Are the legal systems, government and organisations in Bangladesh taking disability cases seriously, especially for women who are disabled?

Tasfiah Rahman reflects upon how diasability cases in Bangladesh have been handled in the past, how this has changed over the years, and a discusses a way forward, focusing especially on disabled women’s rights.

Bangladesh has adopted the definitions of disability from WHO 2004 and the Convention on the Rights of Persons with Disabilities 2006, stating that disability is an umbrella term that covers impairments limiting human activities and participation restrictions.¹ There are people who are born disabled and there are some who become disabled due to natural disasters, road accidents, social and family violence, malnutrition, unavailability of vaccinations and congenital malformation.² 

Why should the topic of disability be taken seriously? 

Many communities shy away from the topic of disabilities such as discussing the inability to do certain tasks in our daily life will somehow be signified as weakness. This should strongly not be the case. Bangladesh, being a developing country for years, is still in the process of changing so many past norms and cultural beliefs that have discriminated against many of their own members of the community. People with disabilities have been hidden behind the curtains and this slowly has to change where they feel included and ready to be heard. Human Rights Watch has highlighted the psychosocial impact of the disabled being constantly anxious, depressed, suffering from post-traumatic stress, psychological distress, and enduring fear for how they’ve been treated for years.³ These psychosocial impacts are exacerbated by what is often a prolonged and expensive justice process, during which victims can face re-traumatization, recurring medical fees, economic hardship, stigma, lack of support, and sometimes threats to drop their case.⁴ 

Disability cases in the past 

It took many years for the courts and the government to take disability cases seriously as many courts wouldn’t even consider taking in a disability case. BLAST and another vs. Bangladesh and others (1998) was a case about  Muhammed Sarwar Hussain Khan, a person with visual impairment. He filed a writ petition challenging a circular issued by the Minister of Establishment.⁵ The writ petition stated that there was no reservation for physically disabled persons in the first and second class post of the services of Government.⁶ This case was unfortunately disposed as it was unsuccessful on calling upon the Ministry of Establishment and⁷ the Ministry of Social Welfare to show cause why the impugned circular amending the reservations for persons with disabilities for direct employment in government services.⁸ 

Women who have dealt with disabilities in the past 

More dilemmas are seen in communities with arranged marriages. A Bangladeshi client, Amina, had learning difficulties where she had difficulty grasping knowledge compared to others was in a complicated scenario with her family. F Hepper considers how Amina being trapped in the norms and cultural ritual of an arranged marriage with learning difficulties is brutal.⁹ Amina lacked the capacity to participate in school lessons with her siblings which led her to live in a more protected and sheltered existence at home with her mother.¹⁰ Her parents thought marriage would solve her issues. The obstacles which women and girls faced in the past legal system, especially with disability, still have a long way to go.¹¹ 

 Disability resulting from an acid attack can also severely impact a woman’s ability to perform physical work that she previously may have been able to do, thus cutting off an important component to financial independence. Acid Survivors Foundation has provided free and long-term medical care and socioeconomic rehabilitation to thousands of acid attack survivors in Bangladesh.¹² However these services have often been unavailable to victims of gender-based violence because of under-resourced groups and limited state facilities.¹³  As the number of acid attacks have decreased, attention to acid violence has waned and donors are losing interest, leaving ASF with fewer resources to fill these needs.¹⁴ 

Women and girls are almost invariably among the poorest, most oppressed and excluded members of society. Negative attitudes, and environmental and institutional barriers have made them a vulnerable and neglected section of society. Children and adults are frequently prevented by law and in practice from realising 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. 

Recent disability cases in Bangladesh 

The most recent Act which was enacted by the government of Bangladesh is the Rights and Protection of Persons with Disability Act 2013 in line with the United Nations Convention on the Rights of Persons with Disabilities. However, there were questions under this Act in the case of BLAST, NGDO and NCDW v Bangladesh and Others  (2015) as this act was not properly applied here.¹⁵ Section 31 of the Act provides registration and issuance of identity cards to persons with disabilities, and further states that no persons with disabilities will be able to secure any protections under the Act without such a card.¹⁶ Section 36 prohibits discrimination based on disability and provides for remedies against such discrimination, including compensation.¹⁷ However one and a half years since the passage of this law, no gazette notifications  were published bringing into force Sections 31 and 36.¹⁸ There have been many other cases that have been disposed of or kept pending for years.¹⁹  In the mentioned case, the court could not  give it valuable time to come up with a decision especially for the people who are struggling with their disability here.²⁰  

The question now arises whether this is still the same situation in the modern era where the laws are more developed. In 2020 the government passed the National Building Construction Act.²¹ This act requires physical structures to be made accessible to those with disabilities.²² However, the government did not implement the law effectively as the government still did not them provide with accommodations or pay their rent.²³ The law calls for the establishment of local committees to expedite implementation of the law, but most committees had not been activated. ²⁴ The law requires persons with disabilities to register for identity cards to track their enrollment in educational institutions and access to jobs.²⁵ This registration allows them to be included in voter lists, to cast votes, and to participate in elections which is a big step.²⁶  

How Post Covid has affected the disabled and a way forward 

People with disabilities have also been affected by COVID-19 during 2020 to 2021, have faced multiple layers of deprivation during this period with shrinking economic activities and fear of hunger.²⁷ Support provided by the government and others is not easily accessible.²⁸ The International Labour Organisation  has reported that the risk in the response to the current crisis is that people with disabilities will be left behind once again.²⁹ A report on ‘Covid-19 Impact on Vulnerable Groups: People with Disabilities’ by Innovision, a research based non-governmental organisation, shows that 74 per cent of people with disabilities in Bangladesh have lost all of their income sources.³⁰  

Sightsavers has identified a number of focus areas for influencing the government and donor agencies to take adequate measures, protecting people with disabilities from the short-term and long-term adverse impacts of COVID-19.³¹ To start off, developing a policy and budget allocation in consultation with people with disabilities and their representative organisations would really benefit their health.³² Using sign language and accessible web content in all campaign activities/press conferences on COVID-19 and making websites of the ministry of health and family welfare especially for deaf/blind people could very much help them in helping them gain knowledge about their situation.³³ 

Again, prioritising women and girls with disabilities in any specific initiatives for women, including sexual and reproductive health services, by ensuring them adequate water, soap and menstrual supplies is an important solution here.³⁴ There are other steps taking place, including a government directive to the Association of Private Employers to prevent people with disabilities from losing jobs due to COVID-19.³⁵ Furthermore, providing loans to people with disabilities with low interest rates to resume their businesses can also make a huge impact in their lives.³⁶ 

Photo credit:”FM speaking at the 8th session of the Conference of States Parties to the Convention on the Rights of Persons with Disabilities” by Estonian Foreign Ministry is licensed under CC BY 2.0.

‘DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’ 

The need for better governmental protection against domestic violence in Bangladesh

Tasfiah Rahman reports on the current provisions against domestic violence in Bangladesh, and suggests the need for reform.

During the Covid-19 pandemic in 2020, the National Helpline Centre for Violence Against Women and Children in Dhaka, Bangladesh, received over 10,000 calls every day¹. While domestic violence has been a major issue in Bangladesh for many years, the recent lockdown has coincided with a concerning increase in incidents of domestic violence

Domestic abuse breaches the Domestic Violence (Prevention and Protection Act) 2010 (DVPPA), the main statute for domestic violence in Bangladeshi law which states that domestic violence can take place physically, psychologically, sexually or economically against a woman or child by any family member.²

Domestic violence also breaches international legislation such as the Human Rights Act 1992 and the UN Conventions on the Rights of the Child 1990. However, it is clear that these acts do not go far enough to protect Bangladeshis from domestic abuse, which was especially evident during the recent crisis of the Covid-19 pandemic. This article will consider the protection that is available for men, women and child victims of domestic abuse in Bangladesh, and suggest ways in which the government could improve the current legislation.

Child victims of domestic violence

According to UNICEF, physical discipline is a ‘corporal punishment’ that refers to any punishment where physical and/or psychological force is used to cause any degree of pain or discomfort and to control children.³ Physical discipline is used across all levels of Bangladeshi society. In fact, 82.4% of children in Bangladesh between 1–14 years of age have experienced either physical or psychological abuse.⁴

The UN’s Convention on the Rights of the Child 1990 consists of articles protecting the rights of parents, families and carers to raise a child in a way that respects their rights⁵;  and to make sure that their child is protected from any type of physical or mental violence, injury or abuse, neglect, maltreatment or exploitation, including sexual abuse or sexual exploitation while the child is living with their parents or in the care of anyone else⁶. In addition, the government must protect children from any form of sexual abuse⁷; must make sure that children are never tortured and never treated in a way that is cruel, inhuman or degrading⁸; and if a child has been the victim of abuse, the national government must make sure that the child is given the help to recover⁹.  It is disappointing that the government in Bangladesh has still not complied with these sections of the UN’s Convention on the Rights of the Child 1990.

