[sacw] Sara Hossain on Women's Rights

[Harsh Kapoor]

FYI
South Asia Citizens Web
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Law and Our Rights
Litigating Women's Human Rights
By Sara Hossain
DAILY STAR 3/14

In the last fifty years, there has been a proliferation of international human
rights instruments and standards. The
value and usefulness of such standards in protecting human rights depends upon
their interpretation by courts and
tribunals, and whether there are adequate means for enforcement of the
decisions
of such bodies.

The value of human rights law is not limited to its use in international bodies
alone, and contains great potential for
protecting rights through its application in domestic courts. In fact, this is
perhaps the most significant forum for use
of such law, given the very small numbers of people who will ever have recourse
to international tribunals.

The extent to which human rights law can be directly used will depend on a
number of factors. These include whether
the country in question has a constitution or bill of rights, which instruments
it has ratified and in certain cases,
whether national legislation has been passed to incorporate the provisions of
such instruments into national law. In
some countries, international instruments which have been ratified by a state
may be directly enforceable in the courts.
In others, such as most of those in South Asia, including Bangladesh, specific
legislation must be passed.

Even where human rights instruments have not been ratified, or implementing
legislation has not been passed,
international human rights law can still reinforce the efforts of lawyers and
activists to ensure legal enforcement of
rights. Thus while international human rights law is not directly applicable in
national courts, many courts in the
Commonwealth accept that international human rights law may be referred to in
the course of interpreting national or
constitutional fundamental rights standards, particularly where the
national law
is uncertain or incomplete.

International human rights law may also be of persuasive value in legal
argument, particularly given that many
constitutions, including our own in Bangladesh, have drawn heavily upon the
UDHR
and other international human
rights instruments. Bangladesh has acceded to a number of international human
rights instruments, including the
Convention on the Elimination of Racial Discrimination, the Convention on the
Elimination of All Forms of
Discrimination Against Women (CEDAW) and the Convention on the Rights of the
Child. Recently, on 5th October
1998, it acceded to five further human rights instruments, including the
International Covenant on Economic, Social
and Cultural Rights (ICESCR), the Convention Against Torture (CAT), the
Convention on the Political Rights of
Women, the Convention on the Minimum Age for Marriage, Consent to and
Registration of Marriage and the
Convention on Migrant Workers.

Use of Law Based Strategies
Before considering specific instances of litigation on human rights, it is
worth
recalling that in order to ensure the
effectiveness of such litigation, it is often necessary to undertake
multi-pronged strategies. These include formulating
proposals for law reform, developing campaigns for changing law or practice,
preparing reports on or monitoring
human rights violations, or developing human rights education. In many
instances, given the lack of access to the
legal system, it is also necessary to develop legal aid schemes, provide
information and advice about the use of the
courts and the content of the laws, and to sensitize court officials regarding
attitudes and approaches to their work
which effectively limit the effectiveness of their action.

Litigation
Litigation to protect human rights includes engaging in individual cases before
courts and tribunals. Such cases may
involve challenging specific legislation or particular practices as being in
violation of human rights standards, and
providing redress to individual victims. In some cases, litigation on human
rights does not focus on individual
complaints but forces on a number of plaintiffs, or a particular practice,
which
may be challenged through class
actions, or what we have come to know as public interest or social action
litigation.

Other than direct involvement in litigation, it is also possible to influence
the development of case law through the use
of third party interventions, or the filing of amicus briefs. Through this
process, a person or organisation which is not
a party to the litigation may submit additional materials to the court
which may
provide new legal arguments, a
selection of comparative case law and practice and other relevant background
information. So for example, a group of
NGOs and experts had submitted an amicus brief to the War Crimes Tribunal
in The
Hague which set out proposals
for protecting women victims of rape in armed conflict.

