SACW #2 | 8 March Special [Pak. / Bangladesh / India]

[Harsh Kapoor]

South Asia Citizens Wire  #2  |  5-8 March,  2004
via:  www.sacw.net

[1] Pakistan: Winds of change (Hilda Saeed)
[2] Bangladesh: Our demand today: Freedom from fear (Sultana Kamal)
[3] Bangladesh: Is the Law Fair towards Women? (Aasha Mehreen Amin)
[4] India: The Other Half - Time to reflect and celebrate (Kalpana Sharma)

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[1]

Dawn (Pakistan)
March 4, 2004

04 March 2004

Winds of change
By Hilda Saeed

This year, in view of the growing incidence of 
Violence Against Women, the HRCP, WAF and several 
NGOs and activist groups will commemorate 
International Women's Day on March 8 with a 
discussion on this urgent and tragic issue.In 
response to the struggle of rights-oriented 
bodies, a Permanent National Commission on the 
Status of Women was established in 2000. To 
analyze the various viewpoints pertaining to 
Hudood and related laws, and to get an update of 
the situation first hand, Hilda Saeed discussed 
the issue with Justice Majida Rizvi, chair of the 
NCSW.
Q: What was the mandate of the previous women's 
commissions and what happened to the 
recommendations put forward by them?
A: There have been several women's commissions in 
the past; each was given certain terms of 
reference, and they did valuable work. The last 
one was the Commission of Inquiry on the Status 
of Women, in 1997, headed by Justice Nasir Aslam 
Zahid. But in each case, the commissions were 
wound up on completion of their tasks.
The present commission is a permanent one; thus 
it is a statutory body. Its profile comprises two 
members per province, and one each from FATA, 
FANA and Islamabad capital territory. In 
addition, there are scholars and three ex-officio 
members from the ministries of the interior, 
finance, and law and justice. The ministry of 
women's development has been mandated to provide 
the commission a secretariat, and the additional 
secretary, ministry of women's development is 
designated as secretary of the commission.
Each member's appointment is for three years. 
They are all committed to the cause of women. 
Some members come well prepared for meetings, 
others tend to take matters lightly. Initially we 
formed committees on various issues, but it was 
not really working. But now we have temporary 
groupings which are issue-based, and which change 
from time to time, a system which is working much 
better. Our objective is to work for provision of 
justice for women.
Q: With all this in place, and with members 
giving their inputs, what are the legal reasons 
for women's continued subservient status, and for 
the discrimination and violence against them?
A: It has partly been due to the frequent changes 
in government, and corresponding changes in 
policies. Every government has made promises, but 
the will to achieve positive change is not there.
Benazir Bhutto, although she lacked a majority, 
at least brought about some changes such as the 
establishment of women's police stations, but 
Nawaz Sharif had no will to help women, despite 
the fact that he had majority backing. Women's 
seats were not even restored. When there's no 
will, then there are so many excuses.
We continue to strive for positive change, and 
hope the government will take some steps forward 
to facilitate this. There now appears to be 
national and international commitment to women's 
progress.
Q: What is your view on the debate suggested by 
General Musharraf on the Hudood Ordinances?
A: The Hudood Ordinances have already been 
heavily debated- what more remains [to be 
debated]? The Commission of Inquiry on the Status 
of Women 1997 had also recommended repeal of 
Hudood. We ourselves have had a lot of 
deliberation on the subject. Dr Sher Zaman and 
Farida Ahmed, both Islamic scholars, have 
admitted defects in the ordinance. They want 
amendments.
The majority of sections included in the Hudood 
Ordinances are from the Pakistan Penal Code 
(PPC). In all four laws, the sections total 
20.When we have PPC, why keep Hudood? If changes 
are required, they can be made in the PPC itself.
The Hudood Ordinances comprise a total of five: 
The Offence of Zina (Enforcement of Hudood) 
Ordinace,1979; The Offences Against Property 
(Enforcement of Hudood) Ordinance, 1979; The 
Prohibition Enforcement of Hadd Order IV 1979; 
The Offence of Qazf (Enforcement of Hudood) 
Ordinance1979; and The Execution of the 
Punishment of Whipping Ordinance ,1979.
In each of the four penal laws, with the 
exception of a couple of provisions about Hadd 
punishment, the rest of the provisions in the 
form of 'tazir' are practically the same as those 
which existed in the Pakistan Penal Code.
A law is introduced for the well-being of society 
- if 50 per cent of the population suffers 
because of it, if they have been inflicted so 
much pain and trauma that their total lives are 
destroyed, who is responsible? When a woman 
suffers, so do her family and children; when she 
comes out honourably after say, 10 years, who is 
going to compensate her for those lost years, and 
those lost lives of her children? Will society 
accept her? Can she hold the government 
responsible? The maulvis, society?
