training manual on human rights and local governance
TRANSCRIPT
MMS
TRAINING MANUALHuman Rights and Local Governance
bvixcyiæ‡li
mgAwaKvi
PvB
bvixcyiæ‡li
mgAwaKvi
PvB
bvcyiæ‡mg
AwaKPvB
Piv‡j
miKvix
†mev
mnRjf¨
Ki‡Zn‡e
bvixcyiælˆel¨g¨
gy³mgvRPvB
bvix cyiælˆel¨g¨ gy³mgvR PvB
AwaKviPvB
AwaKvi
PvB
¯’vbxq
Dbœqb
cwiKíbvq
Avgv‡`i
AskMÖn‡bi
my‡hvMPvB
We want participation of ultra-poor people in decision-making for local development.
Give opportunity and power to local Government for best utilization of
local resources.
978-984-33-6795-2Design & Print: A plus Communication
www.apluscom.org
Human Rights and Local Governance Training Manual
Published inApril 2014
Produced by Concern Universal, BangladeshManab Mukti Sangtha (MMS)
Funded byEIDHR programme of the European Union (EU)
Prepared byShankor PaulHead, Human Rights UnitConcern Universal-Bangladesh
ISBN978-984-33-6795-2
Training Manual 1
Disclaimer: The “Training Manual” has been developed with the financial assistance of the European Union. And, the views or opinion herein does not endorsed by the European Union.
S.M. Amir Hossain Deputy Director
Manab Mukti Sangtha (MMS)Bangobandhu Bridge West Sub Sirajganj
Sadar Upazila, Sirajganj, Bangladesh.
E-mail: [email protected]
Shankor PaulHead, Human Rights UnitConcern Universal, BangladeshHouse-8 (4-5th floor), Road-28, Block-K, BananiDhaka-1213, Bangladesh. E-mail: [email protected]: www.concern-universal.org.bd
For further information, please contact:
ForwardThe Training Manual on Human Rights and Local Governance has been developed by Concern Universal, Bangladesh as integral part of the PRADG (Promoting Rights and Accessibility of the ultra-poor people in Char land areas through Democratic Local Governance) project with an aims to meet the training needs of project’s target audiences (i.e. representatives of Local Government Institutions, civil society groups, ultra-poor groups and team members) and other organizations working on Human Rights and Governance issues in Bangladesh.
Concern Universal, Bangladesh (CUB) acknowledges the knowledge documents of various organizations on Human Rights and Governance issues that contribute to develop this training manual.
The issues covered in the manual are conceptual part of Human Rights: meaning, origin and development, Human Rights Standards, Human Rights violations, uses of Human Rights standards in Human Rights monitoring; Human Rights Based Approach and its links with empowerment, Gender and local development; Governance: concept, meaning, elements and challenges; Democratic Local Governance; Participatory planning and budgeting; Right to Information (RTI) and legal provisions (at UP level); Legal Aid and Access to justice of the ultra-poor people; Rural judicial system in Bangladesh: as reference of Village Court.
The manual is made as a user friendly knowledge document by including diagrams, cartons, case studies etc. A simple Bangla version of this manual will be produced shortly. However, the manual will use as working document and the learning in practical application of this manual will be replicated for producing future knowledge documents.
Finally, I would like to acknowledge the efforts and contribution of Mr. Shankor Paul who produced this manual with sincerity and commitment. I am also thankful to Mr. Amir Hossain, Deputy Director of Manab Mukti Sangtha (MMS) and Samir Das, Project Coordinator of PRADG project for their inputs in developing this manual.
I sincerely hope that this manual (English version) will be used effectively for transformation of knowledge and information on Human Rights and Local Governance issues among all relevant actors including the representatives of local government institutions, NGOs, civil society, media, researchers and other strategic stakeholders in Bangladesh.
Cornelis De WolfCountry Director, BangladeshConcern Universal
Training Manual2
ADB Asian Development BankADP Annual Development PlanCAT International Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
CBO Community Based OrganizationCEDAW Convention on Elimination of all forms
of Discrimination against TortureCr. PC Criminal Procedure CodeCRC Convention of the Rights of the ChildCRPD Convention on the Rights of the
Persons with DisabilitiesCSAG Civil Society Action GroupECHR European Convention for the Protection
of Human Rights and Fundamental Rights.EU European UnionICCPR International Convention on Civil and
Political RightsICERD International Convention on the
Elimination of All Forms of Racial Discrimination
ICESCR International Convention on Economic, Social and Cultural Rights
ILO International Labor OrganizationIMF International Monitory FundLDG Local Government DivisionMLGRDC Ministry of Local Government and
Regional Development and CooperativesLG Local Government
LGSP Local Governance Support ProjectLJ Local / Legal JusticeMDG Millennium Development GoalLGRDC Local Government and Regional
Development and CorporationNGO Non-Government OrganizationNNPC Nari Nirzatan Protirodh CommitteeOHCHR Office of High Commission of Human
RightsRBA Right Based ApproachRTD Right to DevelopmentSC Standing CommitteeUDHR United Nations Declaration on Human
Rights UN United NationsUNDP United Nations Development
ProgrammeUNFCCC United Nations Framework Convention
on Climate ChangeUNO Upazila Nirbahi OfficerUP Union ParishadUPG Ultra Poor GroupUS United StatesVDP Village Development ProgrammeVGD Vulnerable Group DevelopmentVGF Village Group FundWHO World Health Organization
Main Acronyms Used
Training Manual 3
Training Manual4
Component Content issues Page
• Introduction• Target audiences• Objectives• Structure of the Manual• Tips for using the Manual• Flexibility of the Manual
• What is Right?• What are Human Rights?• What is Fundamental Rights? Basic differences between
Human Rights and Fundamental Rights? • Origin and development of Human Rights; its Generations• Human Rights Standards• Human Rights violations• Uses of Standard for Human Rights Monitoring.
• Conceptual understanding of Needs and Rights• Understanding of Rights Based Approach (RBA) and Its links
with empowerment• Importance of RBA to Local Development
• What is Gender?• Gender Equality and Equity• Gender approaches to Development
• What is Governance? • What is Good Governance?• What are the basic elements of Good Governance?• Basic links between Good Governance and Human Rights • Major challenges towards Good Governance.
Introduction
Session One:Human Rights and its Standards
Session Two:Human Rights Based Approach to Local Development
Session Three:Gender and Local Development
Session Four:Understanding of Governance:
6-9
10-38
39-45
46-55
56-65
Table of Contents
Training Manual 5
66-83
84-92
93-97
98-103
104-112
113-114
Session Five:Democratic Local Governance
Session Six:Participatory Planning and Budgeting
Session Seven:Rights to Information and Local Governance
Session Eight: Legal Aid and Access to Justice
Session Nine:Rural Justice System
Session Ten:Post-Training Assessment
• What is Local Governance?• What is Democratic Governance? • What is Local Government• Structure of the Local Government• Structures and functions of the Union Parishad in
Bangladesh• Standing Committees of the UPs and its functions • Setting Standards for Democratic Local Governance• Major challenges towards Good Local Governance
• What is Planning and Participatory Planning• Major steps in participatory planning and its timeline. • Major funding sources of the UP• Budget cycle of the Union Parishad
• What is Right to Information (as per RTI Act, 2009). • Legal provisions for Right to Information (RTI) at Union
level. • Ways to improve RTI at UP level.
• What is Legal Aid?• Provisions of Legal Aid in Bangladesh.
• Rural Judicial system in Bangladesh • What is Village Court? • Structure, legal jurisdictions and powers of Village Court” • Role of UP to functionalize the Village Court.
Training Manual6
INTRODUCTION
1. IntroductionThe Training Manual on Human Rights and Local Governance has been developed as integral part of the PRADG project. This manual is a guiding document for facilitation of training courses to improve the skills, efficiency, responsiveness of the local government representatives, civil society action groups, ultra-poor groups and other local stakeholders in dealing with local governance issues. This will supplement to the mandates of PRADG project for creating an environment of democratic local governance in target areas of Bangladesh. This manual provides an overview of the doctrine and framework of human rights and governance as guiding instrument for the target audiences, who will be engaged in various stages of human rights monitoring, formulation of participatory and gender sensitive local development planning (including budgeting), prioritization and enforcement of governance mechanisms in overall local development. It set forth the conceptual understanding of human rights, gender, governance and socio-legal protection issues in line with UN human rights standards and national laws & policies. This manual also provides a framework of rights based approach applicable to the work target audience. It incorporates broadly accepted principles of human rights and governance, which should be maintained by all in their works with a common mandate. However, the manual contains a numbers of chapters, which is important to supplement the priority concerns and mandates of the PRADG project in selected areas of Bangladesh.
1.1 Target audiencesThe training manual is intended for a wider target audience. The training module is addressed first to those responsible for training of the LG representatives, CSAG and UPG members. This can be useful for the civil society organizations and other institutions who need to standardize their efforts in line with human rights and governance perspectives in Bangladesh.
The training manual would also be useful to operational works of the project officials in developing strategic actions and extending collaboration with relevant actors to respond and advocate for particular rights violation issues in target areas of Bangladesh. In addition, this may assist the state agencies and other international or non-governmental organizations engaged in human rights and governance works to develop their own mechanisms and train their officials for integrating participatory and gender sensitive process to formulate local development plan for implementation.
Training Manual 7
1.2 ObjectivesThe overall objective of the Manual is to improve the skills, efficiency, sensitivity and impact the PRADG actions in advancing democratic local governance in target areas of Bangladesh. The specific objectives are as follows: 1) to provide applicable information on Human Rights and Local Governance issues for better
knowledge, skills, efficiency and responsiveness of local government representatives, CSAG, UPG and other local stakeholders.
2) to provide information on formulation of participatory, gender sensitive local development planning and budgeting in line with the provision of Local Government (UP) Act, 2009 and UP Manual.
3) to provide information on socio-legal protection of the ultra-poor people for advancing their access to local justice system in target areas of Bangladesh.
1.3 Structure of the ManualThe content of training manual is divided into nine specific sessions for clear understanding of human rights and governance issues:
Segments ComponentsLesson-One
Lesson-Two
Session Three
Lesson Four
Lesson Five
Lesson Six
Lesson Seven
Lesson Eight
Lesson Nine
Lesson Ten
Human Rights and its Standards
Human Rights Based Approach to Local Development
Gender and Local Development
Understanding of Governance: Concept, Meaning, Elements, Principles and Shifting Paradigm
Democratic Local Governance
Participatory Planning and Budgeting
Rights to Information and its Importance for Good Local Governance
Legal Aid and Access to Justice: Ultra poor people’s perspectives
Rural Justice System in Bangladesh
POST-TRAINING ASSESSMENT
1.4 Tips for using the ManualThis training module is produced to provide necessary information for facilitators to attain desired objective of a particular lesson. For successful completion of training sessions, the users of this module are requested to consider the following points:
• Each session should be focused on specific objective of the lesson and its contents.
• Training session requires relevant materials (i.e. White board, Marker pen, Flip sheet, VIPP Card-Pin and Masking tape, Laptop-multimedia). This should be available before the session to conduct the session smoothly.
• Facilitators should have to be familiar with the session structure and content prior starting a session. This will ensure confidence of the participants on specific matter.
• Facilitators should have a time management skills. Depending on the level of participants, facilitators may need to allow more or less time to complete a discussion on an individual content.
• Facilitators should have to read carefully the briefing notes of specific content before the session. If necessary, they can read relevant reference book/materials and case documents. In relevant cases, facilitators may use examples to illustrate concepts and ideas.
1.5 Flexibility of the Manual
The facilitators may wish to make changes to the manual to ensure its suitability to the specific context of the training being offered. The proposed methods, timeline and materials may be changed depending on the level of knowkldge, skills and according to the established expectations of the participants. If necessary, new objectives may be added. This may require the addition of new material, sessions and methods.
Time Day 1 Day 2
Introduction:- Getting to know each other- Administrative concerns- Levelling of expectations- Course overview- Formation of Training Management Team
(TMT) and assigning tasks
Review of the Day-1Participatory Planning and Budgeting:-What is Planning and Participatory Planning?-Major steps in participatory planning and its timeline-Major funding sources of UPs-Budget cycle of the UPs
9:00-10:00 AM
Training Manual8
SUGGESTED TRAINING SCHEDULE
Time Day 1 Day 2
Human Rights and its Standards:- What are Rights and Human Rights?- What are Fundamental Rights and differences
between Human Rights and Fundamental Rights- Human Rights Standards Human Rights Violations
and Uses of standards for Human Rights MonitoringTea BreakHuman Rights Based Approach to Local Development:- Understanding of Needs and Rights- Rights Based Approach (RBA) and its links with
EmpowermentGender and Local Development:- What is Gender?- Gender Equality and Equity- Gender Approaches and Local Development- Mainstreaming Gender in Local DevelopmentLaunch BreakUnderstanding of Governance- What is Governance?- What is Good Governance? - What are the basic elements of Good Governance?- Basic links between Good Governance and Human
Rights- Major Challenges towards Good Governance in
Bangladesh
Local Governance- What is Local Governance?- What is Democratic Governance? - What is Local Government- Structure of the Local Government- Structures and functions of the UPs- Standing Committees and its functions - Setting Standards for Democratic Local Governance- Major challenges towards Good Local Governance.
Right to Information and Local Governance:- What is Right to Information?- Legal provisions for Right to Information (RTI) at
UP level- Ways to improve RTI (at UP level)
Tea BreakLegal Aid and Access to Justice:- What is Legal Aid?- Provisions of Legal Aid in Bangladesh
Launch BreakRural Justice System:- Rural justice system in Bangladesh- What is Village Court?- Structure, legal jurisdictions and powers of
Village Court- Role of UPs to functionalize the Village Court
Training Evaluation:- Course Synthesis and Evaluation- Closing Ceremony.
10:00-11:00 AM
11:00-11:30
11:30-1:00AM-PM
11:00-2:00 2:00-3:00 PM
3:00-5:00PM
Training Manual 9
Session OneHUMAN RIGHTS AND ITS STANDARDS
Session One:HUMAN RIGHTS AND ITS STANDARDS
Objective of the Lesson: The objective of this lesson is to discuss the concept of human rights, its origin, development, generations and standards. The lessons also introduced hierarchy of rights, basic differences between human rights and fundamental rights and violation of human rights.
Lessons Contents: A. What is Right and B. What are Human Rights?C. What is Fundamental Rights? What are differences between Human Rights and Fundamental Rights? D. Origin and development of Human RightsE. Human Rights and its GenerationsF. Human Rights StandardsG. Human Rights violations H. Uses of Standard for Human Rights Monitoring
A. What is Right?Generally “Right” is an entitlement of a person. It is an interest that recognized and protected by a rule of right. It signifies a law, as when i) natural right requires us to keep our promises; ii) it requires quality in our actions; and iii) requires quality in a person by which he can do certain actions, or possess certain things that belong to him.
As an example: we use “Right” when we say that a person has a right to his estate or a right to defend himself. A right entails an obligation and can be enforced.
Salmond classified the “rights” as follows: Rights over materials Rights over immaterial property (i.e. copy right, patent right) Rights in respect of one’s own person Rights in respect of domestic relations Rights of reputation Rights to services.
Training Manual10
Training Manual 11
Rights are primarily divided into two categories:
1. Legal Rights:Basically, the legal right is an interest that recognized and protected by rule of legal system and justice. The citizens of a country can enjoy “legal rights” that conveyed by the statutes or legislature. The legal rights are called as civil rights or statutory rights. It exists in the legal system of a country. It is a capacity of a person residing in one man of controlling the action of others with the assent and the assistance of the state.
2. Natural/Moral Rights:Natural Rights are called moral rights or unalienable rights. These rights are unalienable in nature. It cannot be alienated from the individual. These are not created or conferred by any government or statute or custom or convention of any political system. It refers a form of moral rights, which are universally applicable. Natural rights don’t have any territorial or jurisdictional limits. It is morally universal. Natural Rights are fundamental to legal Systems and Human Rights Movement.
B. What are Human Rights?Human rights recognize inherent dignity of all human being as the foundation of freedom, justice and peace1. Human rights reflect the minimum standards necessary for people to live with dignity and equality. Human rights give people the freedom to choose how they live, how they express themselves, and what kind of government they want to support, among many other things. Human rights also guarantee people the means necessary to satisfy their basic needs, such as food, housing, and education, so they can take full advantage of all opportunities. Finally, by guaranteeing life, liberty and security, human rights protect people against abuse by those who are more powerful2.
According to the United Nations, human rights: Ensure that a human being will be able to fully develop and use human qualities such as intelligence, talent, and conscience and satisfy his or her spiritual and other needs3.
Therefore, it reveals that Human Rights a re recognized a set of moral and legal standards to which governments are to be held accountable. It refers that Human Rights are:
Internationally guaranteed Legally protected Focuses on the dignity of the human being Protects individuals and groups Places obligations on states and state actors Cannot be waived / taken away (inalienable) Equal and interdependent Universal
It is important to note here that human rights of all individuals and groups are protected by law (‘the rule of law’). The basic notion of fact is to protect the individuals or groups against the (arbitrary) use of state power. The attention is therefore focused on those rights which oblige the government (State) to refrain from certain actions that violates human rights. Human Rights entail to establish rules for standardization of basic relations between the state and individual, and between individuals themselves. As an example: the right to life means that the state (government) must take all necessary actions (i.e. legal/administrative/judicial) to protect people against extrajudicial killing, torture, homicide or enforced disappearance by state agencies or by fellow individuals.
Basic Characteristics:
Inherent Indivisible
Human RightsLives with
Dignity
Inalienable Universal
Human rights do not have to be given, bought, earned or inherited. They belong to people simply because they are human – human rights are ‘inherent’ to each individual. Human rights are inherent because we are born with them.
Human rights are the same for all human beings regardless of sex, religion, ethnicity, political, or other opinion, national or social origin. We are all born free and equal in dignity and rights – human rights are ‘universal’. Human rights are universal because they apply to everyone in the world.
