum of specialized training institutes should introduce migration issues in their curriculum. That would contribute immediately to have a pool of government officials and other practitioners to manage, bargain, and negotiate activities effectively related to migration sector.
I believe immediate implementation of those measures could boost safe migration and remittances, and to protect rights of the individual migrants.
*The is an slightly edited version of a paper presented at a seminar organized by BRAC on 12 December 2010 in Dhaka.
Uttam Kumar Das, Ph.D., is a Human Rights Lawyer specializing in migration issues. He is admitted as an Advocate (Attorney) in the Supreme Court of Bangladesh, and currently serving with the South Asian Institute of Advanced Legal and Human Rights Studies (SAILS) as Deputy Director. However, opinion expressed here is author’s own. His contact: uttam@sails-law.org.
This brief paper aims to discuss potentials of Bangladesh as a country of origin for migrant workers and (focuses) on challenges as well. It will also look into some other related issues and propose a set of recommendations accordingly.
The term migrant workers refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national (Art. 2 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990).
For the purpose of this paper, we would refer to migration as movement of Bangladeshi nationals out of the country (i.e., emigration) with a job overseas for a certain period. The out-migration of students, spouses or dependents and others is not in the consideration here.
Again, there is no definition of safe migration in the respective international instruments including the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990. However, for the purpose of the paper, safe migration would mean a situation and condition for a migrant worker where s/he would not be fallen into an “irregular situation” and could enjoy her/his due human rights as a migrant worker, and would be free from all forms of exploitative situations.
Safe migration is a human right. I would argue that, for a citizen of Bangladesh, it (safe migration) is a fundamental right as well.
Article 31 of the Constitution of Bangladesh guarantees for equal protection of law; while Article 32 guarantees right to life and personal liberty, Article 33 freedom from arbitrary arrest and detention, Article 34 freedom from slavery, and Article 36 (guarantees for freedom of movement.
Importance of Migration Sector in Bangladesh
Bangladesh is a labour surplus country. On an average, 2.7 million people are reportedly added to the existing work forces.
The rate of current unemployment is 3.7 percent. There is an estimated 30 million unemployed people in Bangladesh (as in 2008). However, by 2015, the total number of unemployed would be about 60 million, as ILO forecasted. Since both the public and private sectors have no capacity to absorb all the coming up workforces, therefore, we need to find out an alternative.
Having this scenario, our working population, especially the young ones have to find a way to manage job overseas, which is now turning to a vital sector to earn foreign exchange for the nation.
The country has huge potentials in this ever-growing migration sector; however, there are challenges as well.
There are estimate that more than seven million Bangladeshis are now working and living abroad. This migration for want of work, in a formal process, started in late 1970s.
Countries in the Western Europe, North America, Africa and even in the Eastern Asia need migrant workers to meet up their need to run industries, construction works, health, hospitality, and other service sectors among others.
Though the economic recession has imposed a negative impact on the flow of migrants, however, it is to stand up soon.
Bangladesh has earned a record amount of US$ 9.6 billion as remittances during 2008-2009 fiscal year.
In the full year of 2009, the amount was again nearly US$ 10 billion (74,000 crore Taka) though the period was hit by the global economic recession (which hardly had any negative impact to the total remittance flow to Bangladesh). The remittance remained almost steady though the number of migrating population get down to almost half (475,000) in 2009.
The migration sector has a huge contribution in the foreign exchange earnings of the country, however, the sector is not getting adequate attention of the government, and there is no well-coordinated planning so far.
The growth of remittances flow since 2001 is 17 percent per year on an average. The official remittances flow is 13 percent of GDP, as Dr. Zafar Ahmed Khan, Secretary to the Ministry of Expatriates’ Welfare and Overseas Employment (MOEWOE) disclosed at a seminar in Dhaka on 11 October this year.
The remittances are 12 and 6 times higher respectively than the Overseas Development Assistance (ODA) and Foreign Direct Investment (FDI) in Bangladesh.
There are prediction that by the year 2015, Bangladesh can earn an annual amount of US$ 30 billion as remittances given the new job market is explored, migrant workers’ skills are enhanced, and remittances are sent through officials channels.
There are opportunities to expand female migration provided with adequate skills and language training. According to official record, the ratio of female migrants is around 4 percent. However, if the “undocumented” are added in the ratio would be around 15 to 20 percent.
There are demands for qualified nurses, and trained housekeepers, and maids in North American and European countries. Only the United States will require 1.4 million nurses by 2014, as media reported.
However, so far, there is no noticeable progress in this regard. According to a senior official of the Bureau of Manpower, Employment and Training (BMET), the country would reach an amount of US$ 15 billion as remittances by 2015 if the existing trend of migration continues.
At the same time, the migration sector has been facing a great numbers of problems, which I will be exploring further in the later part of the paper.
In addition, given the threat of the climate changes and its consequences, Bangladesh needs to explore more opportunities for people to migrate as workers and in other capacities.
Problems in Migration Sector
There are a great number of problems and challenges, which are, contributing negatively to the potentials of the migration sector of Bangladesh.
I would like to categorize those problems in two broad types: (i) Problems with regard to governance of migration sector, and (ii) Problems with regard to protection of migrant workers.
Problems with Regard to Governance of Migration Sector
Over last four decades, the number of migrant population from the country has expanded hugely. However, the management and governance capacity of the government did not progress accordingly. Though, there is a separate ministry now, however, it and subsidiary offices have been facing lack of required personnel and from other shortcomings.
The private sector, i.e., Recruitment Agencies (RA) has a significant contribution in booming the sector, however, they also lack in their capacity, honesty and transparency in their respective works.
In the public sector (i.e., Ministry and respective Departments etc), problems include lack of required policy, resources, work force, and transparency in the system.
The existing personnel also lack required capacity, skills, motivation, and some of them lack transparency in their works (as required by existing laws and rules).
Though managing and regulating migration is a technical task (compared to general administrative works), however, there is no permanent cadre thereby. The technical officials responsible for managing and regulating migration like Labour Attachés (LA) are deputed from the Administrative cadre and other departments on ad hoc basis. However, the job of an LA requires some sort of special knowledge and skills. The same goes for other positions in the respective ministry. Therefore, there is a need to have a specialized pool of officials dedicated to work in the migration sector. They would serve in various positions through promotions.
The migration cost is apparently sky rocketing (compare to Nepal, India or Cambodia) and our government has no control on this. The Recruiting Agencies and their dalals are unabated in this regard. Though government has fixed amount, however, the reality is totally different.
It is evident that for going to Malaysia or the U.A.E., a migrant has to pay Taka 200,000 to 300,000 (where government prescribed amount is Taka 80,000); however, one could earn maximum half of the amount already spent, if really get a job, during the contracted year ranging from one to two.
This factor insists the migrants to look for to earn more through changing the jobs, if possible, and in other means. Thus, they turn to “unlawful emigrant,” or “irregular,” and their job also turn to “illegal.”
With regard to regulatory framework, the core legal framework to deal with labour migration issues is the Emigration Ordinance, 1982 supplemented by three Rules of 2002.
Those instruments have already proved to be outdated and failed to meet the need and complexities of the time. The Ordinance is failing to address the growing trend of migrant trafficking- abuse and exploitations in the guise of offering jobs overseas. However, there is no statistics on this.
Although to prosecute those new forms of crime (i.e., human trafficking in the forms of migration which included deception, coercion, fraud, abduction, confinement, slaver, rape, forced prostitution etc), several sections of the Penal Code and other special laws can be applied; however, there are lack of understanding, knowledge and appropriate training among the law enforcers, prosecutors and judges concerned.
In addition, there is hardly any example of prosecuting or punishing (other than “imposing fine” or “suspending” or “canceling” licenses) perpetrators who are responsible for cheating or exploiting the migrants.
Though the existing laws (i.e., Ordinance and Rules) require monitoring of activities of the Recruiting Agencies, however, those hardly happen due to so many reasons. The laws also lack any timeframe in this regards. Thanks to the lack of required work force in concerned departments and lack of innovation, motivation and dedication in the available work forces.
In addition, lack of skill of the potential migrants is a huge challenge. It is empirically proved that skills of the migrant workers could significantly contribute to reduce their vulnerabilities.
It is reported that 50 percent of our labour migrants are unskilled; and in total 66 percent are reportedly semiskilled.
In case of Philippines, 58 percent of the migrants are skilled where as 9.6 percent are professionals, and 32.4 percent is unskilled.
That is why, Philippines, in 2008, earned US$ 33 billion as remittance sending fewer number of migrants compared to us.
Therefore, Bangladesh needs a comprehensive approach to enhance the skills of the potential migrants including setting standards for those involved in such trades in comparison with global need and demand.
Protection of the Migrant Workers
The Constitution of the country guarantees for an “equal protection of law” for all citizen. The migrants are citizens at the same time.
The major legal instrument, the Emigration Ordinance, 1982 (complemented by three Rules in 2002), does not have sufficient scope to protect the rights of the migrant workers in case of violations of their rights.
There is lack of remedial measures and activities due to “narrow provision” in related laws, and also lack of understanding and training on other alternative laws.
Therefore, there is a growing acknowledgement for adoption of a comprehensive legal framework to regulate the sector efficiently (i.e. along with a law penalizing human trafficking in the form of labour migration).
The number of victims should not be an issue; if a single individual is exploited in the migration process that deserves attention and actions of all concern. And state is primarily obligated to respond and to take actions to ensure protection and prosecution of the perpetrators.
The reported corruption by those who are managing and running the migration activities needs to be intervened and investigated properly.
This is allegedly happening in processing recruitment order, issuing clearances and completing other formalities.
Bangladesh also did not ratify the major human rights treaty dealing with the migrants’ rights, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990 (the Convention).
The country has signed it on 7 October 1998, though the Law Commission had recommended for its ratification.
Tough migrants are contributing hugely to the exchequer through their hard-earned remittances, however, they are apparently not getting due protection from the state in terms of safeguarding their rights (i.e., right to life, right to personal security, freedom from exploitation etc).
There are likely apparently, lack of political will of the successive governments, lack of legal and administrative mechanisms, and reported indifferent attitudes of the concerned officials are held responsible.
According to recent press reports, the President of Indonesia has formed an investigation committee and taken a tough position following death of a female migrant worker in Saudi Arabia from his country (The Daily Star, 20 November 2010, page no. 7).
Unfortunately, we hardly see any strong urge for a proper investigation in case of the so-called accidental or unnatural death of Bangladeshi-origin migrants.
As reported, during the period from 2002 to 2008, 12,307 death bodies of migrants have been sent to Bangladesh.
The year-wise breakdowns are 788 in 2004, 1,248 in 2005, 1,402 in 2006, 1,673 in 2007 and 2,237 in 2008. However, the number jumped up to 1,044 from the period between January 2009 and May 2009, according to an article by Md. Abu Raihan and S. M. Mostafa Kamal in the January 2010 issue of BIISS Journal.
Respective researchers and activists believe that the actual number of the so-called accidental or unnatural deaths of Bangladeshi-origin migrants would be higher than which are documented or come to public.
The reasons hold responsible for those deaths included job insecurity, tensions at workplace, and poor, unhealthy and risky working conditions among others. The average age of the dead migrants are estimated between 25 and 30 years.
The foreign employers allegedly reported those dead migrants as “illegal workers” to avoid their responsibilities. This deprived the respective families to get due compensation from the respective employers, the article mentioned.
The abuses and exploitations in the process of migration (at home, transit and destination countries) are going on. The types of exploitations include- deception, coercion, arbitrary confinement, illegal detention, deprivation of right to life and personal security, deprivation of dignity, deprivation from right to work and earn, sexual exploitation, deprivation of right to safe migration. Sufferings and experiences of some of the victims tantamount to that of the victims of trafficking, as this writer documented.
There are nearly 800 Recruiting Agencies (RA), who are also failing to contribute in protecting the rights of the migrants.
We are very much focused on the total amount of the remittances earned annually; however, unfortunately, we are not focusing on the individual exploitations and violations of rights of an individual migrant. That is why there is need to make a balance between the two.
Though the Constitution of the country guarantees equal protection of law, and freedom from all forms of exploitations, unfortunately, those guarantees are not working in case of sufferings of the migrant workers. The respective state machineries are failing in this respect. The National Human Rights Commission should take note of that.
Way Forward
As mentioned earlier, there is a lack of effective legal framework and non-implementation of the existing ones to regulate the migration sector.
However, in the name of adopting a new law, we should not go for so-many complex provisions, which prescribe, for “heavy-handed authority” or “other structure” and thus go for creating so many layers in the judicial system. Rather, we should focus on how we could go for implementation of the existing legal frameworks effectively along with look for an appropriate amendment.