No one is against Islam, but this badnaamiis what 
we want to correct. Why call it westernization? 
At present, around 72-80 per cent of the women in 
jails are there under zina'(adultery).
Q: The present commission is recognized as a 
recommendatory body, not as a decision-making 
one. In your view, how has this affected 
decisions for gender equality and women's 
empowerment?
A: The recommendatory functions include being a 
watch body to review government decisions and 
their impact on women. We review all laws, 
discriminatory or otherwise, and then recommend 
repeal, amendment or new legislation.
We conduct research on women's issues, and have 
regular interaction with members of civil society 
and with similar international commissions, plus 
any other assignment which the government gives.
We are not satisfied with the recommendatory 
position of this commission. If we are the watch 
body, and are only required to give 
recommendations, then we cannot really implement 
decisions. The outcome of our deliberations will 
be put forward to the president, the 
Majlis-i-Shoora, and the parliament, as has been 
done in the past in several cases.
For instance, the Citizenship Act is patriarchal; 
it talks only of the 'father', 'he', no spouses 
or parents. If a woman marries a foreigner, she 
cannot apply for citizenship - only her kids are 
eligible for that - it's very discriminatory. 
It's very necessary to remedy this as there are 
court cases pending because of it.
Our effectivity [for a specific recommendation] 
ceases once the report is submitted, therefore 
advocacy and lobbying are very important to us. 
We try to raise awareness on all issues 
pertaining to women. Our reports are regularly 
made public.
All reports indicate that the Hudood Ordinances 
are discriminatory. Sometimes we take up 
individual cases, such as Zafran Bibi's case or 
Rukhsana Bunyad's, who was jailed for blasphemy. 
Often, the police does not file an FIR or 
investigate such cases.
As a part of advocacy and lobbying, I have 
started giving lectures to groups of officers at 
NIPA, to sensitize them (especially men). Only by 
having them with us will change be achieved.
We aim to achieve the maximum despite a lot of 
frustration. For instance, we received only one 
computer from the Ministry of Women's Development 
- and even this was taken away when we 
subsequently got a computer as donation. The same 
is the situation for the commission's office car. 
We have minimal staff strength.
The Islamic Ideology Council (IIC) doesn't give 
straightforward answers - why wasn't Hudood 
looked at on a primary basis? Why weren't 
recommendations of the IIC made public? How many 
of the laws has the IIC reviewed? Nothing has 
been made public.
For the bureaucracy, it is as if women's issues 
are not issues. It's frustrating. Bureaucrats 
have no commitment to women; the same people are 
around even when the government changes. Even in 
something like employment quotas for women, in 
1989 a five per cent quota was allocated for 
women - but here too we found inadequate use of 
the quota, as if there is a planned way of 
ousting women. Nor does it look as if this matter 
of Hudood will be seriously taken up.
Q: There was a report that an international 
conference on Islamic laws was being planned. 
What happened to that plan?
A: We did start the process for such a 
conference: "Islamic Laws and Building 
Consensus". Ten very significant Islamic scholars 
agreed to come, but we did not get clearance from 
the Ministry of Women's Development and we were 
asked to stall it. We wanted consensus to be 
achieved on laws pertaining to women, the money 
was granted, but it could not be used even now it 
is lying unused.
Q: What are the legal hurdles in repealing the 
Hudood laws? What is the political background to 
these hurdles?
A: In my view, there is no legal hurdle,the 
hurdle isone of will. Women's evidence is not 
included in Hudood - this in itself is entirely 
un-Islamic. No non-Muslim can give evidence 
unless the accused is also non-Muslim. In Hudood 
cases, the presiding officer cannot be 
non-Muslim, nor can there be a non-Muslim lawyer.
In general, criminal law is public law but here 
Islamic law has been made part of criminal law. 
It is violative of minorities and their rights as 
citizens. Adultery (zina) and rape (zina bil 
jabr) are considered the same; victims are 
punished repeatedly under Hudood. Yet only 
adultery is mentioned in the Holy Quran.
Another aspect is the girl's age of attaining 
majority. Under Hudood, this means upon reaching 
puberty, which may be as young as eight or nine 
years, when a girl's mental and physical capacity 
is insufficiently developed to deal with the 
stress of married life. Where then is the Child 
Marriage Restraint Act, 1929, according to which 
marriage of girls is not permissible before the 
age of 16 years?
Witnesses are supposed to be those who have never 
lied or committed major sins -those who satisfy 
the criteria of Taskiyah-ul-Shahood (mode of 
inquiry adopted by a court to satisfy itself as 
to the credibility of a witness). How many 
witnesses meet these strict standards?
Above all, we need the political will and determination to achieve change.