While the schools in Bangladesh were closed due to the pandemic, children doing their school classes online had little escape from toxic home environments. A first step towards reducing physical punishment and abuse towards children would be to tackle its normalisation in Bangladesh. In addition, the government could take inspiration from the Convention on the Rights of the Child 1990 to incorporate its protections into the Bangladeshi legal system.

That’s not to say that there is no Bangladeshi legislation to protect children from abuse. The DVPPA gives victims of domestic violence (including children), or someone acting on their behalf (for example, an enforcement officer or a service provider), the right to apply for a remedy in any court in Bangladesh.¹⁰ The Children Act 2013 paves a similar pathway via the Child Welfare Board, which helps protect children who are living under unsafe conditions, through children’s courts, bail provisions and legal representation.¹¹ However, in order to reach these services, the government should find ways to advertise helplines such as the Child Helpline. This helpline was created for children under 18, as a way for them to report domestic abuse cases immediately to the nearest police stations.

Female victims of domestic violence

The Covid-19 lockdown has exacerbated domestic violence against women around the world due to increases in household tension as a result of stay-at-home orders, economic fears, and stress about the virus.¹² The Bangladesh human rights group, Ain o Salish Kendra (ASK), has reported that at least 235 women were murdered by their husband or his family in just the first nine months of 2020.¹³ Due to societal pressures and fear of judgement, women of all classes often remain silent despite hostile home environments, as they are scared to take any action.¹⁴

The Human Rights Act 1998 plays a vital role in protecting women against domestic abuse. Fundamental human rights include the right to life¹⁵, the right not to be tortured or treated in an inhuman and degrading way¹⁶, the right to respect for private and family life¹⁷ (including the right to physical and psychological integrity), the right to education¹⁸, and the right not to be discriminated against¹⁹. All of these can be infringed when a woman is the victim of domestic abuse.

According to the prominent Bangladesh human rights group, Odhikar, between January 2001 and December 2019, over 3,300 women and girls were murdered in the country over dowry disputes.²⁰ This is still an issue despite the case of Nure Alam v State, after which it was made punishable to demand a dowry under section 4 of the Dowry Prohibition Act 1980.²¹

Girls who marry under 18 years of age are more likely to be victims of domestic violence.²² Bangladesh is among the top-10 countries in the world for child marriage. It is eighth from the bottom in South Asia, according to a UN report that said Bangladesh has a 51% child marriage rate.²³ Difficult financial situations caused by the effects of the Covid-19 pandemic have made parents less willing to keep their unmarried daughters at home over the last year as they can’t afford further education. The international development organisation BRAC, which is based in Bangladesh, stated that it had prevented 670 child marriages in 2019 and 1,091 in 2020 through persuasion and educational efforts. However, there were still 167 additional attempts at child marriage in Bangladesh in 2019 and 292 in 2020.²⁴

The law states that the minimum legal age for females to get married is 18 years, while for males it is 21 years, under the Child Marriage Restraint Act, 2017. Nevertheless, in many areas of Bangladesh, people have no knowledge of the legislation against child marriage.²⁵ This has made preventing underage marriages in Bangladesh a serious challenge. 

Victims can take actions on their abusers in Bangladesh via remedies and other compensation. The punishment for rape is the same under  s 9, Prevention of Women and Children Repression Bill 2000²⁶ and the Penal Code of 1860, s.376 where  it says “whoever commits rape shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.”²⁷ Even though domestic abusers are at risk of imprisonment, life sentences and fines, it is worth remembering that domestic abuse can have a lifelong effect on victims.

Under the DVPPA, a domestic violence offence shall be punished with imprisonment which may extend to 6 months or a fine of 10 thousand Taka or both²⁸. It is arguable that this punishment is relatively short and is not a sufficient penalty.

Male victims of domestic violence

In 2020, the Bangladesh Men’s Rights Foundation (BMRF) stated that around 80% of men in the country face mental abuse from their spouses.²⁹ BMRF also disclosed that “the victims do not want to reveal their identities for fear of social embarrassment.”³⁰ This is in part due to the patriarchal society that exists in Bangladesh, where restrictive gender roles endure and where men are expected to dominate women.

Almost all the domestic abuse-related statutes in Bangladesh have thresholds for women and child victims, but there is very little protection for men victims. Although domestic violence is not as prevalent against men as against women and children in Bangladesh, this means that there is very little support for adult males’ protection from domestic abuse. It is arguable that the Bangladesh government should be open to taking further action into incorporating sections or articles, especially in the DVPPA, which can provide male victims with equal support to women victims. This could also have the effect of encouraging more male victims to come forward.

Discrimination based on sex is prohibited under human rights treaties such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which under common article 3 provides the rights to equality between men and women in the enjoyment of all rights.³¹ However, this international legislation is not applied in the domestic abuse laws in Bangladesh. As they are not protected under the legislation, men and boys can have a hard time proving that they have been a victim of domestic abuse to the courts.

Conclusion

Domestic violence is a serious issue in Bangladesh, and one that has been worsened by the stay-at-home conditions of the pandemic. Women, children and men can all fall victim to domestic abuse, but while there are statutes in place in Bangladesh to support women and children, men are not always afforded the same protection. It is also obvious that there are loopholes and shortcomings as to the efficient implementation and adequacy of those laws that do exist, which became particularly clear during the Covid-19 pandemic. It is important that the government learns to implement more facets of the international Human Rights Act in order to protect victims and prevent abusers. 

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^[1] Hasina, ‘National Helpline Centre for Violence against Women and Children’ (National Helpline Centre for Violence against Women and Children, 2 November 2010) <http://nhc.gov.bd/> accessed 10 March 2021

^[2] Domestic Violence Act (Prevention and Protection) Act 2010, s.3

^[3] Ortiz-Ospina E and Roser M, “Violence against Children and Children’s Rights” (Our World in DataOctober 24, 2017) <https://ourworldindata.org/violence-against-rights-for-children&gt; accessed May 16, 2021

^[4] Bangladesh Bureau of Statistics and Unicef Bangladesh. Child well-being survey in urban areas of Bangladesh, key results. Dhaka, Bangladesh; 2016. <https://www.unicef.org/bangladesh/CWS_in_urban_areas_Key_Findings_Report_Final_04122016.pdf> accessed June 23 2021

^[5] Convention on the Rights of the Child 1990 , Article 5

^[6] Convention on the Rights of the Child 1990 , Article 19

^[7] Convention on the Rights of the Child 1990, Article 34

^[8] Convention on the Rights of the Child 1990, Article 37

^[9] Convention on the Rights of the Child 1990, Article 39

^[10] Domestic Violence Act 2010, Chapter 4, s (20) (3)

^[11]  “Towards Justice for Children” (UNICEF Bangladesh) <https://www.unicef.org/bangladesh/en/raising-awareness-child-rights/towards-justice-children&gt; accessed March 9, 2021

^[12] ‘Domestic violence and abuse: safeguarding during the Covid-19 pandemic’(Social Care Institute for Excellence, 31 March 2021) < https://www.scie.org.uk/care-providers/coronavirus-covid-19/safeguarding/domestic-violence-abuse> Accessed 23 June 2021

^[13] “‘I Sleep in My Own Deathbed’” (Human Rights WatchNovember 12, 2020) <https://www.hrw.org/report/2020/10/29/i-sleep-my-own-deathbed/violence-against-women-and-girls-bangladesh-barriers&gt; accessed June 23, 2021

^[14] Dr Nasrin Rahman, “Preventing Domestic Violence against Women” (The Daily Star November 23, 2020) <https://www.thedailystar.net/law-our-rights/news/preventing-domestic-violence-against-women-2000193&gt; accessed March 9, 2021