Human rights cannot be taken away - no one has the right to deprive another person of them for any reason. People still have human rights even when the laws of their countries do not recognize them, or when they violate them –for example, when slavery is practiced, slaves still have rights even though these rights are being violated – human rights are ‘inalienable’.
To live in dignity, all human beings are entitled to freedom, security and decent standards of living concurrently – human rights are ‘indivisible.
Figure-1: Characteristics of human rights:
Training Manual12
1 Preamble of the UDHR, 19482 The Advocates for Human Rights and the United States Human Rights Network, “A Practitioner’s Guide to Human Rights Monitoring,Documentation, and Advocacy”, January 2011. Also available at: http://www.theadvocatesforhumanrights.org/uploads/final_report_3.pdf3United Nations CyberSchoolBus, ―Understanding Human Rights,‖ accessed Nov. 10, 2010, http://www.un.org/cyberschoolbus/humanrights/about/understanding.asp
Training Manual 13
C. What is Fundamental Rights?What are differences between Human Rights and Fundamental Rights?
Fundamental Rights:Fundamental rights are the specific rights of the people that preserved by the states as integral part of constitution.
Special characteristics of Fundamental Rights: It contains specific rights; whenever it is violated it can be re-gained by the Courts. It cannot be taken away by the States or Government with fraudal means. The implementation of fundamental rights requires “minimum resources” and “political will of the
state” that’s why it is immediately enforceable rights. It is enforced by the Court of Law (Article-44 of BD constitution) It is an integral part of Bangladesh Constitution under the Part III (Article 27 to 44). It is originated from the ideas of democratic society
The basic differences between the Human Rights and Fundamental rights are as follows:Human Rights Fundamental Rights
Human Rights Fundamental Rights1. Human rights contains both basic and absolute rights of human being1. It internationally guaranteed and legally protected by the human rights instruments 2. It is enforced by the United Nations Organizations3. It is originated from the ideas of civilized nations and states4. It drives with the rights of life with dignityExample: UDHR contains: Human Rights and fundamental rights Civil and political rights Economic, social and cultural rights.
1. Fundamental rights contains only basic rights of the people1. It is constitutionally guaranteed
3. It is enforceable by the Court of Law
4. It is originated from the views of democratic society.5. It drives with the rights of fundamental freedom or liberty.Example: Fundamental rights of Bangladesh constitution comprises of civil and political rights.
D. Origin and Development of Human RightsHuman rights are a concept that has been constantly evolving throughout human history. It was intricately tied to the laws, customs and religions. The roots of the rights of man can be traced in the Babylonian laws about 4000 years ago. The Babylonian King Hammurabi issued a set of laws to his people called ‘Hammurabi’s Codes’ that created a precedent for a legal system. This kind of precedent and legally binding document protects the people from arbitrary persecution and punishment.
All the major religions of the world have a humanist perspective that supports human rights despite the differences in their content. Human rights are also rooted in ancient thought and in the philosophical concepts of ‘Natural Law’ and ‘Natural Rights.’ A few Greek and Roman philosophers recognized the idea of Natural Rights. The Greek philosopher Plato (427-348 BC) outlined that natural law is law that reflects the natural order of the universe, essentially the will of the gods who control nature. This idea of natural rights continued in ancient Rome, where the Roman jurist Ulpian believed that natural rights belonged to every person, whether they were a Roman citizen or not.
Figure-2: Changes in the perception of Human Rights: At a Glance:
Training Manual14
Ancient Period
Medieval Period
Modern Period
Ancient Period
Medieval Period
Modern Period
Principles ofHuman Rights
Morality
Ethics
True Norms
Reason
Natural Right
Rational
Principles ofNatural Right
Universal moralstandards
Training Manual 15
In the middle ages and later the renaissance, the decline in power of the church led society to place more of an emphasis on the individual. Documents asserting individual rights, such as: the Magna Carta (1215), the Petition of Right (1628), the US Constitution (1787), the French Declaration of the Rights of Man and of the Citizen (1789), and the US Bill of Rights (1791) are the written precursors to many of today’s human rights documents.
British Magna Carta (1215)The Magna Carta is a document that King John of England (1166 - 1216) was forced into signing. King John was forced into signing the charter because it greatly reduced the power he held as the King of England and allowed for the formation of a powerful parliament. The Magna Carta became the basis for English citizen's rights. The charter is considered as the beginning of constitutional government in England. The Magna Carta demonstrated that the power of the king could be limited by a written grant. The Magna Carta was signed by King John on June 15, 1215
Petition of Right (1628) The Petition of Right is defined as next recorded milestone in the development of human rights. It is produced in 1628 by the English Parliament as a statement of civil liberties. The Petition of Right that initiated by Sir Edward Coke, was based upon earlier statutes and charters. It asserted four principles:
1) No taxes may be levied without consent of Parliament, 2) No subject may be imprisoned without cause shown (reaffirmation of the right of habeas
corpus), 3) No soldiers may be quartered upon the citizenry, and 4) Martial law may not be used in time of peace.
French Declaration of the Rights of Man 1789The French Declaration of the Rights of Man and Citizen, decreed by the National Assembly in August, 1789. It proclaims that all citizens are to be guaranteed the rights of “liberty, property, security, and resistance to oppression.” It argues that the need for law derives from the fact that “...the exercise of the natural rights of each man has only those borders which assure other members of the society the enjoyment of these same rights.” Thus, the Declaration sees law as an “expression of the general will, “intended to promote this equality of rights and to forbid “only actions harmful to the society.”
The declaration defines a single set of individual and collective rights for all men. Influenced by the doctrine of natural rights, these rights are held to be universal and valid in all times and places. For example, "Men are born and remain free and equal in rights.
American Bill of Rights 1791The Bill of Rights is the collective name for the first ten amendments to the United States Constitution on December 15, 1791. The amendments aim to limit the power of the federal government by protecting the following rights:
1) Freedom of Speech, Press, Religion and Petition2) Right to keep and bear arms3) Conditions for quarters of soldiers4) Right of search and seizure regulated5) Provisions concerning prosecution6) Right to a speedy trial, witnesses, etc.7) Right to a trial by jury8) Excessive bail, cruel punishment9) Rule of construction of Constitution10) Rights of the States under Constitution
James Madison is recalled as Father of the US Constitution and The Bill of Rights. He believed that citizens needs protection from the state governments and the national government. He initially inserted 42 rights for the protection of individuals but his proposed rights were cut to 27 by the House of Representatives. And, it was further cut to only 12 by the Senate, and finally only 10 were approved by the states. These 10 rights became the first 10 amendments to the Constitution and became known as The Bill of Rights.
E. Human Rights and its GenerationsBasically, Human rights are a set of individual and collective rights that have been formally promoted and protected through international and domestic law since the 1948 Universal Declaration of Human Rights. After the Universal Declaration, the evolution of expression of human rights and their legal protection has grown rapidly. Today, the numerous international treaties on human rights promulgated to which an increasingly large number of nation states are a party define the core content of human rights that refers to the three generations of rights, which are:
I. First Generation Rights: civil and political rightsII. Second Generation Rights: economic, social, and cultural rights III. Third Generation Rights: Solidarity rights.
Training Manual16
Training Manual 17
I. First Generation Rights: civil and political rightsThe first generation rights began to emerge as a theory during the seventeenth and eighteenth centuries and were based mostly on political concerns. It had begun to be recognized that there were certain things that the all-powerful state should not be able to do and that people should have some influence over the policies that affected them. The two central ideas were recognized in the first generation rights, which are: Personal liberty Protecting individuals against violations by the state.
Reference:The civil and political rights today are set out in detail in the International Covenant on Civil and Political Rights (ICCPR) and in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
Civil rights provide minimal guarantees of physical and moral integrity and allow individuals their own sphere of conscience and belief: for example, the rights to equality and liberty, freedom to practice religion or to express one’s opinion, and the rights not be tortured or killed.
Legal rights are normally also classified as ‘civil’ rights. They provide procedural protection for people in dealing with the legal and political system: for example protection against arbitrary arrest and detention, the right to be presumed innocent until found guilty in a court of law and the right to appeal.
Political rights are necessary in order to participate in the life of the community and society: for example, the right to vote, to join political parties, to assemble freely and attend meetings, to express one’s opinion and to have access to information.
In many ways, both historically and theoretically, civil and political rights have been considered fundamental human rights for which all nation states have a duty and responsibility to uphold.
II. Second Generation Rights: economic, social, and cultural rights
The second generation rights concern how people live and work together with the basic necessities of life. They are based on the ideas of equality and guaranteed access to essential social and economic goods, services, and opportunities. They became increasingly a subject of international recognition with the effects of early industrialization and the rise of a working class. These led to new demands and new ideas about the meaning of a life of dignity. People realized that human dignity required more than the minimal lack of interference proposed by the civil and political rights.
Reference: The social, economic and cultural rights are outlined in the International Covenant on Economic, Social and Cultural Rights (ICESCR) and also in the European Social Charter.
Social rights are those rights that are necessary for full participation in the life of society. It includes: the right to education and the right to found and maintain a family but also many of the rights often regarded as ‘civil’ rights: for example, the rights to recreation, health care and privacy and freedom from discrimination.
Economic rights are normally thought to include the right to work and fair remuneration, to an adequate standard of living, the right to leisure time and the right to social security. The economic rights reflect the fact that a certain minimal level of material security is necessary for human dignity.
Cultural Rights refer to a community’s cultural “way of life” and are often given less attention than many of the other types of rights. It includes: the right freely to participate in the cultural life of the community, the right to the benefits of culture; the right to indigenous land, rituals, and shared cultural practices; and the right to speak one's own language and ‘mother tongue’ education. However, many other rights, not officially classed as ‘cultural’ will be essential for minority communities within a society to preserve their distinctive culture: for example, the right to non-discrimination and equal protection of the laws.
III. Third Generation Rights: Solidarity rightsThe idea of the third generation rights is generated as collective rights of the society or people. It guarantees that all individuals and groups have the right to share in the benefits of development and earth's natural resources, as well as goods and products that are made through processes of economic growth, expansion, and innovation. Example: right to sustainable development and right to peace or to a healthy environment.
Reference: Right to Development (RTD) was codified in a 1986 UN General Assembly Declaration.
“The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.” -- Article 1, UN Declaration on the Right to Development.
Training Manual18
Training Manual 19
Article-1: Right to Equality (All human beings are born free and equal in dignity and rights).Article-2: Freedom from discriminations (Everyone is entitled to all the rights and freedoms set forth in this Declaration, without
distinction) Article-3: Right to life, liberty and security of person.Article-4: Protection from slavery or servitudeArticle-5: Protection from torture or cruelty, inhuman or degrading treatment or punishmentArticle-6: Recognition as a person before the lawArticle-7: Equality before the law & equal protection of the laws without any discriminationArticle-8: Effective remedy before the national tribunalsArticle-9: Freedom from arbitrary arrest, detention or exileArticle-10: Rights to fair and public hearing by an independent and impartial tribunal.Article-11/1: Presumptions of innocence until proved guilty according to law in a public trial.Article-11/2: Freedom from ex-post facto laws
F. Human Rights StandardsI. Sources human rights standards in the international instruments: The basic human rights standards for all people and all nations firstly adopted and declared by the United Nations4on 10th December 1948 as Universal Declaration of Human Rights (UDHR). The standard initially introduced a numbers of rights and entitlements in relation to:
Human Rights and fundamental rights (Article 1-2) Civil and political rights (Article 3-21) Economic, social and cultural rights (Article22-27). Entitlements to live in disciplinary social and internal orders (Article 28-30).
Though it has no legal binding on states but every states of United Nations accepted the rights provisions as part of their moral obligation to protect human rights for all. Because the UDHR denoted that-“All human beings are born free and equal in dignity and rights” (Article-1) and “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (Article-2).
UDHR also recognized the following rights entitlements for all human being as guiding instruments for the UN member states:
4Basic standard inserted by United Nations in the Universal Declaration of Human Rights in 1948. For details, see: http://www.un.org/en/documents/udhr/
Training Manual20
It is noted here that this (UDHR) was a declaration of United Nations but it has no legal obligations for the member states. Considering that from 1948 to 1966, the UN Human Rights Commission’s main task was to create a body of international human rights law based on the Declaration, and to establish the mechanisms needed to enforce its implementation and use. As a result, Human Rights Commission produced two major human rights instruments in 1966. These are as follows:
1) the International Covenant on Civil and Political Rights (ICCPR); and2) the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Article-12: Right to privacy, family, home and correspondence Article-13/1: Right to freedom of movement and residence within the borders of each stateArticle-13/2: Right to leave any country, including his own and to return to his countryArticle-12: Right to privacy, family, home and correspondence Article-13/1: Right to freedom of movement and residence within the borders of each stateArticle-13/2: Right to leave any country, including his own and to return to his countryArticle-14: Right to seek and to enjoy in other countries asylum from persecution.Article-15: Right to a nationality and freedom to change nationality. Article-16: Right to marriage and family.Article-17: Right to own propertyArticle-18: Right to freedom of thought, conscience and religionArticle-19 Right to freedom of opinion and expressionArticle-20: Right to freedom of peaceful assembly and association.Article-21: Right to participate in the Government and in free electionsArticle-22: Right to social securityArticle-23: Right to work, free choice of employment and equal pay for equal workArticle-24: Right to rest and leisureArticle-25: Right to a standard of living adequate for the health and well-being of himself and of his familyArticle-26: Right to educationArticle-27: Right to participate in cultural life of the communityArticle-28: Right to a good social and international orderArticle-29: Community duties essential to free and full developmentArticle-30: Freedom from state, groups or personal interference in the above rights
Training Manual 21
Both become international law in 1976. Together with the Universal Declaration of Human Rights (UDHR), these two instruments (along with two protocols) comprise what is known as the “International Bill of Human Rights.”
1) International Covenant on Civil and Political Rights (ICCPR), 1966This Covenant was adopted by the United Nations General Assembly on 16 December 1966 and entered into force on 23 March 1976. By the end of 2001, the Covenant had been ratified by 147 states. Bangladesh accessioned it on 6 Sep 2000. Basically the civil and political rights and freedoms that were introduced in UDHR (as Article 3-21) elaborated further in this covenant. This Covenant consists of 53 Articles and is divided into VI parts. The part-I, II and III enumerated a numbers of rights provisions while other parts are introduced implementation procedures for effective realization of these rights.
Article 1 refers that
All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
The States Parties shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
INTERNATIONAL BILL OF RIGHTS
International Covenant on Civil and Political Rights (ICCPR), 1966 and its Protocol
International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 and its Protocol
Universal Declaration of Human Rights (UDHR), 1948
Article 2-5 stipulates a set of rights and obligations on the states. This includes obligation of state to respect all individuals within its territory without distinction. The obligation also refers to take necessary steps and measures (legal, judicial, administrative or others) to give effect to the rights recognized in the Covenant. States are obliged to ensure the right to equality between men and women in the enjoyment of their civil and political rights
Article 6-27 (Part-III) deals with specific civil and political rights of the people, which are as follows: The right to life and survival (Article 6). The freedom from inhuman or degrading treatment or punishment (Article-7). The freedom from slavery, servitude and forced labor (Article-8). The right to liberty and security of the person and freedom from arbitrary arrest or detention
(Article-9). The right of detainee to be treated with humanity (Article-10). The freedom from prison due to debt (Article-11). The right to liberty and freedom of movement (Article-12). The freedom of alien from arbitrary expulsion (Article-13). The right to equality before the law; the right to be presumed innocent until proven guilty and
to have a fair and public hearing by an impartial tribunal (Article-14). The right to non-retroactive application of criminal law (Article-15). The right to be recognized as a person before the law (Article-16). The right privacy and its protection by the law (Article-17). The freedom of thought, conscience and religion (Article-18). The freedom of opinion and expression (Article-19). Prohibition of propaganda advocating war or national, racial or religious hatred (Article-20). The right to peaceful assembly (Article-21). The right to freedom of association (Article-22). The right to marry and found a family (Article-23). The rights for children (status as minors, nationality, registration and name) (Article-24). The right to participate in the conduct of public affairs, to vote and to be elected and access to
public service (Article-25). The right to equality before the law and equal protection (Article-26). The rights, for members of religious, ethnic or linguistic minorities, to enjoy their culture,
practice their religion and use their language (Article-27).
Training Manual22
Training Manual 23
2). International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966
This Covenant was adopted by UN General Assembly under the resolution 2200A (XXI) of 16 December 1966. It came into force on 3rd January 1976. Bangladesh accessioned it on 5 October 1998.
Basic provisionsThe ICESCR contains with 31 Articles, which are divided into five parts. Particularly the PART: I and PART: III of this Covenant introduced a set of rights provisions, which are as follows:
Right to self-determination (Article-1)
Right to work (Article-6).
Right to just and favorable condition of work (Article-7).
Right to form and join trade unions (Article-8).
Right to social security, including social insurance (Article-9).
Right related to motherhood, childhood, marriage and the family (Article-10).
Right to an adequate standard of living for himself and his family and right to be free from hunger (Article-11).
Right to the enjoyment of the highest attainable standard of physical and mental health (Article-12).
Right to education. Primary education should be compulsory and free to all (Article-13).
Right to take part in cultural life; enjoy the benefits of scientific progress (Article-15).
It is noted here that all the civil and political rights (mentioned above) are not absolute and are not subject to any restrictions except those are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others. Besides, Article-4 (2) denotes that there are certain rights in which no derogation can be made, such as: Right to life (Article-6); Freedom from inhuman or degrading treatment or punishment (Article-7); Freedom from slavery, servitude and forced labor (Article-8); Freedom from prison due to debt (Article-11); Non-retroactive application of criminal law (Article-15); Right to be recognized as a person before the law (Article-16); and Freedom of thought, conscience and religion (Article-18).