_____


[2]

The Daily Star (Bangladesh)
March 8, 2004

Our demand today: Freedom from fear

Sultana Kamal

The documentation unit of Ain o Salish Kendra 
(ASK), more familiarly known as ASK in the year 
2003 recorded 249 incidents of acid throwing, 374 
incidents where women were tortured for dowry, 46 
cases of fatwa in which women were subjected to 
insulting and torturous treatment, and, last but 
not the least, 1391 incidents of rape. Even 
though there is some overlap between the victims 
of acid throwing and the victims of dowry related 
violence in the above description, it omits 
deaths by grievous hurt, suicide, pre-mediated 
murder or crimes like trafficking and abduction. 
It may be noted that these statistics are based 
on the news reported in the national dailies and 
no one has doubts that there are many more cases 
that have not been reported. We perhaps have no 
disagreement in saying that the scale and forms 
violence against women has taken in the recent 
years are unprecedented. It has crossed all 
borders. Women are now targets of violence 
irrespective of their age, the time of the day 
and whether they are alone or in company, whether 
they are at home or in the street. However, the 
above accounts are enough to make one feel 
ashamed or at least embarrassed as the member of 
a society which allows such blatant violation of 
rights and such violence against a particular 
section of that society.

In December last year I went to visit the people 
in Mahalchhori of the Chittagong Hill Tracts 
whose houses in August have been burnt to ashes 
in a spree of arson. Where men and women have 
been beaten, tortured and women raped. There I 
was told by a woman that as soon as she heard 
that a group of Bengalis had attacked their 
village, without thinking of anything else she 
just jumped into the river in fear. She kept on 
swimming until she became very tired and felt as 
if she would drown to death. At that point, she 
remembered that she had left behind her daughter 
who may have been caught by the enemies. She swam 
back to her daughter in that extremely exhausted 
state only to find that her daughter was being 
beaten by a group of people. Some reported her to 
have been actually raped but the mother denied 
that in an interview with us. Just think what 
made the woman jump into the river before 
anything was done to her. It is the constant fear 
a woman has to live with.

In November, in a polder area of the remote part 
of South Bengal, a Hindu widow, who could be 
easily identified to belong to the poorest of the 
poor, asked me if Hindu women could continue to 
live in Bangladesh in the face of daily 
harassment or the threat of harassment they live 
under. In some of the southern districts, we have 
reports of several incidents where Hindu houses 
have been invaded by groups of young men of the 
Muslim community with the demand for food and 
entertainment by women of the family in whatever 
probable form. There are incidents where young 
men come and demand money for their picnic and if 
refused, the substitute has to be the young girl 
of the family to join them for purposes not 
difficult to imagine.

A Muslim activist woman in one of the remotest 
villages said in her speech in a meeting that for 
"liberation" she had always dreamt of a situation 
where she will be free to speak and move, to work 
and to enjoy a peaceful life. She said she had 
known the British period and the Pakistani rule 
and wasn't surprised that people were exploited 
then. But now in the independent Bangladesh she 
feels really persecuted each day with either 
actual or threat of violence. We all are very 
well aware of what happened to Simi Banu, to 
Fahima and Mahima, the child Trisha and Rumi. Not 
all of them were killed or raped but all of them 
have been subject to various forms of violence 
just because they belonged to a certain sex and 
the consequences they met with were mainly 
induced by fear in their minds.

Until very recently, violence against women only 
meant the very gross, identifiable physical 
assault on women, like rape, maiming, serious 
injuries by sharp objects, acid throwing or 
murder. That too remains subject to minute 
scrutiny and proof beyond reasonable doubt to 
result in conviction. Simple injury, 
unidentifiable assaults, regular battering 
without marks, sexual harassment other than rape, 
verbal abuse or psychological torture were not 
recognised as criminal offence or violence 
against women offering legal remedy. Neither 
torture nor assault within the four walls of home 
or by a close family member, particularly 
husband, considered to be family or private 
matters, was to be interfered by the state. Till 
today, marital rape has no legal cognisance. The 
women activists had to continue long and arduous 
campaigns to convince the society, the law makers 
and the state that violence against women has 
many faces and many forms and that it does not 
only manifest itself in rape and murder.