Domestic Litigation: Bangladesh Citizenship
In a recent case, specific legislative provisions which restricted women's
rights to transmit their nationality to their
children were challenged as being violative of fundamental rights of equality,
equal protection of the law, and freedom
of movement, and to international standards prohibiting gender based
discrimination. Relevant interpretations of the
constitutional guarantees invoked, and provisions of particular international
human rights instruments, such as
CEDAW and the CRC, were placed before the Court by counsel and by amicus
curiae.
The Court nevertheless held
that the legal provisions in question did not violate fundamental rights
provisions. The matter is now pending appeal
before the apex court.

The issue of women's right to transmit nationality to children on an equal
basis
with men is a question which has
come up within a number of jurisdictions. Cases relating to this issue are
currently pending before a court in Pakistan.
Similar matters have been litigated in other jurisdictions, including Sri
Lanka,
which is now in the process of
amending the relevant administrative regulations, and most prominently perhaps,
in Botswana, where the Supreme
Court held, in Unity Dow's case, that the provisions of the UDHR, CEDAW and
international human rights
instruments could be prayed in aid in applying constitutional standards.

Safe Custody
A series of recent cases challenging the practice of placing women and girls in
so-called "safe" custody implicate
questions of women's fundamental rights to liberty and security of the person,
protection from cruel, degrading or
inhuman treatment, and equality and equal protection before the law. One such
case, filed as a public interest petition,
concerned the incarceration of Shefali Begum, 35 years old, following a severe
sexual assault by a gang, which
involved a stick and marbles being pushed into her private parts. Shefali
alleged that she had been held in safe custody
without her consent, and further that she had been handcuffed to her bed while
hospitalised immediately following the
attack. This case was one of the more egregious examples of the practice, which
involves women and minor girls,
usually victims of rape, including custodial rape, kidnapping and other
criminal
offences, and witnesses to such
offences being placed, by judicial and for, is "safe" custody within prison.
Those who are placed in "safe custody"
are kept confined with convicted and under-trial prisoners. In a number of
cases, women and girls have been kept
imprisoned in the name of "safe custody" for periods of up to four years. The
Court granted an interim order releasing
Shefali from safe custody. However, a final judgement has not yet been given,
and the questions raised in the petition
regarding the constitutionality of the practice, and whether it is being
exercised in an arbitrary and discriminatory
manner, and is itself a violation of women's fundamental rights to equality and
equal protection of the law remains
pending for hearing.

Abduction and Forced Marriage
A number of cases have come before the High Court in the past few years
concerning allegations of abduction and
forced marriage of young women. Some of these cases are particularly
appropriate
for us to examine here, as they
have a definite British-Bangla dimension. The pattern in these cases has been
that a young woman, who is a dual
national of Britain and Bangladesh, has alleged that she has been brought
forcibly to Bangladesh by her parents and in
some cases forced to marry against her will. There have now been several
instances in which habeas corpus
applications have been filed before the High Court Division seeking the release
of such young women, who have
been detained either by their own parents, or held (as in the case of Rehana
Begum) in "safe" custody. In all such
cases before the Court so far, the women have been set at liberty.

International Courts And Tribunals
As human rights law has developed, so have institutions charged with its
development and application.
Unfortunately, we are unable in Bangladesh to have recourse to any
international
or regional court or tribunal for
redress of human rights violations. We have no access to the UN Human Rights
Committee, or to the complaints
procedures available under CAT and CERD.

At a regional level, Asia is the only region in the world without a human
rights
court, unlike Africa, Europe and the
Americas, with the African Commission on Human and People's Rights, the
European
Court of Human Rights and
the Inter-American Commission and Court of Human Rights in Washington. Each of
these courts not only consider
individual complaints but have also developed special procedures to consider
specific forms of violations, such as
torture and ill-treatment in custody or arbitrary detention.

Although we have no recourse to these systems, some of their case law and their
practice may nevertheless be of
assistance in attempts to protect human rights in Bangladesh and in our
region.