Bangladesh should also ratify the International Convention on the Protection of the Rights of the Migrant Workers and Members of their Family, 1990. However, merely, ratification would not bring any benefit unless it’s very provisions and spirits are translated into the national legal framework and implemented.
The Government should go forward with its own vision and priority rather than to fall in the “trap of projects.” It should draw up short and long-term strategies and for their implementation. It should have a well coordination among various ministries and departments.
Government should not sit idle on the duplication of so-called studies and researchers. It should review the already done studies and review the viability of recommendations with an aim to implementation.
Immediately, the Government should allocate required financial and other resources for better management and governance of the sector, deploy required human resources and enhance their capacity and skill, amending obsolete legal framework and their proper implementation.
Government should also make effective partnership with private sector including NGOs in awareness raising and skill training. For this, best practices should be promoted and replicated. In this regard, I would like to refer to the awareness programme on safe migration undertaken by BRAC, which has covered 1.7 million migrants and their family members over four years.
Given the importance of the sector, there is a dire need to establish a center of excellence, devoted to training, research, publication and advocacy on migration related issues at national, regional and international level.
In addition, a high-level authority under the Office of the Prime Minister should work to bring coordination among respective ministries and departments.
There should be initiatives to incorporate migration related courses at our mainstream education from higher to university levels (i.e., as part of social science, human rights and legal course).
Curriculum of specialized training institutes should introduce migration issues in their curriculum. That would contribute immediately to have a pool of government officials and other practitioners to manage, bargain, and negotiate activities effectively related to migration sector.
I believe immediate implementation of those measures could boost safe migration and remittances, and to protect rights of the individual migrants.
*The is an slightly edited version of a paper presented at a seminar organized by BRAC on 12 December 2010 in Dhaka.
Uttam Kumar Das, Ph.D., is a Human Rights Lawyer specializing in migration issues. He is admitted as an Advocate (Attorney) in the Supreme Court of Bangladesh, and currently serving with the South Asian Institute of Advanced Legal and Human Rights Studies (SAILS) as Deputy Director. However, opinion expressed here is author’s own. His contact: uttam@sails-law.org.
Monday, November 22, 2010
Managing Migration Sector [in Bangladesh]*
Dr. Uttam Kumar Das
Bangladesh is a major country of origin for migrant workers. It is estimated that more than seven million Bangladeshis are now working and living abroad. It has a huge potential given the demand overseas for workers and challenges with lack of governance and malpractices in the sector.
The term migrant workers refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national (Art 2 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990).
In this article, the migrant workers are referred to those who are going abroad temporarily with contractual jobs.
Given the over population in Bangladesh, limited resources, and limited number of available jobs both in public and private sectors we are having difficulty in absorbing all our active and working people joining the workforce each year.
On the other hand, countries in the Western Europe, North America, Africa and even in the Eastern Asia need migrant workers to meet up their need to run the industries, construction works, health, hospitality, and service sectors among others.
The country could earn a record amount of US$ 9.6 billion as remittances during 2008-2009 fiscal year. In the year of 2009, the amount was again nearly US$ 10 billion (74,000 crore Taka) though the year was hit by the global economic recession. Actually, the remittance remained almost steady though the number of migrating population get down to almost half (475,000) in 2009.
There has been a prediction that by 2015 we could go to earn an annual target of US$ 30 billion as remittances if we could expand overseas job markets, make our migrant workers skilled, and remittances are sent through official channels.
So far we have no tangible progress in this regard. According to a senior official of the Bureau of Manpower, Employment and Training (BMET), the country has reached an amount of US$ 15 billion as remittances by 2015 if the existing trend of migration continues.
In the present scenario, the labour migration sector has been facing the following challenges: lack of initiative to make the potential migrants more skilled and efficient for the prospective jobs, lack of capacity, governance, responsibility and accountability both in public and private sectors with regard to managing the ever growing demand, growing incidents of abuses and exploitations in the migration processes at home and abroad (some of which are tantamount to human trafficking), lack of administrative and legal framework to prevent and prosecute those wrong doings effectively etc.
Though there have been some initiatives for offering training to the potential migrants through government run training centers, however, those are not systematic, and not up to the mark to meet the need of the present global standard. Our workers lack in skills of language and attitude and manner as well.
That is why our migrant workers find them helpless while they are joining in the real work abroad.
The workers from Philippines or Sri Lanka who are adequately skilled could bargain for their services and are less vulnerable for their empowerment being skilled and could earn two to five times more for the same work and time in comparison with Bangladeshi workers.
The skill training provided by the so-called private recruiting or other agencies are simply a way of grabbing money from the innocent migrants.
Though there are nearly 800 Recruiting Agencies, however, government does not have adequate monitoring mechanism and schemes to oversee their activities. Also, there is no training program as such for the staff members of those agencies on ethics, human rights and other related issues. The apex body of the Bangladesh Association of International Recruiting Agencies (BAIRA) is also failing to make effective monitoring over its respective members and combating unholy recruiting practices by its members.
There have been unholy networks and competitions among the Recruiting Agencies and their agents at home and abroad. That is why the migration costs are scoring high violating the amount prescribed by the government. Where the employers are paying pre-migration remittances for hiring a female migrant worker, on the contrary the Recruiting Agencies are charging a significant amount from them (migrant). These practices do force a migrant to sell out his/her belongings or take loan with exorbitant interest rates. That is also contributing to landlessness of exploited migrants (both male and female) as a 2008 study of the International Organiz-ation for Migration (IOM) conducted by Professor Mokaddem Hossian and Professor Mahbuba Nasreen in Bangladesh shown.
We are very much focused on the total amount of the remittances earned annually; however, unfortunately, we are not focusing on the individual exploitations and violations of rights of an individual migrant. That is why there is need to make a balance between the two.
Though the Constitution of the country guarantees equal protection of law, and freedom from all forms of exploitations, unfortunately, those guarantees are not working in case of the sufferings of the migrant workers. The respective state machineries are failing in this respect. The National Human Rights Commission should take note of that.
The capacities of the related government agencies, i.e., Ministry of Expatriates’ Welfare and Overseas Employment (MOEWOE), Bureau of Manpower, Employment and Training (BMET) and District Employment and Manpower Office (DEMO) do not have sufficient manpower to manage this huge sector.
Although most of our migrant workers are going abroad through their own connections or through the Recruiting Agencies, however, the government has an overall role to monitor, regulate and govern the sector.
The manpower at all the related agencies mentioned are not adequate in number as required and not qualified, trained or motivated for their respective jobs for so many reasons. There is also lack of budgetary, logistical and other constraints.
The total number of Labour Attaches is now 14 who are based in 12 countries. Those officers are deputed from the administration and other cadres. There has been demand for a permanent cadre for the Labour Attaches who would be adequately trained and could manage the sector either working at home or abroad.
The Secretary to the MOEWOE, Dr. Zafar Ahmed Khan mentioned at a seminar in Dhaka on 11 October 2010 that though there is a huge contribution to our remittances by the migrant workers, however, the sector is not getting adequate attention of the government, and there is no well-coordinated planning so far. According to him, the growth of remittances flow since 2001 is 17% per year on an average. The official remittances flow is 13% GDP. It is 12 and 6 times more respectively of the Overseas Development Assistance (ODA), and Foreign Direct Investment (FDI).
However, as he exampled, the ERD has four times more staff members than the MOEWOE, where the former (ERD) manage an annual aid flow of nearly US$ 1.5 billion.
There is a lack of comprehensive legal framework to govern the migration sector. The major legal instrument, the Emigration Ordinance, 1982 (complemented by three Rules in 2002), does not have sufficient scope to protect the rights of the migrant workers in case of their violations of rights. There is lack of remedial measures and activities due to “narrow provision” in related law, and also lack of understanding and training on other alternative laws. Therefore, there is a growing acknowledgment for adoption of a comprehensive legal framework to manage the migration sector efficiently (i.e. along with a law penalizing human trafficking in the form of labour migration and related exploitations).
The reported corruption by those who are managing and running the migration activities needs to be intervened. This is allegedly happening in processing recruitment order, issuing clearance and immigration processes.
Bangladesh also did not ratify the major human rights treaty dealing with the migrants workers, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990 (the Convention). The country has signed it on 7 October 1998, though the Law Commission had recommended for its ratification that time.
It is now widely acknowledge that Bangladesh should ratify the Convention immediately. The ratification would boost country’s image with regard to its commitment for promoting and protecting human rights; at the same time it would contribute to the streamlining the administrative and legal frameworks and measures and initiating related institutional mechanisms among others as demanded by the Convention. However, only ratification will bring no benefit if it is not adopted in the domestic legislation and implemented progressively. In this case, the above-mentioned points deserve serious consideration.
There are quarters with their vested interests who are opposing the ratification of the Convention and reform in the migration management.
As a legal researcher and practitioner, I do observe that there will be no additional obligations (other than the Constitutional and other obligations already in place through ratification of other related international human rights instruments) on Bangladesh, if it ratifies the Convention.
I am also worried with one phenomenon: there are bunch of studies, series of meetings, discussions, or consultations on migration sectors by various stake holders including by the government and the development partners (of course there are duplications as well).
The MOEWOE has drafted a 9-point strategy paper in 2007. The International Organisation for Migration (IOM) undertook five studies including the review of the overall labour migration sector of Bangladesh. All the reports had reportedly been submitted to respective ministries and departments. However, there is no reported follow-up activity so far. There are initiatives by others. All those need a well-coordination.
Also, there is lack of effective coordination among the related ministries and departments in managing and regulating the migration sector. There should be working coordination among them (especially, the MOEWOE, and ministries like Foreign Affairs, Home Affairs, Law, Justice and Parliamentary Affairs among others).
Given the importance of the sector, there is a dire need to establish a center of excellence, devoted training, research, publication and advocacy on migration related issues at national, regional and international level. Also, a higher authority under the Office of the Prime Minister should work to bring coordination among the activities.
We also need to incorporate migration related courses at our mainstream education from higher to university levels (i.e., as part of social science, human rights and legal course). That will contribute to have a pool of future government officials, administrators, academics, diplomats, lawyers, judges among others sensitized on migration issues.
Curriculum of specialized training institutes like Bangladesh Public Administration Training Center, Bangladesh Civil Service Academy, Bangladesh Institute of Administration Management, Bangladesh Academy for Rural Development, Foreign Service Academy, Judicial Administration Training Institution, Bangladesh Bar Council among others should introduce migration issues in their training curriculum. That would contribute immediately to have a pool of government officials and other practitioners to manage, bargain, and negotiate effectively activities related to migration sector.
Dr. Uttam Kumar Das is Deputy Director, South Asian Institute of Advanced Legal and Human Rights Studies (SAILS), Dhaka.
* Originally appeared in the Daily Sun newspaper in Dhaka as a serialized article on 5, 6, and 7 November 2010. Links:
http://www.daily-sun.com/index.php?view=details&archiev=yes&arch_date=05-11-2010&type=daily_sun_news&pub_no=31&menu_id=17&news_type_id=1&news_id=5452
http://www.daily-sun.com/index.php?view=details&archiev=yes&arch_date=06-11-2010&type=daily_sun_news&pub_no=32&menu_id=17&news_type_id=1&news_id=5681
http://www.daily-sun.com/index.php?view=details&archiev=yes&arch_date=07-11-2010&type=daily_sun_news&pub_no=33&menu_id=17&news_type_id=1&news_id=5916
Bangladesh is a major country of origin for migrant workers. It is estimated that more than seven million Bangladeshis are now working and living abroad. It has a huge potential given the demand overseas for workers and challenges with lack of governance and malpractices in the sector.
The term migrant workers refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national (Art 2 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990).
In this article, the migrant workers are referred to those who are going abroad temporarily with contractual jobs.
Given the over population in Bangladesh, limited resources, and limited number of available jobs both in public and private sectors we are having difficulty in absorbing all our active and working people joining the workforce each year.
On the other hand, countries in the Western Europe, North America, Africa and even in the Eastern Asia need migrant workers to meet up their need to run the industries, construction works, health, hospitality, and service sectors among others.
The country could earn a record amount of US$ 9.6 billion as remittances during 2008-2009 fiscal year. In the year of 2009, the amount was again nearly US$ 10 billion (74,000 crore Taka) though the year was hit by the global economic recession. Actually, the remittance remained almost steady though the number of migrating population get down to almost half (475,000) in 2009.
There has been a prediction that by 2015 we could go to earn an annual target of US$ 30 billion as remittances if we could expand overseas job markets, make our migrant workers skilled, and remittances are sent through official channels.
So far we have no tangible progress in this regard. According to a senior official of the Bureau of Manpower, Employment and Training (BMET), the country has reached an amount of US$ 15 billion as remittances by 2015 if the existing trend of migration continues.