It is only since the 80s that some of the above 
mentioned incidents have been recognised in law 
to constitute violence against women. Even then 
simple wife battering has no recognition in law 
as yet. That is why we hear of so many false 
dowry cases. The reason being, women can seek no 
legal remedy if she is battered for no other 
cause than dowry unless the battering leaves 
injuries to be classified as grievous hurt. 
Whatever has happened to Simi Banu inducing her 
to commit suicide cannot be litigated under the 
violence against women Act. According to the 
latest news all the perpetrators of violence 
against Simi Banu are out of jail on bail now, 
and they are threatening her sister of the same 
consequence if they don't stop action against 
them. Rumi's family had to leave Khulna to a 
safer place in one of the villages to avoid 
threats from the accused of harassing Rumi. But 
in countries like Australia, USA or UK, the law 
bars entry of the perpetrators in the areas where 
the victim normally lives or has to go on 
business like education, shopping or visits. Here 
in our country the laws either by definition or 
by default not only bar mobility of the victim or 
the victim's family but also make their life 
insecure for ever once the woman has been chosen 
by the perpetrators to be their victim. Our laws 
or the lawmakers do not take into consideration 
that to provide effective assistance to the 
victims of violence against women they need to 
create a certain environment and there have to be 
workable, easily implementable legal measures and 
to make strict application of those measures an 
absolute condition.

But unfortunately the usual tendency is to 
enhance the punitive measures rather than seeing 
that implementation procedures are made women 
friendly. Once the punishment is made too high or 
as severe as death penalty, judges become 
reluctant to go for conviction. To convict an 
accused to death the judge needs to be absolutely 
sure that the accused has actually committed the 
crime that for well-known obvious reasons is 
often not possible. The result therefore rests on 
very low percentage of conviction compared to the 
numbers of complaints received. This in turn 
results in frustration in the minds of the 
victims and the legal aid providers, finally 
creating a general sense of distrust in the 
system of justice. This, to my opinion is the 
worst adverse effect we may have from not having 
a well-thought definition of violence against 
women eventually leading to wrong remedial 
measures and frustrating results.

To bring fundamental change to the situation we 
must be able to create a condition where women 
will have full confidence in the society's sense 
of justice towards them by recognising the more 
basic elements of violence against them, by 
making more sensible laws and by actually 
punishing the perpetrators for the prevention of 
those crimes and by establishing a society where 
women will have not to fear violence at every 
minute of their life. Awareness to violence 
against women will have to be joined by respect 
for their safe and respectful life as well as 
their freedom from fear. One will have to know 
that women are not violated only by rape and 
murder. It may very well be done by hurting their 
sense of respect as well as by diminishing their 
confidence; by not only killing them physically 
but by killing their will to live and love for 
life. Only by doing so can we think of 
appropriate systems of assistance to them.


Sultana Kamal is Executive Director, Ain o Salish Kendra (ASK), Dhaka.


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[3]

Star Weekend Magazine / The Daily Star (Bangladesh)
March 5 , 2004

Is the Law Fair towards Women?

AASHA MEHREEN AMIN

Taherunnessa Begum was only sixteen when she was 
married off to small time trader Sattar Mia twice 
her age. At the wedding Taherun's father, a poor 
vegetable vendor, gave Sattar ten thousand Taka 
as half payment of the twenty thousand Taka dowry 
demand. Soon after the wedding, Taherun's father 
became ill and the possibility of giving the 
remaining portion became doubtful. Thus began 
Taherun's nightmare. Sattar started to regularly 
beat her, sometimes punching her unconscious and 
leaving her with cuts and bruises all over her 
body. Often he would force her to have sex with 
him. Taherun conceived and gave birth to a son 
but this did not stop the beatings. One day 
Sattar came home and just drove Taherun out of 
the house without her son. The deal was that if 
she could cough up the rest of the money she 
could come back and live with her son again. If 
she couldn't she would get the customary 'tin 
talak' (verbal divorce) and consequently lose her 
son. Taherun was forced to go back to her parents 
home and soon was given a divorce.

What if Taherun decides to take the help of the 
law to get back her son? According to Muslim Law 
which is the law that is relevant to her as she 
is a Muslim, if she is successful in gaining 
custody of her child it will be a temporary right 
that will expire when the child reaches seven 
years. Even this temporary right translates into 
a mere 'custodianship' over her child since the 
law dictates that the father is the legal 
guardian of the child. Her husband, therefore, 
can take all decisions on behalf of the child but 
she cannot.

If this is not unfair enough, even if Taherun is 
given a divorce and granted custody of her child, 
she cannot remarry a person of her choice. If she 
is to remarry as well as retain custody of the 
child she must marry the child's uncle or 
immediate blood relative. Otherwise, she stands 
to lose her child.