Training Manual24
State obligations: The ICESCR, 1966 adopted a significant approach in determining the state obligations, which defined in the Article-2. It pin pints that state parties have undertaken legally binding obligations to take steps, to maximization of their available resources, to achieve progressively the full realization of economic, social and cultural rights that set forth in the covenant. Hence, the concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not able to achieve in a short period of time. In this case, all state parties have an obligation to begin immediately to take necessary steps for full realization of the rights contained in the covenant. State parties shall use appropriate means including:
LegislativeAdministrativeJudicial, Economic, social and educational measures in line with the nature of rights.
The state obligation of progressive achievement does not only refer to an increase of resources, but even more to an increasingly effective use of the available resources that will ensure everyone’s satisfaction without discrimination to fulfill their rights. Hence, the available resources include:
Internal resources of the state parties;
International cooperation and assistance.
Article-2 also reveals that the realization of rights by the states may vary in terms of their internal resources and ability of its effective uses. Because, there are some states in developing countries invariably face different problems in terms of their available resources, so different criteria will have to be applied for different states in determining the obligations.
The Covenant has certain reluctance to immediate implementation of the rights provisions. There is a concern that the implementation of Economic, social and cultural rights require maximization of available resources and external assistance/cooperation. It bears a sense that each state invariably faces different problems in terms of their available resources and so different criteria will have to be applied for different states in determining the obligations. As an example: Right to an adequate standard of living for himself and his family (Article-11). It requires more resources, external cooperation and more time to reach into a standard by the state party like Bangladesh.
Training Manual 25
In addition to that United Nations adopted a numbers of treaties and conventions to focus on the rights of a particular group of people, such as: women, children, migrant workers, persons with disabilities, indigenous people. The major treaties and conventions of the United Nations that signature, accessioned or ratified by Bangladesh are as follows:
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (Bangladesh accessioned it on 6 Nov 1984);
Convention on the Rights of the Child (CRC), 1989 (Bangladesh ratified it on August 1990);
International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT),1984 (Bangladesh accessioned it on 5 Oct 1998);
International Convention on the Elimination of Racial Discrimination (ICERD),1965(Bangladesh accessioned it on 11 Jun, 1979);
Convention on the Rights of Persons with Disabilities (Bangladesh ratified it on30 Nov 2007);
The United Nations Framework Convention on Climate Change, 1992 (Bangladesh ratified it on 15 Apr 1994);
Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990 (Bangladesh accepted it with signature on7 Oct 1998).
ILO Convention on the Worst Forms of Child Labor, 1999 (No 182) – (Bangladesh ratified it on 12 Mar 2001).
In addition to that Bangladesh is a signatory in a numbers of declarations as member states of United Nations. It also bears moral obligations to comply with the rights standards mentioned in the declarations. As state party of the UN treaties and conventions, or as UN member state, the government of Bangladesh is primarily responsible to implement human rights.
Human Rights standard for Women:Women rights have been considered as human rights since 1945 (at the time of establishment of the United Nations). The preamble of the UN Charter reaffirms faith in fundamental rights, in the dignity and worth of the human person, in the equal rights of men and women. Article-1 (3) of the UN Charter refers that the purpose of UN is to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion. Considering that Universal Declaration of Human Rights (UDHR), 1948 asserts the principles of non-discrimination and proclaim that all human being are born free and equal in dignity and rights and
that everyone is entitled to all the rights and freedom set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
On the basis of international commitment, UN general assembly adopted a Declaration on the Elimination of Discrimination against Women in 7th November, 1967 in line with the provisions of UDHR, 1948. As it has no legally binding obligation on UN member states, in 1979 the United Nations General Assembly adopted the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) for legal implementation of the Declaration on the Elimination of Discrimination against Women. It is defined as an international bill of rights for women that came into force on 3 September 1981.
CEDAW consists of a preamble and 30 Articles. It can be divided into following three broad categories:
1. Article 1-16 : ensuring equality between men and women. 2. Article 17-22 : UN CEDAW Committee and its mandate. 3. Article 23-30 : administration of the treaty. Article-1 of the CEDAW defines “discrimination against women” in the following terms:
“Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”.
By accepting the Convention, States commit themselves to undertake a series of measures to end discrimination against women in all forms, including:
to incorporate the principle of equality of men and women in their legal system, abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women;
to establish tribunals and other public institutions to ensure the effective protection of women against discrimination; and
to ensure elimination of all acts of discrimination against women by persons, organizations or enterprises.
Training Manual26
Training Manual 27
Women’s rights provisions in the CEDAW:Article 3: Equality. Women are fundamentally equal with men in all spheres of life.�Countries�must take measures to uphold women's equality in the political, social, economic, and cultural fields.
Article 4: Temporary special measuresCountries may implement temporary special measures to accelerate women's equality.
Article 5: Prejudice. Countries agree to modify or eliminate practices based on assumptions about the inferiority or superiority of either sex.
Article 6: Suppress Trafficking of womenCountries agree to take steps to suppress the exploitation of prostitution and trafficking in women.
Article 7: Political and public lifeWomen have an equal right to vote, hold public office, and participate in civil society.
Article 8: International workWomen have the right to work at the international level without discrimination.
Article 9: Nationality. Women have equal rights with men to acquire, change, or retain their nationality and that of their children.
Article 10: Education. Women have equal rights with men in education, including equal access to schools, vocational training, and scholarship opportunities.
Article 11: Employment. Women have equal rights in employment, including without discrimination on the basis of marital status or maternity.
Article 12: Health. Women have equal rights to affordable health care services.
Article 13: Economic and social lifeWomen have equal rights to family benefits, financial credit, and participation in recreational activities.
(a) The right to family benefits(b) The rights to Bank loans, mortgages and other forms of financial credit.(c) The right to participate in recreational activities, sports and all aspects of cultural life.
Article 14: Rural women Rural women have the right to adequate living conditions, participation in development planning, and access to health care and education.
Article 15: Equality before the lawWomen and men are equal before the law. Women have the legal right to enter contracts, own property, and choose their place of residence.
Article 16: Marriage and familyWomen have equal rights with men in matters related to marriage and family relations.
1. The equal right to enter into marriage(c) The equal rights and responsibilities during marriage and its dissolution(f) The equal rights and responsibilities to guardianship, wardship, trusteeship and adoption of children
However, CEDAW provides the basis for realizing equality between women and men through ensuring women’s equal access to, and equal opportunities in, political and public life – including the right to vote and to stand for election – as well as education, health and employment. States parties agree to take all appropriate measures, including legislation and temporary special measures, so that women can enjoy all their human rights and fundamental freedoms.
Besides, the CEDAW is the only human rights treaty which affirms the reproductive rights of women and targets culture and tradition as influential forces shaping gender roles and family relations. It affirms women’s rights to acquire, change or retain their nationality and the nationality of their children. States parties also agree to take appropriate measures against all forms of traffic in women and exploitation of women. The countries that have ratified or acceded to the CEDAW are legally bound to put its provisions into practice. They are also committed to submit national reports, at least every four years, on measures they have taken to comply with their treaty obligations.
Training Manual28
Training Manual 29
Human Rights standards for Children:The rights of children are functionally recognized by the League of Nations through the Geneva Declaration of the Rights of the Child, 1924. This refers that the children has the right to receive the requirements for normal development, the right of the hungry child to be fed, the right of the sick child to receive health care, the right of the backward child to be reclaimed, the right of orphans to shelter, and the right to protection from exploitation. The child rights provisions are also revealed in the Article-25 (2) of the UDHR, 1948 as “childhood is entitled to special care and assistance”. Based on the principles of UDHR, the United Nations adopted the Declaration of the Rights of the Child (1959), which enunciated ten principles for the protection of children's rights, including the universality of rights, the right to special protection, and the right to protection from discrimination, among other rights. It is a fact that the declaration doesn’t have any legal binding on the UN member states, and for this, the United Nations finally adopted the “Convention on the Rights of the Child (CRC) in 1989, that came into force in 1990.
The Convention has 54 Articles and is divided into three parts. The Convention (as part of Article-1) states that:
Reservations of Bangladesh in the CEDAW:Bangladesh ratified the CEDAW on 6th of November 1984 with reservations on Articles 2, 13.1[a], 16.1[c] and [f]. As successful event of advocacy of women led civil action groups and NGOs, Bangladesh Government has withdrawn its reservation on articles 13 [a] and 16.1 [f]. At present, two reservations in Bangladesh still remain. These are as follows:
Article 2 which refers to the complete elimination of discrimination through all possible constitutional, legislative and legal provisions; and
Article 16-1 (c) which refers to the equal rights in marriage and at its dissolution.
Articles 2 and 16 are considered as core provisions of the CEDAW by the United Nations. However, the Bangladesh Government has placed a reservation of these provisions in the name of conflicting with sharia law based on the Holy Koran and Sunna. While the Government feels that these provisions conflict with religious Islamic laws, women feel these reservations limits the protection and promotion of their rights.
A child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.
The following Rights of the Child are guaranteed in the CRC:1. Freedom from discriminations (Article 2)
2. Rights to life (Article-6)
3. Right to acquire a nationality (Article-7)
4. right to freedom of expression (Article-13)
5. Right to freedom of thought, conscience and religion (Article-14)
6. Rights of the child to freedom of association and to freedom of peaceful assembly (Article-15)
7. Right to the protection of the law against arbitrary or unlawful interference with his or her privacy, family, or correspondence (Article-16)
8. Right to information of national and international sources (Article-17)
9. Right to entitlement of special protection and assistance (Article-20)
10.Rights of mentally or physically disabled child to enjoy a full and decent life (Article-23)
11.Right to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health (Article-24)
12.Right to benefit from social security, including social insurance (Article-26)
13.Right to a standard of living adequate for the child's physical, mental, spiritual, moral and social development (Article-27)
14.Right to education (Article-28)
15.Right to rest and leisure, to engage in play and recreational activities (Article-31)
16.Right to be protected from economic exploitation and hazardous/harmful works (Article-32)
17.Right to be protected from torture or other cruel, inhuman or degrading treatment or punishment (Article-37).
II. Sources human rights standards in the National instruments:
Constitution of Bangladesh:The Constitution of Bangladesh is a fundamental instrument for the protection of human rights, which is adopted in 1972. A numbers of human rights provisions in line with UDHR, 1948 enumerated in the
Training Manual30
Training Manual 31
Constitution of Bangladesh. It is referred in the PART-II and PART-III of the Constitution. Basically, article 8 to 25 of the Constitution, 1972 recognized the provisions of economic, social and cultural rights. It drives with “basic principles of the state” and “welfare of the citizen”, which is progressively enforceable.
As reference: Right to education is clearly recognized in the Article-26 of the UDHR, Article 13 & 14 of the ICESCR, and Article 28 of the CRC as core rights but the constitution of Bangladesh refers it as part of Article 15 (a) and Article 17 as the state policy rather as fundamental rights.
Right to social security, which is recognized in the Article22 & Article 25 of the UDHR, Article 9 of the ICESCR, General Comment No. 19 of CESCR and Article26 and Article27 of the CRC but the constitution of Bangladesh refers it as part of Article 15 (a) and Article 15 (d) under the principles of state policy.
In addition, Right to work, equal pay for equal work and Right to just and favorable conditions of work also refers in the constitution of Bangladesh as part of the state policy but not as fundamental rights. It means that there are still gaps in the constitutional provision to comply fully with the obligation of international human rights law.
In spite some gaps, the constitution of Bangladesh has strongly declared 18 rights provisions (Article 27 to 44) as fundamental rights, which are legally guaranteed and judicially enforceable. Off these 18 fundamental rights, only 12 rights provisions are granted to citizens of Bangladesh and remaining 6 fundamental rights are granted to all persons. The fundamental rights are guaranteed in the Article-44 of the Bangladesh constitution and the High court division of the Supreme Court is empowered to enforce fundamental rights under the Article-102 of the Bangladesh constitution. The Supreme Court has the power to issue certain order and directions for the executive, and or legislature to take necessary measures for the enforcement of fundamental rights:
Art.15 (a): Responsibility of State to increase standard of living by providing for basic necessities such as food, clothing, shelter, education and medical care.
Art.17: State shall adopt effective measures for provision of free and compulsory education to all children.
Art.15 (d): right to public assistance in cases of undeserved want arising from unemployment, illness or disablement or suffered by widows, orphans, elderly people or in other such cases.
If the executive does anything in violation of fundamental rights, the citizens can claim for remedy and the rights can be re-gained by the Courts.
Similarly, if the legislature enacts any law, which is inconsistent with any of the fundamental rights, the Supreme Court has the jurisdiction to declare that law unconstitutional.
Training Manual32
The provisions of Fundamental Rights for the Citizens of Bangladesh:1. Equality before the law (Article-27)2. Discrimination on the ground of religion etc. (Article-28)3. Equality of opportunity in public employment (Article-29)4. Prohibition of foreign titles etc. (Article-30)5. Right to protection of law (Article-31)6. Freedom of movement (Article-36)7. Freedom of Assembly (Article-37)8. Freedom of Association (Article-38)9. Freedom of thought and conscience and of speech (Article-39)10. Freedom of Profession (Article-40)11. Right to Property (Article-42) 12. Protection of home and Correspondence (Article-43).
The provisions of Fundamental Rights for the all people in Bangladesh:
1. Protection of rights to life and personal liberty (Art. -32)
2. Safeguards as to arrest and detention (Article-33)
3. Prohibition of forced labour (Article-34)
4. Protection in respect of trial and punishment (Article-35)
5. Freedom of Religion (Article-41)
6. Enforcement of fundamental rights (Article-44).
Training Manual 33
As an example: 1) Article-33 “Safeguards as to arrest and detention” of Bangladesh Constitution that refers as
fundamental rights provides the following safeguards to a person for detention. Review by an Advisory Board Right to communication on the ground of detention Right of representation against the detention order.
2) As the provision of fundamental right, the detainee can challenge the lawfulness of detention through a writ petition of habeas corpus (under section 491 of Cr.PC) to the High Court based on the Article 102(b) of the Constitution of Bangladesh.
National legal frameworks:With the provisions of Constitution, Bangladesh has introduced a numbers of legal instruments to comply with the international standard of human rights. Examples:
The Penal Code, 1860 The Code of Criminal Procedure (CrPC), 1898 The Rights to Information Act of 2009 The Legal Aid Act, 2010 The Domestic Violence (Prevention and Protection) Act of 2010 the Pornography Control Act of 2012 The Children Act, 2013 The Human Trafficking Suppression and Prevention Act of 2012 The Child Marriages Restraint Act 1929 The Repression of Violence against Women and Children Act, 2000 (amended in 2003) The Bangladesh Labor Act 2006 The Child Marriages Restraint Act 1929 (as Amendment in 1984) The Dowry Prohibition Act, 1980. The Family Court Ordinance, 1985 (Ordinance No. xviii of 1985).
G. What are Human Rights violations?Generally, Human Rights violation refers to failures of the government (state) to implement or exercise its legal obligations.
The term “Human rights violation” describes in the United Nations training manual5 “as governmental transgression of the rights guaranteed by national, regional and international human rights law and acts
and omissions directly attributable to the State involving the failure to implement legal obligations derived from human rights standards. According to the Training Manual of OHCHR on Human Rights Monitoring, the events of human rights violation can be occurred in the following ways:
When the law, policy or practices deliberately contravenes or overlooks obligations of the government concerned or when the government fails to achieve required human rights standards.
Example:- Extra-judicial killing by state agent is a violation of human rights because as state party of the ICCPR, 1966, Bangladesh has an obligation to protect the right to life of every human being (by law).This means that nobody should be arbitrarily killed by the state agent (obligation to respect)
Reference: Article-6(1) of the ICCPR, 1966:“Every human being has the inherent right to life. This right shall be protected by law.No one shall be arbitrarily deprived of his life”.
When the government fails to perform its three distinct obligations: obligations to respect protect and fulfill to ensure minimum level of rights (i.e. civil, political, economic, social and cultural), it constitutes a violation of human rights
Example: - Restriction to participate in election process is a violation of civil & political rights.- Forcible work like a Slave is a violation of human rights.- Keeping accused juveniles and adults in the same place of jails is a violation of child rights.- Works in risky condition and unequal payment for similar work of men and women is also violation of rights.
Reference-I: Article-25 (b) of the ICCPR, 1966:“To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot,guaranteeing the free expression of the will of the electors?”
Reference-2: Article-8 (1) of the ICCPR, 1966:“No one shall be held in slavery; slavery and the slave-trade in all their formsshall be prohibited”.
Training Manual34
5United Nations, (2001) Training Manual of the OHCHR on Human Rights Monitoring: Professional training series no. 7, United Nations publications, New York and Geneva, 2001 page-10. Also available at: http://www.ohchr.org/Documents/Publications/training7Introen.pdf
Training Manual 35
Reference-3: Article-10 (2).b of the ICCPR, 1966:Accused juvenile persons shall be separated from adults and brought as speedilyas possible for adjudication.
Reference-4: Article-7(a) (b) of the ICESCR:The right of everyone to the enjoyment of just and favorable conditions of work which ensure, in particular:
(a.1) Fair wages and equal remuneration for work of equal value without distinction;(b) Safe and healthy working conditions;
When the government action encourages any discrimination on grounds of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status with the purpose or effect of abolishing or impairing the equal enjoyment of any human rights constitutes a violation of human rights.
Example: - Denying the rights of ethnic, religious or linguistic minorities is a violation of human rights.
Reference: Article-27 of the ICCPR, 1966Ethnic, religious or linguistic minorities exist in the state shall not be denied the right, incommunity with the other members of their group, to enjoy their own culture, to professand practice their own religion, or to use their own language.
When any event of “human rights abuses” done by non-state actors, it also constitutes violation of human rights.
Failures of state to complywith its legal obligations
Individuals/groups ofpeople becomes victimDenying the rights …Human Rights
Figure-1: violation of human rights
It is fact that the denial of human rights is not only a state or non-state actors concern, it may create a condition of social and political unrest that contributes to generate violence and conflict in the society and state.