^[15] Human Rights Act 1998, Sch 1, Part 1, Article 2

^[16] Human Rights Act 1998, Part 1, Article 3

^[17] Human Rights Act 1998, Part 1, Article 8

^[18] Human Rights Act 1998,Part 2, Article 2

^[19] Human Rights Act 1998,Part 2, Article 2

^[20] “‘I Sleep in My Own Deathbed’” (Human Rights WatchNovember 12, 2020) <https://www.hrw.org/report/2020/10/29/i-sleep-my-own-deathbed/violence-against-women-and-girls-bangladesh-barriers&gt; accessed June 23, 2021

^[21] Dowry Prohibition Act 1980, s4

^[22] ‘Child Marriage’ (Unicef) https://www.unicef.org/protection/child-marriage Accessed 23 June

^[23] Sakib N, “Bangladesh: Child Marriage Rises Manifold in Pandemic” (Life, Asia, PacificMarch 22, 2021) <https://www.aa.com.tr/en/asia-pacific/bangladesh-child-marriage-rises-manifold-in-pandemic/2184001&gt; accessed June 23, 2021

^[24] Sakib N, “Bangladesh: Child Marriage Rises Manifold in Pandemic” (Life, Asia, PacificMarch 22, 2021) <https://www.aa.com.tr/en/asia-pacific/bangladesh-child-marriage-rises-manifold-in-pandemic/2184001&gt; accessed June 23, 2021

^[25] Reza S, “Journal of Humanities And Social Science (IOSR-JHSS)” (2021) 26 Domestic Violence against Women in the Time of Pandemic in Bangladesh <www.iosrjournals.org> accessed June 7, 2021

^[26] Prevention of Women and Children Repression Bill 2000, s.9

^[27] The Penal Code of 1860, s.376

^[28] Domestic Violence Act 2010, Chapter 6

^[29] Jahangir, ‘Bangladesh: Male victims of domestic violence demand gender-neutral laws’ (DWCOM, 20 November 2020) <https://www.dw.com/en/bangladesh-domestic-abuse-male-victims/> accessed 10 March 2021

^[30] Jahangir, ‘Bangladesh: Male victims of domestic violence demand gender-neutral laws’ (DWCOM, 20 November 2020) <https://www.dw.com/en/bangladesh-domestic-abuse-male-victims/> accessed 10 March 2021

^[31] Human Rights and Gender – United Nations and the Rule of Law” (United Nations) <https://www.un.org/ruleoflaw/thematic-areas/human-rights-and-gender/&gt; accessed June 7, 2021

Image credit: A woman writes on a pledge board at Orange the World 2018 in Bangladesh, marking 16 Days of Activism Against Gender-Based Violence © UN Women/Flickr

Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.

The arrest of a journalist for Covid-19 reporting in Bangladesh highlights the issue of press freedom in the country

Zafirah Rahman reports on the recent crackdown on freedom of expression in Bangladesh.

The recent arrest of a reporter in Bangladesh, which triggered nationwide protests and international condemnation, sheds light onto the wider issue of press freedom in the country. During the Covid-19 pandemic, the continuing government crackdown on media saw a surge in arbitrary arrests, harassment and intimidation. The suppression of the right to freedom of expression of journalists who have reported on the pandemic infringes Article 19 of the International Covenant on Civil and Political Rights, to which Bangladesh is subjected.

Journalist Rozina Islam arrested and charged over alleged document theft

Rozina Islam, a Bangladeshi investigative reporter, was arrested on May 17, 2021 under sections 3 and 5 of the Official Secrets Act 9 (OSA) and sections 379 and 411 of the Penal Code, for allegedly attempting to “collect sensitive government documents and taking photos of them” at the Health Ministry.¹ This carries a sentence of up to 14 years in prison and the possibility of the death penalty. Islam had visited the Health Ministry in Dhaka to meet the Health Services Division Secretary and perform her duties as a diligent reporter but after a few hours, news broke out that Rozina had been detained in the Health Ministry without an official arrest warrant issued by the authorities. Islam denied all allegations against her and claimed that she went in to meet the Health Services Division secretary at around 3.30 pm, after which she was put in confinement for five hours. During this time, it has been reported that she was denied access to a doctor, even though she felt unwell and fainted. Later, Islam was handed over to the police.²

Brad Adams, executive director of Human Rights Watch’s Asia Division, stated that “Bangladesh authorities should produce evidence of wrongdoing or immediately release Rozina Islam and stop arresting journalists for doing their job, which is also to highlight governance flaws… Instead of locking up critics, encouraging a free press should be central to the government’s strategy to strengthen health services in combatting the pandemic.”³ Islam has reported on cases of government corruption, such as the country’s response to the coronavirus pandemic, which includes reports on the alleged mismanagement and bribery in recruitment at the health board, irregularities in the purchasing of emergency medical supplies to respond to the pandemic, and the holding of donated emergency medical supplies at the airport for ten months.⁴

The legal issue with the detention and subsequent arrest of Islam is that she had organised the meeting with the Health Services Division Secretary and was carrying out a standard journalistic practice when she was at the Health Ministry, one which was facilitated and known about by the government, and so, the fact that her actions were criminalised appears to be highly arbitrary. Islam’s detention sends a chilling message to reporters uncovering corruption in Bangladesh and sparked days of nationwide protests demanding her release.⁵ By speaking out about Islam, thousands of journalists, as well as political and civil rights activists, stood with journalists across the country to highlight the wider issue of press freedom. Islam’s arrest comes at a time when the Bangladesh government has been accused of aggressively suppressing press freedom.⁶ Notable journalists in Dhaka as well as international human rights groups commented on Rozina’s arrest, as it appears to be a result of her honest reporting on the government’s response to the pandemic.⁷

On 23 May, Rozina Islam was granted bail under the condition that she surrenders her passport. The next hearing in her case is scheduled for 15 July, 2021.⁸

Press freedom and human rights in Bangladesh

In accordance with international Human Rights law, Bangladesh has an obligation to ensure the right to freedom of expression, as enshrined in Article 19 of the International Covenant on Civil and Political Rights (ICCPR). ⁹ Although the rights to freedom of expression and access to information may be restricted, these restrictions must be provided by law, pursue a legitimate aim, and be necessary and proportionate.¹⁰ Responding to a public health crisis is arguably a legitimate aim but that does not give the government authority to disproportionately deprive a citizen of their right to freedom of expression completely and is likely not necessary to safeguard the health of the nation. In order to maintain the freedom of the press and to hold the government accountable, the media and press in Bangladesh should be able to able to carry out their legitimate activities without any hindrance or fear of reprisals. The arbitrary detention and judicial harassment of Rozina Islam illustrates the government’s misuse of the Penal Code and the Officials Secrets Act (OSA) to restrict Islam’s right to freedom of expression.

The OSA, under which Islam was charged, is an anti-espionage law adopted under the British colonial rule that has received criticism because of its recent application against Islam, with legal experts arguing that the law cannot coexist with contemporary journalism.¹¹ Section 3 criminalises spying and Section 5 criminalises unauthorised disclosure of secret government information.¹² The  use of the OSA to legitimise the arrest of Islam highlights a concerning escalation in the crackdown on human rights defenders and freedom of expression in Bangladesh, including the continuing attacks on the media. Amnesty International reported that at least 247 journalists were subjected to attacks, harassment and intimidation by state officials and others affiliated with the government in 2020.¹³

Moreover, the introduction of the draconian Digital Security Act (DSA) 2018 was widely enforced to curtail freedom of expression. The government has continued to use the DSA 2018 to suppress the right to freedom of expression and to target and harass journalists and human rights defenders.¹⁴ The controversial provisions of the Act have received condemnation from civil society and human rights organisations, including the UN High Commissioner for Human Rights, who declared that the Act is not in accordance with international standards of human rights. Despite these criticisms, it has not been amended. This is therefore undermining Article 39 of the constitution of Bangladesh which guarantees freedom of thought and conscience and of speech, as well as Article 19 of the ICCPR.¹⁵

How press freedom has been affected by the pandemic

The coronavirus pandemic hit Bangladesh in early March 2020, and by the end of that month, dozens of people, including journalists, academics, opposition activists, a doctor, and students, had been arrested by the government for posting content on social media critical of the government.¹⁶ It was reported in May 2020 that since the start of the pandemic in Bangladesh, there had been a surge in the number of arrests, harassment and intimidation of journalists in particular, who were increasingly persecuted for reporting corruption and criticising the government’s COVID-19 policies.¹⁷  85 journalists have reportedly been charged under the notorious 2018 Digital Security Act. One of the most significant charges was of writer Mushtaq Ahmed, who died in prison after being locked up under the DSA for nine months.¹⁸ Furthermore, 11 people, including a cartoonist, two journalists and a writer, were charged under the DSA for allegedly posting about the coronavirus pandemic “to negatively affect the nation’s image and to create confusion among the public through the social media and cause the law and order situation to deteriorate”.¹⁹

Although Bangladesh’s freedom of the press has worsened dramatically over the last year, this is neither new nor unexpected. It is instead a continuation of the ongoing deterioration of human rights in the country including the right to freedom of the press and freedom of expression in past years. It has been argued that the current regime is growing closer to an authoritarian rule through state repression and removal of the opposition from the public sphere, particularly since the election of 2014, which was impacted by a low turnout, widespread violence and boycotted by the opposition.²⁰ This is illustrated in the press freedom rankings, in which Bangladesh has seen a rapid decline in for the past six years, maintaining its status as the worst performer in South Asia since 2017.²¹ This is because the use of arbitrary measures to intimidate and harass journalists and media has created a culture of fear.

