20 points
By Mahfuzur Rahman
Title
Gender Equality: Bangladesh and the UN Convention on the Elimination of all forms of Discrimination against Women (CEDAW)
Supervisor
Autumn 2003
Contents
SUMMARY..........................................................................................1 ACKNOWLEDGEMENT ....................................................................2 ABBREVIATIONS..............................................................................3 1 . INTRODUCTION............................................................................4 2 . CONCEPT OF GENDER EQUALITY............................................7
2.1Gender..........................................................................................................................7 2.2 Gender Equality.........................................................................................................7 2.3 Gender Mainstreaming.............................................................................................8
3.3 International Covenant on Economic, Social and Cultural Rights (ICESCR) And The International Covenant on Civil and Political Rights (ICCPR) ..........................................................................................................................................12 3.4 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)..........................................................................................................13 3.4.1 Introduction...........................................................................13 3.4.2 Obligation of States under CEDAW.........................................14 3.4.3 Respect, Protect, Fulfil and Promote CEDAW.................................16
Summary
This Thesis constitutes the Gender Equality: Bangladesh and the UN Convention on the Elimination of all forms of Discrimination against Women (CEDAW) .The object of this thesis is to highlight the Gender equality in Bangladesh and the Bangladesh Government obligation under CEDAW and the discrepancy of national legislation comparison with CEDAW which have been ratified by Government of Bangladesh (GOB) in 1984 with few reservations. But yet GOB did not make enough measure to ensure equal rights for man and women. This paper will assist GOB to ensure equal rights for man and women in Bangladesh in the perspective of CEDAW. Because CEDAW is only one international instrument which ensure the equal enjoyment of civil, political, economic, social and cultural rights for women. Whether GOB has ratified the International Convention of Civil and Political Rights (ICCPR) and International Convention of Economic Social and Cultural Rights (ICESCR) but did not ratify the optional protocol of ICCPR, but GOB has ratified the optional protocol of CEDAW. It is also outline the present situation of women in Bangladesh and problem and obstacle to ensure the gender equality. It has also been designed to provide guidance as to how CEDAW would implement in Bangladesh national legal system and the remove the discrepancy of discriminatory law of gender equality. This paper focuses on the following key areas, Introduction; Concept of Gender Equality; Main International Instruments Concerning Equal Rights; Gender Equality and Law; Gender Equality in the Education and Health; Gender Equality and Employment; Gender Based Violence; Government Measures to Enforce CEDAW in Bangladesh; The role of NGOs to promote Gender Equality. Finally I would like to mention some suggestions and how far CEDAW could applicable in the national legislation in the Chapter Recommendation and Conclusion.
Acknowledgement
How can I express my all feelings in this short space of acknowledgement to whom I owe heavily to gratitude to my supervisor Professor Gran Melander, Chairman of the Board, The Raoul Wallenberg Institute, Lund University, Sweden, who paid very kind guidance and help in completing this thesis.
International Human Rights Law Programme. My heartiest gratitude goes on to the Professor Gudmundur Alfredsson
, Director of the Raoul Wallenberg Institute, for his kind advice . I wish to express my gratitude to the Librarian and staffs of the Raoul Wallenberg Institute of their good support. Finally I want to thank all of my colleagues whose co-operation and encourage assist me a lot to complete this Master thesis. Lund, 2003
Abbreviations
ADB- Asian Development Bank BRAC-Bangladesh Rural Advancement Committee CEDAW- Convention on the Elimination of all forms of Discrimination against Women. GOB- Government of Bangladesh ICCPR-International Covenant of Civil and Political Rights ICESCR- International Covenant of Economic Social and Cultural Rights ILO- International Labor Organization MOWCA- Ministry of Women and Children Affairs MFLO- Muslim Family Law Ordinance NCWD- National Council for Women Development NAP- National Action Plan SNA- Sectoral Needs Assessment STD -Sexually Transmitted Disease UDHR- Universal Declaration of Human Rights UN -United Nations
. Introduction
Gender is an old word, which has taken on a new meaning. Sex is a fact of human biology; we are born male or female. On this biological difference we construct a structure of social attitudes and assumptions, behaviors and activities and these are our gender roles and identities. Gender analysis reveals the roles and relationships of women and men in society and the inequalities in those relationships. Gender equality objectives may find their rationale in the equal rights perspective, equal rights for women being part of the framework of universal human rights. As such, the goal of gender equality deserves support in its own rights. Equality is the foundation of every society, which aspires to democracy, social justice and human rights. In virtually all societies and spheres of activity, women are subjected to inequalities in law and in fact. Human rights and fundamental freedoms are the inherent rights of every human being. Since states of the world have recognised and affirmed faith and commitment on the Universal Declaration of human Rights, the responsibility goes to the government to translate their faith and commitment into reality. Practically, the people worldwide are deprived of the taste of human rights and fundamental freedoms to a great extent. Women worldwide are groaning under heavy pressure of inhumanity. It is an undeniable fact that, of all violations, the denial of womens rights is the most grievous and blameworthy, as there is a tendency of treating women as sub-human. Human rights terminology embodies the demand that the unequal status of women be addressed as a violation of their rights, as breach of the obligations of governments to guarantee equal rights to all. . Discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men. In the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of
society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity. [CEDAW, preamble] The CEDAW is one of the mostly recognized international instrument for the no-discrimination against women. It has been long time international agenda to ensuring and eliminating discrimination against women. Before CEDAW there has been adopted many international human rights instrument but there was none for specifically women human rights and nondiscrimination against women. Therefore, CEDAW has been adopted in 18 December 1979 considered as a most extensive international instrument for gender equality. Bangladesh is a one of the most densely populated and poor country in the world more than 146.7 million (UN, 2003) people in the size of 144,000 sq. km1. Few countries have more men than women, Bangladesh is one of them. In Bangladesh in 2000, there were 106 males for 100 females, based on the estimated population (UN, Social Indicators). This is due to a large undercount of females during censuses and to mortality rate that is higher for women than for men .The projected life expectancy for women is 60.92 years, whereas it is 61.8 for men2, a difference of only one year. Gender discrimination is widespread in all spheres and at all levels in Bangladesh such as legal rights, health, nutrition, education, employment and political participation. Bangladesh is one of the states parties to CEDAW and is under an obligation to take the measures required by the convention to eliminate discrimination and ensure the equal enjoyment of human rights by women. Though there are different agents and factors contributing to the enforcement of human rights, the role played by the government is pivotal. The human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights. The full and equal participation
CIA , The World Fact Book, 1st August 2003, http://www.cia.gov/cia/publications/factbook/geos/bg.html 2 Quick Reference Guides on Bangladesh - People: Life expectancy at birth (Facts About Bangladesh), http://www.reference-guides.com
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of women in political, civil, economic, social and cultural life, at the national, regional and international levels, and the eradication of all forms of discrimination on grounds of sex are priority objectives of the international community. (The Vienna Declaration and Programme of Action, Part I, Para 18) 3 Therefore, this paper shall attempt to examine the gender equality in Bangladesh in the perspective of CEDAW and the Government measures to eliminate the discrepancy for equal rights of women.
adopted by the World Conference on Human Rights, Vienna, 25 June 1993 (A/CONF. 157/24 (Part I), chap. III)
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and men sometimes are required to achieve sameness of results, because of different life conditions or to compensate for past discrimination.6 Gender equality, equality between men and women, entails the concept that all human beings, both men and women, are free to develop their personal abilities and make choices without the limitations set by stereotypes, rigid gender roles and prejudices. Gender equality means that the different behavior, aspirations and needs of women and men are considered, valued and favored equality. It does not mean that women and men have to become the same, but that their rights, responsibilities and opportunities will not depend on whether they are born male or female. Gender equity means fairness of treatment for women and men, according to their respective needs. This may include equal treatment or treatment that is different but which is considered equivalent in terms of rights, benefits, obligations and opportunities7.