H. Uses of Standard for Human Rights MonitoringFor monitoring of human rights violation, the field officials should use human rights standards, which are referred in the international human rights instruments (i.e. conventions, treaties and declarations) and Constitution of Bangladesh. When considering a state compliance with its rights obligations, it is very much important to analyze the Constitution of Bangladesh and international instruments (where Bangladesh is a state party) to define responsibilities that places on the government. It is noted here that the Constitutional provisions provide the first line of defense in cases of human rights violations. It is easy to apply and widely recognized by the legislature, judiciary and executive in the country as the ‘law of the land’. After that we may compare the constitutional provisions and national laws with international human rights standards. However, for better uses of human rights standards in monitoring, the field officials should have to rely on the following steps (figure-2):
Be familiar with national constitution and laws. Then links the national rights provisions with international human rights standards. It is more useful if the relevant international human rights instrument (relevant treaty and convention) bears legal obligations on the government of Bangladesh (as state party).
Therefore, if the national constitution and laws are strong and clear enough, use it for monitoring the cases of human rights violations.
If there is arises a situations where there are no national constitutional or legal provisions for protecting a right, the only protection available may be under the specific international human rights instrument (i.e. Treaty/Convention).
If the national constitution and laws provide no rights protection or if the national rights guarantees are vague or weak, the international law, legislative records or judicial decisions (judgments) or other relevant legal documents can be useful to “fill out “the gaps in legal application.
Training Manual36
Training Manual 37
Therefore, if there is an issue of human rights violation issues should be addressed in line with international and national human rights instruments. The complaints/cases verification and monitoring requires following:
Are the national constitution and laws are in line with Bangladesh’s international human rights standards and obligations?
If the national constitution and laws are strong and clear, use it for monitoring the cases of human rights violations
If the national constitution and laws provide no rights protection; orIf the national rights guarantees are vague/weak
standards for rights guarantees and fill out the rights — as provision for action against rights violation
Compare the national constitutions and laws with international human rights standards
Figure-2: Uses of human rights standard
Session TwoHUMAN RIGHTS BASED APPROACH TO
LOCAL DEVELOPMENT
Training Manual38
Simple Analysis of a Case: Group workOne morning, a group of vulnerable women in your constituency come to you and say, “Please help us for survival. We don’t have any work for the last three months, we have already sold all out household assets including living place to buy food for our family members, now our children are starving at home. Due to failure to intake minimum food, our children are now becoming sick and malnourished; please help us come out this situation.
In course of the conversation, you come to know that they belong to a group of villagers who were engaged in an earth cutting project titled “Food for Works”. When they went to collect their entitlement of food (wheat), one of women noticed that though they were putting their thumbprints to receipts showing that they were being given 30 Kilograms of wheat, they were actually being given 10 Kilograms for each man and 5 Kilograms for each woman. They protested and complain to the concern officials that they could take what they were being offered. The group of women then complained to local police in the Thana and in response they assured to take remedial steps. But when the local police informed that the local chairman are involved in the process who have good linkages with leading political party, they didn’t take any steps in favour of poor women. And finally, they found a journalist who appeared sympathetic. They told him the story and he promised to take this up in the media. The chairman, however, got to hear of this and sent bribe for the journalist (the women say he was given Tk 5000) and so their story never appeared. Since then the group of women who were involved have had their cards cancelled and so now they get nothing as the work has been given to others.
Questions:
What are the issues carry on the story that intend to violates human rights?
What are the rights violates in the story?
Sl. Issue Right Violated1
2
3
4
5
6
Inadequate food for survival
Discrimination in food allocated to men and women
Failure of government to provide required food amount
Failure of police to provide protection
Bribe taken by journalist – censorship by local Chairman
Women’s cards cancelled
Right to food and shelter
Right to equal treatment
Right to the food and assistance you need from the government to live a life of dignity (Social security)
Right to protection of the law
Right to access information
Right to freedom of expression
Possible answer of Group work:
Session two:HUMAN RIGHTS BASED APPROACH TO LOCAL DEVELOPMENT
Objective of the session: At the end of this session, the participants will:
understand the difference between Rights and Needs understand what is meant by a Rights Based Approach understand how to incorporate this way of thinking and acting into our development work
Session Contents:A. Understanding of Needs and RightsB. Rights Based Approach (RBA) and Its links with DevelopmentC. RBA and Empowerment
A. Needs Vs Rights:Generally Need is something that is essential for survival like food, water or shelter. It expresses necessity because it is essential or very important rather than just desirable. A need can be a legitimate aspiration but it is not necessary associated with an obligation on the part of government to provide it.
On the other hand, Rights refer a moral or legal entitlement to have or do something. A Right entails an obligation and can be enforced. As an Example: Need Vs Rights
Training Manual 39
Friend Friend Employee Boss
Training Manual40
B. Rights Based Approach (RBA) and its links with DevelopmentRights Based Approach (RBA):The key concept of Rights Based Approach is that: Development must build the capacity of rights holders (ultra-poor people) to claim their rights and
of duty-bearers (local institutions and service providers) to meet their obligations.
The process should create the best environment in which people can realise their rights, live with dignity and in freedom.
Basically, the rights based approach empowers the people and ensures accountability of those with responsibilities and obligations to others. The four fundamental principles of a RBA are:1. The human being is the central subject, participant, owner, director and beneficiary of development
2. Development should be based on human rights principles
3. Development should respect the normative content of human rights
4. Development should be coherent with the level and nature of human rights obligations
Is this person saying “I need food” or “I have a right to food”?
Is this person saying “I need food” or“I have a right to food”?
See… what difference does it make if we think of our work as helping people to access their human rights?
Training Manual 41
Figure: A Rights Based Approach to Development
Understanding of Right holder and Duty bearer:
A Rights Based Approach (RBA) determines the relationships between groups of people. Thus, a RBA must:
identify rights holders and their entitlements identify corresponding duty bearers and their obligations strengthen the capacities of rights holders to make claims strengthen the capacities of duty bearers to meet their obligations
Changes inStructures:
- Legal- Civil/Political
- Social-Economic
Duty bearers:Fulfill obligations towards Rights
holders
Changes in Lives:- Attitude
- Empowerment- Human rights
realized
Rights holders:Demand their rights from Duty bearers
Strengthen Accountabilityof Duty bearers
Support rights holders toclaim their rights
Righ
ts B
ased
Effo
rts
Democratic Process
Poverty Reduction
Training Manual42
Who is a rights holder? All humans are rights holders. - In development, we think particularly about people whose rights are being denied, affected or
violated. - This is because a RBA puts the most vulnerable, marginalized and disadvantaged at the center of
development policy.
Rights holders have responsibilities to respect and defend the rights of others. - Thus, every rights holder is also a duty bearer.- A rights-holder must exercise their rights with respect for the rights of others.
Rights holders need appropriate capacities to claim and exercise their rights fully and responsibly. - Knowing your rights is one of the most important aspects of being able to claim your rights. - Poor and disadvantaged people are often unaware of their rights, and so are vulnerable to
exploitation and abuse.
Who is a duty bearer? Duty bearers are those with responsibilities in the realization of rights. Every individual has responsibilities and obligations as duty bearers to others. This is a matter of social and
moral responsibility. In exercising freedoms and rights, everyone must also respect the rights and freedoms of others
But, the value of a human rights approach is that responsibilities extend beyond moral obligations. Human rights entail legal obligations too.
There are four types of duty bearers:1) Those who are immediately responsible for the rights of a group.
Example: Teachers for students, Police to victims of crimes and to criminals, Parents to their children
2) Institutions with responsibilities for those immediately responsible.
Example: Local NGOs, CBOs, local government officials
3) Institutions at a higher level.
Example: Private corporations, national state institutions, donor agencies
4) External duty bearers.
Example: Foreign organizations with involvement in the country, such as: UN agencies, WHO, IMF.
Training Manual 43
Relationship between Rights-holder and Duty-bearers in Development:
Human Rights create entitlements for rights-holders and oblige duty bearers to protect, respect and fulfill entitled rights for rights-holders.
Obligations to protect State and its institutions are obliged to prevent the violation of rights by other individuals or groups.
The State must investigate violations and guarantee access to legal remedies where violations do occur.
Obligations to respect The State must not interfere, directly or indirectly, with people’s enjoyment of human rights.
State and its institutions must not carry out, sponsor or tolerate any practice, policy or legal measure violating the integrity of individuals on impinging on their freedom to access resources to satisfy their needs.
Legislation and policy must incorporate and respect human rights principles.
Obligations to fulfil The State and its institutions must take active steps towards the full realization of human rights. This
can mean increasing access to resources and services.
Governments must give priority to meet the minimum rights for the most vulnerable.
Obligation toProtect
Obligation toRespect
Obligation toFulfil
Training Manual44
C. RBA and Empowerment:Rights-Based Approach (RBA) contributes to empower people to live with dignity and respect. It considers human being as central force of development. Therefore, a RBA is:
Steer up a process of change
Equip individuals or group of people to be active participants in decision-making.
Enable individuals or group of people to take control over their lives.
Transform vulnerable individuals or groups into change agent.
A Rights-Based Approach is guided by the principles of Human Rights to create a space for all individuals to live with dignity and respect. This space steers up the change in legal, civil/political, social and economic structures to empower people.
“Empowerment implies people - both women and men - taking control over their lives: setting their own agendas, gaining skills (or having their own skills and knowledge recognized), increasing self-confidence, solving problems, and developing self-reliance… It is both a process and an outcome.6”
Empowerment is defined as both a process and an outcome. A framework developed by Longwe (1991) provides some useful distinctions between different degrees of empowerment:
1. The welfare ‘degree’: where basic needs are satisfied. This does not necessarily require structural causes to be addressed and tends to view those involved as passive recipients.
2. The access ‘degree’: where equal access to education, land and credit is assured.
3. The awareness raising ‘degree’: where structural and institutional discrimination is addressed.
4. The participation and mobilization ‘degree’: where the equal taking of decisions is enabled.
5. The control ‘degree’: where individuals can make decisions and these are fully recognized.
6 UN Definitions
Training Manual 45
Therefore, achieving empowerment through integrating Rights-Based Approach is intimately linked to addressing the causes of disempowerment and tackling disadvantage caused by the way in which power relations shape choices, opportunities and wellbeing of individuals or group of people.
As development practitioner, we must make sure that communities know, claim and defend their rights and that relevant agencies know and perform their duties and responsibilities. Our projects must support rights holders with power, knowledge, capacities and resources to ensure that they can be active agents in the development process and can take control of their own destinies.
This framework stresses the importance of gaining control over decisions and resources that determine the quality of one's life. As the roots of thinking on empowerment lie in feminist theory and popular education, it is often stressed the personal and inner dimensions of power.
Types of power relations
Power Over: ability to influence and coerce
Power To: organize and change existing hierarchies Power With: increased power from collective action Power from Within: increased individual consciousness
Implications for an understanding of empowerment
Changes in underlying resources and power to challenge constraintsIncreased individual capacity and opportunities for accessIncreased solidarity to challenge underlying assumptions
increased awareness and desire for change
Session ThreeGENDER AND LOCAL DEVELOPMENT
Training Manual46
Session Three:GENDER AND LOCAL DEVELOPMENT
Objective of the session: At the end of this session, the participants will:
understand the concept and meaning of Gender
understand the concept of gender equality and equity
understand the gender approaches and its links with local development.
Session Contents:A. What is Gender?B. Gender Equality and EquityC. Gender Approaches and its Links with Local DevelopmentD. Maintreaming Gender in Bangladesh.
A. What is Gender?The concept of “Gender” emerged in early 1970’s as feminist theorists sought to understand the complexities of women’s subordination. It reveals that women’s subordination is socially constructed but biologically determined. Therefore, “Gender” refers to the social differences between female and male identity. It is determined by the conception of tasks, functions and roles attributed to women and men in society and in public and private life.
Special Features of Gender: It defines a relationship between men/boys and women/girls.
Gender roles are learnt over time, because different expectations are held for boys and girls.
Gender roles are determined social and cultural norms.
Gender systems can change over time.
Gender is affected by other insights variables like caste, race and religion.
Training Manual 47
A gender perspective looks at the relative status of women and men in the society. It drives with the process of equal treatment in terms of:
Rights
Responsibilities
Opportunities,
Power (Decision making);
Treatment or valuation
If the process drives with equal treatments in terms of rights, responsibilities, opportunities, power and valuation, it may leads to the sustainable development of a country.
Example: MDG-3 recognizes the promotion of gender equality and empowerment of women, which is explicitly linked with the Beijing Declaration and Platform for Action.
Status of Gender: Facts and figuresThe status of gender refers condition and position of men and women in the society and state. The condition relates with quality of life of a particular group (men or women), which are linked with: food, nutrition, health, housing, cloths, safe water & sanitation and income opportunity etc. On the other hand, the position relates with individual’s dignity, which are linked with: power, decision-making, ownership of resources, control and rights. Therefore, the condition and position both are equally important.
Fact and Figures in Global context: Women work 67% of the world’s working hours.
Two third of the world’s illiterate people are women
Women’s earning ranges from 50-85% of men’s earnings
Globally women make up just over 10% of representatives in national Government.
Women hold only 15.6% of parliamentary seats globally.
Training Manual48
Table: Status of women in Judiciary system
Table: State and status of women in Government functionaries
Fact and Figures in Bangladesh Context:
Source: Website, Ministry of public administration, 18 Feb. 2014
Status
Judge in Appellate Division*
Judge in High Court Division*
Judge in Lower Judicial Court
District Judge
Asst. District Judge
Asst. and Senior Asst. Judge
Women
1
4
112
14
10
60
Men
7
84
711
150
128
271
Total
8
88
823
164
138
331
Status
Secretary
Additional Secretary
Joint Secretary
Deputy Secretary
Senior Asst. Secretary
Asst. Secretary
Total (number)
70
298
927
1311
1433
1115
Women
5
13
70
105
246
247
Percentage (%)
7.14
4.36
7.55
8.01
17.17
22.15
Source: Law, Justice and Parliamentary Affairs Ministry, Sept. 2006 (* website, Supreme Court, 6 July 2011)
Training Manual 49
Table: Status of women in National Parliament
Table: Status of women in Union Parishad (UP)
Source: Ministry of public administration and Bureau of Statistics, Bangladesh
Source: Ministry of public administration and Bureau of Statistics, Bangladesh (1973-2014)
1973
1979
1986
1988
1991
1996
2001
2008
2014
Men
-
1
5
-
4
11
6
20
282
Women
300
299
295
-
296
289
294
280
18
15
30
30
30
30
30
45
45
50
Reserved seat in theparliament
Elected parliament member in theGeneral Election
Year
Women
Men
Total
Number
21
4,477
4,498
Percentage
0.47
99.53
100
Number
13,637
40,339
53,976
Percentage
25.26
74.74
100
Status Chairman Member
Training Manual50
B. Gender Equality and EquityGender equality refers to the equal rights, responsibilities, opportunities, benefits, treatment and valuation of women and men. Gender equality does not mean that women and men need to become exactly the same, but that their rights, responsibilities and opportunities, the way they are treated and their work is valued will not depend on whether they are born male or female. Thus women and men can be and are different, but gender equality demands the equal value and fair distribution of:
responsibility opportunity workload decision making; and power
The equality conceptually refers to three major areas:
Therefore, the attainment of gender equality considers the following elements: Accountability : Refers to the duty bearers (State/Actors) Comparability : Refers to the policies and practices Cultural Values : Refers to the Gender sensitivity Strategies : Refers to the National plan of action and legal frameworks
All these elements support to the attainment of equal rights, opportunity and treatments for both men and women in all spheres of lives (i.e. social, economic, cultural and political) that can uphold the provisions of equitable development.
Gender equity is a part of the process through which we achieve equality. It is not about treating everyone the same all the time, but about ensuring
1. Political equality:2. Economic Equality:3. Social Equality:
It means the respect of individual’s right to life, liberty and property.It means that the people have the same income or wealthIt means the equality in social status; equality in opportunity and orequality in treatments
Training Manual 51
that everyone has the same opportunities to participate in the benefits of our projects.
Gender Equity is about the principle and practice of fair allocation of resources, programs and power to men and women in the personal, educational, social, cultural, political and economic arenas.
Gender equity acknowledges that men and women have different needs and power.
Gender equity recognizes that different approaches may need to be taken to redress historical and social disadvantages and imbalances to make sure we produce equitable outcomes.
Relations of Gender with Rights:Gender links with rights whoever both social entity (men and women) have equal access and control over resources, information/education and time that generate power to make decisions.
INTERNALRESOURCES
POWER AND DECISION-MAKING
ACCESS TO END CONTROL OVER
ECONOMIC AND SOCIALRESOURCES
POLITICALRESOURCES
INFOR-MATION/
EDUCATIONTIME
Training Manual52
C. Gender Approaches and its Links with Local DevelopmentUnited Nations introduced four basic approaches, which are linked with Gender. These are as follows:
Approach-1: Women in Development (WID)During 1970-80, UN firstly introduced “women in development (WID) approach” with a view to integrate women in development efforts. This approach argues that women are ignored and excluded from the development programs. This is believed that development is not obtainable in the absence of women’s integration into development process. As women seen as under-utilized resource for development, they can be treated as a valuable resource. This approach contradicts the modernist approach that the benefits from development will trickle down to women. So, it facilitated advocacy campaign for the implementation of ‘separate’ or ‘integrated’ projects for women. It was seen as the right solution to address women’s marginalization. WID assumed that if women are provided access to resources such as skill training, credits, small-scale income generating activities and home economics, then they will improve their situation and women will become full economic partners with men.
Approach-2: Women and Development (WAD)The learning of WID approach encouraged the UN to formulate and integrates “women and development (WAD) approach” in 1980’s to ensure women participation in the development spectrum. The approach revealed that women would never get their equal share of development benefits unless patriarchy and global inequality are addressed. This assures that women are not a neglected resource but overburdened and undervalued. WAD approach is allowed redistribution of the benefits and burdens of development between men and women.