Alongside the obvious risk to life of inaccurate reporting of the pandemic, there have been concerns due to the government’s lack of transparency, poor state of public health facilities, and lack of preparedness. However, there is a larger political issue here for Bangladesh. Bangladesh is often referred to as a ‘paradox’ as on the one hand, the country’s economy has seen a stellar record of development as one of the fastest growing economies of Asia, whereas on the other hand, there is a weakness of governance in the social and political sphere.²² The assaults on media during the pandemic draws attention to the government’s claim of successful development and economic growth, perhaps exposing the hollowness of the development strategy being pursued. The ruling Awami League (AL) party has restricted freedom and democratic space, winning a third consecutive term in a 2018 election that was marred by violence and claims of vote rigging. It can be argued that the ongoing human rights violations have been overshadowed by the narrative of booming economic growth in the country in an attempt to keep international communities satisfied.²³ The government continues to undermine the human rights of its citizens, including the right to freedom of expression, in order to limit the damage.

Conclusion

The actions taken by the government to manage the coronavirus pandemic calls into question the extent to which citizens in Bangladesh have the ability to express their opinions without being imprisoned or attacked. In order to bring back faith in the country that freedom of expression will not be targeted, the authorities must take effective action to stop the escalating attacks on the press and media and prevent any further harassment, as well as seek accountability for any past conduct of that nature. The government should conduct a full, independent review of the Official Secrets Act 2018 and Digital Security Act 2018 and bring them in line with the International Convention on Civil and Political Rights, ensuring that laws are sufficiently precise so as not to arbitrarily target the press so that they can carry out their peaceful and legitimate activities through the exercise of the right to freedom of expression. In addition, all those arbitrarily arrested and detained should be released.  

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[1] Dhaka Tribune. 2021. Investigative Journalist Rozina Islam Lands In Jail. Available at: <https://www.dhakatribune.com/bangladesh/court/2021/05/18/prothom-alo-journo-rozina-islam-sent-to-jail-in-official-secrets-act-case&gt; [Accessed 13 June 2021.

[2] International Federation for Human Rights. 2021. Bangladesh: Release on bail of journalist Rozina Islam. Available at: <https://www.fidh.org/en/issues/human-rights-defenders/bangladesh-release-on-bail-of-journalist-rozina-islam&gt; [Accessed 13 June 2021].

[3] Human Rights Watch. 2021. Bangladesh: Arrest of Journalist Investigating Corruption. Available at: <https://www.hrw.org/news/2021/05/20/bangladesh-arrest-journalist-investigating-corruption&gt; [Accessed 13 June 2021].

[4] Rozina Islam, 2021. Discrepancies of Tk 3.5b in emergency procurement. Prothomalo. Available at: <https://en.prothomalo.com/bangladesh/discrepancies-of-tk-35b-in-emergency-procurement&gt; [Accessed 19 June 2021].

Rozina Islam, 2021. There are life-saving materials. Prothomalo. Available at: <https://www.prothomalo.com/bangladesh/coronavirus/%E0%A6%AA%E0%A7%9C%E0%A7%87-%E0%A6%86%E0%A6%9B%E0%A7%87-%E0%A6%9C%E0%A7%80%E0%A6%AC%E0%A6%A8-%E0%A6%B0%E0%A6%95%E0%A7%8D%E0%A6%B7%E0%A6%BE%E0%A6%95%E0%A6%BE%E0%A6%B0%E0%A7%80-%E0%A6%B8%E0%A6%BE%E0%A6%AE%E0%A6%97%E0%A7%8D%E0%A6%B0%E0%A7%80&gt; [Accessed 19 June 2021].

[5] Dhaka Tribune. 2021. Journalists across Bangladesh demand Rozina’s release. Available at: <https://www.dhakatribune.com/bangladesh/nation/2021/05/18/journalists-across-districts-demand-rozina-s-release&gt; [Accessed 19 June 2021].

[6] Human Rights Watch. 2021. Bangladesh: Arrest of Journalist Investigating Corruption

[7] Front Line Defenders. 2021. Rozina Islam Released From Jail. Available at: <https://www.frontlinedefenders.org/en/case/rozina-islam-released-jail&gt; [Accessed 19 June 2021].

[8] International Federation for Human Rights. 2021. Bangladesh: Release on bail of journalist Rozina Islam.

[9] United Nations General Assembly, International Covenant on Civil and Political Rights, Article 19

[10] Media Freedom Resource Centre OBCT. 2021. General Comment No. 34 On Article 19 ICCPR. Available at: <https://www.rcmediafreedom.eu/Tools/Legal-Resources/Legal-docs/General-comment-No.-34-on-Article-19-ICCPR&gt; [Accessed 19 June 2021].

[11] Dhaka Tribune. 2021. ‘Official Secrets Act does not provide for punishment of journalists’. Available at: <https://www.dhakatribune.com/bangladesh/law-rights/2021/05/19/official-secrets-act-does-not-provide-for-punishment-of-journalists&gt; [Accessed 19 June 2021].

[12] Official Secrets Act 1989

[13] Amnesty International, 2021. Amnesty International Report 2020/21. London, pp.70-82. Available at: <https://www.amnesty.org/download/Documents/POL1032022021ENGLISH.PDF&gt; [Accessed 13 June 2021].

[14] Front Line Defenders. 2021. Two years since coming into force, Bangladesh’s Digital Security Act continues to target human rights defenders and suppress free speech. Available at: <https://www.frontlinedefenders.org/en/statement-report/two-years-coming-force-bangladeshs-digital-security-act-continues-target-human&gt; [Accessed 19 June 2021].

[15] Bangladesh, The Constitution of the People’s Republic of Bangladesh 1972, Article 39

[16] Human Rights Watch. 2021. World Report 2021: Rights Trends in Bangladesh. Available at: <https://www.hrw.org/world-report/2021/country-chapters/bangladesh&gt; [Accessed 19 June 2021].

[17] Article 19. 2021. Bangladesh: Alarming crackdown on freedom of expression during coronavirus pandemic – ARTICLE 19. Available at: <https://www.article19.org/resources/bangladesh-alarming-crackdown-on-freedom-of-expression-during-coronavirus-pandemic/&gt; [Accessed 13 June 2021].

[18] The Diplomat. 2021. Bangladesh Journalist’s Arrest Highlights Growing Curbs on Press Freedom. Available at: <https://thediplomat.com/2021/05/bangladesh-journalists-arrest-highlights-growing-curbs-on-press-freedom/&gt; [Accessed 13 June 2021].

[19] Article 19. Bangladesh: Alarming crackdown on freedom of expression during coronavirus pandemic.

[20] The University of Manchester. 2021. Bangladesh is booming, but authoritarianism could burst its bubble. Available at: <https://www.manchester.ac.uk/discover/news/bangladesh-is-booming/&gt; [Accessed 20 June 2021].

[21] The Business Standard. 2021. Bangladesh still has lowest press freedom in South Asia. Available at: <https://www.tbsnews.net/bangladesh/bangladesh-still-has-lowest-press-freedom-south-asia-72217&gt; [Accessed 19 June 2021].

[22] The Sunday Guardian Live. 2021. Development paradox: Bangladesh witnesses economic growth, but lacks in governance – The Sunday Guardian Live. Available at: <https://www.sundayguardianlive.com/news/development-paradox-bangladesh-witnesses-economic-growth-lacks-governance&gt; [Accessed 20 June 2021].