So how can such injustice be legitimised by law? 
The Bangladesh Constitution declares equal rights 
for men and women in all spheres of public life. 
So where lies the contradiction? The word 
'public' seems to be a major clue to solving this 
riddle. It is only in the spheres of state and 
public life that equality is guaranteed through 
the Constitution. This means that in the private 
or personal sphere women are pretty much on their 
own. So even if her husband for whatever reason 
continuously tortures a woman, until she is 
killed, the state is unlikely to intervene, as it 
is too shall we say, gentlemanly to invade the 
privacy of the individual. The result is that 
women continue to be treated as inferior human 
beings by their husbands and by a society that 
tends to victimise victims instead of help them.

Trying to understand the dichotomy of public and 
private spheres of our legal system is like 
squirming around in quicksand-- the more you want 
to get out the deeper you get stuck in the muck. 
According to Faustina Pereira, a Supreme Court 
Advocate and author of the book 'Fractured 
Scales' that deals with this very issue, the 
legal system of Bangladesh is categorised into 
two distinct branches. One is Constitutional Law 
and the other is General Law or those that are 
not directly governed by the Constitution. The 
Constitution being the supreme law of the land 
demands that any law inconsistent with its 
provisions is void. Thus laws considered under 
the General Law must technically conform to the 
Constitution. Sounds pretty reasonable so far. 
But try getting a firm grip on what 'General Law' 
consists of and it becomes clear why so many 
women prefer to suffer in silence rather than 
take legal help.

"The General Law consists of civil and criminal 
laws," says Pereira who is also Director, 
Advocacy, Research and Legal Aid at Ain O Shalish 
Kendra, "which are governed respectively by the 
Code of Civil Procedure of 1908, the Penal Code 
of 1860 and the Criminal Procedure Code of 1898. 
The Personal or Family Laws are under the General 
Law but mostly are governed by the civil law: 
What's more, matters which directly affect women 
such as marriage, divorce, dower, maintenance, 
guardianship, custody, inheritance and 
restitution of conjugal rights are separately 
governed by each religious community's "religious 
personal law" system. For example, take marriage. 
Muslim parties, says Pereira, are regulated by, 
among others, the Muslim Family Ordinance 1961 or 
the Muslim Marriages and Divorce (Registration) 
Act 1974. Hindu parties are regulated by (among 
others) the Hindu Marriages Disabilities Removal 
Act 1946 or the Hindu Widow's Remarriage Act 
1856. Christian parties to marriage meanwhile, 
come under the Christian Marriage Act 1872.

The existence of separate laws for each community 
means that the kind of justice meted out to a 
woman is determined by the religious community 
she belongs to. Most of these laws are antiquated 
and originate from patriarchal mindsets and 
therefore do little to change the status of women 
as helpless, inferior citizens.

Even some of the articles in the Constitution are 
patronising towards women. Article 28 (1) states: 
The State shall not discriminate against any 
citizens on the grounds of religion, race, cast, 
sex or place of birth. But then Article 28 (4) 
states: Nothing in this article shall prevent the 
State from making special provisions in favour of 
women and children or for the advancement of any 
backward section of citizens. Lumping women with 
'any backward section of the citizens', says 
Pereira, indicates a "prejudicially protective, 
paternalistic attitude". "The language of the 
law, all law, till now, has been the language of 
patriarchs," adds Pereira.

There are also constitutional laws that directly 
discriminate against women. The Citizenship Act 
of 1951, for example, states that only a man can 
transmit nationality. A woman does not have the 
right to transmit her nationality to her children 
or husband. Strangely this prejudicial law has 
existed for decades in other parts of South Asia 
such as India, Pakistan and Sri Lanka. In 1992 
however, the Citizenship Act of India 1955, was 
amended to allow both men and women equal right 
to transmit their nationality to their children 
and spouses. In Bangladesh the Citizenship Act, 
says Pereira, relegates women to second class 
citizenship.

Pereira gives a few examples of what she terms 
ultra-protective laws. "The Factories Act 1934, 
The Tea Plantation Labour ordinance 1962 and The 
Shops and Establishments Act 1965, gravely 
restrict women's right to movement or choice of 
employment. These laws prohibit employment of 
women and children between the hours of 8p.m. and 
6a.m."

There have been some attempts in recent years by 
governments to safeguard women's legal rights and 
improve their social status. The Dowry 
Prohibition Act of 1980 forbids anyone from 
giving or receiving dowry although the practice 
is still very prevalent in our country which 
indicates the lack of enforcement. The Nari-O- 
Shishu Nirjatan Daman Ain 2000 (Law on the 
Suppression of Violence Against Women and 
Children 2000), has for the first time expanded 
the definition of rape considerably although it 
does not acknowledge marital rape. Sexual assault 
and sexual harassment have been made punishable 
offences under this Act. "The overall character 
of this new law is reflective of same level of 
participatory effort," says Pereira. "The law on 
children is one of the best examples of the 
workings of a clear distinction between religion 
as a private matter and the area of personal 
welfare of citizens as subject to state 
intervention. The laws on children and personal 
disputes relating to children such as the 
Guardians and Wards Act, the Majority Act and the 
Child Marriage Restraint Act, are all applied 
uniformly to all children and citizens of 
Bangladesh, irrespective of gender or religion 
despite these areas being clearly within 
religious-personal sphere of citizen's lives," 
she continues.