In the present scenario, the labour migration sector has been facing the following challenges: lack of initiative to make the potential migrants more skilled and efficient for the prospective jobs, lack of capacity, governance, responsibility and accountability both in public and private sectors with regard to managing the ever growing demand, growing incidents of abuses and exploitations in the migration processes at home and abroad (some of which are tantamount to human trafficking), lack of administrative and legal framework to prevent and prosecute those wrong doings effectively etc.
Though there have been some initiatives for offering training to the potential migrants through government run training centers, however, those are not systematic, and not up to the mark to meet the need of the present global standard. Our workers lack in skills of language and attitude and manner as well.
That is why our migrant workers find them helpless while they are joining in the real work abroad.
The workers from Philippines or Sri Lanka who are adequately skilled could bargain for their services and are less vulnerable for their empowerment being skilled and could earn two to five times more for the same work and time in comparison with Bangladeshi workers.
The skill training provided by the so-called private recruiting or other agencies are simply a way of grabbing money from the innocent migrants.
Though there are nearly 800 Recruiting Agencies, however, government does not have adequate monitoring mechanism and schemes to oversee their activities. Also, there is no training program as such for the staff members of those agencies on ethics, human rights and other related issues. The apex body of the Bangladesh Association of International Recruiting Agencies (BAIRA) is also failing to make effective monitoring over its respective members and combating unholy recruiting practices by its members.
There have been unholy networks and competitions among the Recruiting Agencies and their agents at home and abroad. That is why the migration costs are scoring high violating the amount prescribed by the government. Where the employers are paying pre-migration remittances for hiring a female migrant worker, on the contrary the Recruiting Agencies are charging a significant amount from them (migrant). These practices do force a migrant to sell out his/her belongings or take loan with exorbitant interest rates. That is also contributing to landlessness of exploited migrants (both male and female) as a 2008 study of the International Organiz-ation for Migration (IOM) conducted by Professor Mokaddem Hossian and Professor Mahbuba Nasreen in Bangladesh shown.
We are very much focused on the total amount of the remittances earned annually; however, unfortunately, we are not focusing on the individual exploitations and violations of rights of an individual migrant. That is why there is need to make a balance between the two.
Though the Constitution of the country guarantees equal protection of law, and freedom from all forms of exploitations, unfortunately, those guarantees are not working in case of the sufferings of the migrant workers. The respective state machineries are failing in this respect. The National Human Rights Commission should take note of that.
The capacities of the related government agencies, i.e., Ministry of Expatriates’ Welfare and Overseas Employment (MOEWOE), Bureau of Manpower, Employment and Training (BMET) and District Employment and Manpower Office (DEMO) do not have sufficient manpower to manage this huge sector.
Although most of our migrant workers are going abroad through their own connections or through the Recruiting Agencies, however, the government has an overall role to monitor, regulate and govern the sector.
The manpower at all the related agencies mentioned are not adequate in number as required and not qualified, trained or motivated for their respective jobs for so many reasons. There is also lack of budgetary, logistical and other constraints.
The total number of Labour Attaches is now 14 who are based in 12 countries. Those officers are deputed from the administration and other cadres. There has been demand for a permanent cadre for the Labour Attaches who would be adequately trained and could manage the sector either working at home or abroad.
The Secretary to the MOEWOE, Dr. Zafar Ahmed Khan mentioned at a seminar in Dhaka on 11 October 2010 that though there is a huge contribution to our remittances by the migrant workers, however, the sector is not getting adequate attention of the government, and there is no well-coordinated planning so far. According to him, the growth of remittances flow since 2001 is 17% per year on an average. The official remittances flow is 13% GDP. It is 12 and 6 times more respectively of the Overseas Development Assistance (ODA), and Foreign Direct Investment (FDI).
However, as he exampled, the ERD has four times more staff members than the MOEWOE, where the former (ERD) manage an annual aid flow of nearly US$ 1.5 billion.
There is a lack of comprehensive legal framework to govern the migration sector. The major legal instrument, the Emigration Ordinance, 1982 (complemented by three Rules in 2002), does not have sufficient scope to protect the rights of the migrant workers in case of their violations of rights. There is lack of remedial measures and activities due to “narrow provision” in related law, and also lack of understanding and training on other alternative laws. Therefore, there is a growing acknowledgment for adoption of a comprehensive legal framework to manage the migration sector efficiently (i.e. along with a law penalizing human trafficking in the form of labour migration and related exploitations).
The reported corruption by those who are managing and running the migration activities needs to be intervened. This is allegedly happening in processing recruitment order, issuing clearance and immigration processes.
Bangladesh also did not ratify the major human rights treaty dealing with the migrants workers, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990 (the Convention). The country has signed it on 7 October 1998, though the Law Commission had recommended for its ratification that time.
It is now widely acknowledge that Bangladesh should ratify the Convention immediately. The ratification would boost country’s image with regard to its commitment for promoting and protecting human rights; at the same time it would contribute to the streamlining the administrative and legal frameworks and measures and initiating related institutional mechanisms among others as demanded by the Convention. However, only ratification will bring no benefit if it is not adopted in the domestic legislation and implemented progressively. In this case, the above-mentioned points deserve serious consideration.
There are quarters with their vested interests who are opposing the ratification of the Convention and reform in the migration management.
As a legal researcher and practitioner, I do observe that there will be no additional obligations (other than the Constitutional and other obligations already in place through ratification of other related international human rights instruments) on Bangladesh, if it ratifies the Convention.
I am also worried with one phenomenon: there are bunch of studies, series of meetings, discussions, or consultations on migration sectors by various stake holders including by the government and the development partners (of course there are duplications as well).
The MOEWOE has drafted a 9-point strategy paper in 2007. The International Organisation for Migration (IOM) undertook five studies including the review of the overall labour migration sector of Bangladesh. All the reports had reportedly been submitted to respective ministries and departments. However, there is no reported follow-up activity so far. There are initiatives by others. All those need a well-coordination.
Also, there is lack of effective coordination among the related ministries and departments in managing and regulating the migration sector. There should be working coordination among them (especially, the MOEWOE, and ministries like Foreign Affairs, Home Affairs, Law, Justice and Parliamentary Affairs among others).
Given the importance of the sector, there is a dire need to establish a center of excellence, devoted training, research, publication and advocacy on migration related issues at national, regional and international level. Also, a higher authority under the Office of the Prime Minister should work to bring coordination among the activities.
We also need to incorporate migration related courses at our mainstream education from higher to university levels (i.e., as part of social science, human rights and legal course). That will contribute to have a pool of future government officials, administrators, academics, diplomats, lawyers, judges among others sensitized on migration issues.
Curriculum of specialized training institutes like Bangladesh Public Administration Training Center, Bangladesh Civil Service Academy, Bangladesh Institute of Administration Management, Bangladesh Academy for Rural Development, Foreign Service Academy, Judicial Administration Training Institution, Bangladesh Bar Council among others should introduce migration issues in their training curriculum. That would contribute immediately to have a pool of government officials and other practitioners to manage, bargain, and negotiate effectively activities related to migration sector.
Dr. Uttam Kumar Das is Deputy Director, South Asian Institute of Advanced Legal and Human Rights Studies (SAILS), Dhaka.
* Originally appeared in the Daily Sun newspaper in Dhaka as a serialized article on 5, 6, and 7 November 2010. Links:
http://www.daily-sun.com/index.php?view=details&archiev=yes&arch_date=05-11-2010&type=daily_sun_news&pub_no=31&menu_id=17&news_type_id=1&news_id=5452
http://www.daily-sun.com/index.php?view=details&archiev=yes&arch_date=06-11-2010&type=daily_sun_news&pub_no=32&menu_id=17&news_type_id=1&news_id=5681
http://www.daily-sun.com/index.php?view=details&archiev=yes&arch_date=07-11-2010&type=daily_sun_news&pub_no=33&menu_id=17&news_type_id=1&news_id=5916
Tuesday, November 16, 2010
Law Letter: On legal education and research*
Legal education in Bangladesh has been facing a pity condition. Though we are producing a huge number of law graduates every year, however, majority of them are having under-qualified or non-qualified in terms of their legal knowledge, research, analytical, and presentation skills and competitiveness in a globalized legal profession.
The frustrating situation has been [is] better described as a “disastrous situation” by none other than the Chairman of the National Human Rights Commission and a renowned Law Professor Dr. Mizanur Rahman in a recent interview with me.
This downwards trend in legal education have been contributed by the obsolete and archical curriculum, traditional teaching and examination methods, lack of practical and clinical aspects in the curriculum, huge gap in relations between teachers and students, teachers' engagement in out-side activities (other than own institutions), lack of interest, motivation, opportunity and skills for research and publications.
The scenario of legal research is at pity stage as well. A handful of law schools at public and private universities offer courses on legal research and writing. However, those also lack of standard and quality due to lack of resources (i.e., library materials, Internet faculties etc), skills and expertise of the respective faculty members. The private law colleges which are producing the majority of law graduates don't offer similar courses. That is why a great number of lawyers (and future judges) are coming from there with out skills in legal research and writing. These skills are taught at law schools even in countries like India and Nepal as well.
Our faculty members are coming back with education and degrees in the developed countries, however, they are not taking any initiative to introduce best practices out of their knowledge and learning.
The journals published by law schools at public universities (not regular in publication) do follow a principle of “limiting knowledge.” For example, the Journal of the Faculty of Law at the University of Dhaka accepts articles only from their respective faculty members. This is also true for other public universities which hardly happens in the universities in other countries.
When a journal is supposed to explore and disseminate new knowledge on a given subject, how come it will probe its standard while there is no competitiveness in selecting and reviewing articles independently. Who will give a guaranty that only teachers could write “best articles”? This so-called journals are also not publicly available as I experienced.
Given my recent affiliation for a year [as] a Hubert H. Humphrey Fellow at the University of Minnesota Law School and Human Rights Center in Minneapolis, U.S.A., I found that three of their journals are being edited and published by only students (appointed by the schools on a rotation basis) alongside two others by faculty members, and two more by jointly by faculties and students. Those are coming out on a scheduled dates over the years incorporating articles selected on its originality, analysis, quality and contribution. They hardly bother about whether the author is a teacher or students, or a practicing lawyer. The same I found at the West Bengal National University of Juridical Sciences in Kolkata, India.
Here, our professional, research and training institutions are also lacking in terms of quality research and publications. The Bangladesh Bar Council and Law Commission neither have research and publication projects nor journals. The Bangladesh Institute of Law and International Affairs (BILIA) had its last issue of the biannual publication, Bangladesh Journal of Law in 2007. Though the Judicial Administration and Training Institute (JATI) has its own journal however, its lacks professionalism and quality in publishing a research journal.
Dr. Uttam Kumar Das
LL.M. (Minn., U.S.A.), Ph.D.
Advocate, Supreme Court of Bangladesh
*Originally appeared in The Daily Star, "Law & Our Rights" Section, 12 November 2010; link: http://www.thedailystar.net/law/2010/11/02/letter.htm
The frustrating situation has been [is] better described as a “disastrous situation” by none other than the Chairman of the National Human Rights Commission and a renowned Law Professor Dr. Mizanur Rahman in a recent interview with me.
This downwards trend in legal education have been contributed by the obsolete and archical curriculum, traditional teaching and examination methods, lack of practical and clinical aspects in the curriculum, huge gap in relations between teachers and students, teachers' engagement in out-side activities (other than own institutions), lack of interest, motivation, opportunity and skills for research and publications.
The scenario of legal research is at pity stage as well. A handful of law schools at public and private universities offer courses on legal research and writing. However, those also lack of standard and quality due to lack of resources (i.e., library materials, Internet faculties etc), skills and expertise of the respective faculty members. The private law colleges which are producing the majority of law graduates don't offer similar courses. That is why a great number of lawyers (and future judges) are coming from there with out skills in legal research and writing. These skills are taught at law schools even in countries like India and Nepal as well.
Our faculty members are coming back with education and degrees in the developed countries, however, they are not taking any initiative to introduce best practices out of their knowledge and learning.
The journals published by law schools at public universities (not regular in publication) do follow a principle of “limiting knowledge.” For example, the Journal of the Faculty of Law at the University of Dhaka accepts articles only from their respective faculty members. This is also true for other public universities which hardly happens in the universities in other countries.
When a journal is supposed to explore and disseminate new knowledge on a given subject, how come it will probe its standard while there is no competitiveness in selecting and reviewing articles independently. Who will give a guaranty that only teachers could write “best articles”? This so-called journals are also not publicly available as I experienced.