DevelopmentEfforts
Women Development
WomenAs unutilized
resource
Integration
Training Manual 53
Approach-3: Gender and Development (GAD)GAD approach introduced in 1990’s as a process that focuses on gender roles and unequal power relations in the design and implementation of all policies and programs. It is concerned with gender and gender relations. It is not advocating for rethinking development concepts and practice as a whole through a gender lens. Because, it significantly pointed out that unequal gender relations deny women from accessing or obtaining credit, education, technology and agricultural extension.
Approach-4: Gender MainstreamingThis approach was introduced as a global strategy for the promotion of gender equality in the Beijing Platform of Action from the Fourth UN World Conference in Beijing, 1995. This approach seeks to ensure that the entire policy spectrum will:
Analyze the areas of gender differences and inequalities; Opportunities for reducing the gender gaps and support for greater equality between women
and men.
DevelopmentSpectrum Women
Participation
Address inequalities& patriarchy
WomenDevelopment
Gaining benefitsof equal
development
Developmentprograms andpolicies
Women Rules & regulations
EquitableDevelopment
Equal rules &power to menand women
Training Manual54
Why gender mainstreaming is important?
problem solving approach.
1. It can make development planners and decision makers to become aware of women’s issues.
power and privilege.
development process.
D. Commitments for mainstreaming Gender in Bangladesh
Bangladesh accessioned the CEDAW7 on 6th
8 that granted
Effec ve policy spectrum for development
Women
Address genderinequali es
Gender Equality inDevelopment
Support ingender equality Defining
gender gaps
Training Manual 55
equal rights and treatments for all citizens in line with the (Article 27, 28 (1), 28 (2), 28 (3), 28 (4), 29 (1), 29 (2) and 29 (3). According to this obligation, the Government of Bangladesh has introduced a numbers of Acts and Ordinances to safeguard equal rights and protection for women and girls. These are as follows:
Code of Criminal Procedure, 1898 (Act No. V of 1898). The Code of Civil Procedure, 1908: Act V of 1908 The Suppression of Immoral Traffic Act 1933 The Maternity Benefit Act 1939 The Muslim Family Laws Ordinance 1961 The Children's Act 1974 The Muslim Marriages and Divorces (Registration) Act, 1974 The Dowry Prohibition Act of 1980 (Act No. XXXV of 1980) The Child Marriage Restraint Act 1929 (as Amendment in 1984) The Family Court Ordinance, 1985 (Ordinance No. xviii of 1985). Repression against Women and Children Act 2000 (amended in 2003). Domestic Violence (Prevention & Protection) Act, 2010 The Hindu Marriage Registration Bill, 2012
In addition, the Government has introduced 'National Women Development Policy 2011' and National Plan of Action for Women Advancement in line with the Beijing platform of action and UN standards for the advancement of women. The special attention is also made for addressing gender mainstreaming issues in formulation of 6th five year plan (2011-15) of Bangladesh as per Perspective Plan (2010-2021). Bangladesh is also complying with the UN declaration in observing the following special days for women as integral part of world campaign:
March 8 : International Women's Day October 15 : International Day of Rural Women November 25 : International Day for the Elimination of Violence against Women
The efforts of Government (including non-government actors) are made visible to some extent in attaining the MDG targets for Bangladesh. But in comparison with the gender differences, the results is not enough visible for reducing the gaps between men and women towards making a society where everyone will lead a life with dignity and respect.
7 CEDAW means UN Convention on the Elimination of All Forms of Discrimination against Women 8 http://www1.umn.edu/humanrts/research/bangladesh-constitution.pdf
Session FourUNDERSTANDING OF GOVERNANCE
Training Manual56
Session Four:UNDERSTANDING OF GOVERNANCE:
CONCEPT, MEANING, ELEMENTS, PRINCIPLES AND SHIFTING PARADIGM
Objective of the session: At the end of this session, the participants will:
understand the concept and meaning of Governance understand the elements of Good Governance understand the basic links between Good Governance and Human Rights and possible challenges
towards Good Governance in Bangladesh.
Session Contents:A. What is Governance?B. What is Good GovernanceC. Basic elements of Good GovernanceD. Basic links between Good Governance and Human Rights E. Major challenges towards Good Governance (as reference of Bangladesh)
A. What is Governance?Generally, “Governance" is: the process of decision-making and the process by which decisions are implemented (or not implemented). Contextual Examples:
Corporate governance,
International governance,
National governance and
Local governance.
The Asian Development Bank (1995) defines Governance as “the manner in which power is exercised in the management of a country’s economic and social resources for development”.
Training Manual 57
The European Union (EU) defines Governance with the rules, processes and behavior that affect the way in which powers are exercised at the level of openness, participation, accountability, effectiveness and coherence.
From this point of view, “Governance” drives with power, authority (decision making) and rules that will determine: ---
how power is shared who has the authority to make the important decisions how decisions should be enforced how the people (who make decisions) are accountable.
The status of governance of country can be measured with the following six components:1. Voice and external accountability;2. Political stability and lack of violence, crime, and terrorism;3. Government effectiveness (including quality of policymaking, bureaucracy, and public service
delivery);4. Regulatory Quality;5. Rule of law; and6. Control of corruption.
If we want to make active governance, we should have to recognize the people’s voice to determine how they organize themselves as a group to manage their own affairs towards development. It requires having a democratic process, structures, traditions and rules so that they can:
determine ownership; decide who has authority; ensure that authority is exercised properly; enforce and implement their decisions; hold their decision makers accountable; steer the future direction; negotiate their rights and interests with others.
Training Manual58
But the ground reality is that the driving forces (i.e. power, authority and rules) are not always functioning properly in advancing governance, particularly in the developing countries. This forces to shift in the role of Government in the structure of Governance.
Basic differences between governance and government:Government:
It refers to the machinery and institutional arrangement for exercising the sovereign power to serve the internal and external interests of the state.
Governance Good Governance
UN HR Commission Resolution 2000/64
With a set of Standards
Governance: Operation of 3 key Actors
Governance: Goes beyond the Government
Market:
State
Civil Society:
Creating a favorable political,legal & economic environment
Creating opportunities forpeopleMobilizing peoples
participation
State
Market:Civil Society:
Training Manual 59
Governance: It implies the process as well as the result of making authoritative decisions for the benefits of society. According to definition of ESCAP9 - Governance is the process of decision-making and the process by which decisions are implemented (or not implemented).
So, Governance is a broader notion than Government, state and regime.
B. What is Good Governance?Good governance is associated with efficient and effective administration in a democratic framework. It is equivalent to purposive and development oriented administration which is committed to improvement in quality of life of the people. It implies high level of organizational effectiveness. It also relates to the capacity of the center of power of political and administrative system to cope up with the emerging challenges of the society. It refers to adoption of new values of governance to establish greater efficiency, legitimacy and credibility of the system. It must have the attributes of an effective, credible and legitimate administrative system- citizen-friendly, value-caring and people-sharing.
Good governance demands that government must be not only representative but responsive as well to the needs of governed.
Definition: ‘Good governance’ means: competent management of a country’s resources and affairs in a manner that is open, transparent, accountable, equitable and responsive to people’s needs.
According to World Bank, Good Governance entails: sound public sector management (with efficiency, effectiveness and economy); accountability; exchange and free flow of information (transparency); and a legal framework for development (to justice, respect for human rights and liberties).
Therefore, we may represent that Good Governance is a competent dealing with strengthening trust, accountability, transparency and participatory process in government so that it can serve citizens more effectively, efficiently and responsively.
9 ESCAP means the Economic and Social Council for Asia and the Pacific.
Training Manual60
C. Basic elements of Good Governance“Good governance” is an ideal of term that symbolizes the paradigm shift of the role of governments. The ideal of “Good Governance” drives with a set of standards, which is difficult to achieve it totality. The ideal of good governance has been clarified by the work of the former Commission on Human Rights. In its resolution 2000/64, the Commission identified the key elements of good governance:
transparency accountability participation responsibility responsiveness (to the needs of the people).
Figure: Key elements of Good GovernanceI. TransparencyTransparency means that the decisions are made and enforced in line with the standard rules and regulations. The information on the decisions should be available, easily understandable and accessible to people, particularly those who are affected by such decisions. Example:
Information on existing laws Fees for public services Inventory of public property Rules of public procurement
GoodGovernance
Responsibility
Transparency
Accountability
ParticipationResponsiveness
Training Manual 61
II. AccountabilityAccountability implies that the duty bearer or bureaucracy should be answerable for what they do or don’t do? It is not only applicable to the government but also private sector and civil society. It empowers the people who are affected by the decisions or actions of concern actors. It can’t be enforced without transparency and the rule of law.
Example: The cabinet is accountable to the parliament (in a parliamentary democratic state like
Bangladesh). The Local Government Institutions are accountable to the people in its constituencies.
III. ParticipationParticipation means that to what extent the people are involved in the policy making and development process. It implies that public officials facilitate and promote an environment in which people can participate meaningfully in the development process. People’s participation can be ensured in three important ways:
Firstly : As beneficiaries of development. Secondly : As stakeholders and decision-makers in development. Thirdly : As opposed to officials & aid agencies, who implement development activities.
Example:Citizens are invited to participate in the budgeting process of the Union Parishad and need to approve the final UP budget.
IV. Responsibility The responsibility is the foundation of democracy that drives with principles of accountability. It contributes to a form of responsible government, civil society and private sector to transform their duties and responsibilities in advancing development.
Example: The responsibility of Law Enforcement Agencies is to maintain code of conduct at the time of enforcing the national laws.
Training Manual62
V. ResponsivenessResponsiveness means the capacity, sensitivity and flexibility of duty bearers (i.e. Government, private sector and civil society) to respond effectively in development. It considers the expectations of civil society in identifying the people’s need and interest. It also sensitize the authority to critically re-examine or review the existing rules, policies and procedures to act properly. It requires functionality of institutions and processes to serve all the target audiences within a reasonable timeframe.
In addition ton, UNDP Report, Governance for Sustainable Human Development, 1997 defended the following characteristics of Good governance:
Participation Rule of law Transparency Accountability Responsiveness Consensus orientation Equitable Effectiveness and efficiency Strategic vision.
D. Basic links between Good Governance and Human Rights Good governance and human rights are mutually reinforcing. Human rights principles provide a set of values to guide the work of governments and other political and social actors. It also provides a set of performance standards to make the actors transparent and accountable. On the other hand, without good governance, human rights cannot be respected and protected in a sustainable manner. The implementation of human rights relies on conducive and enabling environment. This includes appropriate legal frameworks and institutions as well as political, managerial and administrative processes responsible for responding to the rights and needs of the population.
GOODGOVERNANCE
Consensusoriented
Accountable
TransparentParticipatory
Responsive
Equitable andinclusive
Effective andEfficient
Follows therule of law
Training Manual 63
Example:In the Millennium Declaration, world leaders affirmed their commitment to promote democracy and the rule of law as well as to respect internationally recognized human rights and fundamental freedoms, including the right to development.
UN has defined a numbers of Good Governance Principles, which are link with human rights, these are as follows:
Democratic government and processes Effective public sector institutions The primacy of the rule of law and an impartial and effective legal system. A strong civil society A high priority on investing in people Careful management of the national economy
Therefore, the links between good governance and human rights can be organized around four areas:
1. Strengthening Democratic InstitutionGood governance reforms democratic institution by ensuring people’s participation in policy making, and accountability of elected and appointed officials. It enables civil society to be actively involved in policymaking and leads to assure societal interests in decision-making. The process contributes to empower disadvantaged groups, including women and minorities to defend their rights. Reference: The existing election commission of Bangladesh is playing vital role in application of voting rights of the citizen (by organizing free and fair election).
2. Improving service deliveryStates are responsible for service delivery to their populations, including education, health and social welfare services. The provision of these services is essential to the protection of human rights such as: the right to housing, health, education and food. Human rights principles order that public services should be available, accessible and culturally acceptable in order to secure the rights of the poorest and most marginalized. Good governance contributes to this goal by approaching individuals as actors in and not just beneficiaries of economic and social development.Reference: Article-2 of the ICESCR, 1966 recognizes state obligations to take necessary steps to achieving progressively the full realization of the rights recognized in the Covenant by all appropriate means.
EnsurePeople’s Livewith Dignity
ImproveRespect for
Rights Good Governance
Improved Service Delivery
DemocraticInstitution
Rule ofLaw &Justice
CorruptionFreeSociety
Training Manual64
3. Rule of lawThe rule of law consists of a set of institutions, laws and practices that are established to prevent the arbitrary exercise of power. It refers the “supremacy of law” and no man is above the law. It contributes to develop a balanced society, to develop harmony between the conflicting groups and to bring a peaceful environment for the development of people.
Reference: Article-14 (3) of ICCPR, 1966 “the right to free legal assistance for those who cannot afford it” to make sure equal access to justice.
4. Combating CorruptionCorruption means the abuse of public power for private benefit. But the governance that drives with the four key features, such as: accountability, transparency, participation and responsibility can curb it down. Corruption weakens the accountability of State officials, reduces, transparency in the work of State institutions and allows human rights violations to go unpunished. It has a negative impact on the realization of basic rights. It is particularly affects the poorest and most marginalized, who greatly depend on public services.
Reference: UN Convention against corruption (UNCAC), 2007 that supports in anti-corruption movement of the state parties.
Figure: Basic links between Good Governance and Human Rights
Training Manual 65
E. Major challenges towards Good Governance (as reference of Bangladesh)As a country of third world, Governance in Bangladesh is very poor due to existence of a numbers of challenges and constraints. These are given below:
Violation of Human Rights Corruption Centralization of power and authority Selectiveness Weak Legislature and its enforcement Poorly Performing Institutions Volatile political culture Lack of people’s participation
Regarding this, Bangladesh is still struggling to adopt full elements of good governance due to non-functional role of democratic institutions, absence of people’s oriented service delivery, lacking in enforcement of rule of law and political will on anti-corruption. In such a situation, half of the population in Bangladesh are still struggling to survive (48.5% people are staying below the poverty line) with minimum requirement of life. Most often they are staying out of access to services and protection by the laws that denying their minimum requirements of life to survive as human being.
Session FiveLOCAL GOVERNANCE
Training Manual66
Session Five:LOCAL GOVERNANCE
Objective of the session: At the end of this session, the participants will:
understand the concept Democratic Local Governance understand the basic elements of Good Local Governance and its functional applications.
Session Contents:A. What is Local Governance? B. What is Democratic Governance?C. What is Local Government?D. Structure of the Local GovernmentE. Structure and functions of UPsF. Standing Committees and its functionsG. Setting Standards for Democratic Local GovernanceH. Major challenges towards Good Local Governance.
A. What is Local Governance? Local governance comprises a set of institutions, mechanisms and processes through which citizens and their groups can articulate their interests and needs, mediate their differences, and exercise their rights and obligations at the local level (UNDP 2004).
The building blocks of good local governance are the followings: citizen participation, partnerships among key actors at the local level, capacity of local actors across all sectors, multiple flows of information, institutions of accountability, and a pro-poor orientation.
Training Manual 67
Local governance emphasizes the need to look beyond the narrow perspective of legal frameworks and local government entities. It seeks to include a range of formal and informal relationships between different actors in development (e.g. local government, the private sector, associations, CSOs) that shape and influence the output and effectiveness of political and administrative systems at local level. Local governance support to the wider involvement of citizens, NGOs, private sector in relation to working with and monitoring local governments
It facilitates a large degree of synergy and coherence between national governance processes and local governance, as many of the aspects are in fact the same. Therefore, it is necessary to work with governance principles at local levels to strengthen local governance processes.
B. What is Democratic Governance?Democratic governance is a form of good governance where the social and political processes, regulations and institutions play an integrated role in social accountability, economic growth and human development.
The concept of democratic local governance is becoming an integral part of local development approaches. It is increasingly seen as a precondition for poverty-reduction strategies of international community. Considering human development perspectives, UNDP, 2002 elaborated the concept of “democratic governance” in a sense that governance should promote human development. This incorporates the notion of good governance for development, democratic processes and efficient & accountable local institutions that secure civil/political rights and freedom of the people.
Therefore democratic local governance means: People’s hum an rights and fundamental freedom are respected, allowing them to live with dignity;
People have a say in decision that affect their lives;
People can hold decision makers accountable;
Inclusive and fair rules, institutions and practices govern social interactions;
Women are equal partners with men in public and private spheres of life and decision making;
People are free from discrimination based on race, ethnicity, class, gender or any other attributes;
The needs of future generations are reflected in current policies;
Economic and Social planning and policies are responsive to people’s needs and aspirations;
Focuses on eradicating poverty and expanding opportunity for all segments of population.
10 Training Manual on “Human Rights and Governance, commissioned by Manusher Jonno Foundation (MJF), 2006; page-61.
Training Manual68
It is noted here that Democratic Governance differs from the concept of Good Governance10 in recognizing civil/political rights, freedom and participation of people. Democratic Governance is built on the concept of human development that enabling people to be free and to lead the lives for shaping their own futures. These are the core elements of human wellbeing that referred in the United Nation’s Millennium Development Goal (MDG).
Transformation of Good Governance into Democratic Governance:
Reference:Article-11 of Bangladesh constitution refers the provision of Democracy and Human Rights
C. What is Local Government? Local Government is an administrative body or unit either locally elected or nominated. It has the capacity to impose taxes but no power to spend until or unless it is instructed by the central government. It refers as the tiers of democratic administration system. Local government is an integral part of the whole governance process.
There are two main components of a local government system: a) Discretion allowed to the local government to perform fundamental functions that allow
them to represent the preferences of the citizens in decision making process; andb) Mechanisms that hold the local government accountable for appropriate use of this
discretion.
Governance
Good Governance
Human Governance
Democratic Governance
Democratic Process Good Governance Democratic Governance
Training Manual 69
Constitutional provision of Local GovernmentThe Constitution of the People’s Republic of Bangladesh assures the provision for establishing local government institutions in Bangladesh with a view to empower and enable people to participate in the process of local development.