But religious attitudes, explains Pereira, make 
many such progressive laws ineffective. The 
growing power of religious fundamentalist groups 
has had great influence in thwarting the 
evolution of laws that give equal rights to 
women. Deep-seated cultural practices that form 
the basis of patriarchy and male dominance often 
take precedence in governing people's lives 
rather than existing laws. Women being in 
powerless positions have little access to 
information about the laws and how they can get 
help from the legal system.

Domestic abuse is a taboo subject and considered 
by society and State as being in the 'private 
sphere of the family'. The biggest flaw of "Nari 
O Shishu Nirjatan Daman Ain 2000" is that it does 
not acknowledge the concept of domestic violence, 
says Pereira. Dowry related violence is governed 
by the Nari O Shishu Nirjatan Daman Ain 2000 but 
in order for it to be effective, says Pereira, 
incentives have to be given to women and their 
parents to resist the demands and to come forward 
to bring the perpetrators to justice. "Men and 
their families too have to be brought into the 
scheme of dowry resistance programmes," says 
Pereira.

The issue of sexual harassment, a crime that 
continues to plague women and has often led to 
them taking their own lives, is still treated 
with apathy in the legal system. "It is 
unfortunate," she says, "that the sliver of law 
that was provided in the "Nari O Shishu Nirjatan 
Daman Ain 2000", has been taken away in the 
Amendment (2003) recently. Whereas in India there 
are several levels of safeguards available for 
women in the workforce, especially after the 
landmark Vishaka judgement which provided a 
detailed outline as to how to ensure such 
protection, no such mechanism exists in 
Bangladesh. The whole concept of harassment seems 
to be resisted by lawmakers. Thus if a woman is 
forced to commit suicide or suffer physical harm 
due to provocation and harassment, only that 
death or harm will be taken into cognizance not 
the harassment which preceded it.

One solution Pereira offers in her book, 
'Fractured Scales',to the incongruities of family 
personal laws with the laws of the land, is a 
coherent, uniform system of governance or a code 
of law, something women's rights organisations 
have been harping about for years. In 1996 the 
Bangladesh Mohila Parishad and Ain O Shalish 
Kendra jointly brought out an improved version of 
the original draft of the Uniform Family Code of 
1993 (by the former organisation). Since then the 
draft has been improved upon further with the 
help of other organisations. The Code encompasses 
a wide range of rights for women. For instance, 
under the code a husband and wife has equal 
status and responsibility. Men and women would be 
treated by an equal standard in the matters of 
marriage, divorce, custody and guardianship of 
children as well as inheritance. All marriages 
must be registered under civil law. Child 
marriage would be abolished. The minimum age for 
marriage of both men and women would be 18 years. 
Polygamy would be abolished. Both spouses would 
equally participate in matters of finance. An 
unemployed spouse (whether husband or wife) would 
be entitled to the maintenance from the employed 
spouse. Both parents would be the natural and 
legal guardians of children.

The Code among other things also provides equal 
inheritance rights, the right to adopt by both 
men and women and maintenance of children from 
each parent on the basis of his/her financial 
capability.

A uniform system of individual justice concludes 
Pereira in her book "Fractured Scales" depends on 
the role of law to sustain tolerance and mutual 
respect among citizens and between state and 
citizen.

Pereira has great faith in the women's movement 
in making the legal process more equitable. " 
Since 1972, women's engagement with policy, 
institutions and process has been consistent, 
persistent and sincere. Substantive issues such 
as women's direct election in Parliament and at 
least a one third seats for women in Parliament 
has been consistently demanded as part of the 
women's agenda since 1972. The women's movement 
can and will continue to invest its time, energy 
and intellect to materialise women's legitimate 
claims as a matter of national interest and not 
just a "women's" issue."