[23] Dhaka Tribune. 2021. OP-ED: Development need not come at the price of human rights. [online] Available at: <https://www.dhakatribune.com/opinion/op-ed/2021/03/21/op-ed-development-need-not-come-at-the-price-of-human-rights&gt; [Accessed 20 June 2021].

Image credit: © Adam Jones, Flickr

Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.

The “two-track pandemic”: realities of the COVID-19 vaccine rollout

Katie Bacchus explores the issue of global vaccine inequality.

COVID-19 Vaccine Rollout

With the devastating arrival of COVID-19, the race to develop a safe and effective vaccine began. It was towards the end of 2020 that the UK began to administer its first doses of the Pfizer-BioNTech vaccine, with the AstraZeneca vaccine following quickly after. In December 2020, the United Nations stated that “affordable, non-discriminatory access to the vaccine is a human right”.^[1] This is supported by Article 25 of the Universal Declaration of Human Rights which states that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family”, which includes access to medical care.^[2] In reality, there is significant disparity regarding the vaccine rollout around the world, with a growing concern over a “two-track pandemic”.^[3] Countries with a high vaccine rollout, such as the UK and Israel, are able to gradually ease their nations out of lockdowns and remove restrictive measures. This is in stark contrast to other lower and middle-income countries who are experiencing peak levels of coronavirus cases and deaths.   

Throughout the summer and autumn of 2020, a small number of wealthy nations, including the UK and the US, were able to financially support the vaccine development, making deals to obtain large shares of early doses. This has led to a disproportionately higher number of vaccines being available in higher-income countries.^[4] In January 2021, the People’s Vaccine Alliance found that ‘rich nations representing just 14% of the world’s population had bought up more than half (53%) of all the most promising vaccines.’^[5]  On the 8^th June 2021, Dr Tedros Adhanom Ghebreyesus, the Director-General of the World Health Organisation, shared the shocking statistic that, out of the 2 billion vaccine doses that have been administered across the world, less than half of one percent have been administered in lower-income countries.^[6] To put this into perspective, on the 16^th June 2020, approximately 44.8% of the UK population had been fully vaccinated against COVID-19, compared with 2.8% in Zimbabwe and 0.2% in Mozambique.^[7] Similar results showing a very low vaccine rollout can also be seen in Latin America and the Caribbean.^[8]

Ensuring that all countries have access to the vaccine is critical for the promotion of human rights, and as Dr. Ghebreyesus stated, it should be “led by science” and “kept free from politics.”^[9] The devastating repercussions of such political factors is most notable in Israel’s refusal to vaccinate the Palestinian population living in the West Bank and the Gaza Strip, despite them being under Israeli control. This has led to a huge discrepancy in the vaccine rollout, with Israel having fully vaccinated 59% of their population, whilst Palestine have only vaccinated 4.9%.^[10]

One approach to combatting vaccine rollout disparity, would be to implement a system that for every COVID-19 vaccine given in a higher-income country, a vaccine is donated to a lower-income country in need. Additionally, wealthier nations should continue to share the cost of vaccines worldwide and support the COVAX initiative. COVAX aims to grant fair and equitable access to COVID-19 vaccines across the globe. The pharmaceutical companies Pfizer, Moderna, and Johnson & Johnson have committed to donating 1.3 billion doses of the COVID-19 vaccine to lower-income countries.^[11]

At the G7 Summit on the 12^th June 2021, the world leaders pledged to donate 1 billion COVID-19 vaccines to countries in need.^[12] The US President Joe Biden has promised to give 500 million vaccine doses and the UK Prime Minister Boris Johnson has offered 100 million doses.^[13]  It is important to note that the 100 million doses coming from the UK are from supplies already obtained for the domestic vaccine rollout, they are not paying for more doses.^[14] The promise of 1 billion doses is less than 10% of the 11 billion vaccines needed, with prominent figures such as Gordon Brown having deemed this “a catastrophic failure.”^[15]

These large-scale promises of donations are undoubtedly a step in the right direction but far from secure global access to these lifesaving vaccines. Higher-income countries need to help with the distribution and rollout of the vaccine programme through infrastructure development, improving healthcare systems and providing education. Moreover, the aid given to lower and middle-income countries must be given freely and without foreign policy agenda.

Other Preventable and Treatable Diseases

Over the last year the spotlight has, naturally, focused on the development and distribution of a COVID-19 vaccine. The cooperation of pharmaceutical companies and governments has proved that successful and speedy vaccine development and rollouts can be coordinated. Despite this, there are many preventable diseases, requiring routine vaccinations, that other countries, notably many African countries, struggle to access and rollout to their citizens. Organisations such as GAVI, the Vaccine Alliance and initiatives including the Global Vaccination Action Plan (GVAP) aim to extend the benefits of immunisation to all people, regardless of where they are born, who they are, or where they live.^[16] In the emerging two-track pandemic, further attention and support should be given to wider vaccination access and treatments for curable diseases.

The World Health Organisation estimated that 1 in 5 African children do not receive the basic and essential vaccinations needed.^[17] UNICEF declared that around 16,000 children under the age of 5, die every day from preventable diseases and lack of adequate health care.^[18] These are diseases such as measles, pneumonia, malaria, and Ebola, which can all have fatal consequences. In some regions, a child dies from pneumonia every 39 seconds and every 2 minutes a child dies from malaria.^[19] Outbreaks of Ebola are common and in the Democratic Republic of Congo, a recent measles outbreak killed over 7,000 people.^[20] In developing countries COVID-19 is often considered no more dangerous than other diseases, with the Director of the World Health Malaria Programme, Peter Alonso, stating that the likelihood of “excess malaria mortality is larger than direct COVID-19 mortality.”^[21]

Neglected Tropical Diseases (NTDs) are another example of treatable diseases which are commonly found in rural, very poor areas. As the name alludes, the treatment and prevention of NTDs have been widely overlooked. Diseases such as leprosy, rabies and blinding trachoma can be life-altering and in some cases cause death. Despite them being wholly treatable, 1.7 billion people still suffer from them every year.^[22]

In the 1950’s, there were polio outbreaks across the world, leading to closure of schools, swimming pools and other public spaces. The first successful polio vaccine was created in 1955 and by 1988 polio had been eradicated in Australia, the US and most of Europe.^[23] Despite this, polio persisted in more than 125 countries across the world. Currently, polio has been reduced by 99%, with wild polio only being found in Afghanistan and Pakistan. This is down to the remarkable efforts of organisations including UNICEF, Global Polio Eradication Initiative, and the Bill & Melinda Gates Foundation.

The COVID-19 pandemic has threatened the progress made in delivering vaccinations and treatments for preventable diseases, including the near eradication of wild polio. Firstly, the World Health Organisation and UNICEF have declared that the disruption to routine vaccination programmes could “reverse years of progress made in Public Health.”^[24] The Bill & Melinda Gates Foundation further documented that “the number of children vaccinated against infectious diseases such as diphtheria, tetanus, pertussis, and measles this year has declined to levels last observed in the 1990s.”^[25]

Furthermore, the financial hardship across the globe caused by the COVID-19 pandemic could have a devasting impact on campaigns to help eradicate preventable diseases. Whilst countries including France and the US have committed to increasing their foreign aid budget over the next few years, the UK has cut their budget for foreign aid from 0.7% to 0.5%.^[26]  Amongst others, UNICEF, UNAIDS and the Global Polio Eradication Initiative will be negatively affected by these cuts. UNICEF, with the help of their partners such as the United Nations and government departments, vaccinate 45% of the world’s children and save up to 3 million lives per year. Reduction in the foreign aid budget will see UNICEF’s funding from the UK reduced by 60%. Funding to UNAIDS will be reduced by 80% and the Global Polio Eradication Initiative will suffer a loss of virtually all of its funding.^[27] The effects of these cuts will seriously undermine the invaluable work that has already been done to combat the spread of these deadly diseases.

In this critical time for world health, higher-income countries need to recognise their role and act to combat the spread of preventable diseases worldwide.

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[1] ‘Human Rights and Access to COVID-19 Vaccines’, United Nations Human Rights Office (17/12/2020) <https://www.ohchr.org/Documents/Events/COVID-19_AccessVaccines_Guidance.pdf&gt; [accessed 11 June 2021].

[2] ‘Universal Declaration of Human Rights’, United Nations <https://www.un.org/en/about-us/universal-declaration-of-human-rights&gt; [accessed 12 June 2021].