Ibid. Ibid. p. 48
taking into account such possible effects when defining and implementing them. Action to promote equality requires an ambitious approach, which presupposes the recognition of male and female identities and the willingness to establish a balanced distribution of responsibilities between women and men. The promotion of equality must not be confused with the simple objective of balancing the statistics: it is a question of promoting long-lasting changes in parental roles, family structures, institutional practices, the organization of work and time, their personal development and independence, but also concerns men and the whole of society, in which it can encourage progress and be a token of democracy and pluralism. "The systematic consideration of the differences between the conditions, situations and needs of women and men in all Community policies and actions: this is the basic feature of the principle of mainstreaming. This does not mean simply making Community programmes or resources more accessible to women, but rather the simultaneous mobilization of legal instruments, financial resources and the Community's analytical and organizational capacities in order to introduce in all areas the desire to build balanced relationships between women and men. In this respect it is necessary and important to base the policy of equality between women and men on a sound statistical analysis of the situation of women and men in the various areas of life and the changes taking place in societies9.
Britha Mikkelsen, Team leader Ted Freeman, Team leader,Mirza Najmul Huda Sevilla Leowinatha Jowshan A. Rahman Mainstreaming Gender Equality, Sidas support for the promotion of gender equality in partner countries Country Report Bangladesh, , A Sida EVALUATION REPORT 02/01:1
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See Articles 1(3), 13(1) (b), 55(c), 62(2) and 76 (c) of the UN Charter 1945
Thomas Buergenthal in: Steiner, Henry J./Alston, Philip, International Human Rights in Context, Clarendon Press, Oxford (1996) p 143 13 See, Articles 1, 2 and 7 of the UDHR 1948.
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Declaration of Human Rights (UDHR)14. The Universal Declaration of Human Rights (UDHR), adopted in 1948, proclaims numerous rights to which people everywhere are entitled. A "common standard of achievement for all peoples and of all nations", the Declaration delineates civil and political rights such as the right to freedom from torture, illegal arrest, free speech and freedom of conscience. It also establishes "freedom from want" as an essential dimension of human rights and dignity. Consequently, it encompasses economic, social and cultural rights, including work-related rights, the right to social security, the right to education, and the right to an adequate standard of living. The UDHR was followed by other instruments, including the Convention against Genocide (1948) and the Convention on the Elimination of Racial Discrimination (1965). In 1966, two overarching human rights treaties - the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR) - were adopted, which together with the UDHR form the International Bill of Human Rights providing the source of the core standards of international human rights law. The Covenants elaborate many of the rights in the UDHR, albeit with greater detail, and also address the protection of particular categories of people, including refugees and children. In contrast to the UDHR, however, they are multilateral treaties, which upon ratification or accession create binding international legal obligations for the State concerned. The principle of the equal rights of women and men is contained in the Charter of the United Nations, the Universal Declaration of Human Rights and all subsequent major international human rights instruments. It is most comprehensively elaborated in the Convention on the Elimination of All Forms of Discrimination against Women, which codifies women's rights to non-discrimination on the basis of sex, and equality as self-standing norms in international law. It also establishes that women and men are entitled, on a basis of equality, to the enjoyment and exercise of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any
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other field and thus moves beyond the two Covenants by incorporating both families of rights in one instrument, establishing them as mutually reinforcing15.
3.3 International Covenant on Economic, Social and Cultural Rights (ICESCR) And The International Covenant on Civil and Political Rights (ICCPR)
International Covenant on Economic, Social and Cultural Rights (ICESCR) and The International Covenant on Civil and Political Rights (ICCPR) have opened for signature, ratification and accession by the General Assembly of the United Nations 1966 and entered into force 1976. Under Article 2 of the Conventions States undertake to ensure all individuals within their territory the rights recognized in the Conventions without distinction of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. But the non-discrimination guarantee under the ICCPR goes further since, in addition to the prohibition of the discrimination in regard to the rights provided for in the Conventions, the ICCPR includes an autonomous right of all persons not to be subjected to discrimination, but Article 26 states that: All persons are equal before the law and are entitled without any discrimination to the equal protection to the law. In this respect, the law shall prohibit any discrimination on any ground such as race, color , sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 26 prohibits discrimination in law or in fact any field regulated and protected by public authorities16. The non-discrimination principle is not limited to the rights set forth in the Convention, but can also be applied to economic, social and cultural rights. Gender specific discrimination is not only prohibited by the general nondiscrimination clauses in Art.2 (1) and 26 of the ICCPR. In addition, states parties in Art. 3 undertake the specific obligation to ensure the equal right of
Professor Savitri Goonesekere A rights-based approach to realizing gender equality, , 1998 news, DAW news archives, http://www.un.org/womenwatch/daw/index.html 16 General Comments of the Human Rights Committee No. 18 (1989) on nondiscrimination, para. 12. UN doc. A/45/40, p. 173-175.
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man and women to enjoyment of all civil and political rights set forth in the Covenant17.
3.4 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)
3.4.1 Introduction
For more than a hundred years the issue of womens rights and equality for women has been salient in public debate. The Convention for the Elimination of Discrimination Against Women (CEDAW) is an international treaty intended to guarantee rights for women, and represents the culmination of the 19th century movement for womens rights. The Convention sets standards for women's rights in the political, cultural, economic, social, and family sectors, and delineates many forms of gender discrimination. Furthermore, the Convention calls for specific actions to remedy discrimination18. The United Nations General Assembly adopted CEDAW on December 18, 1979, and the Convention entered into force on September 3, 1981, after it had been ratified by 20 states. As of early 2003, 174 states have ratified the treaty19. A wide principle of non-discrimination is introduced in Article 1 of the CEDAW which stipulates that discrimination against women should be understood 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 a basis of equality of men and women, of human rights and fundamental freedom in the political, economic, social, cultural, civil or any other field.
Wolfgang Benedek, Esther M. Kisaakye and Gerd Oberleitner, The Human Rights of Women: International Instruments and African Experiences, World University Service, Austria, 2002, Manfred Nowak, The Prohibition of Gender-specific Discrimination under the International Covenant on Civil and Political Rights, at P 107-108. 18 Ratification of CEDAW (Convention for the Elimination of Discrimination Against Women) , Michael Kevane, Preliminary draft - comments welcome , March 10, 2003
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United Nations Division for the Advancement of Women, http://www.un.org/womenwatch/daw/cedaw/states.htm, last visited 25 th September 2003
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required to incorporate a principle of equality in their constitution and to ensure its implementation. They are also expected to prohibit discrimination against women, provide legal protection for the equal rights of women and to ensure the effectiveness of such protection through national tribunals and other public institutions. Article 2, in addition obligates states not only to refrain from discriminating against women but also to take appropriate measures to eliminate discrimination against women by non-state agents. The obligation of states to take appropriate measures to modify or abolish existing laws, customs and practices, which constitute discrimination against women, is also contained under the article. Unlike other treaties, the CEDAW convention calls for the elimination of all forms of discrimination of all Sex discrimination. In other words instead of calling for gender neutrality (i.e. the same treatment for man men and women), the convention prohibits any practices that perpetuate womens inequality21. As Rebecca Cook points out (Cook, 1995), under the womens convention states assume obligations of both means and results, that is both obligations to act by a specific means towards the achievement of aspirational goals and obligations to achieve results by whatever means are determined to be appropriate22. This obligation is further strengthened by article 5 of the convention. Article 5 of the convention hence, obligates states parties to eliminate cultural and other practices based on the prejudice of the stereotyped roles for men and women. The obligation of states under article 3 is not confined to prohibiting discriminatory laws and practices. Rather, it goes ahead and requires states to ensure the full development and advancement of women so as to guarantee the equal enjoyment of human rights. The states have to make sure that there is no obstacle barring women from enjoying their rights. This in turn entails an obligation of changing or modifying laws and practices that are overtly discriminatory as well as those that are neutral on their face and have discriminatory effect. Therefore this article will catch discriminatory
Julie Mertus, Florence Butegwa DorotyQ,Thomas, Morgaret A.Schuler, Women, Law & Development International and Human Rights watch womens Rights project, Women Human Rights Step by Step, Practical Guide to Using International Human Rights Law and Mechanisms to Defend Womens Human Rights, 1997, P-36 22 Ibid.
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practices that may not be covered by the definition under article one. In
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addition to the changing or modification of discriminatory laws and practices, states are to take measures aimed at the full development and advancement of women. One possible way of bringing about the full development and advancement of women to enable them enjoys their human rights equally is the taking of temporary special measures under article 4 of CEDAW. The provision further indicates that such measures aimed at accelerating the de facto equality of women are to be discontinued when equality is attained. The specific provisions of CEDAW, which deal with certain rights, reiterate the general obligations elaborated above. The provisions obligate states to recognize the equal rights of women indifferent areas and to ensure the equality of women before the law.24 Thus, states are expected to take all appropriate measures to ensure the equal rights of women in political and public life, education, health care, employment, marriage and family relations, economic and social life and to pay special attention to the situation of rural women25. Article 24 reinforces the obligation of states contained in the general and specific provisions by calling up on states to take all necessary measures towards the realization of the rights recognized by the convention. The obligations of states under CEDAW touch up on the different categories of duties discussed earlier. Hence, the obligations of states to respect, protect, fulfill and promote are incorporated .