Given my recent affiliation for a year [as] a Hubert H. Humphrey Fellow at the University of Minnesota Law School and Human Rights Center in Minneapolis, U.S.A., I found that three of their journals are being edited and published by only students (appointed by the schools on a rotation basis) alongside two others by faculty members, and two more by jointly by faculties and students. Those are coming out on a scheduled dates over the years incorporating articles selected on its originality, analysis, quality and contribution. They hardly bother about whether the author is a teacher or students, or a practicing lawyer. The same I found at the West Bengal National University of Juridical Sciences in Kolkata, India.
Here, our professional, research and training institutions are also lacking in terms of quality research and publications. The Bangladesh Bar Council and Law Commission neither have research and publication projects nor journals. The Bangladesh Institute of Law and International Affairs (BILIA) had its last issue of the biannual publication, Bangladesh Journal of Law in 2007. Though the Judicial Administration and Training Institute (JATI) has its own journal however, its lacks professionalism and quality in publishing a research journal.
Dr. Uttam Kumar Das
LL.M. (Minn., U.S.A.), Ph.D.
Advocate, Supreme Court of Bangladesh
*Originally appeared in The Daily Star, "Law & Our Rights" Section, 12 November 2010; link: http://www.thedailystar.net/law/2010/11/02/letter.htm
Thursday, November 4, 2010
Opinion: Whether legal education in Bangladesh
By Dr. Uttam Kumar Das
All sensible among us are to be concerned with the existing legal education in Bangladesh. Unfortunately our policy makers have no headway on this.
Given the existing curriculum, lack of practical aspects in the education, traditional teaching methodology, absence of social exposure in the course works, lack of training, motivation and incentives for faculties, lack of research and publication facilities both for faculties and students our law schools are lagging behind in producing quality law graduates with enough legal knowledge and related skills. We are also lagging behind in the regional and global context.
We are hardly confident of our law graduates whether they are skilled and competent enough to compete for jobs in legal practice, international or UN agencies and other new avenues in the globalized world.
There is no plan how many law graduates do we need to produce a year. Also, there is no screening mechanism for potential students to entering into private law schools or colleges. At the same time, any law graduates could get a license as an Advocate (Attorney) from the Bar Council through passing a so-called examination (having written and viva voce components). However, there is no effective mechanism to examine whether someone really has enough legal knowledge and professional skills, or have knowledge on professional ethics and atticate.
No one other than Professor Dr. Mizanur Rahman, who is a renowned Law Professor at the University of Dhaka and currently the Chairman of the National Human Rights Council (NHRC), described the situation of legal education in Bangladesh as a “disoriented one.” He told me in a recent interview: “There is no concrete perspective for the sector. There is no coordination of activities who is doing what and why with regard to the legal and judicial education and training in the country.” The Government can also don’t rid of its responsibilities.
According to Professor N. R. Madhava Menon, the legendary legal academic who had pioneered through establishing the National University of India University in Bangalore, the legal education aims to produce: (i) sufficient competent lawyers, prosecutors, and judges to administer the judiciary, (ii) well-trained law personnel for providing legal services to the government departments and corporate institutions, (iii) legal researchers and academics for legal education, legal reform, good governance, and (iv) disseminate legal knowledge and culture conducive to the Constitution, rule of law, good governance, human rights, and democracy.
India has now around 20 full-fledged Law University including one in Kolkata (i.e., West Bengal National University of Juridical Sciences) modeled on the National Law University of India University in Bangalore. Even Katmandu School of Law in Nepal evolved on the same model could be a model for Bangladesh.
Quality legal education has a direct contribution to the quality of lawyers and legal profession; the same is also link to quality of judges, legal and judicial activism, rule of law, democracy and promotion and protection of human rights.
Now, let us look at what our law departments, schools or colleges are doing. The agencies like the University Grants Commission (UGC), Bangladesh Bar Council, or the Law Commission who are legally obligated and empowered to review, monitor and recommend measures for quality legal education and legal professions have been failing miserably. The Supreme Court Bar Association, and Districts Bar Associations are also indifferent in acting for in promoting quality legal education and training.
In Bangladesh, there are various schemes of legal education: there are four year LL.B. (Honours) programme at law schools or departments of public and private universities, and two year LL.B. programme at the private law colleges affiliated with the National University. There are one year LL.M. program both at public universities; and both one and two year LL.M. programme at private universities.
Apart from that there is another stream of legal education, which are external programmes of some British Universities. This is “discriminatory to the common people being very expensive”. This course is not approved by the University Grants Commission as well.
There is a huge gap of the legal knowledge and skills what students are learning in different course (i.e., at public and private universities, and from private law colleges).
The curriculum at both public and private law school/departments/colleges are obsolete and archaical.
No one can say when the curriculum of the LL.B. programme now under the National University was prepared or modified, as Dr. Mizanur Rahman mentioned to me. According to him, the private law colleges, now home for part-time students and teachers, alike private universities turned into business centers in producing so-called law graduates. These colleges are producing more graduates.
The law programmes both at the public and private universities have problems with regard to timeliness of the curriculum, application of course, teaching methodology, examination system, skills and expertise of the respective faculty members, research and publications and other resources available for a standard academic atmosphere, this seasoned legal academic observed.
This poor legal education has serious negative impact on our legal and judicial system. As seen by Dr. Rahman: “Though we are getting a huge number of law graduates and lawyers enrolled each year, however, a handful of them are qualified in terms of proper legal knowledge and skills. That is why we are getting a huge number of under-qualified lawyers in the bars. The same is also happening to the bench.” He went further to say: “Thus, we are getting bad justice system and judgments from them.” However, there are few activist lawyers and judges. Its true again that few activist lawyers or judges change the whole system.
Since we are not having a people-friendly vision in the existing legal education that is why the common people are obscure in the legal and judicial system, as commented by Dr. Rahman. He opined: “Without a sound legal education we can’t expect a sound legal or judicial system as well. We have to come out of the mindset of the colonial judicial system as early as possible.
There is “blame game” also. Bangladesh Bar Council has been accusing (private) law schools of producing “non-qualified” graduates and “selling certificates,” as I have noticed from the speech of the Vice-Chairman of the Council, Advocate Abdul Baset Mazumder in a seminar in Dhaka on 25 October, 2010. The allegations might have some grounds, however, one can easily ask the Council what the they are then doing, and why they are not standardizing the enrollment examination-system which could contribute positively in legal education.
One thing I need to mention here also. The development partners and donor agencies have so much interest in promoting access to justice and human rights. Unfortunately, I did not see any tangible initiative from them to make partnership in promoting quality legal or human rights education and research here which are keys to what they wanted for.
Our concerned Ministries and other institutions have failed miserably in this regard. Therefore, we need to establish a standard setting legal education institution in the country (what was initiated by the Bar Council of India in case of the National University of India University in Bangalore, and Kathmandu School of Law did in its 10 years life span).
As prescribed by Dr. Menon, the legal education should be of problem solving which would give opportunities to students for legal analysis and reasoning, research and writing, investigation and marshalling facts, communication, negotiating, counseling, alternative dispute resolution (ADR), and litigation. The graduates are expected to manage efficiently the legal work and will have right attitudes to the dignity of the profession of law and justice. They would nourish and fight for to protect the professional values and integrity, and to promote and practice fairness and freedom from bias.
According to this renowned Law Professor, law as a discipline is to play multiple tasks in a society, and lawyers are expected to act as change agents and social engineers in governance and development of a nation.
So, therefore, when will our legal education in Bangladesh move in that direction only time can say.#
Uttam Kumar Das, Ph.D., is a Human Rights Lawyer. He is the Deputy Director at the South Asian Institute of Advanced Legal and Human Rights Studies (SAILS) in Dhaka. However, opinion is author’s own. E-mail: udas1971@gmail.com.
All sensible among us are to be concerned with the existing legal education in Bangladesh. Unfortunately our policy makers have no headway on this.
Given the existing curriculum, lack of practical aspects in the education, traditional teaching methodology, absence of social exposure in the course works, lack of training, motivation and incentives for faculties, lack of research and publication facilities both for faculties and students our law schools are lagging behind in producing quality law graduates with enough legal knowledge and related skills. We are also lagging behind in the regional and global context.
We are hardly confident of our law graduates whether they are skilled and competent enough to compete for jobs in legal practice, international or UN agencies and other new avenues in the globalized world.
There is no plan how many law graduates do we need to produce a year. Also, there is no screening mechanism for potential students to entering into private law schools or colleges. At the same time, any law graduates could get a license as an Advocate (Attorney) from the Bar Council through passing a so-called examination (having written and viva voce components). However, there is no effective mechanism to examine whether someone really has enough legal knowledge and professional skills, or have knowledge on professional ethics and atticate.
No one other than Professor Dr. Mizanur Rahman, who is a renowned Law Professor at the University of Dhaka and currently the Chairman of the National Human Rights Council (NHRC), described the situation of legal education in Bangladesh as a “disoriented one.” He told me in a recent interview: “There is no concrete perspective for the sector. There is no coordination of activities who is doing what and why with regard to the legal and judicial education and training in the country.” The Government can also don’t rid of its responsibilities.
According to Professor N. R. Madhava Menon, the legendary legal academic who had pioneered through establishing the National University of India University in Bangalore, the legal education aims to produce: (i) sufficient competent lawyers, prosecutors, and judges to administer the judiciary, (ii) well-trained law personnel for providing legal services to the government departments and corporate institutions, (iii) legal researchers and academics for legal education, legal reform, good governance, and (iv) disseminate legal knowledge and culture conducive to the Constitution, rule of law, good governance, human rights, and democracy.
India has now around 20 full-fledged Law University including one in Kolkata (i.e., West Bengal National University of Juridical Sciences) modeled on the National Law University of India University in Bangalore. Even Katmandu School of Law in Nepal evolved on the same model could be a model for Bangladesh.
Quality legal education has a direct contribution to the quality of lawyers and legal profession; the same is also link to quality of judges, legal and judicial activism, rule of law, democracy and promotion and protection of human rights.
Now, let us look at what our law departments, schools or colleges are doing. The agencies like the University Grants Commission (UGC), Bangladesh Bar Council, or the Law Commission who are legally obligated and empowered to review, monitor and recommend measures for quality legal education and legal professions have been failing miserably. The Supreme Court Bar Association, and Districts Bar Associations are also indifferent in acting for in promoting quality legal education and training.
In Bangladesh, there are various schemes of legal education: there are four year LL.B. (Honours) programme at law schools or departments of public and private universities, and two year LL.B. programme at the private law colleges affiliated with the National University. There are one year LL.M. program both at public universities; and both one and two year LL.M. programme at private universities.
Apart from that there is another stream of legal education, which are external programmes of some British Universities. This is “discriminatory to the common people being very expensive”. This course is not approved by the University Grants Commission as well.
There is a huge gap of the legal knowledge and skills what students are learning in different course (i.e., at public and private universities, and from private law colleges).
The curriculum at both public and private law school/departments/colleges are obsolete and archaical.
No one can say when the curriculum of the LL.B. programme now under the National University was prepared or modified, as Dr. Mizanur Rahman mentioned to me. According to him, the private law colleges, now home for part-time students and teachers, alike private universities turned into business centers in producing so-called law graduates. These colleges are producing more graduates.
The law programmes both at the public and private universities have problems with regard to timeliness of the curriculum, application of course, teaching methodology, examination system, skills and expertise of the respective faculty members, research and publications and other resources available for a standard academic atmosphere, this seasoned legal academic observed.
This poor legal education has serious negative impact on our legal and judicial system. As seen by Dr. Rahman: “Though we are getting a huge number of law graduates and lawyers enrolled each year, however, a handful of them are qualified in terms of proper legal knowledge and skills. That is why we are getting a huge number of under-qualified lawyers in the bars. The same is also happening to the bench.” He went further to say: “Thus, we are getting bad justice system and judgments from them.” However, there are few activist lawyers and judges. Its true again that few activist lawyers or judges change the whole system.
Since we are not having a people-friendly vision in the existing legal education that is why the common people are obscure in the legal and judicial system, as commented by Dr. Rahman. He opined: “Without a sound legal education we can’t expect a sound legal or judicial system as well. We have to come out of the mindset of the colonial judicial system as early as possible.
There is “blame game” also. Bangladesh Bar Council has been accusing (private) law schools of producing “non-qualified” graduates and “selling certificates,” as I have noticed from the speech of the Vice-Chairman of the Council, Advocate Abdul Baset Mazumder in a seminar in Dhaka on 25 October, 2010. The allegations might have some grounds, however, one can easily ask the Council what the they are then doing, and why they are not standardizing the enrollment examination-system which could contribute positively in legal education.
One thing I need to mention here also. The development partners and donor agencies have so much interest in promoting access to justice and human rights. Unfortunately, I did not see any tangible initiative from them to make partnership in promoting quality legal or human rights education and research here which are keys to what they wanted for.