Article-11 of the Constitution refers the provision of Democracy and Human Rights
The Article 59 (1) of the Constitution of Bangladesh states that-
Article 59 (2) of the Constitution refers the functions of Local Government relating to:
Article-60 of the Constitution refers the Powers of local government bodies as –
Therefore, it is clear that the Constitution of Bangladesh assures provisions for the establishment of local bodies of government in terms of their composition, administration and financial arrangements.
The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed, and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured.
(a) administration and the work of public officers; (b) the maintenance of public order;(c) the preparation and implementation of plans relating to public services and economic development.
For the purpose of giving full effect to the provisions of article 59 Parliament shall, by law, confer powers on the local government bodies referred to in that article, including power to impose taxes for local purposes, to prepare their budgets and to maintain funds.
Local government in every administrative unit of the Republic shall be entrusted to bodies, composed of persons elected in accordance with law.
Training Manual70
D. Structure of Local Government:
Local government within the state: Bangladesh has 64 administrative districts and below this a tiered system of local government comprising rural councils, or parishads, and urban municipalities
Ministerial oversight: The Local Government Division (LGD) within the Ministry of Local Government and Regional Development and Cooperatives (MLGRDC) is responsible for development and implementation of legislation regulating local government, with the exception of the Hill District Local Government Parishad Act 1989, which is administered by the Ministry of Hill Tract Affairs.
Council types: Local government is divided into rural, urban and hill districts which have more or less similarfunctions. Urban authorities are single-tier and include city corporations and a number of pourashavas. Rural local government has three tiers:
Zila (district) parishads (61 districts) and three Hill district parishads. Upazila parishads (500 upazila); and Union parishads (4,451 Unions).
I. Urban councils:The heads of city corporations and pourashavas are called mayors. Members are called councilors, and mayors and all councilors are directly elected every 5 years. There are specific numbers of reserved seats for women, who are elected directly.
II. Zila parishads:The law stipulates that there shall be a council for each district except the three hill districts. A zila parishad will consist of a chairman, 15 open seats and 5 additional women’s reserved seats. The chairman and the members are elected by an electoral college.
III. Upazila and union parishads: The chairman and all the members – including women members holding reserved seats – are directly elected. The chairmen and members work full-time and receive an honorarium, which is fixed by the government. According to existing legislation the upazila parishad councils must consist of a directly elected chairman, representative members, women members in reserved seats, and official members. The representative members are the upazila parishad chairmen and pourashava chairmen of each upazila. All heads of government departments working in the upazila are ex-officio members without voting rights
Training Manual 71
Figure: Interface between CentralGovernment and Local Government
Figure-: Present Structure of Local government
Ministry of Local GovernmentRural Development & Cooperation
Local Government Division
Rural Councils
Zilla Parishads
Upazila Parishad
Union Parishad
Pouroshova
DepartmentsDirectorates
Division(Commissioner)
DistrictCommissioner)
Upazila(UNO)
Zila Parishad
Upazila Parishad(Chairman-Vice Chair)
Union Parishad(Chairman-Members)
City Corporation
Urban Councils
Bangladesh Secretariat Administration:- Ministers
- Secretariats
Training Manual72
E. Structure and functions of the UPs
I. Structures of the Union Parishads (UP)According to Section-10 of the Local Government Act, 2009, Union Parishad consists of a Chairman and 12 members (including 3 reserve seats for women).
However, the overall structural forms of UP is as follows: Chairman: There shall be a chairman of Union Parishad directly elected by the voters of the
Union. Members: Nine members shall be directly elected from the nine wards constituting the Union. Women members: Three seats shall be reserved for women. Each of the women members shall
be directly elected by the male and female voters of three wards within a Union. Additional Official members: - The Block Supervisor ( Directorate of Agriculture ), - Health Assistant , - Family Planning Assistant, - Family Welfare Worker, - Ansar/VDP and all other field staff of government departments working at Union level will be the
official members of Union Parishad. They will have no voting right. Others members:
- Representatives of Muktijoddah, - Cooperative Societies Disadvantages groups/Professions (weavers, fishermen. landless workers,
destitute women, etc.) will be members of Union Parishad without voting right.
Figure: organizational structure of a UP.
A Chairman
Member-9(Elected for each Ward)
Women Member-3(Elected for 3 Wards)
Secretary (1)(Non-elected)
Tax-Collector Chowkidars Dafadars
Training Manual 73
II. Basic Functions of UPs:As per Section-47 (1) of the Local Government Act, the UP has to be performed four basic functions, which are related to:
a) Administration and establishment issues;b) Maintenance of Law and orderc) People’s welfare related servicesd) Planning and implementation activities related to local economic and social development.
Other functions: As per section 47 of the LG Act, the functions of UP are as follows:
1. Preparation of five years plan and long terms development plan
2. Rural infrastructural development, preservation and maintenance
3. Promotion of basic education and primary & mass education
4. Implementation of Health, family planning activities
5. Agriculture, fisheries, livestock and other necessary activities to economic development
6. Take activities for controlling Epidemic and reducing disasters
7. Define tax, fee, tool, fees etc. and its collection
8. Resolution of family conflicts and activities related to women and child welfare.
9. Provide assistance and take necessary endeavor to the development social culture and paly.
10. Take necessary initiatives for protection and development of environment.
11. Take necessary initiatives and actions to maintain law and order situation.
12. Registration of birth and death
13. Take care of Government land, open space, garden and playing ground.
14. Install lighting in road sides and Government space.
15. Plantation, forest preservation and protection of forest from the damages and loss.
16. Preservation and take care of graveyard, cremation ground, and people’s meeting places.
17. Protect the unnecessary people’s access to footpath, highways and Government spaces and their disturbance.
Training Manual74
18. Protection of footpath and highways from the damages and loss.
19. Ensure collection, removal and management of cow dung and roads garbage.
20. Control crimes and dangerous business.
21. Control cattle slaughter and removal of animals dead body
22. Control of new building construction, rebuilding of dangerous building in the Union.
23. Preservation and maintenance of water sources, ponds, water distribution lines.
24. Control pollution of water sources and allow restriction on the use of water that collected from the pollute sources and distribution lines.
25. Control and allow restriction on bathing, washing cloths and cattle in the water sources that used as a source of drinking water.
26. Control and allow restriction on the jute soaking in the water points that used and preserved as source of drinking water.
27. Restrict or control the coloring process of leather in residential areas.
28. Restriction or control of collecting stones and others materials by digging in residential areas.
29. Restriction and control of constructing brickfield, soil pots or other Vati in the residential areas.
30. Assist the Government and take emergency measures to face firing, flood, cyclonic storms, earthquakes and other natural disasters.
31. Prepare the list of widowed, orphanage, poor and disadvantaged people and assist them.
32. Encourage cooperative movement and rural industrial development.
33. Take initiative to increase food production.
34. Preservation and controlling of the fearing of livestock
35. Arrange primary health services
36. Take necessary initiatives for assuring security, safety and benefits of the people in UP constituencies.
37. Startup e-governance and encourage the people to use it.
38. Extend coordination and collaboration with relevant service institutions. 39. Perform responsibilities assigned by the Government.
Training Manual 75
F. Standing Committees (SC) and its functions:
According to Section-45 (1) of the Local Government Act, 2009, each UP has 13 standing committees. The Standing Committees are assigned to:
1) Finance and Establishment2) Audit and Accounts3) Tax identification and Collection4) Education, Health and Family Planning5) Agriculture, Fisheries & Livestock and others economic development6) Rural infrastructural development, preservation and maintenance etc. 7) Law and Order8) Birth and Death registration9) Sanitation, water supply and drainage10) Social welfare and Disaster management11) Sustainable development, environmental protection and tree plantation12) Resolution of family disputes, women and child welfare13) Culture and play.
In addition to 13 Standing Committees, with the executive order of the Government the provisions of following committees are prescribed at UP level under the leading role of UP Chairman:
Nari Nirjaton Protirodh Committee (NNPC) Union Human Trafficking Prevention Committee UP Taskforce Committee (for water supply and sanitation) Union Agriculture Committee Union Disaster Management Committee Union VGD Committee etc.
As an example of Nari Nirjaton Protirodh Committee (NNPC) --- as per the circular of LG Department: Sha/UP-6/89/397(64) dated 23.05.1989.
Training Manual76
However, according to Section 45 (3) of the LG Act:The Chairperson of Standing Committee will be elected from the elected members of the Union Parishad (except co-opt member), where women representative (as Chairperson) should be one third (1/3) in the Standing Committees. Each standing committee should be form with 5 to 7 members and if necessary, a specialize person on relevant issue may include as a member of standing committee (as coopt member) without any voting rights in the committee (Section 45 (4)). It is noted here that UP Chairman should only be Char of Law and Order Committee. The standing committee will meet in every two months but it can be more if necessary.
The Chairman may apply his/her executive power to fulfill the objective of LG Act, 2009 and execute the decisions of the UPs in line with Section 46 (1).
Major responsibilities of the Chairman (as per Section 46-2 of the LG Act, 2009)a) He/she will be the chair of the UP general meeting and conduct the meeting;b) He/she will monitor and control the functions of all officials and staff of the UPs, and will prepare
their confidentiality reports;c) He/she will maintain expenditure limits approved by the Government or respective line
authorities;d) He/she will conduct all income-expenditure accounts with joint signatory with UP secretary; e) He/she may assign authority to the UP officials or staff members to pay the UP’s expenditures
and collection of revenues; f) He/she will prepare all relevant reports in line with the provision of the LG Act; g) He/she will perform any other authority and responsibilities as per this Act.
SL1.2.3.4.5.6.7.
Entitled personUP ChairmanWomen member, WARD No. 1Women member, WARD No. 2Women member, WARD No. 3Headmaster of the Secondary schools in the Union Family planning workerUP Secretary
DesignationChairpersonMemberMemberMemberMemberMemberSecretary
Training Manual 77
In addition, Chairman (with approval of UP) may order to conduct any people’s oriented important works
without violation the rules and provisions of the LG Act, 2009; Chairman should ensure the presence of all UP officials and staff members in UP meetings; Chairman has authority to do temporarily suspend any staff working under the control of UP
(except the UP Secretary and other assigned officials of various Govt. departments) on valid ground of violating administrative rules and discipline. It is noted here that this temporary suspension should be approved in the next UP general meeting otherwise it will not be effective.
Chairman may ask (as written) to UP secretary to provide for any classified records or files related to UP’s administrative issues;
Chairman may send a report to the Government for taking necessary legal action to against any officials and staff members who works under the control of the UP for violation of administrative discipline, rules and directions of the LG Act.
If the Chairman feel that the particular decisions of the UP’s may have negative impact on people health, safety and security, he/she may provide his/her own concerns to the Government.
G. Setting Standards for Democratic Local GovernanceRepresentation is the main principal in a democratic society. The process encourages citizens to elect their trustful representatives. Hence, the legitimacy of the local government depends on three basic elements:
Trust Legitimacy Satisfaction.
Firstly, trust is very important component for the legitimacy of the local government. So, the gaining of citizen’s trust is a key part of responsibility of the elected representatives.
Secondly, the relations between citizens and local government structures assure the reliability of local government.
Thirdly, citizen’s satisfaction drives with quality and need oriented service deliveries to citizens. Satisfying citizen’s needs is the main responsibility of the local government.
Legitimacy
Trus
t Satisfaction
Reliability
Training Manual78
Therefore, the triangle of legitimacy contributes to builds on institutions, mechanisms and processes, through which local citizen and their groups can voice their needs and interests, perform their stipulated rights and responsibilities. It requires local government institutions equipped with sufficient authority and resources capable to perform their functions in a responsive and accountable manner. It demands an active civil society able to identify and channel their concerns to their elected representatives.
Main Principles of Democratic Local GovernanceAccording to the Council of Europe, the main principles of democratic local governance are as follows:
1. Fair election, representation and citizens participation2. Responsiveness3. Efficiency and Effectiveness4. Openness and transparency5. Rule of law6. Ethical Conduct7. Competence and Capacity8. Innovation and Openness to Change.9. Sustainability and Long-term Orientation10. Sound Financial Management11. Human rights, Cultural Diversity and Social� Cohesion 12. Accountability.
1. Fair election, representation and citizen’s participationThis principle refers the followings:
Local Government elections are conducted freely and fairly, according to international standards and national legislation, and without any fraud.
Citizens are at the center of public activity and they are involved in clearly defined ways in public life at local level.
All men and women can have a voice in decision-making that represent their interests. Such broad participation is built on the freedoms of expression, assembly and association.
All voices, including those of the less privileged and most vulnerable, are heard andtaken into account in decision-making.
Steer up an honest attempt to mediate between various legitimate interests and to reach common consensus for the best interest of the whole community.
Training Manual 79
Decisions are taken according to the will of the many, while the rights and legitimate interests of the few are respected.
2. Responsiveness:This principle refers that-
Objectives, rules, structures, and procedures are adapted to the legitimate expectations and needs of citizens.
Services are delivered, and requests and complaints are responded to within a reasonable timeframe
3. Efficiency and EffectivenessThis principle refers that-
Results meet the needs of society Best possible use is made of the resources available Performance management systems make it possible to evaluate and enhance the
efficiency and effectiveness of services Social audits are carried out at regular intervals to assess and improve performance.
4. Openness and transparencyOpenness and transparency refers the followings:
Decisions are taken and enforced in accordance with rules and regulations. There is public access to all information which is not classified for well-specified reasons as
provided for by law (such as the protection of privacy or ensuring the fairness of procurement procedures).
Information on decisions, implementation of policies and results is made available to the public in such a way as to enable it to effectively follow and contribute to the work of the local authority.
5. Rule of LawThe rule of law denoted the followings:
The local representatives and authorities abide by the law and judicial decisions. Rules and regulations are adopted in accordance with the law
and are enforced impartially.
Training Manual80
6. Ethical ConductIt refers that –
The public good is placed before individual interests. Effective measures are taken to prevent and combat all forms of corruption. Conflicts of interest are declared in a timely manner and persons involved must withdraw from
taking part in relevant decisions.
7. Competence and CapacityThis principle refers the followings:
The professional skills are continuously maintained and strengthened in order to improve output and impact of the functions of local government.
Public officials are motivated to continuously improve their performance. Practical methods and procedures are initiated and applied for transforming skills into capacity
to produce better results.
8. Innovation and Openness to ChangeThis principle refers that -
Innovative and efficient solutions to problems are sought and advantage is taken of modern methods of service provision.
There is readiness to experiment new programs and to learn from the experience of others. People’s desire to change is created in the interest of achieving better results.
9. Sustainability and Long-term OrientationThis principle refers the followings:
The needs of future generations are taken into consideration in developing current plan and policies.
The sustainability of the community is constantly taken into consideration in local development planning.
Decisions strive to internalize all costs and not to transfer problems and tensions (in relation to environmental, structural, financial, economic or social) to future generations.
There is a clear understanding of local context and complexities in setting of long term perspective plan.
Training Manual 81
10. Sound Financial ManagementThis refers that-
The local services are cost effective and available to citizen. Caution is observed in financial management, estimation of local resources, revenues and in the
use of additional funds. Risks are properly estimated and managed.
11. Human rights, Cultural Diversity and Social Cohesion This refers that -
Human rights are respected, protected and implemented, and discrimination on any grounds is combated.
Cultural diversity is treated as an asset, and continuous efforts are made to ensure that all have a stake in the local community, identify with it and do not feel excluded.
Social cohesion and the integration of disadvantaged areas are promoted. Access to essential services is preserved, in particular for the most disadvantaged sections of the
population.
12. Accountability This principle refers the followings:
All decision-makers (collective and individual) take responsibility for their decisions. Decisions are reported on, explained and can be endorsed. Effective remedies against maladministration and against actions of local authorities are placed
which infringe civil rights.
It is also refers that -
Accountability ensures actions and decisions taken by LGIs are subject to guarantee of initiatives that meet their obligations to respond for fulfilling needs of the community and contribute to better governance and poverty reduction.
Training Manual82
It can be assures through advancing the followings:
Figure: Ways for promotion of accountability
H. Major challenges towards Good Local Governance (as reference of Char land)
In Bangladesh, Char land areas are very isolated, underprivileged and completely detached from the development flow. More than 30% people in Char land are defined as ultra-poor who are fully excluded from gaining basic rights and access to local services. Even, they don’t have access to minimum welfare services of the government (i.e. education, health, legal protection, social safety, electricity & entertainments) to enjoy the benefits of development.
Considering ground realities of Char land areas of Bangladesh, the followings are the major challenges for establishing good local governance in Char land:
1. Fulfilling people’s needs and requirements2. Perspective planning and budgeting of the LGIs 3. Limited understanding of social inclusion4. Dependency mind set (as result of restricted decentralization of power and authorities)5. Gender-defined roles are unchallenged6. Male domination; and7. Limited information flow.
1. Responsibility
2. Answerability
Accountability
3. Trustworthiness
4. Liability
Vertical Accountability
Horizontal Accountability
Training Manual 83
In addressing the mentioned challenges, the local government institutions and authorities should have to facilitate teamwork and leadership to gain success in establishing democratic local governance:
Figure: Way forward to success
Leadership
Team Work
Success
Session SixPARTICIPATORY PLANNING AND BUDGETING
Training Manual84
Session Six:PARTICIPATORY PLANNING AND BUDGETING
Objective of the session: At the end of this session, the participants will:
understand the meaning of participatory planning and budgeting understand the major steps of participatory planning and its timeline. understand the major sources of UP funding understand the Budget cycle of the Union Parishad.
Session Contents:A. What is Planning and Participatory Planning?B. Major steps of participatory planning and its timeline. C. Major funding sources of the UPsD. Budget cycle of the UPs.
A. What is planning and Participatory Planning?Planning: Planning is a process of achieving desired goal through best utilization of local resources.
Participatory Planning:Participatory planning refers to the involvement of citizens in identifying local needs/priorities, policies, programs, and projects that require allocation of resources. It enables citizens to participate in the decision-making process through which a local government formulates its plan and budget.
By channeling citizens’ preferences on the allocation of local resources, local governments have incentives to be more responsive to local preferences.