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discriminating against them both formally and in practice. Hence, states are obligated to abolish discriminatory laws if any. They are also required to ensure that their organs do not discriminate against women in any way. The duty to take measures to protect women against discrimination constitutes the obligation to protect. Since the obligation to respect affords protection against discrimination by state organs, it could be said that this duty implies the obligation of states to afford protection on the horizontal level. Therefore states in addition to their obligations not to discriminate against women should protect them against discrimination by private parties. This could be achieved though the enactment of laws and the provision of appropriate implementation machinery. The obligation to provide or fulfill, on the other hand, obligates states to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of the rights protected by the convention. In other words states should take a variety measures aimed at ensuring the elimination of discrimination against women, the equal participation of women in different aspects of life and the equal enjoyment of human rights by them. The duty to promote finally obligates states to undertake promotional activities to modify customs and practices that constitute discrimination against women and are obstacles to the equal enjoyment of human rights by women. The obligations of states to respect, protect, provide and promote extend to all the rights recognized by the convention. It is indicated under article one that the conventions goal of eliminating discrimination against women extends to all human rights and freedoms in political, economic, social, and cultural or any other field. This indicates that the convention is not limited to the rights reiterated in its provisions and resort should be had to other instruments dealing with the specific rights such as ICCPR and ICESCR to give content to the protection it affords. Therefore, CEDAW aims to ensure the equal enjoyment of the rights guaranteed by other human rights instruments while at the same time singles out issues that have proved to be problematic in most parts of the world. The committee established under article 17, as was indicated earlier has the task of following up the implementation of the convention by states parties. The 17
committee discharges its task by reviewing state reports, which are submitted to it according to article 18. States parties, therefore, have an additional obligation to submit reports to the committee on the measures they have taken to implement the convention. The committee after reviewing the reports submitted issues recommendations. State parties, then are expected to take measures in compliance with the recommendations of the committee. The following chapters will attempt to review the national legislation of Bangladesh in light of CEDAW.
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grounds that it is in its nature unsuited to the members of opposite sex. This is undoubtedly a breach of equal rights and thus points out that the framers of the constitution could not fail to acknowledge tacitly the fact of inequality present in the status of women. It is also inconsistency with the article 2 of CEDAW which states that States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women. But problem is that Bangladesh has made a reservation on article 2 of CEDAW.
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the constitution, penal codes, the civil and criminal procedure codes, evidence act etc. Though the Constitution guarantees equal rights for men and women in public life it does not extend this to the private sphere where the various personal laws based on religion are recognized. These are some discrepancy with regard to various provisions such as marriage and divorce, inheritance, guardianship, etc. Now I would like to describe the Muslim family legislation in Bangladesh in regards with CEDAW.
4.2.2 Marriage
In classical Muslim law it is permissible for every Muslim of sound mind, who has attained puberty, to enter into a contract of marriage. Under Muslim law, a marriage is a contract between two individuals, and the consent of both parents before witness is essential for the contract to be considered valid. The Muslim Family Laws Ordinance 1961 specifies the legal age of marriage at 18 years for women and 21 years for men, which is not equal man and women to get marry. A Muslim male can contract valid marriage with a Muslim as also with a Ketabi (Jew or Christian). But his marriage with idolatries will be irregular. On the other hand, A Muslim woman may not contract a valid marriage with any one else but a Muslim. A marriage with a Christian or a Jew would be irregular while a marriage with a Hindu would be invalid (that is any children born would be illegitimate) but the marriage of a Muslim woman to a nonMuslim is not accepted i.e. not legal30. Marriages of Muslim men to Hindu women and Muslim women to non-Muslim men have to take place in civil courts with the spouses declaring that they do not practice any religious faith. This inequality to enter marriage is incompatible with constitution and CEDAW article 16 (1) (a), which states the equal rights to enter into marriage. However The Committee on the Rights of the Child insists that the minimum age for marriage should be equal for both sexes in order to eliminate this discriminatory heritage which is prevalent worldwide.
Law for Muslim Women in Bangladesh, Sultana Kamal- Advocate- Bangladesh. See http://www.wluml.org/english/pubs/pdf/dossier4/D4-Bangladesh.pdf.
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4.2.3 Consent
Consent is the one of the primary requirement for marriage. The right to marry, including the requirement of free and full consent by each of the intending spouses, is clearly established under international human rights law and protected by national laws in many jurisdictions. However, customary and traditional practices, exacerbated by ineffective enforcement of the law, and inappropriate policies and procedures, constrain the practical realization of this right31. In practice forced marriage is a common incident in Bangladesh. Forced marriage clearly violates a range of fundamental rights guaranteed by the Constitution of Bangladesh. Although the right to marry is not explicitly protected by legislation in Bangladesh. Further, forcing any person into a marriage is a punishable offence under the criminal laws. In the most clear articulation of forced marriage as a harmful traditional practice that cannot be justified in the name of culture or religion. Abduction for the purpose of forced marriage is explicitly criminalized32. In extreme cases, prosecutions may also be brought for offences committed in the course of a forced marriage, such as murder, rape, slavery and wrongful confinement33 Forced marriage goes against the provisions of the Constitution and CEDAW, which guarantee the right to marry with free and full consent.
The UN Committee on the Elimination of All Forms of Discrimination has found that forced marriage marriages arranged for payment or preferment on the basis of custom, religious beliefs or the ethnic origins of particular groups of people continues to prevail in a number of countries; in relation to cases in the UK. See the UN Committee on the Elimination of All Forms of Discrimination (CEDAW), General Recommendation No 21.
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Penal Code 1860, s 366 : Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will or in order that she may be forced or seduced to illicit intercourse, or knowing is to be likely that she will be forced or seduced to illicit intercourse shall be punished [with imprisonment ] and whoever by means of criminal intimidation or abuse of authority or any other method of compulsion induces any woman to go from any place
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with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.
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Bangladesh has also ratified the Convention on Consent to Marriage, Minimum Age for marriage and Registration of Marriages, 196234.
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generally not used as the social custom or providing dowry has become so pervasive and accepted that it is not possible to give a daughter in marriage without it. Dowry is a big problem in Bangladesh especially in rural area, which is violating the article 16 of CEDAW.
4.2.5 Polygamy
Limited polygamy is permitted under traditional Muslim Law .A Muslim male can take four wives at a time under certain condition, but a Muslim woman cannot take more than one husband. Even a male marries having already four wives. The fifth marriage is not void, but only irregular. Though Islamic Law vastly improved the then status of woman, the idea of woman being a property could not be altogether thrown away as can be found from the permissibility of plurality of wives. According to the Sharia a man may take up to four wives but only if he can treat them all equally. Therefore after marriage he is obligated to treat them all equally. Otherwise the same rights and responsibilities of spouses towards each other apply as do in monogamous marriages. In Bangladesh, polygamy has become an established part of traditional Islamic Law and practice. Polygamy is permitted under Section 6 of Muslim Family Law Ordinance 1961.However, realizing the evil effects of and the injustice inherent in the polygamy of men Muslim Family Laws Ordinance, 1961 was passed. Sec.6 of the Ordinance provides that no man, during the subsistence of existing marriage, shall contract another marriage without prior written permission of Arbitration Council and violation of this provision entails liability of conviction and punishment. The Arbitration Council while dealing with an application for permission to marry during the subsistence of a marriage would consider whether the existing wife consents to such marriage and whether it is necessary and just to grant the permission. But this legislation failed to produce the desired result because due to protracted procedure in courts few inclined to bring violations to court and because the Arbitration Council being consisted by males very often were not un-willing to accord permission on the slightest pretexts. The law did not make adequate provision to control the discretion of the Arbitration council.
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The CEDAW Committee found that polygamy conflicted with the wording and sprit of the Convention and noted that some States parties, whose constitutions guarantee equal rights, permit polygamous marriage in accordance with personal or customary law. This violates the constitutional rights of women, and breaches the provisions of the Convention35. Many Muslim country has changed and ban the polygamy. For example Tunisia has banned the polygamy. Bangladesh could follow the Tunisian example. Besides polygamy is also prohibited by International Human Rights Law.