The strongest instruments of change in society 
are the laws that it is governed by. There are 
existing laws in the country, which guarantee 
many rights for women. But many of them are 
archaic and need immediate reform or amendment. 
Discriminatory laws need to be abolished and 
replaced with more progressive ones. New laws 
have to be formulated to reflect Bangladesh's 
concurrence with international laws such as the 
Universal Declaration of Rights and CEDAW. While 
religion and culture have to be respected, 
violations of basic human rights in the name of 
religion or tradition must be categorically 
condemned and shunned by the laws of the land. 
Most importantly laws that govern both public and 
personal spheres must be compatible to the 
Constitutional laws and be equally applicable to 
all citizens irrespective of sex, religion or the 
community they belong to.
------------------------------------------------------------------------

The Convention on Elimination of All forms of 
Discrimination Against Women (CEDAW) was adopted 
on December 19, 1979 and came into force as a 
treaty on September 3, 1981 following its 
ratification by twenty countries. Ratification 
obligates governments to pursue a policy of 
eliminating discrimination against women and to 
report on progress in that effort to the UN 
Committee on the Elimination of Discrimination. 
Article 1 of the Convention defines 
discrimination as:

'Any distinction, exclusion or restriction made 
on the basis of sex, which has the effect or 
purpose of impairing or nullifying the 
recognition, enjoyment or exercise by women, 
irrespective of their marital status, on the 
basis of equality of men and women, of human 
rights and fundamental freedoms in the political, 
economic, social, cultural, civil or any other 
field.'

Under Article 2, states are required to 
domestically enforce CEDAW, adopt appropriate 
legislation and other measures to prohibit all 
discrimination against women, modify or abolish 
existing laws, regulations, customs and practices 
which constitute such discrimination.

Other articles of the Convention deal with many 
of the pressing issues that concern women such as 
women's right to determine their own and their 
children's nationality and removal of 
discrimination in education, employment, 
healthcare, social and economic benefits.

Part IV of CEDAW calls for equality before the 
law and equality within marriage and family law. 
Articles under this component for example 
guarantees the same legal capacity as men to 
contract, administer property, appear in courts 
or before tribunals; freedom of movement the 
right to choose where they will live; equal 
rights and responsibilities of women with men in 
marriage; the right to choose when they will have 
children, to choose their family name or 
occupation; and equal rights and responsibilities 
regarding ownership, management and disposition 
of property.

The good news is that more than half of the world 
community has ratified CEDAW. The bad news is 
that a large number of countries-- 168 
states--have submitted reservations. Seventeen of 
these countries have a majority Muslim population 
and includes Bangladesh. Bangladesh continues to 
maintain reservations Articles 2 and 13(a). In 
September 2000, Bangladesh became the first 
country to ratify the Optional Protocol to CEDAW 
which ensures the implementation of the tools to 
eradicate discrimination. Maintaining such 
reservation to the very pledge to eradicate such 
discrimination is therefore contradictory and 
makes the sincerity of the state to remove gender 
discrimination, questionable.
Source: The Fractured Scales by Faustina Pereira
------------------------------------------------------------------------

Did You KnowŠ

-Under Muslim Law, women's capacity to stand as 
witness at a marriage is one half than that of 
men.
-Giving or Taking Dowry is punishable by law.
-Child marriage is punishable by law but the marriage is legally valid!
-Polygamy is punishable under Section 494 of the penal Code.
-Under Muslim Law women are entitled to maintenance as of right.
-While Muslim Law does not allow adoption, under 
Hindu Law only men have the right to take a male 
child for adoption. Hindu women are not allowed 
to adopt.
-Under both Muslim and Hindu laws women do not 
enjoy equal rights of inheritance with men.
------------------------------------------------------------------------

Bangladesh National Women Lawyers Association 
(BNWLA) has been actively involved in rescuing 
women and children from violent and exploitative 
situations and enabling them to get greater 
access to the legal system. The organisation's 
Executive Director Advocate Salma Ali speaks to 
SWM about the primary loopholes in the legal 
process that adversely affect women and how this 
process can be reformed to make it work for women.

What are the main drawbacks in the legal system 
that undermine the rights of women as equal 
citizens?

Some of the main drawbacks are:
a. A woman victim is liable to prove the case by herself.
b. There are many laws such as laws of 
inheritance, family law-- distinctively 
guardianship, custody and divorce that are 
discriminatory towards women.
c. Too much emphasis on medical test reports and 
certificate of injury during legislation which is 
not always practically possible to obtain
d. Lack of eye witnesses in case of domestic violence.
e. Lengthy legal procedure.
f. Corruption among the law enforcing agencies and other related persons.

Has the access of women to the legal system improved over the years?
Though some gaps still exist within the present 
legal procedure, women's access to the legal 
system has improved over the years. Some laws 
have been enacted which have widened the way to 
establish women's rights in all spheres of life. 
In fact establishments of the mediation court, 
enactment of the Acid Throwing Act and the 
formation of Women and Children Repression 
Prevention Tribunal has been treated as great 
steps of Bangladesh Government in this regard. At 
the Government NGO joint level, especially from 
BNWLA's side, initiation of One Stop Crisis 
Centre (OSCC) in different government medical 
colleges has also secured the greater access of 
women who become victims of violence or abuse.