Our concerned Ministries and other institutions have failed miserably in this regard. Therefore, we need to establish a standard setting legal education institution in the country (what was initiated by the Bar Council of India in case of the National University of India University in Bangalore, and Kathmandu School of Law did in its 10 years life span).
As prescribed by Dr. Menon, the legal education should be of problem solving which would give opportunities to students for legal analysis and reasoning, research and writing, investigation and marshalling facts, communication, negotiating, counseling, alternative dispute resolution (ADR), and litigation. The graduates are expected to manage efficiently the legal work and will have right attitudes to the dignity of the profession of law and justice. They would nourish and fight for to protect the professional values and integrity, and to promote and practice fairness and freedom from bias.
According to this renowned Law Professor, law as a discipline is to play multiple tasks in a society, and lawyers are expected to act as change agents and social engineers in governance and development of a nation.
So, therefore, when will our legal education in Bangladesh move in that direction only time can say.#
Uttam Kumar Das, Ph.D., is a Human Rights Lawyer. He is the Deputy Director at the South Asian Institute of Advanced Legal and Human Rights Studies (SAILS) in Dhaka. However, opinion is author’s own. E-mail: udas1971@gmail.com.
Thursday, October 28, 2010
State of legal research
Uttam Kumar Das
Legal education in Bangladesh has been experiencing a downslide despite the emerging global need for qualified lawyers. We also need lawyers with competitive legal knowledge and skills for our own legal and judicial system.
Lawyers’ professional scope now extends beyond a specific legal or national jurisdiction given the emerging work opportunities for transnational activities of legal professionals and practitioners in the area of business, trade, finance, transaction, arbitration, negotiation, intellectual property, human rights works, and jobs with international, inter-governmental and United Nations organizations.
Though we have been producing a huge number of law graduates every year, majority of them are under-qualified or non-qualified in terms of legal knowledge and skills in research, analysis, languages, and presentations and are falling behind in the global completion. Even we are far below our counterparts from India or Nepal.
The frustrating trend is better described as a “disastrous situation” by none other than the Chairman of the National Human Rights Com-mission and a renowned Law Professor Dr. Mizanur Rah-man in a recent interview with me.
This downward trend in legal education has been contributed by the obsolete and archival curriculum, traditional teaching and examination methods, lack of practical and clinical aspects in the curriculum, huge gap in relations between teachers and students, teachers’ engagement in outside activities, lack of interest, motivation, opportunity and skills for research and publications.
There is no standard-set -ting institution so far in this regard. Also, there is lack of public and private initiatives so far.
The scenario of legal research is also in a pitiable state. A handful of law schools at public and private universities offer courses on legal research and writing, and on clinical legal education. But these also lack standard and quality due to lack of resources (i.e., library materials, logistical and Internet facilities among others), skills and expertise of the respective faculty members.
Our faculty members are coming back with education and degrees from the developed countries; however, they are not taking any initiative to reform the legal education and introduce best practices out of their knowledge and learning.
The journals published by law schools at public universities (not regularly) rather follow a principle of “limiting knowledge.” For example, the Journal of the Faculty of Law at the University of Dhaka accepts articles only from their respective faculty members, as I am informed. This is also true of other public universities. This hardly happens in universities in other countries.
A journal is supposed to explore and disseminate new knowledge on a given subject. How will it assess its standard if there is no competitiveness in selecting or reviewing articles independently. Who will give a guarantee that only teachers could write “best articles”? These so-called journals are also not publicly available as I have experienced.
In the course of my recent affiliation for a year as a Hubert H. Humphrey Fellow at the University of Minnesota Law School and Human Rights Center in Minneapolis, U.S.A., I found that three of their journals are being edited and published by only students (appointed by the schools on a rotation basis), alongside two others by faculty members, and two more jointly by faculties and students. The same I found in the case of the West Bengal National University of Juridical Sciences in Kolkata, India.
Here, our professional, research and training institutions are also lacking in terms of performing their respective roles which also include quality research and publication.
The Bangladesh Bar Council and Law Commission neither has research and publication projects nor any journal. The Bangladesh Institute of Law and Internat-ional Affairs (BILIA) had its last issue of the biannual publication, Bangladesh Journal of Law in 2007. Though the Judicial Admini-stration and Training Insti-tute (JATI) has its own journal, it lacks professionalism and quality in publishing a research journal.
The writer is a human rights practitioner. He can be reached at udas1971@gmail.com
*Originally appered in the Daily Sun, 28 October 2010. Link: http://www.daily-sun.com/index.php?view=details&type=daily_sun_news&pub_no=23&menu_id=17&news_type_id=1&news_id=3923
Legal education in Bangladesh has been experiencing a downslide despite the emerging global need for qualified lawyers. We also need lawyers with competitive legal knowledge and skills for our own legal and judicial system.
Lawyers’ professional scope now extends beyond a specific legal or national jurisdiction given the emerging work opportunities for transnational activities of legal professionals and practitioners in the area of business, trade, finance, transaction, arbitration, negotiation, intellectual property, human rights works, and jobs with international, inter-governmental and United Nations organizations.
Though we have been producing a huge number of law graduates every year, majority of them are under-qualified or non-qualified in terms of legal knowledge and skills in research, analysis, languages, and presentations and are falling behind in the global completion. Even we are far below our counterparts from India or Nepal.
The frustrating trend is better described as a “disastrous situation” by none other than the Chairman of the National Human Rights Com-mission and a renowned Law Professor Dr. Mizanur Rah-man in a recent interview with me.
This downward trend in legal education has been contributed by the obsolete and archival curriculum, traditional teaching and examination methods, lack of practical and clinical aspects in the curriculum, huge gap in relations between teachers and students, teachers’ engagement in outside activities, lack of interest, motivation, opportunity and skills for research and publications.
There is no standard-set -ting institution so far in this regard. Also, there is lack of public and private initiatives so far.
The scenario of legal research is also in a pitiable state. A handful of law schools at public and private universities offer courses on legal research and writing, and on clinical legal education. But these also lack standard and quality due to lack of resources (i.e., library materials, logistical and Internet facilities among others), skills and expertise of the respective faculty members.
Our faculty members are coming back with education and degrees from the developed countries; however, they are not taking any initiative to reform the legal education and introduce best practices out of their knowledge and learning.
The journals published by law schools at public universities (not regularly) rather follow a principle of “limiting knowledge.” For example, the Journal of the Faculty of Law at the University of Dhaka accepts articles only from their respective faculty members, as I am informed. This is also true of other public universities. This hardly happens in universities in other countries.
A journal is supposed to explore and disseminate new knowledge on a given subject. How will it assess its standard if there is no competitiveness in selecting or reviewing articles independently. Who will give a guarantee that only teachers could write “best articles”? These so-called journals are also not publicly available as I have experienced.
In the course of my recent affiliation for a year as a Hubert H. Humphrey Fellow at the University of Minnesota Law School and Human Rights Center in Minneapolis, U.S.A., I found that three of their journals are being edited and published by only students (appointed by the schools on a rotation basis), alongside two others by faculty members, and two more jointly by faculties and students. The same I found in the case of the West Bengal National University of Juridical Sciences in Kolkata, India.
Here, our professional, research and training institutions are also lacking in terms of performing their respective roles which also include quality research and publication.
The Bangladesh Bar Council and Law Commission neither has research and publication projects nor any journal. The Bangladesh Institute of Law and Internat-ional Affairs (BILIA) had its last issue of the biannual publication, Bangladesh Journal of Law in 2007. Though the Judicial Admini-stration and Training Insti-tute (JATI) has its own journal, it lacks professionalism and quality in publishing a research journal.
The writer is a human rights practitioner. He can be reached at udas1971@gmail.com
*Originally appered in the Daily Sun, 28 October 2010. Link: http://www.daily-sun.com/index.php?view=details&type=daily_sun_news&pub_no=23&menu_id=17&news_type_id=1&news_id=3923
Wednesday, October 20, 2010
Migrant rights and Bangladesh
The Ratification of the Migrant Rights Convention: Bangladesh Perspective
By DR. UTTAM KUMAR DAS
Bangladesh is a major country of origin for migrant workers. It is estimated that more than seven million Bangladeshis are now working and living abroad. Those migrant workers are also contributing hugely to our foreign exchange earnings. In 2009, the amount was reportedly 75,000 crore taka (about US$ 10 billion).
Though the sector has huge potential, given the demand for migrant workers in the Middle Eastern, West European, African and North American countries, there are challenges as well due to the low skills of the migrant workers, lack of capacity in both public and private sector in managing the migration sector, and lack of regulatory framework and other measures.
The existing institutions (i.e., Ministry of Expatriates Welfare and Overseas Employment, Bureau of Manpower and Training, and District Employment and Manpower Office etc) also have their own limitations with regard to manpower, capacity, technological, and other logistical aspects to better manage the sector. The State is yet to ratify the vital international instrument in this regard, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990.
THE CONVENTION
The Convention is considered as a human rights instrument. It creates new grounds by extending protection to migrant workers and members of their families globally.
The Convention came into force on 1 July 2003. The adoption of this instrument is viewed as “…how the international community conceives of the application of human rights in its provisions for equality of treatment between different groups of migrant workers: male and female, documented and undocumented, and also between the nationals and non-nationals,” as Dr. Refaat Ahmed (who is now a Justice at the High Court Division of the Supreme Court of Bangladesh) commented in his book, Forlorn Migrants: An International Legal Regime for Undocumented Migrant Workers (Dhaka: UPL, 2000, p. 36).
As of 10 October 2010, the number of signatories to the instrument stood at 31 (including Bangladesh) while number of ratifying State parties was 43. Bangladesh signed the instrument on 7 October 1998 though the Law Commission recommended its ratification.
RIGHTS IN THE CONVENTION
The human rights are applicable to all migrant workers irrespective of their legal status, while other rights are applicable only to migrant workers in a regular situation. However, the Convention does not exclude undocumented workers totally. It has provided provisions for the “just treatment” for those who are in an undocumented or irregular situation. At the same time, the instrument seeks to draw the attention of the international community to the growing trend of dehumanization of the migrant workers and members of their families as well.
The Convention provides following rights to migrant workers (and members of their families):
• Right to life;
• Freedom of movement (Art. 8); [except for those are provided by law for national security, public order, public health and public morals etc].
• Right to equality;
• Prohibition against cruel, inhuman or degrading treatment or punishment;
• Freedom from slavery or servitude and forced or compulsory labour;
• Freedom from arbitrary expulsion;
• Right to privacy; etc.
RESPONSIBILITIES ON STATE PARTIES
For the State Parties to the Convention, there are two types of responsibilities. For a State which is sending migrant workers, the responsibilities are:
1. Allow its citizens seeking employment abroad and their return to the country;
2. Pre-departure information on the working conditions and other requirements;
3. Facilitate the exercise of the political rights by the migrant workers in the country of origin;
4. Provide adequate consular services;
5. Regulate recruitment procedures, which includes prevention of abuse in the recruitment practices;
6. Facilitate return of migrant workers; etc.
For the receiving States (if a party to the Convention), the obligations are:
1. Ensure liberty and security of person of the migrant workers; if deprived of shall be treated with humanity and with respect for inherent dignity of the human persons;
2. Avoid arbitrary deprivation of property;
3. Ensure safe working and living condition;
4. Ensure equal status with regard to access to court and tribunals;
5. Allow association and trade union activities;
6. Right to be recognized as a person before the law;
7. Facilitate family reunification; etc.
BANGLADESH PERSPECTIVE
Almost a decade has passed since Bangladesh has signed the Convention; however, the State is yet to ratify it. Bangladesh also lacks a comprehensive legal framework to govern the migration sector. The ratification to the Convention by Bangladesh would contribute to streamlining the administrative and legal frameworks and measures and initiating related institutional mechanisms among others. However, ratification will bring no benefit if it is not adopted in the domestic legislation and implemented progressively.
There will be no additional obligations on Bangladesh, if it ratifies the Convention. The Constitution of Bangladesh guarantees the following rights for the citizens. Mentionable among these are:
1. Equal protection of law;
2. Right to life and liberty;
3. Safeguards as to arrest and detention;
4. Prohibition of forced labour;
5. Protection in respect of trial and punishment;
6. Freedom of thought, conscience and religion;
There is a remedial mechanism as well if one is deprived of those rights [i.e., Right to enforcement of these rights]. As a citizen of Bangladesh, wherever one goes (as a migrant worker) s/he is entitled to have the Constitutional protection of respective rights; the State (Bangladesh) has a role here to ensure and facilitate the enjoyment and protection of those rights.