4.2.6 Divorce
It is in the field of divorce that the most flagrant inequality between husband and wife exists in the Sharia law. The husband has the right of unilateral divorce, for no cause at all. The wife has no such right, and when her husband exercises his right, the wife has no redress. The women can have judicial separation on specified grounds through intervention of Court. Muslim marriage can be dissolved by agreement between the husband and wife and it may take the force of Khula or Mubarrat. In Khula, the marriage is dissolved by an agreement between the parties for a consideration paid, or to be paid, by the wife to the husband, it being necessary condition that the desire to separate should come from the wife. Where desire to the separation is mutual, it is said to be Mubarat. A wife is entitled to Khula as of right or restoration of what she had received in consideration of marriage, if she satisfies the conscience of the court that it will otherwise mean forcing her into a hateful union. As stated above, a Muslim female does not have the right to divorce in the way a male has, but she could seek judicial divorce on grounds permitted by Muslim Law. The Dissolution of Muslim Marriage Act, 1939 (Act N VIII of 1939 (Vide Pakistan Code 1966, Vol.IX, P.716). was passed in order to consolidate and to clarify those grounds and also to add some new grounds. A wife is entitled to obtain a judicial divorce on neglect or failure of the husband to provide maintenance for two years. But if the wife refuses herself to her husband without any lawful excuse and deserts her husband, or otherwise willfully fails to perform her marital duties, she has no right to
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claim maintenance and cannot obtain a decree for dissolution of marriage on the ground of nonpayment of maintenance. The fact that the wife is a woman of means would not be a defense to the claim of judicial divorce for nonpayment of maintenance. A Muslim woman can obtain judicial divorce on any ground recognized by Muslim Law. Thus a wife is entitled to judicial divorce if the husband brings false charge of adultery against her unless the husband bona fide retracts the charge of adultery. To constitute a valid retraction, it must be made before the commencement of the hearing of the suit, it must be bona fide and there must be an admission by the husband about making the charge and an unconditional acknowledgement by him that the charge is false. Incompatibility of temperament as results in a hateful union has been accepted as a ground for seeking judicial divorce. Before the Dissolution of Muslim Marriage Act 1939 apostasy from Islam of either party operated as a complete and immediate dissolution of marriage. After passing of the Act, apostasy from Islam of the wife does not dissolve the marriage (Sec.4 of the Act) while apostasy of the husband dissolves the marriage immediately36. In Bangladesh with the introduction of the Muslim Family Law Ordinance 1961, section 7 of the Ordinance provides that Divorce given by the husband shall not take effect until the husband has given notice of the Divorce to the chairman of local administrative unit, Union Parishad37 and ninety days have elapsed after issuance of the said notice and within the said period the husband can revoke the Divorce. The husband is also to give a copy of the said notice to the wife. The Chairman on receipt of the notice would constitute Arbitration Council for effecting a re-conciliation, which, if successful, would render the divorce ineffective. It is an offence not only to notify the Chairman about exercise of Divorce by the husband. The provisions of Sec. 7 of the Ordinance apply mutatis mutandis in case of divorce exercised by the wife and the divorce does not take effect unless notice thereof is given to the Chairman and 90 days have elapsed thereafter. According to the Muslim Family Law ordinance the husband can delegate his power of divorce to his unconditionally or with condition and that is called
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Talak-e-Tawfeez. When any condition is stipulated the wife can divorce her husband in the happening of that condition. Now the divorced parties can remarry without the formality of the marriage with third party. (Sec7 (6), Muslim Family Laws Ordinance, 1961.). Still there are some inconsistencies to equal rights in the field of desolation of marriage. Where the unequal provision is inconsistent with CEDAW article 16(1) (c) which states same rights and responsibilities during marriage and at its dissolution. But regret is that Bangladesh has still reservation on this article.
4.2.7 Maintenance
In accordance with Muslim Law, the father is bound to maintain his daughter until she is married. The fact that the mother has the custody of the daughter till the latter attains puberty does not relieve the father of his obligation to maintain the daughter. If the father is poor, but the mother is in easy circumstances, the mother has the obligation to maintain the daughter. But a father is not bound to maintain a daughter who is capable of being maintained out of her own property. A Muslim mother is entitled to maintenance from her son if she is poor or if the son is financially solvent. A Muslim husband is bound to maintain his wife so long the wife remains faithful to him and obeys his reasonable orders. If the wife refuses herself to her husband without any lawful excuse and deserts her husband or otherwise willfully fails to perform her marital obligations she has no right to claim maintenance from the husband. But if the wife refuses to perform her marital obligations on the failure of the husband to pay the prompt dower the husband will not be absolved of his liability to maintain his wife. A Muslim woman in the event of divorce is entitled to maintenance by the husband till the expiry of the period of Iddat (e.i.90 days, and in case of a pregnant wife till the end of the Pregnancy). A Muslim male maintains his daughter as best as his means permit and a husband also maintains his wife to the best of his ability so long the relationship remains good, but if the relationship is estranged, the condition
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of the wife is very difficult. The social milieu and cumbersome court procedure made it difficult for the wife to have maintenance through Court. Muslim Family Laws Ordinance, 1961 tried to evolve a procedure through which the wife can easily have her remedy, but it has not produced any appreciable improvement. The Family Courts Ordinance, 1985, however, has been promulgated to deal with divorce and related matters and provisions have been made to dispose the cases of within the shortest time possible. A Muslim widow is essentially dependent on her son, for, generally even her share in the property of her husband remains in the hands of the son and ironically enough, her fate depends upon the attitude of the daughter-in-law. But if the widow has no son to depend upon the relations of the husband; her condition in most cases is miserable.
4.2.8 Guardianship
In the matter of guardianship of children, a Muslim woman is definitely at odds. Under Muslim Law, the mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the child. But she is not the natural guardian either of the person or property of the child; the father alone, or if he is dead, his executor is the legal guardian. In any event, in Muslim Law, the mother is never entitled to the guardianship of her children. However, a mother is always entitled in the first instance to the care and custody of her young children. Her sons she may keep till they are seven, and her daughters till puberty. The father is responsible for their maintenance during that period. A mother may lose custody of her children, particularity her daughters, if she re-marries a stranger, someone that is, who is not barred to the children by the rule of consanguinity. These are the basic rules, but they have been modified, not only by the Guardian and Wards Act, but there is also a fairly substantial amount of case-law on the subject, which on the whole has been very sane38. It is laid down by the Guardian and Wards Act, 1890 that the courts have stated that these provisions are for the benefit and protection of the child, and that it is the courts paramount duty to consider the welfare of the children over the rights of the parents.
Salma Sobhan - Legal Status of Women in Bangladesh, Bangladesh Institute of Law and international Affairs, Dhaka 1978, p. 29
38
28
This provision is inconsistency with CEDAW article 16 (1) (f), which states; the same rights and responsibilities with regard to guardianship, ward ship, and trusteeship
29
husband, though the husband gets exactly double. Mother gets from the estate of her sons one-sixth when there is child of her son or when there are two or more brothers or sisters or one brother and one sister of her son, and one third when there is no child and not more than one brother or sister of her son. On the other hand, the father gets from the estate of his son onesixth if there be child of his son and in the absence of any child of his son, he gets the entire residue after satisfying other sharers claim, and so on and so forth.41 It is significant that the Holy Quran has provided that daughter, mother and wife would under all circumstances be entitled to some share in the inheritance and are not liable to exclusion from inheritance, but they are not treated at par with their male counterparts, i.e. son, father and husband and to this extent rules of inheritance are discriminatory. Women in fact were not given parity in the matter of their shares and as a general rule; the female is given one-half the share of the male. The case of sister's inheritance is equally discriminatory. According to the rule of nearer in relationship excluding the remoter in relationship, children of a pre-deceased son or daughter would not inherit if a person died leaving another son. This often rendered the child or child of pre-deceased child destitute. This inequity, however, has been removed by Muslim Family Laws Ordinance, 1961 42 which provides that the children of the predeceased child would inherit the share which the pre-deceased children would have inherited had he or she been alive. But the widow of a predeceased son remains as helpless as before as she does not inherit anything of this ordinance. So far as testamentary succession is concerned, a Muslim cannot bequeath more than a third of his estate and this can only be to some one who is not already an heir. Therefore, a Muslim cannot by "Will" bequeath all property to his only daughter if there are other heirs. But a will in excess of the legal third may be validated by the consent of the heirs, as may a will to any heir. Laws of inheritance are also violated. The inheritance due to a widow and sister is often used by sons and brothers. There are many instances of abuse of the law of inheritance.