[3] Dr. Tedros Adhanom Ghebreyesus, World Health Organisation (7/06/2021) <https://www.who.int/director-general/speeches/detail/director-general-s-opening-remarks-at-the-media-briefing-on-COVID-19-7-june-2021&gt; [accessed 10 June 2021].

[4] Atthar Mirza and Emily Rauhula, ‘Here’s just how unequal the global coronavirus rollout has been’, The Washington Post (6/05/2021) <https://www.washingtonpost.com/world/interactive/2021/coronavirus-vaccine-inequality-global/&gt; [accessed 10 June 2021].

[5] Anne Soy, ‘Africa’s long wait for the COVID-19 vaccine,’ BBC News (22/01/2021) <https://www.bbc.co.uk/news/world-africa-55751714&gt; [accessed 10 June 2021].

[6] Dr. Tedros Adhanom Ghebreyesus, World Health Organisation (8/06/2021) <https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-uk-high-level-event-on-equitable-access-to-COVID-19-vaccines-in-humanitarian-settings&gt; [accessed 11 June 2021].

[7] Our World in Data <https://ourworldindata.org/grapher/share-people-fully-vaccinated-covid?country=BRA~CHL~ISR~ITA~QAT~GBR~USA~URY~ZWE~COD~MOZ&gt; [accessed 11 June 2021].

[8] Peter Beaumont, ‘Vaccine inequality exposed by dire situation in world’s poorest nations’, The Guardian (30/06/2021) <https://www.theguardian.com/world/2021/may/30/vaccine-inequality-exposed-by-dire-situation-in-worlds-poorest-nations&gt; [accessed 10 June 2021].

[9] Dr. Tedros Adhanom Ghebreyesus, World Health Organisation (10/06/2021) <https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-member-state-information-session-on-COVID-19—10-june-2021&gt; [accessed 12 June 2021].

[10] Our World in Data <https://ourworldindata.org/covid-vaccinations&gt; [accessed 12 June 2021].

[11] David Meyer, ‘Europe joins US in pledging major vaccine donations to developing countries’, Fortune (21/05/2021) <https://fortune.com/2021/05/21/europe-us-donating-covid-vaccines-developing/&gt; [accessed 10 June 2021].

[12] Dominic Waghorn, ‘The G7 faced an awesome challenge – but disappointed on climate change and vaccines for poorer nations’, Sky News (13/06/2021) <https://news.sky.com/story/the-g7-faced-an-awesome-challenge-but-disappointed-on-climate-change-and-vaccines-for-poorer-nations-12331985&gt; [accessed 11 June 2021].

[13] ‘Boris Johnson defends Covid vaccine pledge as G7 leaders gather in Cornwall’, ITV News (11/06/2021) <https://www.itv.com/news/2021-06-11/johnson-defends-vaccine-pledge-as-g7-leaders-gather-in-cornwall&gt; [accessed 12 June 2021].

[14] Elizabeth Piper and Kate Holton, ‘”We need more”: UN joins criticism of G7 vaccine pledge’, Reuters (12/06/2021) <https://www.reuters.com/business/healthcare-pharmaceuticals/g7-donate-1-billion-COVID-19-vaccine-doses-poorer-countries-2021-06-10/&gt; [accessed 12 June 2021].

[15] Ibid.

[16] Carsten Mantel and Thomas Cherian, ‘New Immunization Strategies: Adapting to Global Challenges’ Springer Link (4/12/2019) <https://link.springer.com/article/10.1007/s00103-019-03066-x?fbclid=IwAR3XXboqRNUTQFWUca5d9ailHmn5EkSWx0rLhTWPio-LsMtza6kyW-Vst04&gt; [accessed 10 June 2021].

[17] ‘Immunization’, World Health Organisation <https://www.afro.who.int/health-topics/immunization&gt; [accessed 10 June 2021].

[18] ‘Keeping people safe with lifesaving vaccines’, UNICEF <https://www.unicef.org.uk/what-we-do/vaccines/&gt; [accessed 12 June 2021].

[19] ‘Childhood diseases’, UNICEF <https://www.unicef.org/health/childhood-diseases&gt; [accessed 12 June 2021].

[20] Philippa Roxby, ‘Covid: DR Congo in race against time to vaccinate people,’ BBC News (11/05/2021) <https://www.bbc.co.uk/news/health-57028747&gt; [accessed 12 June 2021].

[21] Owen Dyer, African malaria deaths set to dwarf COVID-19 fatalities as pandemic hits control efforts, WHO warns’ The BMJ (2020) <https://www.bmj.com/content/371/bmj.m4711&gt; [accessed 11 June 2021].

[22] Thoko Elphick- Pooley, ‘To improve global health security, we must not abandon tackling existing pandemics’ Inter Press Service News Agency <http://www.ipsnews.net/2021/06/to-improve-global-health-security-we-must-not-abandon-tackling-existing-pidemics/&gt; [accessed 11 June 2021].

[23] Megan Doetschman, Stephanie Jacquier, ‘Vaccinating the world against the virus: what will it take’, UNICEF (11/06/2021) <https://blogs.unicef.org/blog/vaccinating-the-world-against-a-virus/&gt; [accessed 12 June 2021].

[24] Mahaa Ahmed, ‘It’s worth a shot: preventing vaccine-preventable diseases’, Harvard University (13/10/2020) <https://sitn.hms.harvard.edu/flash/2020/its-worth-a-shot-preventing-vaccine-preventable-diseases-during-the-COVID-19-pandemic/?fbclid=IwAR2LyV7mXiLTKBYP6znOATaztiuEC6SQ8gYCFahlbevr1xxNPnLJC4oMwLo&gt; [accessed 10 June 2021].

[25] Ibid.

[26] Reality Check Team, ‘Foreign Aid: Who will be hit by the UK Government Cuts?’, BBC News (7/06/2021) <https://www.bbc.co.uk/news/57362816&gt; [accessed 10 June 2021].

[27] Ibid.

Image credit: World Health Organization, CC BY-SA 3.0 IGO, CC BY-SA 3.0 IGO https://creativecommons.org/licenses/by-sa/3.0/igo/deed.en, via Wikimedia Commons

Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.

“The Lockdown Regulations” and the right to protest

Paige Jones revisits the original 2020 lockdown regulations and the impact on the right to protest under Article 11 of the European Convention on Human Rights.

The original lockdown regulations, the Health Protection (Coronavirus Restrictions) (England) Regulations (SI 2020/350) (“the Regulations”), are a thing of the past but when they were introduced on 26 March 2020, they had a profound impact on how we went about our daily lives. More than a year on, it is still worth considering how these Regulations impacted our human rights, specifically our right to protest under Article 11 of the European Convention on Human Rights (“ECHR”).

The Regulations were secondary legislation created pursuant to the powers under section 45C of the Public Health (Control of Disease) Act 1984, as amended by Health and Social Care Act 2008, and contained a number of provisions. Of these, it can be said that the most severe restrictions were:

• Section 6(1): “During the emergency period, no person may leave the place where they are living without reasonable excuse”;
• Section 7: “During the emergency period, no person may participate in a gathering in a public place of more than two people” save for circumstances set out in section 7 (a)-(d); and
• Section 9(1): “A person who (a) without reasonable excuse contravenes a requirement in regulation 4, 5, 7 or 8, or (b) contravenes a requirement in regulation 6, commits an offence.”

On 29 and 30 October 2020, the case of R (Dolan and others) v SSHSC and Another^[1] challenged the government on the legality of these lockdown restrictions. The original challenge was based on three grounds:

• That the government had no power under the 1984 Act to make the regulations (the ‘vires’ argument);
• That the Regulations are unlawful according to ordinary rules and principles of public law; and
• The Regulations were incompatible with Convention rights and were therefore contrary to section 6(1) of the Human Rights Act 1998.

The Court of Appeal only allowed the appeal on the first ground, concluding that the government did have the relevant powers under the 1984 Act to make the Regulations (para 78). However, for the purposes of this article it is the third ground for appeal that will be explored.

