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OP-ED: Where’s your mask?

  • Published at 06:20 pm June 5th, 2020
Dhaka coronavirus masks people

Not everybody is willing to follow this simple rule

During the Covid-19 pandemic, Bangladesh has seen multi-dimensional activities attempting to curb the contagion, starting from public awareness raising campaigns to washing hands, and wearing masks to lockdown to withdrawal of lockdown.

Setting aside the efficacy of these campaigns, which were often corroborated by executive decisions and orders (amounting to law as per Article 152 of the Constitution of Bangladesh), one thing has remained quite constant: People’s noticeable resistance in duly following the rules.

Whether it be maintaining social distancing or not going out except for essential needs, people have by and large ignored the directives. The latest in this line of rules and regulations is the DGHS-issued circular. The circular provides a hefty fine of Tk1 lakh or 6 months of imprisonment should one fail to wear a mask in public.

Given that there has been no exceptional situation to change the public attitude about following the law overnight, one might wonder whether this circular is doomed to be likewise unobserved. 

It is not the first time Bangladeshi society has taken laws with social implications lightly. To look back a few years, in 2012, the parliament promulgated the Control of Graffiti and Poster Pasting Act of 2012. This law was first prepared by the Election Commission as a draft ordinance to penalize the writing of slogans and pasting of posters on walls in any election campaign.

The law stipulates the procedure and designated spaces for postering,and imposes a penalty of a minimum of Tk5,000 to a maximum of Tk10,000. However, till date, the law remains basically unused and unimplemented, and as if attesting to our obsession with criminalizing everything, most cases of illegal postering are still dealt as criminal cases under the Penal Code 1860. 

Moving further back to 2005, the Tobacco Control Act provided for Tk50 (later increased to Tk300) fines for smoking in public places. Public smoking did not go down.

None of these laws have succeeded in achieving their goals, ie in modifying public behaviour. There are myriad reasons why such laws with social values as a goal have often failed in securing compliance in Bangladesh.

Given that the latest circular aims to do the same, ie modify public behaviour by making mask-wearing a norm, these reasons must be appreciated. For a developing country with the strong presence of a weak rule of law, it is naturally a great challenge to sustain a trust in the law.

However, it is necessary to see how this poor rule of law is sustained by a general disregard for laws and regulations by the citizens (and often by the law enforcement mechanism). So how does this attitude begin? 

Dysfunctional laws lose our trust

When the legal system is wrought with dysfunctional laws unable to accomplish their purpose, people start disregarding that law. Wearing a mask is an alien concept. Therefore, when we have a law suddenly demanding us to wear a piece of cloth that we have never worn before, it attacks our mind and demands justification.

We rationalize: Were the other laws about coronavirus effective? Social distancing, home quarantine, or general holidays couldn’t stop corona. And the people who ignored those orders didn’t really receive much punishment.

When a law provides impractical punishment, which is not just hard for the people but also difficult for the law enforcement agency to implement, the law becomes a non-operative tool. Just as it was impractical to impose Tk300 each time someone smoked in public, it is similarly impractical to ensure that every person not wearing a mask will be prosecuted.

It is in fact harsh to “assume” that most of the people in breach will be able to afford such a heavy fine, for it is not the privileged who resort to walking or public transport. It would be foolish to imprison someone for 6 months for ignoring a mask, when people have received impunity for more serious aberrations like breaching home quarantine, concealing sickness to infect others, violating stay-at-home rules, etc.

So the mask-wearing circular can be seen as a similarly dysfunctional order, and hence, observed very laxly.

Punishing people for a not performing a task they are unaccustomed to is not just anti-people, but also takes a top-down approach by treating people as a target rather than the beneficiary. It reinforces the colonial idea of the law being a government tool instead of a layer of protection.

This negates people’s belief in the rule of law and actually prevents them from properly understanding or appreciating the necessity of the law for wearing masks.

People value convenience over compliance

Past research shows that common peeple’s non-compliance with the law is not something new. Social psychologists TR Tyler and YJ Huo in a study titled “Trust in The Law: Encouraging Public Cooperation with The Police and The Courts,” observed:

“Although deference to legal authorities is the norm, disobedience occurs with sufficient frequency that skill in handling the rebellious, the disgruntled, and the hard to manage -- or those potentially so -- has become the street officer’s performance litmus test.” 