Ibid., at p-72 An ordinance to give effect to certain recommendations of the Commission on Marriage and Family Laws dealing with succession, registration of marriage, polygamy, divorce, maintenance, dower, ect.
41 42
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If a widow demands her rightful inheritance, she is expected to live in her husbands household and not with her parents. Many daughters do not claim their share of the inheritance but give it to their brothers, and so remain on good terms and avoid the risk of being rejected43. Inequality in the field of right to inheritance in inconsistence with article 16 (1) (h) of CEDAW which states; the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.
In case of divorce of widowhood, many require the assistance of their brothers-either in the form of advice, or for running errands, or for assistance in dealing with the outside world, or for finance. To ensure this assistance, many women do not claim their rightful inheritance. 44 CEDAW Bangladesh report 1st April 1997
43
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daughters and married daughters with sons can inherit. Married daughters with only daughters and barren married daughters beyond the childbearing age and widows without sons do not inherit. Bangladesh government did not have any reservation about Hindu personal law in the CEDAW. Bangladesh government could take initiative to reform the Hindu law. A suit is required for dissolution of marriage for Christian. Divorce is allowed by the Divorce Act 1869 whereby both men and women can apply to the court for dissolution of marriage. Christian men can divorce their wives for adultery alone but a Christian women has to prove adultery and one other matrimonial offence45. Polygamy is prohibited. Marriage while already being married is illegal. The husband is liable to the offence of bigamy, which is punishable under Section 494 of the Penal Code 1868. Christians provide for equal inheritance between sons and daughters and wills can be made to bequeath property. Christian women's inheritance is guided by the Succession Act of 1925.
to reserved seats for women in all the three-tiers of the local government47.
Ibid. Bangladesh Constitution 1972 Article 65 (3), This provision was created through a constitutional amendment in 1979 as a temporary special measure for 10 years. It was renewed for a second, ten-year term in 1999. 47 Namely the zilla/district, upazila/sub-district and union levels. However only the Union Parishadfunctions as a local government. The other tiers, which exist in theory, have yet o be activated by Parliament
45 46
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Notwithstanding all barriers of purdah (literally: veiled) and patriarchy, women have become more politically visible in the last two decades. A quota has ensured women's presence in the local government and National Parliament. Among women politicians, the older group entered politics through social work, while some among them and the new generation of women have emerged from student politics. Despite many odds, statistics and analyses reveal a slowly growing trend towards women's political participation. However, they face an ominous challenge. It is very difficult for women to work effectively in this system unless such practices are eradicated.
33
Declaration on Women's Rights step-by-step. The Awami League, the major opposition party, stresses the principle of fundamental human rights. Gender equity is mentioned in terms of social and political rights. The left-wing parties recognize that gender equity should be established. However, women's issues are not given any priority by political parties. There is no agenda or plan of action and no recommendation for legal or electoral reforms. The Jamaat-e-Islami does not believe in gender equality and even expressed its explicit preference for gender segregation in all spheres of life. But the notion of gender equity is gaining ground at a slow pace48. A lively debate is taking place around increasing the number of reserved seats for women in the Parliament from 30 to 64, to represent all the districts. An equally strong demand is raised by womens organizations to fill these seats through direct election rather than selection by the majority party in Parliament. CEDAW under articles 7 and 8 obligates states to take all the necessary measure to ensure the equal participation of women in public and political life. The Committee noted the positive impact of the presence of 30 reserved seats for women in Parliament and local bodies, as well as in the public sector. It especially appreciated the fact that Bangladesh was one of the few countries in the world with a female Prime Minister and a female Leader of the Opposition.
4.9 Nationality
Nationality defines an individuals relationship with a State, and give rise to rights and duties under international and domestic law49. Nationality in Bangladesh is determined by birth. Although no reservation has been made to this article 9 of the CEDAW the Bangladeshi Citizenship Act is discriminatory. Women have equal rights with men to acquire, change or retain their nationality. They can obtain passports without the signatures of their husbands or fathers. However they do not have equal rights with
Country Briefing Paper, WOMEN IN BANGLADESH,ASIAN DEVELOPMENT BANK, Programs Department (West),August 2001, p-14 49 Bringing International Human Rights Law Home, Judicial colloquium on the Domestic Application of the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child, United Nations, New York, 2000, p-4
48
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respect to the nationality of their children. According to Citizenship Act of 1951, citizenship can be transmitted from the father to his children but not from the mother. Also a woman's husband cannot be entitled to citizenship through her. The spouse of a Bangladeshi man may receive citizenship but the contrary is not true. Measures are being taken by Government to ensure equality between men and women with regard to citizenship rights. In fact the laws in this area are part of the colonial legacy and have not recently been reviewed or revised50.
50
35
Jahan, R., Women in Bangladesh in Women for Women, Dhaka, 1975, pp.1-30, at p.4.
51
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and that implies that she has to have the ability to control and make decisions about her life. Gender discrepancy also found in the health sector. Given the size of the population, health expenditures receive inadequate allocation at the household level. Women are more disadvantaged than men in terms of access to health care. Unlike most countries of the world, the life expectancy of women in Bangladesh is slightly lower than men. Women family members are less likely to receive modern medical care and they generally rely on traditional and cheap methods of health care. Even today, trained personnel attend only one third of births in Bangladesh. The maternal mortality rate is still very high at 68.05 deaths per1000 live births52. The CEDAW Committee was concerned about the fact that maternal mortality and infant mortality rates remained high and that available primary health and reproductive health services were still inadequate and often inaccessible to poor, rural and marginalized women. Moreover, family planning services still mainly targeted women, and not enough education on male responsibility in reproduction had been introduced.
5.2Constitution
Article 17 of the Constitution of the Peoples Republic of Bangladesh stipulates that the state shall adopt effective measures for the purpose of a) establishing a uniform, mass oriented and universal system of education and extending free and compulsory education to such stage as may be determined by law; b) relating education to the needs of society and producing properly trained and motivated citizens to serve those needs; c) removing illiteracy within such time as may be determined by law.
37
understanding of the nature, scope and impact of HIV/AIDS on individuals, communities and societies around the world. The most striking development is the recognition of the role that gender plays in fuelling the pandemic and influencing its impact. There are also biological differences between men and women, which have an impact on their vulnerability and access to care. For instance, young women are particularly vulnerable to HIV due to fragile vaginal and anal epithelia. HIV-Positive women face a particular set of problems associated with pregnancy, delivery and breast-feeding. They may suffer undue discrimination through being counseled not to proceed with their pregnancy, or because their HIV status is diagnosed through a sick child. These are some of the biological factors that do not affect men and adversely impact women.53 Although Bangladesh is a low STD/AIDS prevalence country, it has already established a project to address the possible emergence of AIDS and Sexually Transmitted Diseases as a health crisis. All determinants of a serious problem exist: infection, malnutrition, proximity to high prevalence countries, prevalence of STDs, core groups with high risk behaviors, migrant populations, lack of information and unsafe practices of blood transfusion. Communication campaigns addressed at all population segments are in place with a special focus on populations at risk such as prostitutes. A National AIDS Committee has been formed to formulate policies and strategies to deal with AIDS related issues. Health risks for women engaged in prostitution are especially high54. This existing situation is violating the CEDAW article 12, which states to eliminate discrimination against women in the field of health care in order to ensure on a basis of equality of men and women
5.4Literacy
Illiteracy remains the greatest barrier to any improvement in the position of women in employment, health, the exercise of legal and constitutional rights, and in generally attaining equality status.55
UNAIDA, Gender and HIV/AIDA: Taking stock of research and programmes, March 1999 54 Bangladesh CEDAW report, April 1, 1997 55 Government of India, Towards Equality: Report of the Committee on the Status of women in India; Department of Social Welfare, New Delhi, 1974, p.264.
53
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The Majority of the population of Bangladesh are illiterate and those, most are women. However illiteracy is the main obstacle to ensure equal rights to man and women. In the year 2000 total adult literacy in Bangladesh 41.3 percent, among them 52.3 percent adult male and only 29.9 percent adult female56. Government of Bangladesh should that more steps to ensure equality in the literacy which is granted in the Constitution and CEDAW.