There are misconceptions that ratification of the Convention might make the labour receiving countries unhappy. This is not the case and also not justifiable through empirical evidences. The experiences of major labour sending countries like Philippines and Sri Lanka do not support that. After ratification of the Convention those States have gone for gradual streamlining of the migration sector through adopting legislative frameworks, institutional arrangements, skill development of migrant workers,
bringing accountability and transparency in the management, and effective monitoring mechanisms among others.
A quarter is reportedly propagating that if Bangladesh ratifies the Convention it would bring “more obligations” to the State for the incoming migrant workers here in Bangladesh. They are saying that through the ratification the Convention, theState would have more obligation with regard to “… respect and ensure the rights to freedom of movement, freedom from torture, freedom of thought, expression, conscience and religion, right to property, right to join freely any trade union etc. without any distinction of any kind...,”...
Only documented migrant workers (and their families) are entitled to have right to liberty of movement in the territory of the State of employment. However, this freedom is again restricted by the relevant laws of the State to protect national security, public order, public health and morals. Those rights have bearing effects in the International Covenant on Civil and Political Rights, 1966 (ICCPR) which Bangladesh has already ratified.
Right to property will be regulated by the respective law of the State; however, migrant workers could not be arbitrarily deprived of their property rights, which is a rule of a civilized law.
Freedom from torture is prohibited in Art 7 of the ICCPR. Bangladesh is also a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 which obliged the State Parties to “… take effective legislative, administrative, judicial or other measures to prevent acts of torture…”
Freedom of thought, expression, conscience and religion is guaranteed for “everyone” in the ICCPR (Art. 18); [Bangladesh is a party to that instrument already]. As it has been explained earlier what are the obligations imposed by the Convention for a ratifying State; those are nothing more than the Constitutional and other obligations already in place in case of Bangladesh [i.e., equal protection of law for every other person(non-citizen), Art. 31 of the Constitution]. At the same time, nothing in the Convention shall have the effect of relieving migrant workers (and their families) from either the obligation to comply with laws and regulations of a State (of employment).
I argue for immediate ratification of the Convention by Bangladesh. This will boost the image of the State in international community and give a moral position to negotiate with counterparts to promote safe migration for its nationals and to protect rights of the Bangladeshi-origin migrant workers. At the same time we should immediately go for adoption of appropriate regulatory regime and their enforcement.
Bangladesh is now a major player in the United Nations system and its human rights mechanisms. Therefore, the ratification of the Convention will pave a way for showing its commitment and credibility for the cause of promoting and protecting rights of the migrant workers.
(This article was presented in a seminar in Dhaka organized by WARBE Development Foundation and its partners on 11 October 2010).
*Originally appeared in the PROBE News Magazine, Dhaka, 15-21 October 2010; link: http://www.probenewsmagazine.com/index.php?index=2&contentId=6432
By DR. UTTAM KUMAR DAS
Bangladesh is a major country of origin for migrant workers. It is estimated that more than seven million Bangladeshis are now working and living abroad. Those migrant workers are also contributing hugely to our foreign exchange earnings. In 2009, the amount was reportedly 75,000 crore taka (about US$ 10 billion).
Though the sector has huge potential, given the demand for migrant workers in the Middle Eastern, West European, African and North American countries, there are challenges as well due to the low skills of the migrant workers, lack of capacity in both public and private sector in managing the migration sector, and lack of regulatory framework and other measures.
The existing institutions (i.e., Ministry of Expatriates Welfare and Overseas Employment, Bureau of Manpower and Training, and District Employment and Manpower Office etc) also have their own limitations with regard to manpower, capacity, technological, and other logistical aspects to better manage the sector. The State is yet to ratify the vital international instrument in this regard, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990.
THE CONVENTION
The Convention is considered as a human rights instrument. It creates new grounds by extending protection to migrant workers and members of their families globally.
The Convention came into force on 1 July 2003. The adoption of this instrument is viewed as “…how the international community conceives of the application of human rights in its provisions for equality of treatment between different groups of migrant workers: male and female, documented and undocumented, and also between the nationals and non-nationals,” as Dr. Refaat Ahmed (who is now a Justice at the High Court Division of the Supreme Court of Bangladesh) commented in his book, Forlorn Migrants: An International Legal Regime for Undocumented Migrant Workers (Dhaka: UPL, 2000, p. 36).
As of 10 October 2010, the number of signatories to the instrument stood at 31 (including Bangladesh) while number of ratifying State parties was 43. Bangladesh signed the instrument on 7 October 1998 though the Law Commission recommended its ratification.
RIGHTS IN THE CONVENTION
The human rights are applicable to all migrant workers irrespective of their legal status, while other rights are applicable only to migrant workers in a regular situation. However, the Convention does not exclude undocumented workers totally. It has provided provisions for the “just treatment” for those who are in an undocumented or irregular situation. At the same time, the instrument seeks to draw the attention of the international community to the growing trend of dehumanization of the migrant workers and members of their families as well.
The Convention provides following rights to migrant workers (and members of their families):
• Right to life;
• Freedom of movement (Art. 8); [except for those are provided by law for national security, public order, public health and public morals etc].
• Right to equality;
• Prohibition against cruel, inhuman or degrading treatment or punishment;
• Freedom from slavery or servitude and forced or compulsory labour;
• Freedom from arbitrary expulsion;
• Right to privacy; etc.
RESPONSIBILITIES ON STATE PARTIES
For the State Parties to the Convention, there are two types of responsibilities. For a State which is sending migrant workers, the responsibilities are:
1. Allow its citizens seeking employment abroad and their return to the country;
2. Pre-departure information on the working conditions and other requirements;
3. Facilitate the exercise of the political rights by the migrant workers in the country of origin;
4. Provide adequate consular services;
5. Regulate recruitment procedures, which includes prevention of abuse in the recruitment practices;
6. Facilitate return of migrant workers; etc.
For the receiving States (if a party to the Convention), the obligations are:
1. Ensure liberty and security of person of the migrant workers; if deprived of shall be treated with humanity and with respect for inherent dignity of the human persons;
2. Avoid arbitrary deprivation of property;
3. Ensure safe working and living condition;
4. Ensure equal status with regard to access to court and tribunals;
5. Allow association and trade union activities;
6. Right to be recognized as a person before the law;
7. Facilitate family reunification; etc.
BANGLADESH PERSPECTIVE
Almost a decade has passed since Bangladesh has signed the Convention; however, the State is yet to ratify it. Bangladesh also lacks a comprehensive legal framework to govern the migration sector. The ratification to the Convention by Bangladesh would contribute to streamlining the administrative and legal frameworks and measures and initiating related institutional mechanisms among others. However, ratification will bring no benefit if it is not adopted in the domestic legislation and implemented progressively.
There will be no additional obligations on Bangladesh, if it ratifies the Convention. The Constitution of Bangladesh guarantees the following rights for the citizens. Mentionable among these are:
1. Equal protection of law;
2. Right to life and liberty;
3. Safeguards as to arrest and detention;
4. Prohibition of forced labour;
5. Protection in respect of trial and punishment;
6. Freedom of thought, conscience and religion;
There is a remedial mechanism as well if one is deprived of those rights [i.e., Right to enforcement of these rights]. As a citizen of Bangladesh, wherever one goes (as a migrant worker) s/he is entitled to have the Constitutional protection of respective rights; the State (Bangladesh) has a role here to ensure and facilitate the enjoyment and protection of those rights.
There are misconceptions that ratification of the Convention might make the labour receiving countries unhappy. This is not the case and also not justifiable through empirical evidences. The experiences of major labour sending countries like Philippines and Sri Lanka do not support that. After ratification of the Convention those States have gone for gradual streamlining of the migration sector through adopting legislative frameworks, institutional arrangements, skill development of migrant workers,
bringing accountability and transparency in the management, and effective monitoring mechanisms among others.
A quarter is reportedly propagating that if Bangladesh ratifies the Convention it would bring “more obligations” to the State for the incoming migrant workers here in Bangladesh. They are saying that through the ratification the Convention, theState would have more obligation with regard to “… respect and ensure the rights to freedom of movement, freedom from torture, freedom of thought, expression, conscience and religion, right to property, right to join freely any trade union etc. without any distinction of any kind...,”...
Only documented migrant workers (and their families) are entitled to have right to liberty of movement in the territory of the State of employment. However, this freedom is again restricted by the relevant laws of the State to protect national security, public order, public health and morals. Those rights have bearing effects in the International Covenant on Civil and Political Rights, 1966 (ICCPR) which Bangladesh has already ratified.
Right to property will be regulated by the respective law of the State; however, migrant workers could not be arbitrarily deprived of their property rights, which is a rule of a civilized law.
Freedom from torture is prohibited in Art 7 of the ICCPR. Bangladesh is also a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 which obliged the State Parties to “… take effective legislative, administrative, judicial or other measures to prevent acts of torture…”
Freedom of thought, expression, conscience and religion is guaranteed for “everyone” in the ICCPR (Art. 18); [Bangladesh is a party to that instrument already]. As it has been explained earlier what are the obligations imposed by the Convention for a ratifying State; those are nothing more than the Constitutional and other obligations already in place in case of Bangladesh [i.e., equal protection of law for every other person(non-citizen), Art. 31 of the Constitution]. At the same time, nothing in the Convention shall have the effect of relieving migrant workers (and their families) from either the obligation to comply with laws and regulations of a State (of employment).
I argue for immediate ratification of the Convention by Bangladesh. This will boost the image of the State in international community and give a moral position to negotiate with counterparts to promote safe migration for its nationals and to protect rights of the Bangladeshi-origin migrant workers. At the same time we should immediately go for adoption of appropriate regulatory regime and their enforcement.
Bangladesh is now a major player in the United Nations system and its human rights mechanisms. Therefore, the ratification of the Convention will pave a way for showing its commitment and credibility for the cause of promoting and protecting rights of the migrant workers.
(This article was presented in a seminar in Dhaka organized by WARBE Development Foundation and its partners on 11 October 2010).
*Originally appeared in the PROBE News Magazine, Dhaka, 15-21 October 2010; link: http://www.probenewsmagazine.com/index.php?index=2&contentId=6432
Law interview: Legal education must be brought out of the four walls
Professor Dr. Mizanur Rahman, Chairman of the National Human Rights Commission, is an outspoken academic and activist for the cause of promotion and protection of human rights. Originally a Professor with expertise in International Law at the Department of Law, University of Dhaka has pioneered in the human rights education in Bangladesh and beyond through his innovative Human Rights Summer School model of legal learning, a two-week course for university law students. This year the programme would have its 11th event in December which is being organised under the auspices of the Empowerment Through Law of the Common People (ELCOP), a training and advocacy organization initiated by Dr. Rahman himself. Recently, Dr. Rahman has been honoured with the “Professor N. R. Madhava Menon Best Law Teacher in the SAARC Region Award 2010”. Dr. Uttam Kumar Das has talked with him on various issues of legal education and human rights.
Uttam Kumar Das (UKD): What is your view on the legal education in Bangladesh?
Dr. Mizanur Rahman (MR): The legal education in Bangladesh is a disoriented one. There is no concrete perspective for the sector. There is no coordination of activities- who is doing what and why with regard to the legal and judicial education and training in the country. Many rivulets of legal education and gaps among their standards have put a challenge to the rule of law itself. We are failing to produce qualified lawyers and judges in terms of their legal knowledge and analytical and others skills in a competitive scenario in the global or regional context. Though it has been a vital sector given the contribution to the rule of law, democracy and access to justice, however, unfortunately, no body takes the issue of legal and judicial education seriously. Whereas our neighbouring countries including Nepal have been producing global-standard law graduates who are competing trans-nationally.
UKD: What consequences do you foresee in the given scenario?
MR: If we can't take immediate steps to halt this downgrading trend of legal education immediately, it would be a disastrous situation for the country. Unfortunately, after 40 years of the liberation of the country we could not initiate a standard legal education.
We have failed to set up a people-friendly vision in the existing legal education as well. It, with few exceptions, hardly has clinical and practical component. The existing system is also obsolete and archaic in nature. For example, no one can say when the curriculum of the LL.B. programme now under the National University was prepared or modified. The private law colleges, home for part-time students and teachers, alike private universities turned into business centres in producing so-called law graduates. The law programmes both at the public and private universities have problems with regard to timeliness of the curriculum, application of course, teaching methodology, examination system, skills and expertise of the respective faculty members, research and publications and other resources available for a standard academic atmosphere.
UKD: What is the impact on the judiciary?
MR: One of our former Chief Justices had observed that a disaster has been going on in our judiciary. This is contributed by lack of qualified lawyers.