Some issues, which are still lagging behind in 
law making and need immediate attention such as 
domestic violence /wife abuse. According to BNWLA 
official sources, nearly 75-85% of clients 
regularly seek legal assistance to save 
themselves from different forms of domestic 
violence. Most domestic violence occur when the 
woman's family cannot fulfil dowry demands, when 
the wife is reluctant about giving approval for 
second marriage and because of the general lack 
of moral values of the husband and other family 
members. There is also an urgency to form new 
laws to prohibit domestic violence.

In our view in spite of the Speedy Trial Act 
initiated by the Goverment the sufferings of the 
women have not been reduced due to political 
pressure and the case error related stay order of 
the High Court. Apart from that, the absence of 
any clause regarding 'eve teasing' or sexual 
harassment in the recent Women and Children 
Repression (Prevention) Act 2003, has curtailed 
the rights of women. Defective F.I.R. (First 
Information Report) also causes unnecessary agony 
for women and creates obstacles in getting 
justice in time. In view of that there is an 
exigency to strengthen the infrastructure for the 
proper implementation of laws.

Can you cite a successful case study where BNWLA 
have helped a woman through the legal system?
In one case Anika and Salam (not their real 
names) were in love. One day when Anika was ill 
and her mother had left her home to get medicine, 
Salam entered the house and raped Anika. Anika's 
screams for help alerted the neighbours . Later 
Anika and her mother contacted BNWLA through its 
hotline service to seek legal assistance. BNWLA 
filed a case against her boyfriend Salam. Finally 
BNWLA with testimony from Anika's neighbours won 
this case and the accused person received 
lifetime prison and fined five thousand Taka (or 
imprisonment for three months) against his 
charges.This was a major achievement for BNWLA.

Is it difficult for women lawyers to work in a sexist society as ours?
It is challenging for women lawyers to work in a 
male-centred society. After getting recognition 
from the Bar Council, a lawyer has to work with a 
senior lawyer. Sometimes it is difficult to do 
chamber work and practice in court with male 
colleagues, who always consider themselves 
superior. In a sexist society as ours, clients 
think it is better to hire a male lawyer. Sexual 
harassment of women lawyers by their male 
colleagues is not uncommon. This includes 
indecent teasing, obscene gestures and sexist 
remarks. In most cases it is impossible for women 
lawyers to maintain chamber at night. They also 
face insecurity while conducting investigations. 
They hardly get any support from politically 
biased public prosecutors. Family members of 
women lawyers also do not encourage her to 
struggle her in this field. Individually it is 
very difficult for a woman lawyer to pursue her 
career and it is better if she is part of a 
larger group such as BNWLA which can provide a 
certain amount of security and privileges.

What do you think needs to be changed to make the 
legal system accessible and beneficial for women?
-- Though the Bangladesh Constitution, contain 
several articles (10, 27, 28, 29 etc) for the 
protection of women rights, in practice there are 
many inconsistencies with Personal Law.

--The Bangladesh Government is yet to sign a few 
of the articles of CEDAW. Due to that the 
sufferings of women has increased. It is very 
urgent to complete signing all of the articles of 
CEDAW.

--There is a need to amend Muslim law of 
inheritance and family laws Evidence Act, Birth 
Registration Act , Child Marriage Restraint Act 
and Hindu Personal Law as well as the Suppression 
of Immoral Trafficking Act 1933.A new law on 
domestic violence has to be enacted.

--In cases where women are victims of domestic 
violence or torture by the husband, priority 
should be given to circumstantial evidence and 
procedure should be changed accordingly. In cases 
of physical torture, circumstantial evidence 
should be given preference over medical evidence.

--A new injunction procedure needs to be 
initiated to establish the right of the wife to 
stay at the husband's home after filing a suit 
against husband.

--The Criminal Procedure Code must be amended to avoid lengthy procedure.

-- the practice of appointing lawyers simply 
considering their political views has to be 
eliminated.

--There has to be a procedure of accountability of law enforcing agencies.

-- Victim and witness protection services have to be more effective.

--Training of youth groups besides police, 
investigation officers, Kazi, and Imams have to 
be conducted.

--There is an urgency to reform some of the 
sections of the Penal Code. There is also a need 
to have clear definitions of Rape, Sexual 
Harassment and others.

_______



[4]

Magazine Section / The Hindu (India)
March 07, 2004

THE OTHER HALF
Time to reflect and celebrate

Kalpana Sharma

Full Text at the following URL:
www.hindu.com/mag/2004/03/07/stories/2004030700390300.htm