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
Thursday, October 28, 2010
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.
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