56
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6.2Constitution
The Constitution of Bangladesh embodies the principle of gender equality, prohibits discrimination on the basis of sex and promotes equality of opportunity for women to participate in politics and in public life. It also provides for special provisions for women as a particularly disadvantaged group. The following provisions are relevant to women and equality in employment: The preamble pledges that the State shall aim to promote a society in which the rule of law, fundamental human rights and political, economic and social freedom, equality and justice, will be secured for all citizens. In local Government institutions, the State must encourage and promote the representation of peasants, workers and women. Article 10 states that the State will work to ensure the participation of women in all spheres of national life. Sub-article 15 (b), affirms the right to work, at a reasonable wage. Subarticle 15 (d) provides the right to social security in situations of unemployment, illness, disability or widowhood.
Declaration on the Elimination of Discrimination against women, United Nations. 1967
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Article 19 upholds the principle of equality of opportunity. Under article 20, citizens must be paid for work on the basis of the principle from each according to his abilities to each according to his work. Article 27 provides for equal protection before the law. Article 28 outlaws discrimination on the grounds of, inter alia, sex; reaffirms women's equal rights in all spheres of public life; and allows for special provisions in favor of women's advancement. Article 29 provides for equality of opportunity in public employment, which is defined as: equal employment opportunity for all citizens employed in the service of the State; non-discrimination in employment for all citizens in the service of the State; and, special provisions for adequate representation of the population within State-sponsored employment. Though the Constitution guarantees equal rights for men and women in public life, it does not extend equality provisions into the private sphere, where religious laws are recognized. Personal laws (i.e. religious laws) in the private sphere are in some cases discriminatory against women
41
Law, the maximum working hour per day is 10 including the 2 hours overtime. But in most of the cases workers are forced to work 14 to 16 hours per day. Some times they work whole night. Overtime work is compulsory and forceful. There is not housing facilities from the owners. Most of the cases maternity leaves is absence. Most of the cases there is no transportation facilities. Most of the cases, there is no doctor, first aid, sufficient light and ventilation. In some cases there are no sufficient and pure drinking water and toilets for the workers. According to law, women work is prohibited after 8 pm. But the women workers are bound to work until 10 pm or 11 pm. Even in some cases they work the whole night. Most of the cases maternity leaves is absence. Most of the factories do not have the day care centers. Most of the cases, management do not pay the monthly wage and overtime payment within 7th of the next month. In many cases monthly wage and overtime payment is out standing for 2/3 months. Health-safety and security condition are not sufficient. Management do not allow the workers to join the trade union or formation of trade union though the workers have the trade union rights according to the labor law and ILO conventions. Management fires the workers if he/she joint in the trade union. Some times they threaded the workers and even close down the plant for the formation of trade union. Management does not ensure the security of the women workers. Women workers faced rape and sexual harassment out side the factories and some times inside the factories. There is other form of sex discrimination. Women workers are deprived from Equal wage, Equal dignity, Equal rights and Equal promotions59. At present Garment is the main industry in Bangladesh now. Womens are hugely employed in this sector. This sector have developed here rapidly because of it is a labor intensive industry, ordinary technology, cheap labor and small capital. In the Garments industry most of the workers are female. In reality the condition of garments workers in Bangladesh is very bad. There are some changes due to the labor unrest, trade union movements, social pressure and for the pressure of developed countries consumers. But till now Living standard of workers is unacceptable.
59
source: http://www.nadir.org/nadir/initiativ/agp/s26/banglad/
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Lack of equality in the employment sector in the Bangladesh violating the Constitutional provision of Bangladesh and also article 11 of the CEDAW which said to take all appropriate measures to eliminate discrimination against women in the field of employment.
However, there may be others who do not believe in sheltered status of women. Therefore. They may be opposed to having separate facilities may contribute to the erosion of the purdah system.
60
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Now I would like to states some specific situation violence against Women in Bangladesh.
61 62
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7.2Forms of Violence
Current events in Bangladesh point to an alarming picture of increase in the rate of violent acts against women. These acts include murder for non-payment of dowry, acid throwing, abduction, battering, sexual abuse, and trafficking. This is disconcerting in view of the considerable efforts that have been put in place to advocate against such crimes. Neither sensitization to the issues nor tougher laws seem to have served as deterrents to the violence. It seems clear that part of this increase is attributable to the increase in number of incidents being reported both by the media and by the victims or their families. Recently, violence against women has reached another dimension with the rise in the number of trials through the fatwa (religious judgments) in rural areas. Village elders usually form a shalish or tribunal to settle some local disputes. This traditional custom of excluding women in the rural shalish can be manipulated by the local mullahs (religious leaders) and the social elite to find women guilty of extramarital sexual affairs and other acts. Punishments are meted out (in accordance with religious laws as interpreted locally) in contravention to the existing penal code. Some women were flogged publicly and a few among them have committed suicide. Prompt protest and local actions by women's organizations, NGOs, and human rights groups forced local administrators to take legal measures against the perpetrators. 63 The complexity of legal procedures and poor professional competence on the part of the law enforcement agents to deal with cases of violence against women undermine the effectiveness of legislation aimed at combating violence. Similarly, the indifference of police officials and their negligence in enforcing the law are vital constraints that need to be improved before positive results can be expected.
Country Briefing Paper, WOMEN IN BANGLADESH,ASIAN DEVELOPMENT BANK, Programs Department (West),August 2001, p 5
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7.3Legal Measures
Several legal measures were adopted to safeguard womens legal rights. In 1983, the Cruelty to Women Ordinance was promulgated. This law made kidnapping, trafficking, rape, attempt to cause death, acid throwing, etc., as offenses with a maximum penalty of lifetime imprisonment or the death sentence. The Anti-Terrorism Ordinance (1992) provided for punishment for all kinds of terrorism including harassing and abducting women and children. The Immoral Trafficking Act (1993) provides for punishment for forcing a girl into prostitution. In 1995, the Women and Child Repression (Special Provision) Act was enacted. It provides capital punishment to offenders. An increasing incidence of rape and violation of women by the police and law enforcement agencies in several well-publicized cases brought to light loopholes in its execution. Hence, the Act has been revised and renamed as the Women and Child Repression Prevention Act of 2000. In spite of these provisions, loopholes in existing laws, lack of proper implementation, and the weak commitment of law enforcement agencies are major obstacles. It may be concluded that laws alone cannot be the only deterrent against violence. They must be backed up by conscious public opinion, prompt action, and efforts to change societys attitude towards women.64
7.4Sexual Harassment
The current sexual harassment law in Bangladesh provides a point of departure, even if its language is troubling. Working women face a double hazard, inside the work-place as well as on the street. There are no written codes for behaviour on the street and, in any case, moral codes of decency are applied select-lively. This is a social reality that must be addressed in the law. More-over, sexual harassment laws need to accommodate forms of gender harassment which are not explicitly sexual. It may very well be that the hostility being expressed through harassment is a sign of male social power, not sexual power. Assuming that laws that refer to female modesty
64
Ibid., at p5-6
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are inherently limiting. These are rights that are en-shrined in the Constitution of Bangladesh. Enacting progressive laws by itself will not suffice to change the situation, however. As we all know, it is critical to ensure that existing legislation be implemented and that those in charge of law enforcement be held accountable for their actions. By the same token, the efficacy of laws will be constantly undermined if social attitudes, especially widespread cultural tendencies of blaming the victim in cases of sexual harassment, are not transformed. This requires, among other things, serious gender-sensitisation training for those charged with protecting the rights of citizens, especially police personnel and judges. There can hardly be legal or police protection if the authorities a priori assume guilt or moral laxity on the part of women complainants65.