Participatory planning can create favorable conditions for social accountability if: By participating in the prioritization process, citizens become better informed about what the
local government has committed to deliver; By investing time and effort in the process, citizens also gain an extra motivation to better
understand how the local government allocated resources;
Training Manual 85
Scope of Participatory Planning:The scope of participatory planning is as follows:
For overall development of an area or constituency; For economic development of a particular group or community (poor and disadvantaged); For improving livening standards or social welfare of a particular group or community; For development of infrastructures.
Example: A basic template of participatory action plan of the UP:
B. Major steps of participatory planning and its timeline. According to the training module of the USAID funded SDLG project, the following steps are to be followed in participatory planning of the UPs:
Title: Participatory Annual Action Planof the UP
Name of the Union: Upazila: District:Vision/Goal of the UP: Mission/objectives of the UP:
What you will do? Sources of Income/funds
How it will be done
When it will be done? (time)
Who are responsible?
Remark
Planner: UP Approved by: Chairman, UP
Training Manual86
Step-1: Formulation of Union Development Committee.Step-2: Organize WARD Shova/meeting (for defining schemes)Spet-3: Schemes finalization in the Union Development CommitteeStep-4: Open BudgetingStep-5: Approval of Planning and Budget in the special UP meeting.
Figure: Steps and time of Participatory planning and budgeting.
Major Functions as per Steps:
Step-1: Formulation of Union Development Committee: At the first stage, UP will formulate “Union Development Committee”. This committee together with UP will take initiative to formulate development planning in the month of February.
According to power of Section-95 of the LG Act, 2009, the LG Division of the Government made a circular on the structure of Union Development Coordination Committee, which is as follows:
STEP-1:Formulation of Union
Development CoordinationCommittee
Time: February
STEP-2:Organize WARD Shova/meeting
(for defining schemes)Time: First week of March
STEP-2:Schemes finalization in the
Union Development CommitteeTime: Last week of March
STEP-2:Open Budgeting
Time: First week of April
STEP-2:Approval of Planning and Budget
in the special UP meetingTime: May
Training Manual 87
Chairman, UP
All UP members
All Standing Committee members
Sub-Assistant Engineer, LGED
Asst. Primary Education O�cer
Sub-Assistant Agriculture O�cer, Agriculture Extension Department
Veterinary Field Assistant, Livestock Department
Veterinary Field Assistant (Genetic breeding), Livestock Department
Field Assistant, Fisheries DepartmentSub-Assistant Community Health O�cer, Health DepartmentHealth Visitor, Health DepartmentAsst. Health Visitor, Health DepartmentFamily Planning Visitor, Family Planning DepartmentFamily Welfare Assistant, Family Planning DepartmentUP Social Worker, Social Welfare DepartmentUnion Leader, Ansar and VDPTubewell Mechanic, Public Health Engineering DepartmentCommunity Organizer, LGEDField Organizer, BRDBMarriage Register (Kazi), assigned by LJ and ParliamentaryA�airs MinistryRepresentative of School Management Committee(1 from primary school and 1 from secondary school) NGO representative (as �eld worker)-1Representative of social organization-1Representative of local Business community-1Religious representative-1Women representative (2 persons)UP Secretary
1.2.3.4.5.6.
7.8.
9.10.11.12.13.14.15.16.17.18.19.20.
21.
22.23.24.25.26.27.
1ChairpersonMemberMemberMemberMember
Member
Member
Member
MemberMemberMemberMemberMemberMemberMemberMemberMemberMemberMember
Member
Member
MemberMemberMemberMemberMember
Member-Secretary
SL Entitled persons Designation in the committee
Training Manual88
The major functions of Union Development Coordination Committee are as follows:
1. Facilitate socio-economic development planning, implementation and coordination of the Union.2. Take necessary initiative to maintain and improve the law and order situation in the Union.3. Review the progress of all development activities initiated by various departments of the
Government and in the necessary cases, provides recommendations and assistance to create favorable condition.
4. Review the situation of service deliveries, assess the realistic needs and formulate action plan to fulfill the defined needs through better coordination with development organizations.
5. Take initiatives for best utilization of development assistance in advancing quality of people’s lives.
6. Maintain close coordination and communication with various development organizations, service centers, Upazila Parishad and social actors.
7. Take realistic initiatives for local resource mobilization and its best utilization. 8. Encourage through providing rewards to the organizations and individuals, who are working for
the development of their Union.9. Collect the lessons and good practices in the local development and replicate it future
development of the Union. 10. Take necessary initiatives to improve living standard of the people in the UP constituency.
The Union Development Coordination Committee will meet by-monthly basis and minutes of the meeting will have to send to Upazila Chairman, Upazila Nirbahi Officer (UNO) and other relevant officials within 7 working days. Step-2: Organize WARD Shova/meeting (for defining schemes):The second step of participatory planning refers to identify local needs/problems by engaging local citizens in the WARD Shova/meeting. Regarding this, the UP members invite the local people and representatives of various citizen groups through a public announcement to participate in the mass gathering. The local UP members chair the participatory meetings where the woman UP member acts as an advisor.
It is noted here that according to Development Planning Rules, 2011 of the LG Division, local people’s opinion should be taken through open mass gathering (Section-6). There will be organized minimum two WARD Shova/meeting in a year to collect all necessary information and its prioritization.
Training Manual 89
Basically, the process of WARD Shova/meeting contributes to defining and short listing of schemes in the following ways:
Power and functions of WARD Shova: Assist in collecting all necessary information and its prioritization to contribute in formulation of
Union Development plan. Prepare and prioritize the development programs and schemes, which are appropriate for
implementation at WARD level. Finalize the draft annual plan with the assistance of development committee within first week of
March. Share and review the WARD level development programs along with last year’s annual report,
financial allocations and ongoing actions.
Template for identifying needs/problems and prioritizing:Use this template for identifying the local needs/problems and its priority ranking:
Participatory Development Planning
Need/Problem Identification and Prioritization
Scheme Identification and Prioritization
Shortlisting
SL Description of needs/problems Priority ranking
123456789
1011
Training Manual90
Step-3: Schemes finalization in the Union Development Committee:At this stage, the Union Development Committee selects the shortlisted/prioritized needs, which are proposed by the WARD Shova. The final section of development schemes has to be considered the following criteria:
Short listed needs recognized the welfare of majority group of people; The defined needs are to be helpful for poor community; It is women friendly. It considers the social norms and environmental viability. There is no overlapping with previous schemes that already considered the defined needs. The defined needs are justified (in terms of local resources and priorities).
At the first week of March, the convener of development planning committee (assigned by the UP) presents the selected schemes in the Union Parishad. The full team of Union Parishad including two standing committees (i.e. finance and establishment committee; and financial audit and accounts committee) assesses the selected schemes and after the assessment, they finalize the development schemes for implementation.
Step-4: Open BudgetingIn the first week of April, Union Parishad invites a group of local citizens in an open budgetary session and seeks their opinion about the budget preparation of the Union. After discussion in the open budget session, some changes may be made in the proposed budget and then the final budget is prepared through incorporating citizen’s opinions by the UPs.
Step-5: Approval of Planning and Budget in the special UP meeting.At the final stage, Union Parishad invites a special meeting to approve the final plan and budget. Then, the copy of approved plan and budget should submit to Upazila Nirbahi Officer (UNO) for final approval.
C. Major funding sources of the UPThe UP has two basic sources of funding. These are:
1. UP Revenue Fund2. UP Development fund
Training Manual 91
Every year, Union Parisahd prepares an income-expenditure statement within 60 days of the next financial year and presents it an open session by assuring participation of Standing committee members and local people ----Section 58 (3) of the LG Act, 2009.
1. Major Sources of UP revenue:
Local resources are the main source of UP revenue. This is generated through:
- collection of approved tax/rates/fees from the allocations of local hat-bazar, water sources, brick-field, khas land;
- funding of different individuals/organizations;
- profit collection from the financial investment;
- Other income sources as per assigned works of the government.
Revenue collection as per Government rules and directions.
Additional development funds of the previous year (after expenditure in specific development schemes)
2. Major Sources of UP development funds:
Funding allocations from the ADP (Annual Development Plan);
Additional revenue;
Local funding;
Funding from the Upazila or Zilla Parishads;
Funding from other sources for development schemes;
Received funding for integrated implementation of development schemes with other UPs.
Funding through agreement with local authority or organizations for implementation.
Support of the LGSP-II of the Government.
D. Budget cycle of the UPWith the reference of the USAID funded SDLG project training module (December, 2011), the following components are maintained in UP budgetary process:
Training Manual92
WARD level Shova /MeetingDiscussion on local
planning and Budget
Preparation of DraftBudget By UP
Open Budget
Budget Approval in UP special meeting
Submission of approvedbudget copy to UNO
Budget correction(if required)
Revised BudgetFor Implementation
Step-1
Step-2
Step-3
Step-4
Step-5
Step-6
Step-7
Figure: Steps and time of UP budgeting.
February
April
April
31 May
31 May
Any time of the year
Any time of the year
Session SevenRIGHTS TO INFORMATION AND LOCAL
GOVERNANCE
Training Manual 93
Session Seven:RIGHTS TO INFORMATION AND LOCAL GOVERNANCE
Objective of the session:
At the end of this session, the participants will: understand the conceptual meaning and background of rights to information understand the legal provisions for Right to Information (RTI) at Union level. understand how to improve peoples’ access to information?
Session Contents:A. What is Right to Information (as per RTI Act, 2009). B. Legal provisions for Right to Information (RTI) at Union level. C. Ways to improve RTI (at UP level).
A. What is Right to Information (as per RTI Act, 2009)?
As reference of section 2 (g) of the RTI Act, 2009, Right to Information means the right to obtain information from any authority. Hence, Information includes:
- Any memo
- Design, Map
- Contract, accounts
- Data, Log book, order, notification
- Document, sample, letter, report, project proposal a
- Photograph, audio, drawing, painting, film, electronic instruments
- Readable records, documentary materials
- Copy of constitution and official activity of any authority.
Training Manual94
However, it refers that this is subject to any reasonable restrictions imposed by law in the interests of the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence (Section-7 of the RTI Act, 2009).
Background of RTI Act:In Bangladesh, firstly the Bangladesh Press Council made a demand for the freedom to publish government information in 1983. After that a numbers of organizations advocates for advancing citizens’ access to official information. As a result, in 2002 the Bangladesh Law Commission drafted a right to information act, which was however never enacted. In 2006 a movement started in Bangladesh to strongly demand for an act to give people the right to access government held information.
Finally the Caretaker Government took initiative to comply with people demand and enacted a Right to Information Ordinance in 2008. As continuation, the 9th parliament finally passed the current Right to Information Act in 2009.
According to RTI Act 2009, the right to information is refers as a fundamental human right which is made up of different rights and responsibilities, namely:
Every persons has the RIGHT to request information from the government - and even private bodies in some cases;
The DUTY of the government to provide the requested information, unless defined exemptions apply; and
The DUTY of the government to proactively disclose information that is of general public interest without the need for requests from citizens.
Figure: Diagram on Right to Information
Right toInformation
Citizen’s Demand(To seek Information)
Supply (by UP/LA)(To provide Information and make it available)
Disclose information upon request
Proactively disclose information
Training Manual 95
B. Legal provision for Right to Information (at UP level):
The Constitution of Bangladesh (Section-39) refers that-
The Right to Information Act 2009 refers that – RTI law was enacted because of our constitutional obligation( the preamble of RTI Act 2009) All local level government institutions (UP/GLAs) have now an obligation to disclose/share
information in both pro-active and responsive manner (Section 2, 4 RTI Act 2009) RTI Act 2009 will override other existing laws which conflict with the provisions of RTI Act 2009 in
regard to free disclosure of information ( Section 3 RTI Act 2009)
The Local Government (Union Parishad) Act, 2009 refers the citizens’ access to UP information.
Every citizen of Bangladesh has freedom of thought, conscience, speech and expression’
Any citizen of Bangladesh now has the right to get any information from the UP (Section 78[1]
Proactive Disclosure of UP information:UP must display an updated ’Citizen Charter’ containing the list of its services, eligible criteria and the timeline in the prescribed format. (Section: 49)
Transparency in planning and budget: UP shall have to share its annual budget in a open public meeting
under ward Shova (Section 57) Recommendations of public meetings of ward Shova shall have to
be considered in preparing UP budget as a priority (section 6[1b]). List of eligible beneficiaries shall have to be selected through the
public meeting of ward Shova (section 6[7]). UP shall finalize its budget in an open public meeting (section 57[2])
Training Manual96
C. Ways to improve people’s right to informationThe ways to improve people’s access to information requires a group exercise. The questions of group exercise are as follows:
1. ’What information is currently sought by citizens and what information may be sought by citizens in the future?
Transparency in implementation: UP must hold two public meetings annually at each ward under ward
Shova with at least 5% of its voters for reviewing the progress of project implementations (section 5, 6, 7).
Annual report on the last year’s performance shall have to be declared by the respective UP member in the annual meeting of ward Shova (section 5[6] )
Project implementation progress and expenditure status shall be made public through ward meetings and ward level information boards under Ward Shova ( 6[2])
Transparency in financial management: UP audit report shall have to be discussed in ward meeting of ward Shova
and feedback shall be referred to the UP body ( 6[3])
Disclosure of UP information upon demand
A citizen can apply for information in writing in the prescribed form or in blank paper (if form is not available) to the UP chairman (section 79[1])
Who is the designated staff at UP for providing information?
UP secretary or any other UP staff to be designated (section 80[1])
Obligations of the designated officer
The designated officer must provide the information otherwise there is a fine/penalty (section 80[2]).
Training Manual 97
Example: Information related to Union Parishad revenues Information on beneficiaries of different schemes Information on services
2. How and what information do you currently pro-actively disclose? And How and what information will you pro-actively disclose in the future?
Example (What?):
Income and Expenditure of Union Parishad Plan/budget of Union Parishad Information on beneficiaries of different schemes Information on services Information on existing registers and records, laws, guidelines
Based on the findings of group work, we may design an action plan to improve people’s access to information at UP level. The template is as follows:
Present practices Future
Present context of the UPWhat information? How will disclose?
What types of information?
How?(the Process)
When?(timeline)
Where?(place)
Who?(Responsible person)
Remarks
Session EightLEGAL AID AND ACCESS TO JUSTICE
Training Manual98
Session Eight:LEGAL AID AND ACCESS TO JUSTICE
Objective of the session: At the end of this session, the participants will:
understand the meaning of legal aid and its background understand the legal provisions of legal aid in Bangladesh. understand the linkages between legal aid and access to justice of the ultra-poor people.
Session Contents:A. What is Legal Aid?B. Provisions of legal aid in Bangladesh.
A. What is Legal Aid?The dictionary meaning of the term ‘aid’ is ‘assistance’. So, the legal aid’ means the ‘legal assistance’. The concept of legal aid has been emerged as an effective instrument of assuring rule of law and equal protection of law to uphold human rights and equality.
The New Encyclopedia Britannica defines legal aid as the professional legal assistance given, either free or for a nominal sum, to indigent persons in need of such helps. The International Commission of Jurists recognizes the legal aid as legal advice and representation in the Court for the threatened people to protect their life, liberty, property or reputation, who are unable to pay for it.
In developing world, the provision of legal aid is introduced for making uniformity of law for the poor and the privileged sections of the population. Legal professionals use the phrase ‘legal aid’ to mean any or more of the following three issues:
(a) Providing monetary aid; or (b) Counseling on any legal issue; or(c) Defending a person in a Court of law
Training Manual 99
The development of “legal aid” concept:The concept of “legal aid” was firstly emerged in the Roman period. But the conceptual meaning of “legal aid” firstly framed in the 40th paragraph of the Magna Carta, 1250 that reveals that-
“To no one will we sell, to no one will we deny or delay right or justice.”
This was the beginnings of equal justice under the law in the world. Regarding this, the international concern for human rights is further extended after the First World War, in the League of Nations and the Universal Declaration of Human Rights by introducing the concept of legal aid.
The formal “Civil legal assistance” also began by German Society of New York in 1876 with a view to protect the German immigrants from exploitation in the United States. But the most organized effort of “legal aid service” by the state was found in 1944 that introduced for providing legal service to the poor and needy people in UK. In early 20th century, the concept of “legal aid” was also extended into a numbers of welfare states in the world. It was then treated as a precondition of economic and social justice for their citizen. At this stage, there was a realization that the backward section of people needs either free or state sponsored legal aid to get justice and fair trial. This assistance may contribute to uphold human rights and equality. It is a component of rule of law for any society.
Justice Blackmun in Jackson v. Bishop case noticed that-
"The concept of seeking justice cannot be equated with the value of dollars. Money plays no role in seeking justice.”
The “United Nations Conference on Human Rights in Iran (1968) declared that:
Every state will form a state authority to provide “legal assistance” for ensuring human rights and fundamental freedom of the people.
The victim of rights violations will get economic, professional or legal assistance.
The Government will also resolve individual’s rights violation issue with the legal assistance and if necessary, will take all necessary steps to protect the individual’s rights.
If required, United Nations will arrange human advisory program or expert or technical support to the state efforts.
Training Manual100
With a view to expand the provisions of “legal aid” into international spheres, there is formed an “International Advisory Service Association”. In 1970, the association declared that “to make the legal aid program more effective, the national Government has to be developed some basic principles and eligible criteria. Based on that principles and eligibility criteria, the government will take necessary initiatives to start up the legal aid program for the backward section of the people.
However, the “legal aid” provisions are now dealing with two main matters, which are as follows: Legal Aid in Civil Matters Legal Aid in Criminal matters
In recent time, there is also found another types of legal aid named “Rehabilitative Aid”
The Concept of Legal Aid under different International Instruments:The concept of legal aid in various International Instruments is introduced as a norm of equal protection and non-discriminatory treatment by the laws. International Instruments:
Article-7 of the UDHR entitled “equality before the law & equal protection of the laws without any discrimination”.