People want to go about their daily life with as much ease as possible, and the laws more often than not create many hurdles -- it is harder to don gloves and masks to go out than simply walking out of the home with choppols and a wallet; as it is easier to just jaywalk to cross the road than climb stairs to use the overbridge.

That is why it is necessary to show that law enforcement agencies enforce such laws with a view to solving “real” problems. Unless an individual sees contagion as a real problem, they will continue to value the comfort of not wearing masks.

That is why Tyler says, unless the state can create a popular trust that laws are made for addressing problems, the people will not suddenly start respecting law. 

Bangladeshi laws lack the traits of an effective message

For a law to become effective, the merits of law-abiding behaviour must be continuously portrayed to the people. When the authority fails to do so, people may get contradictory ideas, ie that violating the law does not have as harsh a consequence as as the law claims, and they tend to quickly forget the law and the legal system loses its standing.

As such, successful communication is key.  

Research shows that, to be effective and consequently get people’s notice, a message needs seven traits: 

Attractiveness: It must be appealing to the audience; clear: Easy to understand; consistent: Used repeatedly; credible: Believed by the audience; persuasive: Able to generate change; relevant: It needs to focus on an actual problem; and trustworthy: The alternative presented should be possible to achieve.

And last but not the least, the presenter of the message also needs to be credible and trustworthy.

The circular in question lacks most of these traits. The following shortcomings may be noticed: First, it is a written message in formal Bengali, which is not easy for the greater mass to appreciate. It is thus not an  “attractive message.”

Second, other factors which may sustain not wearing masks in Bangladesh are not considered, such as a lack of awareness, ignorance, and prejudice (there are ample reports showing that people think wearing masks is awkward/shameful), high humidity and heat motivating people not to wear masks, etc. So the circular may appear to many people as being “unpersuasive and irrelevant.”

The circular refers to many legislative provisions and announcements, and prescribes “wearing masks and following other health regulations,” but doesn’t clarify what those “other” regulations might be, leaving it to the reader to find out for themselves.

In fact, the amount of punishment (Tk1 lakh fine/6 months imprisonment) is mentioned nowhere in the circular, so any person reading only this circular and not the others will have no idea as to what punishment they might receive. Hence, the message is not clear.

The circular does not justify how wearing masks would help prevent the coronavirus contagion, so for many people (those who are scientifically illiterate, dogmatists, people who can’t filter disinformation from information, etc) the message may appear to be not credible.

Finally, the provisos to wearing masks are so wide that it can practically absolve not wearing a mask at any time: Buying/selling essential commodities, commuting to a workplace, commuting to buy medicine/receive medical treatment/a burial. Not much is left in this generic list.

So unless deliberate negligence is proved, one can basically claim impunity under the proviso. 

Moreover, the proviso doesn’t cater to working hours and creates a Strict Liability situation. It is more punitive than prescriptive and does not say what will happen if a person has reasonable cause for failing to wear masks.

But it is a general rule of legal interpretation that penalizing laws must have a wider berth of immunity. So the circular does not satisfy as being trustworthy. It demotivates the stakeholders to trust the law. The final result: Nobody believes the law, ie wearing masks can be a solution.

When the people continuously witness that their disobedience to the law is bringing little punishment, or that even serious crimes like murder, and escaping the country with air ambulance while airspace is supposedly closed, etc are unpunished due to bureaucratic/procedural complexities, they “start believing in their own vulnerability” and ultimately lose respect for the law.

The culture of impunity takes a firm root. So, even progressive laws like this are violated to such an extent that executives can do nothing.

Thus, the circular needs to be amplified with robust media broadcasts, local announcement, counseling points on the public roads, etc. The people have the right to receive state support to be able to follow the law. If the system wants people to trust the law, the system must trust the people to overcome the barriers with necessary assistance. 

Arpeeta Shams Mizan is a sociolegal analyst. She is a Global Shaper at the WEF, and an Assistant Professor of Law, University of Dhaka.