A recent example is that of Indravani Pamela Ramjattan, a young woman who has
been on death row in Trinidad for
the past seven years. Pamela's allegations that she was subjected to appalling
domestic violence by her husband
during the eight years of their relationship were not taken into account by the
Trinidad courts in respect of her
conviction or sentence. No evidence was presented to the court regarding her
experience as a battered women, nor
were any arguments made regarding the exculpatory effect or value of this
experience. In fact, this information was
used by the prosecution to show a motive for the murder. A petition filed on
behalf of Pamela is currently pending
hearing before the Inter-American Commission of Human Rights (the
"Commission").
This specifically refers to
Pamela's experience of abuse by Jordan. It also alleges that in failing to
consider this experience in affirming her
conviction and sentence, the Government of Trinidad and Tobago is in breach of
Pamela's human rights, in particular
her right to life, fair trial, equal protection of the law, and
non-discrimination on the ground of sex. Also, for the first
time, the petition raises arguments regarding Pamela's experience of being a
battered woman - the most important
factor in her case and a factor which was singularly ignored by the police, the
legal aid lawyers, prison authorities,
courts and the Government of Trinidad.

Pamela Ramjattan's case is the first one in which any international tribunal
will be required to consider arguments
regarding the impact of battered women's syndrome, and to examine the gender
dimensions of the right to life and the
right to fair trial in the specific context of domestic violence and its
consequences.

In this case, lawyers sought the assistance of INTERIGHTS in developing
arguments integrating submissions on
battered women's syndrome and human rights, in making representations to UN
mechanisms, such at the Special
Rapporteur on Violence against Women, its Causes and Consequences, and the
Special Rapporteur on Summary and
Arbitrary Executions and in disseminating information about the case.

In the Ramjattan case, a number of comparative precedents were cited, including
an earlier decision of the Canadian
Supreme Court, which had emphasised the importance of considering expert
evidence of battered women syndrome,
in order to debunk the myths about women who face violence and abuse. Battered
women's syndrome explains why
battered women don't run away from a violent relationship, why they don't ask
for help before killing, and why they
believe at the time of responding to the violence with killing, that there
is no
alternative to this action. The evidence
proffered in that case demonstrated how a woman who has been battered becomes
trapped in her situation, covering
up the incidents of abuse, and faming into a cycle in which the abuser
alternates between bouts of violence and pleas
for forgiveness. These circumstances combine to affect the women's state of
mind, and thus the reasonableness of her
plea of self defence is to be assessed in the context of her particular
circumstances as a battered woman, rather than
against the standards of reasonableness applicable to a man. Cases from other
jurisdictions were also cited, primarily
from the US, and from the UK.

Obstacles to Implementing Women's Human Rights
While the handing down of the judgement may resolve a particular issue, it
rarely marks a clear "victory" for the
litigant. Even where a judgement is favourable, the extensive delays in the
court process, and the procedural obstacles
faced by litigants may seriously diminish its impact.

Further, and particularly in our region, we often face serious difficulties in
enforcing court judgements. One of the
questions which glares out at us from the ceases we've discussed concerns the
role of the judiciary. There have been a
number of significant efforts by judges to consider the relevance of
international and comparative human rights law to
their own decisions in national courts, and a number of such recent exercises
have focused exclusively on issues
relating to the gender dimensions of human rights. Information about relevant
developments in caselaw is also being
increasingly made available to both judges and lawyers.

In addition to lack of access to justice, and the relative insensitivity of
particular courts to women's human rights, the
failure to respect judicial decisions, and the culture of impunity which
surrounds this, are among the more significant
obstacles to implementing women's human rights.

The writer, a Barrister-at-Law, is Legal Officer for Sough-Asia,
Interights-International Centre for Legal Protection
of Human Rights, base in London.

This is the revised version of the keynote paper on the Gender and the Law
presented in the British-Bangla Law
Week (29 November-5 December 1998) organised by the British Council.

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