47
Thailand via Myanmer, from Nepal to India, from Myanmer to Thailand and Bangladesh. In case of Bangladesh, when trafficking in women has exactly been started is unknown. It is believed that first incident of trafficking in women was traced out in Bangladesh in 1979. The incident became a matter of talk in the early 80s.According a report of the USA State Department on Human Rights, there is extensive trafficking in women for prostitution in Bangladesh. But authentic and reliable statistics is not available. The main reason behind the problem of trafficking is 'demand and supply factor' of women. Contributing factors, which are responsible for the problem, include poverty, unemployment, lack of opportunity, illiteracy, unawareness, over expectation, social and religious customs, impact of globalization and liberalization, expansion of tourism and 'sex industry,' conflict, miniaturization etc. These purposes do not always match the promises made during the recruitment67. Although in most cases trafficking is for prostitution or leads to prostitution, prostitution within the country needs to be discussed separately. There are no statistics on the numbers of prostitutes. The Bangladesh Bureau of Statistics enumerates them as "destitute" and does not recognize prostitution as an occupation. The Constitution states that "the State shall adopt effective measures to prevent prostitution and gambling" [Part II, Fundamental Principles of State Policy, Section 18 (2)]. Prostitutes are often subjected to harassment and violence from the Police who are theoretically supposed to protect their rights. There is need for greater public awareness about forced prostitution, among the general public and in particular among the law enforcing agencies and the judiciary. Unless they are treated as full human being with the same rights and privileges as others, it will not be possible to provide them with any protection or ensure fulfillment of their rights68.
67
Dr. Uttam Kumar Das is an Assistant Professor, Queens University, Dhaka, The Daily Star , Bangladesh, Internet edition, August 31, 2003
68
48
Ibid. Trafficking in Women and Children: The Cases of Bangladesh, p.21, UBINIG, 1995
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measures against them. As citizens they can demand the same fundamental rights from the State, such as the right to protection and security, the right to shelter and to basic amenities. While laws relating to violence against women, including rape, apply equally to prostitutes, in practice they are discriminated against as they will be classified as 'habituated' to sexual intercourse and proof will be considered to be harder to give/accept. Prostitutes are often subjected to harassment and violence from the Police who are theoretically supposed to protect their rights71.
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from a severe loss of self-esteem, and often are unable to work or study. It is very unlikely that they will ever get married, dramatically affecting the victims' life economically and socially and causing their social isolation. According to the UN Population Fund's State of the World Population 2000 report, in terms of domestic violence against women Bangladesh is secondworst in the world, with 47 percent of all women violently assaulted by their male partners. This very clearly indicates that the Bangladeshi government is not doing enough to curb widespread gender violence. Particularly in the case of women attacked with acid, the lack of medical resources put to their disposal and the impunity enjoyed by most attackers reflects the lack of interest in solving this problem. The improvement of the medical facilities for treatment of acid-burn victims and stronger enforcement of current laws on acid attacks would send a very positive signal to the victims and to Bangladeshi women in general. Women are guaranteed equal legal protection as men under article 2(c) of the CEDAW, to which Bangladesh acceded in 1984. Article 5(a) states that parties to the Convention shall take appropriate measures to modify social and cultural patterns towards the elimination of prejudices and discriminatory practices. Women are also guaranteed equality and protection under article 3 of the Declaration on the Elimination of Violence against Women. Article 4 of the Declaration calls on states to eliminate violence against women irrespective of religious or cultural norms that may be invoked to condone it.72 CEDAW does not restricted to action by or on behalf of the State. For example, under article2 (e) of the CEDAW calls on States parties to take all appropriate measures to eliminate discrimination against women by any person, organization, or enterprise. Therefore, under general international law and specific human rights instruments, Bangladesh may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or fail to investigate and punish acts of violence, and they may be required to provide victims with compensation. The CEDAW
72
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Committee expressed serious concern about the alarming levels of violence against women in all its forms and especially its most cruel forms, such as acid throwing, stoning and dowry death, and the inability of the Government to enforce existing laws effectively, or to provide immediate relief and justice to victims of such violence. The Committee strongly urged the Government of Bangladesh to strengthen its enforcement and monitoring of existing laws, policies and mechanisms on violence against women so as to provide victims and survivors of violence with responsive and effective measures of protection and to prevent further violence. Bangladesh at present can state that there are adequate laws to protect the rights of women, but their enforcement is weak. Mechanisms to enforce and administer these laws are inadequate and ineffective. Most of the litigations are delayed, as courts are overloaded. The decree or orders passed cannot be made effective.
52
[with reservations expressed for Articles 2: Policy measures, 13(a): Rights to family benefits, 16.1(c): same rights and responsibilities during marriage and at its dissolution, and (f): rights and responsibilities on guardianship of children. The reason cited was conflict with Sharia law based on the Holy Quran and Sunna. The reservations on Articles 13 (a) and 16.1 (f) were later withdrawn.]
53
Soon after independence, the Bangladesh Women's Welfare Foundation (BWWF) was created by the Government for the rehabilitation of war-affected women. In 1976, the Jatiyo Mahila Sangstha (National Women's Council) was established as a network of committees from the national to grassroots level for mobilization of women. However, in 1991 it was converted as a statutory body and implementing agency within MOWCA. In 1984 the Department of Women's Affairs was created as an operational wing of the Ministry of Social Welfare and Women's Affairs. A decade later the Ministry of Women's Affairs was given an independent status and its jurisdiction was also expanded to include children's affairs and was renamed as MOWCA.
74
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equality and development and to promote a broader and more consistent response by all government agencies to the needs and priorities of women.
It consists of 14 ministers, secretaries of 13 ministries, a member of the Planning Commission, 5 members of Parliament, and 10 prominent women, nominated by the Government.
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guidance to all sectors and monitors implementation of critical policy decisions relating to womens issues and development.
B. Parliamentary Standing Committee for Women and Children Affairs The ten-member Parliamentary Standing Committee was established to review the activities of the Ministry of Women and Children Affairs (MOWCA). The committee meets once a month under the chair of a Member Parliament (MP). C. Womens Development Implementation and Evaluation Committee In order to monitor the programme implementation by related sectors as stipulated in the NAP, the committee was formed under the chair of the Minister, MOWCA. Its members include Secretary/Joint Secretary level officials of the MOWCA, sectoral ministries, implementing agencies and selected representatives of civil society. D. District and Thana Co-ordination Committees To provide outreach support to the central government mechanisms, sub-national level co-ordination committees were established in each of the 64 districts and 460 thanas76. Responsibilities of these committees include monitoring implementation of gender equality efforts by the various sectoral agencies and assessing the situation of violence against women. An Institutional Review of GOBs WID capability identified several gaps. A major concern was the limited understanding of the requirements of a gendermainstreaming approach to promote womens advancement among government agencies and line ministries. Gender issues were not being addressed cross-sectorally. Sectoral Womens programmes were often marginalized and implemented in an isolated manner. The Institutional review
76
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noted that it is important for all the agencies and ministries to appreciate that the task of facilitating womens development is not only the responsibility of the MOWCA.
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facilities be set up for women and labor protection for women in export processing zones and in the informal sector was recommended as priority 78.
58
The reaction of Muslim States to the CEDAW has been very strong. There is an assertion by these States that in their view, international human rights treaties are subservient to the overriding supremacy of Islamic law. It is important to make the point here that although many States have entered reservations to the CEDAW, Muslim States are distinctive in identifying the religion of Islam as the main justificatory logic for adopting this particular course of action83. It may be argued that reservations entered by Muslim States are motivated by a wide range of factors including political, socio-economic as well as religious considerations. The situation is further complicated where no uniform position vis-a-via Islamic law is adopted by Muslim States since each jurisdiction presents its own specific blend of an operative and cultural Islam distinct from other Muslim jurisdictions. This is also reflected in the group of newly independent Central Asian Republics and some other Muslim States that have ratified the CEDAW without any reservations 84. Bangladesh has ratified the Convention on the Elimination of All Forms of Discrimination Against Women with reservations [(Articles 2, 13 (a), and 16.1 (c) and 16.1(f)], where Sweden and Mexico made the objection. By entered reservations to Article 2 it becomes very uncertain what obligations Bangladesh should undertaking. Bangladesh formulates its reservation to this article in the following words: The Government of the Peoples Republic of Bangladesh does not consider as binding upon itself the provisions of articles 2 as they conflict with Sharia law based on Holy Quaran and Sunna. Bangladesh government didnt specify what is Sharia law. The Bangladesh Constitution embodies the principle of equality between women and men and declares that constitutional principles shall take precedence over all other existing laws. The Constitution is the highest law of the land and any law inconsistent with the Constitution is automatically void (Articles 7(2) and 26). Thus all pre-Constitutional laws have to withstand the test of the Constitution's basic principles. Bangladesh does not have any "Sharia Law" as such. Rather certain provisions are codified into legislation, such as the Muslim Family Law Ordinance and provisions of the
83 84
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Sharia are not immutable but subject to reinterpretation based on the needs of the time. In addition Muslims are not the only population in the country. There is a sizeable non-Muslim population to whom the Sharia is not applicable. Bangladesh is committed to its international treaty obligations and the guarantees of equality between men and women and of nondiscrimination against women contained in the UN Charter, the Universal Declaration of Human Rights and other international instruments85.Recently, the Government withdrew the reservations on Articles 13(a) and 16.1(f)86. The remaining reservations are under review. Since the provisions of this Convention are not yet incorporated into national legislation, the Government is not legally bound to them because the reservation of article 2 that government hasnt obligation to eliminate discrimination. In the reservation article 16.1 (c) Bangladesh government is reluctant to ensure the equal rights of spouses. CEDAW Committee commended the initiative of the Government in leading the way for other countries with similar reservations to also consider lifting their reservations. The Committee expressed its concern over the Government's remaining reservations to articles 2 and 16, paragraph 1 (c). The Committee noted that it regards article 2 as a fundamental and core provision of the Convention, while article 16 is critical to the full enjoyment by women of their rights. To make a reservation on article 2 its being contrary to the spirit of the Convention itself and in contradiction to the provisions of the Constitution of Bangladesh.