It has turned into a vicious circle. Though we are getting a huge number of law graduates and lawyers enrolled each year, however, a handful of them are qualified in terms of proper legal knowledge and skills. That is why we are getting a huge number of under-qualified lawyers in the bars. The same is also happening with the bench. Fortunately, there are few activist lawyers and judges; they are very small in number to change the whole scenario. One activist judge can't make a sound judicial system what we need. Without a sound legal education we can't expect a sound legal or judicial system as well. We have to come out of the mindset of the colonial judicial system as early as possible.
UKD: What is the reason for this failure?
MR: No body thinks about this; no government has thought to take up the issue. There has been no initiative either from public and private sector to reform, regulate and standardise the legal education. That's why under-qualified and non-qualified teachers and graduates have been dominating like their counterparts in the legal profession and judiciary. One can easily understand what they are to contribute to ensure people's access to justice. It has been a frustrating scenario.
There are hardly any qualified and globally-competitive graduates from our law schools in practicing International Business Law or Trade Law among some other modern area of practice. That's why as a nation we are failing to meet the global trends and competitions in those sectors.
However, there has been an elite class among lawyers here educated in the west. They are not actually from the mainstream lawyers here; they do maintain coteries of themselves. Handfuls of them are controlling practices related to global finance and transactions here.
UKD: How do you see a remedy from this situation?
MR: The government has to take note of the situation. There should be National Legal Education Policy and Comprehensive Action Plan in this regard. We also need standard setting national legal institutions to facilitate study and research on various branches of legal and justice education. Human Rights should be an integral part of the legal education. We can follow the model of the National Law School of India University and Kathmandu School of Law.
UKD: What about the legal education in the Education Policy?
MR: The Kudrat-e-Khuda Commission has a stake of eight pages on the legal education. The latest Education Policy dedicated only half page on the issue which very neglectfully covers an important sector. This reflects our national position and standpoint on the legal education.
UKD: What about the role of Bangladesh Bar Council?
MR: The Bar Council has miserably been failing in this regard. It seems that it has opened a sluiced gate to all to be lawyers (Advocates). Since, the Council is authorised to admit new lawyers (Advocates) and issue licenses; it has a regulatory role and immense opportunity to advocate for a standard and qualitative legal education. The Council should standardise its examination system for enrolling new lawyers as well. Also, it should make effective the monitoring role over law schools. And finally, the Council should go beyond political considerations with regard to promoting and advocating for a standard setting in the legal education system. Earlier, the Bar Council, under the leadership of Barrister M. Amir-ul Islam, had introduced few skill development training programmes for lawyers, which included Bar Vocation Courses (BVC) and Continuing Legal Education Programme (CLEP). Those programmes had been stopped for unknown reasons during the last caretaker government.
The bar Associations have also a role to play in this regard. They should be vigilant about professional standard, skills and etiquette. They should develop and maintain a strict Code of Conduct for their members and fight for upholding the canon of the profession and justice.
UKD: So, what are your overall recommendations?
MR: The legal education has to be standardised to compete with in the globalised world. The legal education must be brought out of the four walls; it has to be made practical and be brought to the problems of the people and society. For example, in studying land law one has to go to the villages, and has to talk to the peasants, landlords, and sharecroppers. To study criminal law, we need to know the situation and psyche of the victims, accused persons, and society as a whole. In the present system, law courses are being taught without their practical aspects. That's why law graduates do not feel comfortable when they start to do practice. Its like one is learning how to swim without getting in to water. Therefore, in practice one found him or herself unable to swim in the huge ocean of practical lives and legal complexities. Legal ethics and ethical lawyering should also be a focus point of legal curricula. The law teachers are to be properly equipped with knowledge, teaching techniques, research etc. Continuing Legal Education should be introduced for teachers alongside lawyers and judges.
UKD: Would you please share your feelings being the “Best Law Teacher in the SAARC Region”?
MR: I see it as recognition of joint efforts of what we are doing here with regard to legal and human rights education. I would take it as encouragement for all of us for more works to do. And we need concerted efforts of all concerned to achieve the goal of an egalitarian society.
The interviewer is an Advocate in the Supreme Court of Bangladesh. He is also the Deputy Director at the South Asian Institute of Advanced Legal and Human Rights Studies (SAILS), Dhaka.
*Originally appeared in The Daily Star ("Law & Our Rights" Section), 16 October 2010; link: http://www.thedailystar.net/law/2010/10/03/interview.htm
Uttam Kumar Das (UKD): What is your view on the legal education in Bangladesh?
Dr. Mizanur Rahman (MR): The legal education in Bangladesh is a disoriented one. There is no concrete perspective for the sector. There is no coordination of activities- who is doing what and why with regard to the legal and judicial education and training in the country. Many rivulets of legal education and gaps among their standards have put a challenge to the rule of law itself. We are failing to produce qualified lawyers and judges in terms of their legal knowledge and analytical and others skills in a competitive scenario in the global or regional context. Though it has been a vital sector given the contribution to the rule of law, democracy and access to justice, however, unfortunately, no body takes the issue of legal and judicial education seriously. Whereas our neighbouring countries including Nepal have been producing global-standard law graduates who are competing trans-nationally.
UKD: What consequences do you foresee in the given scenario?
MR: If we can't take immediate steps to halt this downgrading trend of legal education immediately, it would be a disastrous situation for the country. Unfortunately, after 40 years of the liberation of the country we could not initiate a standard legal education.
We have failed to set up a people-friendly vision in the existing legal education as well. It, with few exceptions, hardly has clinical and practical component. The existing system is also obsolete and archaic in nature. For example, no one can say when the curriculum of the LL.B. programme now under the National University was prepared or modified. The private law colleges, home for part-time students and teachers, alike private universities turned into business centres in producing so-called law graduates. The law programmes both at the public and private universities have problems with regard to timeliness of the curriculum, application of course, teaching methodology, examination system, skills and expertise of the respective faculty members, research and publications and other resources available for a standard academic atmosphere.
UKD: What is the impact on the judiciary?
MR: One of our former Chief Justices had observed that a disaster has been going on in our judiciary. This is contributed by lack of qualified lawyers.
It has turned into a vicious circle. Though we are getting a huge number of law graduates and lawyers enrolled each year, however, a handful of them are qualified in terms of proper legal knowledge and skills. That is why we are getting a huge number of under-qualified lawyers in the bars. The same is also happening with the bench. Fortunately, there are few activist lawyers and judges; they are very small in number to change the whole scenario. One activist judge can't make a sound judicial system what we need. Without a sound legal education we can't expect a sound legal or judicial system as well. We have to come out of the mindset of the colonial judicial system as early as possible.
UKD: What is the reason for this failure?
MR: No body thinks about this; no government has thought to take up the issue. There has been no initiative either from public and private sector to reform, regulate and standardise the legal education. That's why under-qualified and non-qualified teachers and graduates have been dominating like their counterparts in the legal profession and judiciary. One can easily understand what they are to contribute to ensure people's access to justice. It has been a frustrating scenario.
There are hardly any qualified and globally-competitive graduates from our law schools in practicing International Business Law or Trade Law among some other modern area of practice. That's why as a nation we are failing to meet the global trends and competitions in those sectors.
However, there has been an elite class among lawyers here educated in the west. They are not actually from the mainstream lawyers here; they do maintain coteries of themselves. Handfuls of them are controlling practices related to global finance and transactions here.
UKD: How do you see a remedy from this situation?
MR: The government has to take note of the situation. There should be National Legal Education Policy and Comprehensive Action Plan in this regard. We also need standard setting national legal institutions to facilitate study and research on various branches of legal and justice education. Human Rights should be an integral part of the legal education. We can follow the model of the National Law School of India University and Kathmandu School of Law.
UKD: What about the legal education in the Education Policy?
MR: The Kudrat-e-Khuda Commission has a stake of eight pages on the legal education. The latest Education Policy dedicated only half page on the issue which very neglectfully covers an important sector. This reflects our national position and standpoint on the legal education.
UKD: What about the role of Bangladesh Bar Council?
MR: The Bar Council has miserably been failing in this regard. It seems that it has opened a sluiced gate to all to be lawyers (Advocates). Since, the Council is authorised to admit new lawyers (Advocates) and issue licenses; it has a regulatory role and immense opportunity to advocate for a standard and qualitative legal education. The Council should standardise its examination system for enrolling new lawyers as well. Also, it should make effective the monitoring role over law schools. And finally, the Council should go beyond political considerations with regard to promoting and advocating for a standard setting in the legal education system. Earlier, the Bar Council, under the leadership of Barrister M. Amir-ul Islam, had introduced few skill development training programmes for lawyers, which included Bar Vocation Courses (BVC) and Continuing Legal Education Programme (CLEP). Those programmes had been stopped for unknown reasons during the last caretaker government.
The bar Associations have also a role to play in this regard. They should be vigilant about professional standard, skills and etiquette. They should develop and maintain a strict Code of Conduct for their members and fight for upholding the canon of the profession and justice.
UKD: So, what are your overall recommendations?
MR: The legal education has to be standardised to compete with in the globalised world. The legal education must be brought out of the four walls; it has to be made practical and be brought to the problems of the people and society. For example, in studying land law one has to go to the villages, and has to talk to the peasants, landlords, and sharecroppers. To study criminal law, we need to know the situation and psyche of the victims, accused persons, and society as a whole. In the present system, law courses are being taught without their practical aspects. That's why law graduates do not feel comfortable when they start to do practice. Its like one is learning how to swim without getting in to water. Therefore, in practice one found him or herself unable to swim in the huge ocean of practical lives and legal complexities. Legal ethics and ethical lawyering should also be a focus point of legal curricula. The law teachers are to be properly equipped with knowledge, teaching techniques, research etc. Continuing Legal Education should be introduced for teachers alongside lawyers and judges.
UKD: Would you please share your feelings being the “Best Law Teacher in the SAARC Region”?
MR: I see it as recognition of joint efforts of what we are doing here with regard to legal and human rights education. I would take it as encouragement for all of us for more works to do. And we need concerted efforts of all concerned to achieve the goal of an egalitarian society.
The interviewer is an Advocate in the Supreme Court of Bangladesh. He is also the Deputy Director at the South Asian Institute of Advanced Legal and Human Rights Studies (SAILS), Dhaka.
*Originally appeared in The Daily Star ("Law & Our Rights" Section), 16 October 2010; link: http://www.thedailystar.net/law/2010/10/03/interview.htm
Legal Education in Bangladesh
Legal education in Bangladesh is in a pitiful state and needs immediate and serious attention
By Dr. Uttam Kumar Das
I am concerned with the quality and standard of the legal education in Bangladesh.
The low and sub-standard legal education, which is not comparable in a global or even in a regional context, contributes to producing graduates with skills below the expectation and requirements of the day. These people are joining the legal profession, the judiciary and other services. How can we compete at a global level with such legal professionals?
This does not apply to legal education alone. The same goes for other disciplines as well, with a few exceptions. But our concentration here is on legal education.
According to renowned Indian legal academic, Professor NR Madhava Menon, law as a discipline is to play multiple tasks in a society, and lawyers are expected to act as change agents and social engineers in governance and development of a nation.
In a recent discussion, a former Judge of the High Court Division (who now heads a constitutional body), wondered about initiative from the Bar Council or the Supreme Court Bar Association which has produced lawyers like Dr. Kamal Hossain, or Barrister Amir-ul Islam, with regard to our legal education and future of the legal profession. The District Bar Associations also could be blamed for such failure.
According to him, the legal profession should not be open for all but for those who are graduating in law and have adequate legal knowledge, and are sufficiently skilled and conversant with the norms, etiquette and ethics of the profession.
Again as Professor Menon who pioneered to evolved and brought global-standard legal education through establishment of the pioneering institute National Law School of India, University in Bangalore, observes that the goal of the legal education is to provide: (i) sufficient competent lawyers, prosecutors, and judges to administer the judiciary, (ii) well-trained law personnel for providing legal services to the government departments and corporate institutions, (iii) legal researchers and academics for legal education, legal reform, good governance, and (iv) disseminate legal knowledge and culture conducive to the Constitution, rule of law, good governance, human rights, and democracy.
If we look into the existing legal education and research in Bangladesh the scenario would be frustrating.
We all are talking about bringing a culture of respect for human rights, rule of law, and democracy; however, we are not paying any attention to the basis of it - legal and human rights education.
Donor agencies, which have been partnering for or with the so-called awareness and training programmes, are not paying attention to the root of the issue - legal and human rights education. With regard to training, NGO initiatives are also not sufficient due to deficiency in their own capacity and expertise, lack of continuity, presence of corruption, and other factors.
The desired legal education, as envisioned by Professor Menon, should be of problem solving which would give opportunities to students for legal analysis and reasoning, research and writing, investigation and marshalling facts, communication, negotiating, counseling, alternative dispute resolution (ADR), and litigation. The graduates are expected to manage efficiently the legal work and will have right attitudes to the dignity of the profession of law and justice. They would nourish and fight to protect professional values and integrity, and to promote and practice fairness and freedom from bias.