Counsel for the appellants in Dolan submitted that the Regulations were incompatible with the following ECHR rights:

• Article 5 – Right to Liberty
• Article 8 – Right to Respect for Private and Family Life
• Article 9 – Right to Freedom of Thought, Conscience and Religion
• Article 11 – Right to Peaceful Assembly and Association
• Article 1 Protocol 1 – Right to Peaceful Enjoyment of Posessions
• Article 2 Protocol 1 – Right to Education 

In the judgment, handed down on 1 December 2020, their Lordships held that the points put forward as to Articles 5, 11, Article 1 Protocol 1 and Article 2 Protocol 1 were all unarguable. As to Article 8, the court held that the restrictions were an interference with the right but that such was lawful and proportionate in light of the pandemic and the need to protect public health. Finally, the court refused to make a determination on Article 9 as a different case was due to be heard challenging the Regulations on this ground (R (Hussain) v Secretary of State for Health and Social Care).^[2]

The Right to Protest

In the concluding remarks to this judgment, both the second and third grounds for appeal were held to be “academic, because the regulations under challenge have been repealed, and, in any event, they are not properly arguable” (para 115). To that end, this article seeks to briefly explore a hypothetical alternative judgement, looking at if and how the Regulations impacted on the right to protest.

Article 11 of the ECHR states:

Everyone has the right to freedom of peaceful assembly and to freedom of association with others…

No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. …

Also known as the right to protest, the absence of exercisable Article 11 rights was described eloquently by Kirsty Brimelow QC as “anathema to both democracy and freedom.”^[3] Article 11 is a qualified right, meaning that there are some situations in which the right can be restricted but, in such circumstances, those restrictions must be lawful and proportionate.

Prescribed by Law

As set out within Article 11 itself, in order for a restriction on the right to protest to be lawful, it must first be ‘prescribed by law.’ In the case of Kudrevičius and Others v. Lithuania [GC],^[4] the ECtHR held that this not only requires a legal basis in domestic law, but the quality of the law is also important as it must be sufficiently precise so as to be accessible and foreseeable in its effects (paras 108-109)

A similar point was established by Lord Hoffmann in R v Secretary of State for the Home Department, ex p. Simms, that: “fundamental rights cannot be overridden by general or ambiguous words…”^[5]

When we look at the Regulations, neither section 6 nor 7 made any direct reference to protests. With the above in mind, it could be argued that the Regulations fell short of the requirements of clarity and precision required by previous domestic and European case law and therefore, may not have been ‘prescribed by law’ for the purposes of a lawful exception to Article 11.

Proportionality

The second element of a lawful interference with the right to protest under Article 11, requires that such an infringement must be proportionate and necessary in a democratic society.

The case of Christian Democratic People’s Party v. Moldova^[6] held, at para 77, that any ban on protest, even temporarily, can have a “chilling effect” on the exercise of that right. It stands to reason then, that this effect ought to have been considered by the Court when assessing whether the Regulations were a proportionate interference with the right to protest.

For their part, the Court of Appeal in Dolan, at para 103 of their judgment, held that there was an “in-built” exception to the Regulations which provided that a person would not be in breach if they had a “reasonable excuse.” This “reasonable excuse” exception, it was suggested, was flexible enough to facilitate the right to protest in a way that could be fairly balanced between the legitimate aim of protecting public health and the right to protest. This would allow the Regulations to be applied to fact specific cases rather than being a disproportionate blanket prohibition on the right to protest.

The effect of the Regulations are best understood in their context. There is scope to argue that, when coupled by police enforcement of the Regulations and the threat of committing a criminal offence under section 9, the Regulations placed protesters in a de facto situation of increased vulnerability which could have a chilling effect on the right to protest such to be disproportionate.

This aspect of proportionality is key in assessing whether the Regulations were a lawful interference or not. More recently in the case of Leigh & Ors v The Commissioner of the Police of the Metropolis^[7] which, although dealing with a newer version of the  regulations, accepted that the reasoning on Article 11 in Dolan equally applied to this case (para 13). The Court considered that a blanket ban on protests would be unlawful (para 24). This point can safely be said to apply to the March 2020 Regulations as well as the new amended versions of recent months.

What Dolan and Leigh show us is that the importance of proportionality cannot be understated.  In the context of Article 11, people who often exercise their democratic right to protest are those who are speaking out against injustice they have personally faced, as seen through the Black Lives Matter protests following the death of George Floyd and the Sarah Everard Vigil. It could be argued therefore, that if, as alleged at para 9 of Leigh, that the police had been implementing a blanket ban on protests since the March 2020 Regulations (which was denied by counsel for the police (para 24)) then this certainly would have been a disproportionate and unlawful interference with the right. Beyond the judgment of the Courts in these cases, it may still be said that those most impacted by the Regulations and its effects on Article 11 are those who already face marginalisation.

No matter the view you take of the Regulations, it seems clear that they did infringe upon the right to protest. The heart of the debate was whether such interference was lawful and proportionate. Some would say they were both necessary and proportionate given the severity of the pandemic and the need to protect lives, where others would passionately disagree. The above discussion simply touches upon issues that could, and perhaps should, have been addressed in determining the interplay between the Regulations and Article 11. Protests, time and again, have brought positive social change and are fundamental to democracy even in times of crises such as this pandemic. The crucial point is ensuring that any interference with this right, if necessary, is a proportionate one.

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[1] [2020] EWCA Civ 1605.

[2] [2020] EWHC 1392 (Admin)).

[3] https://www.theguardian.com/commentisfree/2021/apr/05/government-freedom-expression-police-crime-bill-legislation-uk accessed 10 June 2021.

[4] 26 November 2013, 37553/05.

[5] [2000] 2 AC 115 [131].

[6] Judgment 14 February 2006, Case No. 28793/02.

[7] [2021] EWHC 661.

Image credit: Protest against the proposed Police Bill (Tim Dennell/CC BY-NC 2.0/Flickr)

Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.

BPP HRU event: Human Rights Networking and Roundtable

On the 5th May 2021, the BPP Human Rights Unit held its third and final networking event. The event focused on issues linked to current developments as the UK proceeds with its roadmap out of lockdown, with two breakout rooms considering: Whether vaccine passports are a threat to human rights? To what extent should their use be permitted and why? 

Veeneshwary Choytun reports.

During the BPP HRU final networking event, one hour was dedicated to debate on issues linked to vaccine passports, with a further half an hour for networking with other attendees. The topic for the discussion in the first breakout room was: Are vaccine passports a threat to human rights?

Delving into this topic in more detail, the group focused in particular on the questions as to whether vaccine passports would constitute “digital identity cards by back door” and implications for personal data, the possible creation of a “two-tier” society affecting the most vulnerable and the balancing of some fundamental freedoms against others in this context.

During the discussions, there was a resounding consensus amongst all the participants that introduction of the vaccine passport would create a two-tier society and affect the most vulnerable.  Participants brought forward the argument that such a vaccine passport would be discriminatory, excluding people who have not yet had a vaccine. Notably, young people who are not currently on the priority list for vaccination in the UK would be prevented from taking parts in events or doing certain activities on the basis of their age or absence of any pre-existing health conditions.

Similarly, concerns were raised about the implementation of such a vaccine passport and the technology it would require. It was noted that, to date, the Government has not brought forward any fixed plans on vaccine passports and, therefore, raised queries as to how they would be implemented or how they would be managed. Questions were raised as to how such a system is expected to work on a cross-border basis, and it was agreed that this would pose significant challenges.

Along the same line of thought, participants agreed that the introduction of the Covid-19 vaccination passport would go against the ethos of “autonomy”. Considering that nobody can be compelled to take the vaccines, it was felt that it would be inherently wrong and unfair to impose such a system. Attendees noted that individuals should be allowed to decide for themselves.

Moreover, issues on data-protection were also raised and there were questions as to who would run the database, and how would personal information be dealt with?  Attendees noted the need for caution and expressed apprehensions as to being unable to control their own data on such a database.

The final question addressed during the discussion related to each person’s individual responsibility to change their own lifestyles in order to help mitigate the risk of a further pandemic in the future. The group discussed the possibility of adopting healthier nutrition such as a vegan diet.  However, it was noted that this would be difficult to implement nationwide as the Government cannot stop people from eating meat.  In response, it was suggested that the Government could introduce incentives to support and promote the vegan lifestyle, making it more affordable by reducing taxes on vegan products and, in tandem, imposing tax increases on meat products.

Participants concluded that individuals cannot be forced to take vaccines and, therefore, it would be unfair and illogical to impose vaccine passports. The discussion ended on a positive note with everyone looking forward to the world getting back to normal. 

Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.

Jo Hynes from the Public Law Project discusses the impact of the First-tier Tribunal (Immigration and Asylum Chamber) moving online

Barty Scholefield spoke to Jo Hynes about the Public Law Project’s case study into online immigration appeals at the First-Tier Tribunal (Immigration and Asylum Chamber)

Jo Hynes is a PhD researcher at the University of Exeter and Research Fellow with the Public Law Project (PLP). Her work focuses on the legal geographies of online courts. Jo, along with other PLP researchers, recently published a study examining the impact of immigration tribunals moving online, and spoke to Bartholomew Scholefield about the findings.

