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Compare and contrast the domestic implementation mechanism of Human rights between Bangladesh and USA
To compare and contrast the domestic implementation mechanism of human rights between Bangladesh and USA, first of all we need to discuss basically what are human rights? Well in general terminology human rights are those rights which are inherent by any human being, no matter what is our nationality, race, sex, color, religion, residence, language or any other social status. All humans of the world are equally entitled to their human rights without any discrimination. Generally these human rights are all interrelated, interdependent and indivisible. Human rights are conceived as universal, which means applicable everywhere in the world and egalitarian, means equal for everyone. These rights may apply as natural rights or legal rights under local, national and international law. In international practice, the doctrine of human rights within international, global and regional institutions, in the policies and in the activities of non-governmental organizations, has been a cornerstone of public policy all over the world. Thus universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law. Human rights are inalienable. They should not be taken away, except in specific situations and according to due process. Many scholars defined human rights in their own words.
· “The rights of every man are diminished when the rights of one man are threatened.”
? John F. Kennedy
· “Human rights are the soul of our foreign policy, because human rights are the very soul of our sense of nationhood.”
? Jimmy Carter
· “Human rights are a universal standard. It is a component of every religion and every civilization.”
· “Rights are either God-given as part of the divine plan, or they are granted by government as part of the political plan. If we accept the premise that human rights are granted by government, then we must be willing to accept the corollary that they can be denied by government.”
? Ezra Taft Benson, The Constitution: A Heavenly Banner
From above quotations of different leaders and scholars I found that many theoretical approaches have been advanced to explain the essence of human rights and each time it was discussed in a different way but more or less in similar words. Moreover, the strong claims made by the doctrine of human rights continue to provoke considerable skepticism and debates about the content, nature and justifications of human rights to this day.
Human Rights in Bangladesh
The Constitution of Bangladesh is an important tool for the protection and promotion of human rights. It enables countries to translate international agreements into domestic law. It obliges all branches of government to respect and ensure the rights it enunciates. The Constitution provides for the protection of the following rights, among others.
Bangladesh has ratified the following documents:
- Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment
- Convention on Elimination of All Forms of Discrimination Against Women
- Convention on the Rights of the Child
- International Convention on Elimination of All Forms of Racial Discrimination
- International Covenant Economic, Social and Cultural Rights
- International Covenant on Civil and Political Rights
The documents listed above require Bangladesh to protect and promote the following rights:
· Right to equal protection of the law
· Right to freedom from inhuman or degrading treatment
· Right to liberty and security of the person
· Right to marry and found a family
· Right to non-discrimination on grounds of age
· Right to non-discrimination on grounds of disability (i.e. HIV positive)
· Right to non-discrimination on grounds of marital status
· Right to non-discrimination on grounds of race and ethnicity
· Right to non-discrimination on grounds of sex and gender
In the constitution of Bangladesh, article number 32 at section 3 mentioned that, “protection of right to life and personal property, it is mentioned that, “No person shall be deprived of life or personal liberty save in accordance with law.”
The Constitution explicitly requires Bangladesh to protect human rights (art. 11). It specifically provides for the right to equality between men and women in all spheres of public life (art. 28(2)), and expressly requires Bangladesh to take steps to ensure women’s participation in public life (art. 10). It authorizes, but does not require, Bangladesh to take special measures for the advancement and protection of women and children (art. 28(4)).
National Human Rights Commission of Bangladesh controls and maintains the practice of human rights of Bangladesh.
Human Rights in USA
The protection of fundamental human rights was a foundation stone in the establishment of the United States over 200 years ago. Since then, a central goal of U.S. foreign policy has been the promotion of respect for human rights, as embodied in the Universal Declaration of Human Rights. Human rights in the United States are legally protected by the Constitution of the United States, including the amendments, state constitutions, conferred by treaty, and enacted legislatively through Congress, state legislatures, and state referenda and citizen’s initiatives. Federal courts in the United States have jurisdiction over international human rights laws as a federal question, arising under international law, which is part of the law of the United States. The United States understands that the existence of human rights helps secure the peace, deter aggression, promote the rule of law, combat crime and corruption, strengthen democracies, and prevent humanitarian crises.
Because the promotion of human rights is an important national interest, the United States seeks to:
- Hold governments accountable to their obligations under universal human rights norms and international human rights instruments;
- Promote greater respect for human rights, including freedom from torture, freedom of expression, press freedom, women’s rights, children’s rights, and the protection of minorities;
- Promote the rule of law, seek accountability, and change cultures of impunity;
- Assist efforts to reform and strengthen the institutional capacity of the Office of the UN High Commissioner for Human Rights and the UN Commission on Human Rights; and
- Coordinate human rights activities with important allies, including the EU, and regional organizations.
Compare & Contrast the domestic implementation of human rights between Bangladesh & USA
There are many differences in the practice of human rights between Bangladesh and USA. Some comparison and contrast of domestic implementation of human rights between Bangladesh & USA are given bellow-
Bangladesh ratified the Convention against Torture (CAT) on 5 October 1998. Even after a decade the country still does not have any specific law criminalizing torture. Bangladesh has not ratified the Optional Protocol of the CAT. A draft Bill for criminalizing Torture and Custodial Death, which was prepared in compliance with the mandates of the CAT, was submitted to the Parliament by Mr. Saber Hossain Chowdhury (MP) on 5 March 2009 and that has primarily been reviewed by the Private Member’s Bill Review Committee led by the former Law Minister Mr. Abdul Matin Khasru (MP). The right against torture is under Article 35 (5) of the Constitution of Bangladesh, which reads “No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment”. Ironically, Article 46 of the Constitution empowers the State to provide impunity to the perpetrators.