Article-26 of the ICCPR, 1966 signifies “the right to equality before the law and equal treatment by the law”. And Article-14 (3) (d) of the ICCPR, 1966 provides option of legal aid in the criminal matters.
B. Provisions of legal aid in BangladeshThe principles of Natural Justice assures that “Nobody should be condemned unheard”. It has a legal ground of a person to defend himself. The notion of this principle has been introduced in the Article 27 of the Bangladesh Constitution, 1972 with the meaning that-
“All citizens are equal before law and are entitled to have equal protection of law.
Majority people are improvised. They cannot access themselves to justice to protect and vindicate their legal rights & lawful causes. To address this problem legal aid services have been activated under the Legal Aid Act, 2000’, the law provides for giving financial support to poor people to institute or defend cases in courts.
Panel of LawyersAccording to Section-15 of the Legal Aid Services Act, 2000:
Training Manual 101
1) The Board shall make a panel of lawyers from among the lawyers having at least 5 (five) years’ experience of conducting cases in the Supreme Court under facilitation of legal aid within the purview of this Act for giving advice and conducting cases to be filed or filed in the Supreme Court.
2) Every District Committee shall make a panel of lawyers from among the lawyers having at least 5 (five) years’ experience of conducting cases in the District Courts under facilitation of legal aid within the purview of this Act for giving advice and conducting cases to be filed or filed in any court of the district.
3) In every panel made under this section at least one lawyer from the women, if found, shall be included.
4) If decision is taken to provide legal aid considering any application or petition of a litigant, the Board or the District Committee shall appoint one lawyer in this behalf from the panel lawyers:
It is noted here that in the case of such appointment, the choice of the petitioner shall, so far as possible, be considered.
Who can apply for legal Aid?There is no specific reference as to the eligibility criteria to get legal aid in the Legal Aid Act 2000. Subsequently, Ministry of Law, Justice, and Parliamentary affairs formulated guidelines and rules under Section 24 of the Act to carry out the objectives of the Act. As per Legal Aid Rules 2001, the eligible persons are: a) Freedom fighter who is incapable of earning or partially incapable of care or who is without any
employment or whose annual income is below six thousand taka (6,000 Tk);
b) The person who is receiving old age honorarium;
c) Poor women who is holder of VGF Card;
d) Women and children who are victim of trafficking;
e) Women and children who are acid-burnt by the miscreants;
f) Any person who has been allocated land or house in an “ideal/model village; poor widow, women deserted by her husband;
g) Physically or mentally handicapped person who is incapable of earning and without means of subsistence;
h) Person who is unable to establish his/her right to defend him/her in a Court of law due to financial crisis;
Training Manual102
Any other person who are considered by the Legal Aid Board from time to time due to the financial crisis or any other socio-economic reasons or disaster.
How to apply for legal aid:All applications for getting legal aid must be submitted to the National Board of Legal Aid or in appropriate cases to the District Legal Aid Committee.
If an application is rejected by the District Committee and the person feels aggrieved by that decision, then the applicant may prefer an appeal to the National Legal Aid Board within 60 days of the pronouncement of the decision of the District Committee.
Area of Legal Aid:As per the Legal Aid Rules 2001 for conducting legal aid cases legal aid lawyers will get paid out of�the legal aid fund in the following manner:
a) Maximum of taka 1000 for drafting a plaint or memo of appeal.
b) Maximum of taka 1000 for drafting of a written statement.
c) Maximum of taka 600 for preparing an application or written statement of any miscellaneous case.
d) Maximum of taka 500 for drafting any interlocutory applications or any reply of thereof
e) Maximum of taka 100 for any time petition.
f) Maximum of taka 500 for final hearing of a family matter; taka 800 for hearing of civil suit; taka 500 for argument of a criminal case: and taka 200 for any urgent application.
g) To conduct criminal cases in courts other than High Court Division the panel lawyers will get paid as per the rate the Assistant Public Prosecutors are paid.
h) Maximum of taka 2000 for conducting a case in the Supreme Court.
Ground reality: Legal aid and Access to Justice of the ultra-poor people Access to justice refers to the ability of people to seek and obtain a remedy through formal or informal institutions of justice, and in conformity with human rights standards11.
It has strong linkages with human rights.
Training Manual 103
Firstly: it is a fundamental human right as set out in Article-8 of the Universal Declaration of Human Rights:
“Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”
Secondly: It is a means to protect and enjoy other rights.
Thirdly: It is interlinked with the enjoyment of other rights, such as: the right to information, the right to physical safety, the right to confidentiality and the right to privacy.
However, access to justice refers two dimensions: 1) procedural access (having a fair hearing)2) substantive justice (to get fair and just remedy for a violation of human rights)
But the reality is that a larger section of ultra-poor people unable to get procedural access and substantive justice for their cases. Due to limited legal knowledge, procedural complexity, lengthy proceedings, timely legal aid supports, a section of this group don’t feel encourage for seeking justice. According to reported information, ultra-poor people mostly depend on:
Local Salish or Village Court (for family and land matters); and Lower judicial Courts (for penal offences).
As the local Salish or Village Court system is led by the Union Parishad with free of cost and bears limited hassles to resolve complaints, there is a tendency of ultra-poor people to get it. But they have very limited knowledge about the lower judicial courts where they have to depend on others to file and carry forward the cases. Even, a very small section of ultra-poor people knows about the legal aid provisions of the Government. There is no significant initiative of the government or District Legal Aid Committee to aware and educate the ultra-poor people on the process of getting legal support. That’s why, they are struggling to continue their reported cases and once they fail to get substantive justice in their valid cases.
Therefore, the legal aid support should have to be available for all ultra-poor people and the panel lawyers should have to be more responsive to support them to regain their trust and confidence on judicial process.
11http://www.gaatw.org/atj/index.php?option=com_content&view=article&id=105&Itemid=116
Session NineRURAL JUSTICE SYSTEM
Training Manual104
Session Nine:RURAL JUSTICE SYSTEM IN BANGLADESH
Objective of the session: At the end of this session, the participants will:
understand the rural justice system in Bangladesh understand the meaning of Village Court”. Understand the structure, legal jurisdiction and power of Village Court.
Session Contents:A. Rural Judicial system in Bangladesh B. What is Village Court? C. Structure, legal jurisdictions and powers of Village Court” D. Role of UP to functionalize the Village Court system.
A. Rural Justice System in Bangladesh:The rural justice systems are divided into two major dimensions (as per justice settings in rural Bangladesh), which are:
1) State-led rural justice systemExample: Village Court (it constitutes under the Village Court Act, 2006)
2) Non-State led rural justice system.Example: Salish system, ADR etc.
It is noted here that the state-led rural justice system follows the law but there is no such specific law to operate the non-state rural justice system in Bangladesh. That’s why non-state rural justice system called as informal justice system. It follows local customs, traditions or religious statements, or may decide upon the circumstances.
Training Manual 105
Scope of getting access:A large section of rural people in Bangladesh live below poverty lines who are struggling to get access to formal justice system. Accessing formal justice is not only expensive for rural poor but also too procedural difficulties. This section of people doesn’t have sufficient capacity to provide required costs of court cases. The costs are related to:
Expenses of frequent travelling to court. Expenses for conducting case (including lawyer fees)
The fees for lawyer are so high that sometimes it is more than the value of the disputed matter. Legal aid is very rarely available to the rural people although some NGOs and government provide some legal aid which is not sufficient comparing to the need.
According to information of Daily Star on 17th July, 2011, about 30 lac cases are pending in the judicial system in Bangladesh, while it is about 16 lac in the lower courts of Bangladesh. The status of pending case was 6, 46485 in five years back (source: Daily Prothom Alo, 18th Sept. 2011).
Considering the increasing load of pending cases, “Village Court” is the best alternative where rural people would get justice in a very nominal expense and in a cordial and informal environment. Apart from that the long standing vengeances are also mitigated whilst the dispute is resolved in their presence without too much legal jargons to play part during the process. Many grievances which are never accessed to formal justice system due to its formalities and for the cause of expense can be resolved through Village Courts and that would contribute substantially in establishing rule of law.
Training Manual106
Structural links of village court with justice system in Bangladesh:
District judge Session judge
Additional District judge
Joint District judge
Sn. Asst. judge
Asst. judge
Additional Session judge
Joint Session judge
Metropolitan Session judge Special CourtsTribunals
Metro. AdditionalSession Judge
Metro. Joint Session Judge Chief Judicial
Magistrate
Sen. Judicial Magistrate
Judicial Magistrate
Chief Metro. Magistrate
Ad. Chief Metro. Magistrate
MetropolitanMagistrate
District Magistrate
Mobile CourtExecutive Magistrate)
Village Court
For civil maters For criminal maters
Supreme Courtof Bangladesh
Appellate Division
High Court Division
Training Manual 107
B. What is Village Court?The Village Courts are a semi-formal court that constitutes under the Section-5 of the Village Courts Act of 2006 and administered by the Union Parishads (UP).
The provision of village court has been inserted in the rural justice system of Bangladesh with a view to: Resolve locally the minor conflicts/complaints within very limited time; Create and ensure social protection and greater access to justice for the poor, disadvantaged,
women and vulnerable groups; Create peaceful consensus between two groups in resolving the complaints/cases; Create friendly and peaceful environment in the UP constituencies; Reduce case load in the higher courts; Promote governance and social justice at local level.
Features of the Village Court:The village is very important and powerful local force of justice, because it:
Enables to reintegrate both the conflicting parties Facilitates hearing in presence of witness Maintains impartial judgment (for impartial judgment, there is a provision to change the
Chairman of the village court) A platform where the judges and complaining parties are well known to each-other. Locally accepted judgment process Requires minimal cost for resolution of complaints/cases Denies to recruits lawyers Resolve the complaints/cases within shortest time Eliminate opportunity to transform one conflict into creating another Considers the welfare and social recognition of both parties Reduce unnecessary cost for resolution of cases/complaints of the people Entitled to resolve both civil and criminal cases/complaints Facilitates a transparent process in making judgment A democratic justice system Makes the decision by majority member (i.e. 4:1, 4:0, 3:1). Discourages the appeal, if the decision made by majority member (i.e. 4:1, 4:0, 3:1). May collect compensation as per decisions or regarding this may take the help from the lower
judicial courts Contributes to reduce the trend of social violence and crimes Contributes to establish social justice in rural Bangladesh.
Training Manual108
C. Structure, legal jurisdictions and powers of the Village Court”
I. Structure of the Village Court:According to Section-5 of the Village Court Act, 2006, the village court will be formed with five (5) members; where UP Chairman will act as Chairman of the Court. Regarding this, two nominated persons from both sides (petitioner and accused sides) will be part of the village court as member. It is noted here that one of the nominated person from each side will be the elected member of Union Parishad.
If there is a reason where the involvement of Chairman is challenged by any party to the dispute, any member of the Union Parishad other than those mentioned under Section-5 (1) appointed in the prescribed manner, shall be the Chairman of the Village Court.
UP Charman
For Accused: 2 person (1 UP member
and 1 nominated respectable person)
For petessioner: 2 person (1 UP member and 1
nominated respectable person)
Training Manual 109
II. Legal Jurisdiction of the Village Court:The basic legal framework for the "Village Courts" is the Village Courts Act, 2006 (Act No. XIX of 2006).
The other legal frameworks concerned with the Village Court system are as follows:
The Village Courts Rules, 1976, The Code of Criminal Procedure, 1898 (Act No. V of 1898), The Code of Civil Procedure, 1908 (Act No. V of 1908), The Evidence Act, 1872 (Act No. I of 1872), The Oaths Act, 1873 (Act No. X of 1873), The Cattle-trespass Act, 1871 (Act No. I of 1871), The Agricultural Labour (Minimum Wages) (Ord. No. XVII of 1984), and The Penal Code (Act No. XLV of 1860).
Considerable offences Under the Penal Code, 1860:1. Voluntarily causing hurt to any person which may also be on provocation2. Mischief (causing damage to others property of any kind)3. Criminal Trespass4. Unlawful assembly and rioting5. Affray (causing disturbance through force)6. Wrongful restraint and/or confinement of person and property7. Assault8. Insult with intent to provoke breach of peace9. Criminal intimidation10. Act caused by inducing persons to believe that he will be rendered an object of the Divine pleasure11. Wrong and gesture to insult modesty of women12. Misconduct in public by drunken person13. Theft- normal, of the master's property or in dwelling house14. Dishonest misappropriation of property15. Criminal breach of trust16. Cheating17. Attempts to commit or the abetment of the commission of any of the above offences.
The value of property or amount in respect of which the offence is committed must not exceed Taka 75,00012.
Training Manual110
III. Powers of the Village CourtsAccording to Section 7 of the Village Court Act, 2006:
A Village Court shall have power only to pass order to pay compensation of taka not exceeding Seventy five thousand (75,000) in respect of the offences specified in Part I of the Schedule of the Act.
In a civil matters specified in Part II (civil disputes) of the Schedule of the Act, the Village Court shall have power to order payment of money up to the amount mentioned there in respect of such matter of delivery of property or possession to the actual owner thereof.
Like a formal court, a Village Court does also have power to summon witnesses. Section 10 of the Village Courts Act refers that –
A Village Court may issue summons to any person to appear and give evidence, or to produce or cause the production of any document, however, (a) no person who is exempted from personal appearance in court under the provisions of Code of Civil Procedure shall be required to appear in person.
Considerable Civil Suits:The following civil disputes that can be brought for settlement before a "Village Court" under the provisions of Part II of the Schedule:
1. Suits for the recovery of money due on contracts, receipts or other documents.2. Suit for the recovery of movable property, or for the value thereof.3. Suit for the recovery of possession of immovable property within one year of dispossession.4. Suit for compensation for wrongfully taking or damaging movable property.5. Suit for damages by cattle trespass.6. Suit for recovery of wages and compensation payable to an agricultural labourer.
The amount claimed or the price of the moveable property or the value of the immovable property involved should not exceed twenty five thousand taka.
12 Amended Village Court Act 25th Sept. 2013
Training Manual 111
A Village Court may refuse to summon a witness or to enforce a summons already issued against a witness when in the opinion of the Court the attendance of the witness cannot be produced without such delay, expense or inconvenience as in the circumstances would be unreasonable.
A Village Court shall not require any person living beyond its jurisdiction to give evidence or to produce or cause the production of a document unless such sum of money is deposited for payment to him as the Court would think sufficient for meeting his travelling and other expenses
A Village Court shall not require any person to produce any secret document or unpublished official record relating to any affairs of the State, or permit any person to give any evidence derived from such secret document or unpublished official record except with the permission of the officer at the head of the department concerned.
If any person to whom a Village Court has issued summons to appear and give evidence or to production of any document before it wilfully disobeys such summons, the court may take cognizance of such disobedience, and after giving such person an opportunity to explain, sentence him to a fine not exceeding Taka one thousand (1000 TK).
According to Section 11, a Village Court does have power to fine for any contempt of a Village Court. As the section details that a person shall be guilty of contempt of a Village Court if he, without lawful excuse:
a) offers any insult to the court or any member thereof while the court is functioning as such;b) causes any interruption in the work of the court; orc) fails to produce or deliver a document when ordered by the court to do so; ord) refuses to answer any question of the court which he is bound to answer; ore) refuses to take oath to state the truth or to sign any statement made by him when required by
the Court to do so."
For a contempt of court, a Village Court may sentence the offender to a fine not exceeding one thousand (1000 TK) taka.
Engagement of lawyers is prohibited in Village Courts, ostensibly to avoid costs for the parties and long drawn out legal battles.
Training Manual112
IV. Final decisions of the Village Court:Final decision of the village court should be made with consensus of major members of the court. Regarding this, Section-8 refers that-
If the decision of the Village court is unanimous or made by a majority of four to one (4:1), or If the decision made by a majority of three to one (3:1) in presence of four members,
The decision shall be binding on the parties and shall be enforceable in accordance with the provisions of the Village Court Act.
V. Provision of Appeal:The provision of appeal is provided only if there are two dissensions against three (3:2). Regarding this, the appeals lie in the following manner:
If the case relates to an offence specified in Part I of the Schedule of the Act, to the Magistrate, first class having jurisdiction; and
If the case relates to a matter specified in Part II of the Schedule of the Act, to the Assistant Judge having jurisdiction.
The Magistrate or the Assistant Judge, if satisfied that there has been failure of justice, may set aside or modify the decision, or direct that the dispute be referred back to the Village Court for reconsideration. Once a dispute or offence is decided by a Village Court, the same shall not be tried by any other court.
D. Role of UP to functionalize the Village CourtTo functionalize the village court, UP representatives should have to play the following roles:
Gain sufficient knowledge and information on rural justice system and village court; Understand the roles and laws of Village Court; Acquired skills in operations of village court; Use and preserve all relevant forms and registers of the Village Court; Maintain judicial norms and values in regulation of village court; Make the people in the constituencies well-informed and aware on the proceedings of village
court; Regularly operate the village court to resolve the reported complaints/cases; Include the village court in the law and order standing committees of the UP; Include the village court in the law and order standing committees of the Upazila; Submit status information (six-monthly) on the village court to UNO.
Session TenPOST-TRAINING ASSESSMENT
Training Manual 113
Session Ten:POST-TRAINING ASSESSMENT
Response Scale:Fully disagree : 1Agree : 2No comments : 3Agree : 4Fully Agree : 5
Questions:1. I believe that I have freely participated in the Training (UseP)
2. I have shared my experiences with other participants during the training.
3. The knowledge and learning will influence my performance in future.
4. The knowledge and learning that I gained through this training will be useful to perform my duties and responsibilities.
Name of the Training:
Date of the Training: Starting date: End date:
Training Facilitator’s Name:
Name of the Training recipient:
1 2 3 4 5
1 2 3 4 5
1 2 3 4 5
1 2 3 4 5
Training Manual114
5. The training fulfills my expectations.
6. How you will utilize the training knowledge and learning in your works?
Date and Signature of the respondent:
1 2 3 4 5