During the coronavirus pandemic, many courts across the UK were forced to switch to online hearings in order to continue to provide access to justice. Thankfully, the movement of hearings online was not new to the First-tier Tribunal (Immigration and Asylum Chamber) (FtTIAC), but that didn’t mean that the transition was without its difficulties. A Pilot system of online hearing had been trialled in 2019 as part of the government’s £1 billion reform programme of the justice system. The new online scheme was “parachuted in” in response to the pandemic, which was particularly bold given that the Pilot scheme had only been applied to 1% of the Tribunal’s cases whilst it was in place, but the new online system was to be applied to the entire caseload. A “number of concerns” that were raised in response to the Pilot remained unaddressed, and whilst practitioners supported case management conferences being held online, there were widespread concerns that online substantive hearings prevented the participation of the most vulnerable appellants.

Jo Hynes, PhD researcher at the University of Exeter and Research Fellow with the Public Law Project

In 2020, the PLP undertook a study consisting of 43 interviews with barristers, solicitors, and Appellants, as well as court observations conducted by the PLP. Whilst initially intended to only cover the Pilot, the study was prolonged in response to the new scheme being introduced. Jo tells me that there were “strong reflections” between the concerns raised in response to the Pilot and the concerns raised in response to the current system. The “primary concern”, she told me “was resourcing”. The intention of the online scheme was for a more “front-loaded system”, whereby counsel and the Home Office would come together at an earlier stage in the proceedings to avoid any unnecessary hearings. Whilst interviewees were, in general “on board with the aim of front-loading” there was agreement that funding was “lacking”. Particular issue was raised with the Home Office’s response team as they were frequently unresponsive, often giving “cut and paste answers and not engaging with the spirit of the process”.

There were contexts in which the online process was praised, with the vast majority of interviewees supporting the use of a remote link – either telephone or video – for case management reviews “provided that the Appellant was represented”. Additionally, expert evidence became easier to obtain, as the experts did not have to travel to tribunals, and, as Jo pointed out, the remote system “opened up hearing centres across the country” for observers like herself, enabling them to cover centres in London, Newport, Bradford and Manchester.

However, there were serious concerns that the risks of online hearings outweighed the benefits when it came to substantive hearings. “A lot of what an Immigration Judge does in a substantive hearing centres around an assessment of credibility,” Jo explained. However, in online hearings interviewees felt judges were “engaging less” and Appellants were “not able to interact well” with the Tribunal, particularly if an interpreter was involved. There was widespread concern that Judges would “stick to their normal habits” whilst assessing credibility, and not take into account the “totally different nature of the interaction”.

Jo told me that a large part of the problem was that the Pilot scheme had only been used for a very limited number of appeals, selected for their relative straightforwardness. The current system, on the other hand, was “rolled out to an entirely new group” of Appellants. Consequently, interviewees expressed concern over the “suitability” of the new system, considering the “particular vulnerabilities” of FtTIAC Appellants.

Equally concerning, Jo said, was the possibility for a “two-tiered system” to be created, dividing Appellants on the basis of their access to resources. As a result, those with access to a private space, laptop, and good internet would be able to have their cases heard much sooner than others. Legal counsel noted they were being made to “feel responsible” for their client’s ability, or lack thereof, to access the Tribunal remotely by being “encouraged to provide hearing facilities in their offices”, a responsibility they felt “very uncomfortable with”. One interviewee mentioned that a FtTIAC Judge even deemed it appropriate for a street-homeless Appellant to “call into their hearing from the street!”, a suggestion so dangerous “even the Home Office caseworker protested against it as totally inappropriate”.

This two-tiered system was further exacerbated by the problems caused by the new Legal Aid Reforms passed right at the beginning of the pandemic. Jo has also written on the impact of the new legislation, and gave me an oversight of the problems. The Reforms, which came into effect on 8 June, 2020, essentially created a new type of funding for representatives submitting appeals through the online system. Appeal skeleton arguments were billed at a flat rate of £60, which could reflect “10–12 hours work”. This left Chambers increasingly uncertain of the commercial viability of taking on such work and representatives thus felt “unable to undertake it”. Indeed, 20 Chambers issued a joint statement, in which they stated that they are unable to accept fixed-fee cases.

Interestingly, much like the online hearings system, there had also been a pilot of the new Legal Aid payment structure, which was met with a lot of resistance, but the new system was pushed through anyway once the pandemic struck. Responses to the pilot scheme “criticised the framework, which left representatives unable to make ends meet”, there was talk of a consultation with the Legal Aid Agency and “promises that the issues would be solved before a full-scale rollout”, but ultimately it was “forced through without any consultation at all”.

Jo was keen to emphasise that it “isn’t a story of lawyers being picky or doing a bad job, but the impossibility of surviving on Legal Aid contracts”. Fortunately, the Legal Aid Reforms were effectively challenged, and a new hourly-billed system brought in as of October 2020. Nonetheless, it demonstrated yet another occasion in which the Government was willing to rush through legislation without regard to the problems practitioners raised.

All in all, the new system paints the picture of a “vicious circle”, with a reduction of quality at both ends. On the one hand, you have more work being done by solicitors, and barristers being brought in later, as a hangover from the first Legal Aid Reforms. Whereas on the other hand, you have the Home Office, who have either been unresponsive or offered “copy and paste” responses, and Judges who aren’t engaging with the new system properly.

It brings to mind an article written in the Law Gazette by Dr Natalie Byrom, in which she states:

“Some commentators have referred to this period as a great experiment in the delivery of remote justice; I would counter that it is only an experiment if you collect data to test your hypothesis – something that HMCTS has failed to do.”

Despite the issues that the PLP report reveals, the new FtTIAC system shows no signs of leaving anytime soon, as there is an enormous backlog of cases due to the delays caused by coronavirus. To give an idea of the scale of the problem, Jo explains, “pre-Covid there were 916 substantive hearings in the FtTIAC a week”, whereas during the week ending 24 May, 2020 “only three substantive hearings took place!”. 

Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.

Image credit: Field House Tribunal Hearing Centre, London | Smuconlaw / Wikimedia Commons

Defendants’ rights during a pandemic: the extension of custody time limits

Grace Bowland looks into Parliament’s decision to increase custody time limits in the Crown Court to alleviate the impact of coronavirus on the criminal justice system.

Coronavirus has placed an immense amount of pressure on our already overburdened criminal justice system. At the beginning of the pandemic, jury trials were suspended for a two-month period, and once they restarted, the increased strain on the police and the Crown Prosecution Service (CPS) was exacerbated by limited court space. It’s not surprising that defendants’ waiting times have increased significantly since the pandemic began. As a result of the effects of Covid-19, the backlog of cases in the criminal justice system has soared, with over 479,000 cases waiting to be heard in the magistrates’ courts and over 53,000 in the Crown Courts¹.

A world apart: The global disparities in COVID vaccine provision

Isabel Acheson discusses the human rights implications of the troubling disparities between states and groups within states as well as the difficulties of getting vaccines to communities in conflict zones.

With the global race for countries to access vaccines, there have been significant disparities between access to vaccines of individual countries as well as inequalities in access at an individual level. The WHO reported in mid-January that while 39 million doses of the COVID vaccine had been administered in developed countries, only 25 doses had been administered in developing countries.¹ Article 25(1) of the Universal Declaration of Human Rights recognises the ‘right to a standard of living adequate for the health and well-being’ of every individual, including medical care.² Despite this, individuals across the world are struggling to access COVID vaccination programmes for reasons including migratory status. With disparities on an international, national and local level, populations are being left behind and the struggles in preventing the spread of COVID globally remain.

How have the UK’s climate change initiatives been affected by the ongoing pandemic?

Leonie Brabant looks at the impact of coronavirus on environmental policies in the UK.

The introduction of the Climate Change Act 2008 made the UK one country of a handful to formally recognise the issue within domestic legislation. Climate change had finally been met with the urgency it requires. While the coronavirus pandemic has impacted the effective implementation of some environmental initiatives, it has also provided an opportunity to plan for a green recovery. And while many will welcome the new environmental policies with open arms, it is important to take into account the direct impact that climate change initiatives can have on social justice and access to human rights.