In reality, torture is not a punishable crime in the domestic laws of Bangladesh. The Penal Code of 1860 (Sections 330, 331 and 348) penalizes offences relating to causing hurt or wrongful confinement to extract confession. However, these provisions do not meet the standards of the CAT or define ‘torture’ as a crime.
But in USA, torture is illegal and punishable within U.S territorial bounds. Prosecution of abuse occurring on foreign soil, outside of usual U.S. territorial jurisdiction, is difficult. It is debated as to whether or not torture as a punishment falls under the cruel and unusual punishment clause of the Eighth Amendment to the United States Constitution. Mentioned that, “Excessive bail shall not be required, nor excessive fines imposed or cruel and unusual punishments inflicted”
The US Supreme Court has held since at least the 1890s that punishments that involved torture are forbidden under the Eighth Amendment. According to domestic legislation, in 2004 the Immigration and Nationality Act was amended to make aliens who, whilst abroad, have committed torture, extrajudicial killings, or particularly severe violations of religious freedom, inadmissible to the United States, and therefore deportable.
Equality before law has a place in our written Constitutions that guarantee fundamental rights. These terms have been adopted from the English Constitution, which implied absence of special privilege in favor of any person. The formula as stated in the relevant Articles of the Constitutions of Bangladesh, India and Nepal contain the English concept of equality before law and the American concept of equal protection of law. Article 28(1) of the Constitution of Bangladesh provides that state shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. Article 28(2) of our constitution guarantees that women shall have equal rights with men in all spheres of the State and public life.
The United States was the first major industrialized country to enact comprehensive CRA legislation prohibiting discrimination on the basis of gender in the workplace, while most of the world contains no such recourse for job discrimination. The United States was also the first country to legally define sexual harassment in the workplace.Because sexual harassment is therefore a Civil Rights violation, individual legal rights of those harassed in the workplace are comparably stronger in the United States than in most European countries.The Selective Service System does not require women to register for a possible military draft and the United States military does not permit women to serve in some front-line combat units.
According to World Health Organization, about ten percent of the total population of Bangladesh is living with disabilities. Negative attitudes and environmental and institutional barriers have made them a vulnerable and neglected class. Children and adults are frequently prevented by law and in practice from realizing their social, political and economic rights. Women are particularly subject to becoming victims of family violence. Furthermore, both adults and children are often excluded from opportunities to address their own concerns because their problems are primarily discussed from a medical or welfare perspective. There are laws and act to protect the rights of disable people which are called Bangladesh Persons with Disability Welfare Act-2001.
The United States was the first country in the world to adopt sweeping antidiscrimination legislation for people with disabilities, the Americans with Disabilities Act of 1990 (ADA).The ADA reflected a dramatic shift toward the employment of persons with disabilities to enhance the labor force participation of qualified persons with disabilities and in reducing their dependence on government entitlement programs. The ADA amends the CRA and permits plaintiffs to recover punitive damages. The ADA has been instrumental in the evolution of disability discrimination law in many countries, and has had such an enormous impact on foreign law development that its international impact may be even larger than its domestic impact. Although ADA Title I was found to be unconstitutional, the Supreme Court has extended the protection to people with Acquired immune deficiency syndrome (AIDS).
4. Freedom of religion
Although initially Bangladesh opted for a secular nationalist ideology as embodied in its Constitution, the principle of secularism was subsequently replaced by a commitment to the Islamic way of life through a series of constitutional amendments and government proclamations between 1977 and 1988. The Constitution establishes Islam as the state religion but provides for the right to practice—subject to law, public order, and morality—the religion of one’s choice. The Government generally respects this provision in practice.
In USA, the establishment clause of the first amendment prohibits the establishment of a national religion by Congress or the preference of one religion over another. The clause was used to limit school praying. Wallace v. Jaffree banned moments of silence allocated for praying. The Supreme Court also ruled clergy-led prayer at public high school graduations unconstitutional with Lee v. Weisman.
The free exercise clause guarantees the free exercise of religion. The Supreme Court’s Lemon v. Kurtzman decision established the “Lemon test” exception, which details the requirements for legislation concerning religion. The Employment Division v. Smith decision, the Supreme Court maintained a “neutral law of general applicability” can be used to limit religion exercises. In the City of Boerne v. Flores decision, the Religious Freedom Restoration Act was struck down as exceeding congressional power; however, the decision’s effect is limited by the Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal decision, which requires states to express compelling interest in prohibiting illegal drug use in religious practices.
From the above discussion we can see that there are huge difference between Bangladesh and USA regarding practice and implementations of human rights. Bangladesh basically still has some major problems in terms of law making and practicing. In spite of that, Bangladesh also lags behind from the developed world regarding the proper implementation of laws.
Nomad: From Islam to America: A Personal Journey through the Clash of Civilization; Ayaan Hirsi Ali
Human rights practices in Bangladesh.