How close or far away are we from those?
Recently I attended a seminar on the Alternative Dispute Resolution jointly organized by the Law Commission and the South Asian Institute of Advanced Legal and Human Rights Studies (SAILS) in Chittagong. The issue of the pitiful condition of legal education came in the discussion.
The Chairman of the Law Commission, Justice Abdur Rashid warned all of us if we don’t pay immediate attention to standardize the legal education then we have to pay for it in future. There is no denial of this.
The existing scenario of the legal education has been documented by Professor Menon in a study almost a decade ago commissioned by a donor agency. He also come up with a comprehensive set of recommendations and plan for streamlining our legal education. However, there had been no headway so far.
Professor Menon had piloted the plan of Bar Council of India for a world-class legal education through establishment of the National Law School of India and a University in Bangalore. The same model has been replicated in other parts of India over the years; there are now more than 15 Law Universities in India. Their courses are devoted to law, justice, human rights, governance etc. Even, Kathmandu Law School in Nepal has earned fame for its quality curriculum, teaching methods, research and publications. Unfortunately, we are far behind until now.
In our country, we have four streams of legal education. There are law departments in four public universities. Around 35 private universities have law departments or schools. There are 70 law colleges under the National University all over the country. There are external programmes of few British universities as well.
The curriculum and teaching methods are mostly outdated (with exceptions of a few courses in few public/private universities). Very few institutions have schemes to engage students so that they could learn legal research, presentation, analysis, argument, and writing skills with regard to a social problem.
The law schools, both public and private, also follow a faulty selection process for teachers. There is no faculty tenure, service conditions, evaluation processes.
Professor Menon rightly observed, years of experience do not make a good law teacher, unless the experience is grounded on experimentation, endeavour, and creativity.
In the United States, law schools provide extra credits in selecting faculty members to those who have experiences in research works, publications, advocacy and doing pro bono work, and working experience for international and national legal or human rights organizations alongside the academic excellence.
Here in Bangladesh, the volume and standard of research and publication is far away from the expectation. Though some of the law schools/departments have their “journals” (not regular in publication), those follow the rule of “limiting the knowledge.”
In case of public university, “articles” from respective faculty members are only accepted (but no question about independent review and competitive selection process). Those publications are also not available for public, even with payment.
Bangladesh Bar Council, the statutory body to look after the standard of legal education and ethics in legal profession has been failing to play its due role. It has reportedly no activity with regard to research and experiment on legal education, curriculum and related professional issues and endeavours.
According to some observers, the Council has turned into a place of “clerical works” for issuing licenses to Advocates and a “political platform for a section of lawyers” to compete each other. The standard and method of examination for enrolling law graduates as Advocates has come under serious criticism. The process is also not free from the accusation of corruption.
The Council has no innovation and creativity with regard to academic and research activities for quality legal and judicial education and related matters for legal profession. It has no regular research projects and publications as well. And it should be above and beyond political divisions and wrongdoings.
The Judicial Administration Training Institute (JATI), the training center for judges has also failed to explore its full potential in terms of judicial education, training and publications.
Given my recent experience in the United States, I found that an NGO like the American Bar Association (ABA) is serious and devoted to development of the quality of legal education, research, publication and above all quality of the graduates coming out of the law schools.
There, the Bar Examination Board and respective State Supreme Courts are the authority to evaluate fresh law graduates and to issuing license as an Attorney (Advocate in Bangladesh). However, the law schools have to have accreditation from the ABA, which inspects law schools on a cyclic order. State and County Bar Associations also have lot of activities for the professional development.
Recently, I had had separate discussions with Professor Mizanur Rahman, Chairman of the National Human Rights Commission, and Professor M. Shah Alam, Member of the Law Commission. I have an active professional connection with Professor Rahman. Professor Alam had been my teacher at the University of Rajshahi (before he had moved to establish the Department of Law at the University of Chittagong).
I find the same concerns as of mine in both the Professors. They are worried with the quality of legal education and absence of initiative its improvement. Both of the seasoned legal academic expressed their anguish given no headway from the related ministry and others concerned in this regard.
They had been commissioned by a donor agency almost a decade ago for two studies on the legal education and clinical legal education in the country. Following that the Law Commission (Professor Alam was then a Member as well) has submitted a completed proposal for streamlining the legal education to the Ministry of Law, Justice and Parliamentary Affairs. However, there is no progress in this regard so far. There is no vision and direction on legal education in the newly adopted Education Policy as well.
How we would get skilled personnel to compete and negotiate in a globalized world in government’s dealings, trades and business?
I wondered, given a good number of our policy makers having background in law and being in legal profession, how come the matter has been ignored for years?
This is the high time for us to move on and take up the issue immediately. Otherwise, our dream for a pro-active and pro-people legal and judicial system would be a distant dream.
We should aim to make the “legal studies intellectually stimulating, socially relevant and professionally significant,” as Professor Menon observes.
udas1971@gmail.com
*Originally appeared in the PROBE News Magazine, Dhaka, 1-14 October, 2010; link: http://www.probenewsmagazine.com/index.php?index=2&contentId=6407.
By Dr. Uttam Kumar Das
I am concerned with the quality and standard of the legal education in Bangladesh.
The low and sub-standard legal education, which is not comparable in a global or even in a regional context, contributes to producing graduates with skills below the expectation and requirements of the day. These people are joining the legal profession, the judiciary and other services. How can we compete at a global level with such legal professionals?
This does not apply to legal education alone. The same goes for other disciplines as well, with a few exceptions. But our concentration here is on legal education.
According to renowned Indian legal academic, Professor NR Madhava Menon, law as a discipline is to play multiple tasks in a society, and lawyers are expected to act as change agents and social engineers in governance and development of a nation.
In a recent discussion, a former Judge of the High Court Division (who now heads a constitutional body), wondered about initiative from the Bar Council or the Supreme Court Bar Association which has produced lawyers like Dr. Kamal Hossain, or Barrister Amir-ul Islam, with regard to our legal education and future of the legal profession. The District Bar Associations also could be blamed for such failure.
According to him, the legal profession should not be open for all but for those who are graduating in law and have adequate legal knowledge, and are sufficiently skilled and conversant with the norms, etiquette and ethics of the profession.
Again as Professor Menon who pioneered to evolved and brought global-standard legal education through establishment of the pioneering institute National Law School of India, University in Bangalore, observes that the goal of the legal education is to provide: (i) sufficient competent lawyers, prosecutors, and judges to administer the judiciary, (ii) well-trained law personnel for providing legal services to the government departments and corporate institutions, (iii) legal researchers and academics for legal education, legal reform, good governance, and (iv) disseminate legal knowledge and culture conducive to the Constitution, rule of law, good governance, human rights, and democracy.
If we look into the existing legal education and research in Bangladesh the scenario would be frustrating.
We all are talking about bringing a culture of respect for human rights, rule of law, and democracy; however, we are not paying any attention to the basis of it - legal and human rights education.
Donor agencies, which have been partnering for or with the so-called awareness and training programmes, are not paying attention to the root of the issue - legal and human rights education. With regard to training, NGO initiatives are also not sufficient due to deficiency in their own capacity and expertise, lack of continuity, presence of corruption, and other factors.
The desired legal education, as envisioned by Professor Menon, should be of problem solving which would give opportunities to students for legal analysis and reasoning, research and writing, investigation and marshalling facts, communication, negotiating, counseling, alternative dispute resolution (ADR), and litigation. The graduates are expected to manage efficiently the legal work and will have right attitudes to the dignity of the profession of law and justice. They would nourish and fight to protect professional values and integrity, and to promote and practice fairness and freedom from bias.
How close or far away are we from those?
Recently I attended a seminar on the Alternative Dispute Resolution jointly organized by the Law Commission and the South Asian Institute of Advanced Legal and Human Rights Studies (SAILS) in Chittagong. The issue of the pitiful condition of legal education came in the discussion.
The Chairman of the Law Commission, Justice Abdur Rashid warned all of us if we don’t pay immediate attention to standardize the legal education then we have to pay for it in future. There is no denial of this.
The existing scenario of the legal education has been documented by Professor Menon in a study almost a decade ago commissioned by a donor agency. He also come up with a comprehensive set of recommendations and plan for streamlining our legal education. However, there had been no headway so far.
Professor Menon had piloted the plan of Bar Council of India for a world-class legal education through establishment of the National Law School of India and a University in Bangalore. The same model has been replicated in other parts of India over the years; there are now more than 15 Law Universities in India. Their courses are devoted to law, justice, human rights, governance etc. Even, Kathmandu Law School in Nepal has earned fame for its quality curriculum, teaching methods, research and publications. Unfortunately, we are far behind until now.
In our country, we have four streams of legal education. There are law departments in four public universities. Around 35 private universities have law departments or schools. There are 70 law colleges under the National University all over the country. There are external programmes of few British universities as well.
The curriculum and teaching methods are mostly outdated (with exceptions of a few courses in few public/private universities). Very few institutions have schemes to engage students so that they could learn legal research, presentation, analysis, argument, and writing skills with regard to a social problem.
The law schools, both public and private, also follow a faulty selection process for teachers. There is no faculty tenure, service conditions, evaluation processes.
Professor Menon rightly observed, years of experience do not make a good law teacher, unless the experience is grounded on experimentation, endeavour, and creativity.
In the United States, law schools provide extra credits in selecting faculty members to those who have experiences in research works, publications, advocacy and doing pro bono work, and working experience for international and national legal or human rights organizations alongside the academic excellence.
Here in Bangladesh, the volume and standard of research and publication is far away from the expectation. Though some of the law schools/departments have their “journals” (not regular in publication), those follow the rule of “limiting the knowledge.”
In case of public university, “articles” from respective faculty members are only accepted (but no question about independent review and competitive selection process). Those publications are also not available for public, even with payment.
Bangladesh Bar Council, the statutory body to look after the standard of legal education and ethics in legal profession has been failing to play its due role. It has reportedly no activity with regard to research and experiment on legal education, curriculum and related professional issues and endeavours.
According to some observers, the Council has turned into a place of “clerical works” for issuing licenses to Advocates and a “political platform for a section of lawyers” to compete each other. The standard and method of examination for enrolling law graduates as Advocates has come under serious criticism. The process is also not free from the accusation of corruption.
The Council has no innovation and creativity with regard to academic and research activities for quality legal and judicial education and related matters for legal profession. It has no regular research projects and publications as well. And it should be above and beyond political divisions and wrongdoings.
The Judicial Administration Training Institute (JATI), the training center for judges has also failed to explore its full potential in terms of judicial education, training and publications.
Given my recent experience in the United States, I found that an NGO like the American Bar Association (ABA) is serious and devoted to development of the quality of legal education, research, publication and above all quality of the graduates coming out of the law schools.
There, the Bar Examination Board and respective State Supreme Courts are the authority to evaluate fresh law graduates and to issuing license as an Attorney (Advocate in Bangladesh). However, the law schools have to have accreditation from the ABA, which inspects law schools on a cyclic order. State and County Bar Associations also have lot of activities for the professional development.
Recently, I had had separate discussions with Professor Mizanur Rahman, Chairman of the National Human Rights Commission, and Professor M. Shah Alam, Member of the Law Commission. I have an active professional connection with Professor Rahman. Professor Alam had been my teacher at the University of Rajshahi (before he had moved to establish the Department of Law at the University of Chittagong).
I find the same concerns as of mine in both the Professors. They are worried with the quality of legal education and absence of initiative its improvement. Both of the seasoned legal academic expressed their anguish given no headway from the related ministry and others concerned in this regard.
They had been commissioned by a donor agency almost a decade ago for two studies on the legal education and clinical legal education in the country. Following that the Law Commission (Professor Alam was then a Member as well) has submitted a completed proposal for streamlining the legal education to the Ministry of Law, Justice and Parliamentary Affairs. However, there is no progress in this regard so far. There is no vision and direction on legal education in the newly adopted Education Policy as well.
How we would get skilled personnel to compete and negotiate in a globalized world in government’s dealings, trades and business?
I wondered, given a good number of our policy makers having background in law and being in legal profession, how come the matter has been ignored for years?
This is the high time for us to move on and take up the issue immediately. Otherwise, our dream for a pro-active and pro-people legal and judicial system would be a distant dream.
We should aim to make the “legal studies intellectually stimulating, socially relevant and professionally significant,” as Professor Menon observes.
udas1971@gmail.com
*Originally appeared in the PROBE News Magazine, Dhaka, 1-14 October, 2010; link: http://www.probenewsmagazine.com/index.php?index=2&contentId=6407.
Subscribe to:
Posts (Atom)