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 18 OF THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN, Third and fourth periodic reports of BANGLADESH 86 Third and fourth periodic reports of Bangladesh (CEDAW/C/BGD/3-4) at Committees 357th and 358th meetings, on 23 July 1997 (see CEDAW/C/SR.357 and 358).
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services in education, health, water, and other key areas by a broad system of NGOs working often in a program structure developed by government. This provider client relationship sometimes facilitates and sometimes limits the influence, which NGOs may have on national policy and programmes. NGOs are interested in strengthening countrys compliance with the CEDAW. Intense and broad-based campaign for removing gender-discrimination and gender violence through legal redress has been undertaken by women's organizations both at the national and local levels. The NGO Mahila Parishad's mobilization for legal reforms, supported by others, have focused on the enactment of new and stringent laws providing deterrent punishments for gender-violence both at home and outside; enactment of a uniform family code to supplant the various personal laws perpetuating gender-inequality within the family in the various religious communities; and full ratification of the CEDAW and implementation of the labor laws including the International Labor Organization convention that would ensure women's rights in the society and at the workplace. To heighten women's legal awareness, legal literacy training along with legal aid and referral services to victims of gender-violence is given by many organizations. Now days NGOs are submitting the shadow report to CEDAW Committee in the context to Governments periodic report, which is very helpful, the Committee to examine the governments report.
sanctioned. Donors also liaison with each other and with their national partners in donors liaison committee. In addition to ADB, the major multilateral bodies include the UN System, the World Bank, and the European Community. Major bilateral aid agencies include the Canadian International Development Agency, Japan International Cooperation Agency, United States Agency for International Development, Danish International Development Assistance, Department for International Development UK, Swedish International Development Cooperation Agency, Norwegian Agency for Development Cooperation, etc. Overall, donor agencies have exerted a positive influence by helping to bring the gender issue closer to the top of Bangladeshs development agenda87.
Country Briefing Paper, WOMEN IN BANGLADESH, ASIAN DEVELOPMENT BANK, Programs Department (West),August 2001
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10. Recommendation
1. Bangladesh Government should immediately withdraw the rest of reservation on article 2 and 16 (1) (c) of CEDAW to ensure the rights and obligation under the CEDAW. Bangladesh Government should explicitly explain about the Sharia law in respect of reservation. Bangladesh Government could follow the other Muslim Countries instance which dont have any reservation in the CEDAW. 2. The importance of women's participation in the political process should be recognized by the Government and political parties. Women's perception of their political role could be enhanced through education, training, awareness, advocacy, employment, and legal measures. Mass media and other agencies can be used to help motivate women. There is a need to disseminate more information about the need for equal political participation of women. 3. Most important concern about the Gender Equality in Bangladesh is personal law. Bangladesh Government could take initiative to transition the situation. Judges should come forward to positive interoperation of Muslim family law. In recent Morocco which is a Muslim country has changed there personal family law code which states women will get property rights within marriage, and both spouses will have equal authority in the family88. Bangladesh Government could follow the Moroccos instance. 4. Every marriage solemnized under Muslim Law must be registered. 5. Government should take step to prohibit the polygamy and could follow the Tunisian example, which prohibited polygamy 1957. 6. In Bangladesh steps should be taken to reform the Hindu Law to raise the status of Hindu women as has been done in India under the Hindu Marriage Act of 1955 7. Bangladesh Government should take more initiative to eliminate discrimination in the health and education sector.
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8. Bangladesh Government should make more hardy law to protect women from violence and make sure the proper implementation of the law by law enforcement agent. 9. Bangladesh Government should timely report to the CEDAW committee. 10. Bangladesh Law Commission89 should take more initiative to reform the law, which is discriminatory against women. 11. Bangladesh Government should do more to strong national women institution to promote the equal rights for man and women. And Bangladesh Government should provide more funding for this sector.
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Bangladesh Law Commission Established : (The Law Commission Act 1996 Act no. XIX of 1996).
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11. Conclusion
Although the legal status of women in Bangladesh may be an enviable one as they are guaranteed equal rights with men in all spheres under Article 28 (2) of the Constitution of Bangladesh, the enforcement of the right is far from effective. Similarly, while most of the population of Bangladesh are Muslims whose rights with regards to marriage, divorce and inheritance are governed by their Muslim family law. However, although Muslim law provides property rights to females, the shares of males and females are not equal.90 Implementation of International law in the domestic level is very difficult, depending upon the nature of national politics and individual country resources. States that have ratified the Convention are under an international legal obligation to take all necessary measures towards its implementation, including incorporation in their domestic legal systems. CEDAW principles have been integrated into new constitutions and added to more established constitutions and added to more established constitutions through amendments. They can also gain constitutional status in a less direct fashion, when courts are convinced to use the Womens Convention to help give existing constitutional guarantees of womens equality more detailed and concrete meaning. If a State has ratified the Convention, judges in its domestic courts generally have the authority to consider it, either as part of national law or as an aid to interpreting national law. But in reality many judges in Bangladesh are unfamiliar and uncomfortable with the idea of doing so.
For more on the Muslim Laws on inheritance see David, P., A Textbook on Muslim Law, London, 1979; Fyzee A.A.A. ; Outlines of Muhammadadan Law (4th edition, 7th impression), Delhi, 1993
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The protection that is accorded through the civil laws are outweighed by the inequalities reflected in many areas of personal laws governing the life of women. Women's socio-economic status differs from their legal status. The former often determines the latter. Although the Government is determined to take steps to eliminate discrimination against women through legal measures, women cannot even enjoy those rights provided by existing laws due to the lack of enforcement. The disparity between the rights women have by law and what they actually enjoy arises partly from the lack of knowledge of women and men about internationally and nationally recognized womens rights and the lack of commitment by the judiciary and law enforcement agencies. Various procedures make it difficult for women to access and use the judicial system. The lack of a central database on marriage and divorce registrations, or any means of crosschecking such registrations, means that it is virtually impossible to prevent polygamy. Although the Muslim Family Law allows women to inherit, social customs and family pressure often prevent women from claiming their share. Women lack the financial resources required and lack access to lawyers and courts, which restricts their recourse to the legal system. Laws on trafficking, for instance, are hard to apply, as often members of the law enforcing agencies are themselves involved in the trafficking activities. Although, Bangladesh ratified the Convention as early as November 1984, no steps have been taken to incorporate the obligations under the Convention into national legislation. Nor have any systematic steps been taken for widespread awareness and action programmes to create an enabling environment for the withdrawal of reservations and for the progressive implementation of the Convention. A few programmes to support the advancement of women have been introduced, in particular in the education sector. The totality of these programmes, however, account for only a fraction of the national effort required to support and empower women and girls to fight the daily discrimination they face in social, political, economic and cultural life. For the Gender equality in Bangladesh, there is a need for a persistent drive against those social customs, beliefs and traditions which belittle the value of women as compared to men. Efforts must be made to change attitudes that 67
women are inferior to men and that motherhood is the most desirable role for a women. Unless this negative attitude is changed and women are given equal education and employment opportunities and the right to share in the means of production they would fail to realize their socio-economic and political rights in the society.
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