DHAKA TRIBUNE

Juris

Thursday, March 6, 2014

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juris Quote

We are not supposed to be all equal. Lets just forget that. We are supposed to have equal rights under law. If we do that, we have done enough.
Ben Stein American Actor (Born: November 25, 1944)

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The laws are grossly discriminatory in some areas

Sara Hossain, a leading Supreme Court lawyer and a strong advocate of womens rights in Bangladesh, talks about the present scenario of equal rights for women ahead of this years International Womens Day
Juris Desk n Juris: The theme for International Womens Day, 2014 is Equality of women is progress for all. Where do we stand in terms of achieving gender equality in Bangladesh at present?
Sara Hossain: Bangladesh has made major progress and is recognised internationally for achievements in this area, won by women and girls struggling for their rights, by progressive policies for womens social and economic empowerment undertaken by all our governments for decades now, along with incredible interventions by internationally respected national institutions like Grameen Bank and BRAC, and supported by the international community.

How women-friendly are the Constitution and the legal system of Bangladesh to ensure equality and gender justice?
While equal rights of women and men are guaranteed by the Constitution, there are differing interpretations regarding the scope of constitutional rights. This is a particular challenge in cases where womens right to equality is counterposed against the right to freedom of religion. The changes made by the 15th Amendment pose us with new challenges and obstacles in this regard. We need to try to secure more progressive interpretations from the higher courts that the scope of equality extends to the state and public spheres, including all laws that affect womens rights.

What are the real obstacles in the law or in the legal system that women face in achieving their economic independence, eg choice of profession, ownership of property, etc?
The law is an obstacle regarding equal rights to property through inheritance. However, in most cases it is not the law but the practice, the culture, the institutional barriers that prevent the achievement of gender equality.

A public campaign to address positive aspects of womens rights, to self-determination and choice is also urgently needed

We still see many incidents of domestic violence where women are the worst victims of violence at their matrimonial homes. We have a Domestic Violence Act, 2000 which aims at protecting women from rampant domestic violence. How much headway the law has achieved so far to rein in domestic violence?
The law has been enacted long ago, and is being used regularly. This was a major win by the womens movement and the human rights groups in Bangladesh and a solid achievement of the last government.

opposition, speaker of the parliament)? Does it reflect the entire situation?

We have a leader of the opposition who is the wife of a military dictator who is now the ally of an elected government. In addition, we have a speaker who welcomes a parliament where members of the same party sit in opposition and in government. Your readers can evaluate what they make of this and how inspiring these positions of women at the top of the establishment are.

Sara Hossain is a lawyer practising in the Supreme Court of Bangladesh, mainly in the areas of constitutional law, human rights law and family law, and a Senior Associate at Dr. Kamal Hossain & Associates. She was educated at Oxford University, called to the Bar from Middle Temple in 1989, and enrolled as an Advocate of the Dhaka Bar in 1990. Sara is a Board Member of Ain o Salish Kendra, a national human rights and legal aid organisation, and also does pro bono work with Bangladesh Legal Aid and Services Trust, a leading national private legal services organisation

How does the judiciary respond in cases where womens rights are concerned?
There have been very significant and landmark judgments by our higher courts. The cases on so-called fatwa violence, addressing sexual harassment, and evidence collection in rape and abolition of the two finger test are examples of this.

As a woman lawyer, what do you think should be done to ensure equal rights for women in all spheres of our lives as envisioned in Article 27 of our constitution?
Immediate steps should be taken by the government, in furtherance of its stated commitment to secularism and to equality of women, to repeal grossly discriminatory personal laws restricting or denying womens equal rights in the family, relating to Muslim, Christian and Hindu family laws. In addition, state and private bodies should take immediate action to implement directives from the Supreme Court regarding addressing violence against women, regarding sexual harassment, rape, or child marriage. A public campaign to address positive aspects of womens rights, to self-determination and choice is also urgently needed. Moreover, maybe its time to start loudly criticising the notion that just putting women into positions of power is a good thing we should stop accepting this sad quota of politics, unless the women in question have ability, competence, agency, the power to take their own decisions and not be yes-women, and most of all integrity. l

Do you think our laws are sufficient to help reduce the challenges that women encounter in marriage, divorce, employment, oppression at home and work? Or, do we need new laws?
The laws are grossly discriminatory in some areas, eg marriage and divorce. The laws on violence also need to be reviewed, moving from the focus on punishment and denial of fair trial and looking more at redress and protection for victims.

How do you evaluate the overall progress of women empowerment in relation to the fact that we have women at the top of the establishment (prime minister, leader of the

Legal shield for women

The law provides rigorous punishments for any oppression on women

Raju Mollah n
urs is a country where women live in a very vulnerable situation. Widespread violence against women is prevalent in every corner of the country. Many women in Bangladesh become victims of rape, gang rape, murder, torture and acid throwing. Even though Bangladesh has a special law to protect women from oppression, ie The Prevention of Oppression against Women and Children Act, 2000, the difficulties facing women have not been ended. This Act seeks to address the offences related to oppression on women through rigorous punishments.

the magistrate for investigation. If the investigating officer satisfies the tribunal by showing special causes that it is proper to extend the time for investigation for the end of justice, the tribunal may order to complete the investigation within the extended period which would not be more than 30 days.

shall notify the causes if the accused is not released on bail.

l The party aggrieved by the order, judgment or punishment

Filing any false case or complaint under the Act

If any person files or causes to be filed any case or complaint against a person under this Act for the purpose of causing injury to that person, although he knows that he had not any proper or legal ground to do so, the person filing or causing to be filed that case or complaint shall be punished with rigorous imprisonment for either description which may extend to seven years and also with fine.

imposed by the tribunal, can appeal to the High Court Division within the period of 60 days against such order, judgment or punishment.

Safe custody Procedure followed by the tribunal

l If the trial commenced in the tribunal, it shall be held on

each working day until the completion of the trial.

l The tribunal shall complete the adjudication within the

period of 180 days from the date the case was filed.
l If the adjudication is not completed within the stipulated

period, the tribunal can release the accused on bail and

If at any stage of the trial of an offence under this Act, the tribunal thinks that any woman or child is needed to be kept in safe custody, the tribunal can direct to keep the woman or the child, out of the jail and under the custody of a government authority determined by the government or under the custody of a person or organisation whom the tribunal thinks proper.

Prohibition on publishing identities of a woman or a child oppressed in news media

Any news, information or name and address or any other information regarding any offence, committed under this Act of which a woman or a child is the victim, shall be published or presented in such a way that the acquaintance of the woman or the child remain undisclosed. If this provision is infringed, the person or persons liable for such infringement, each shall be punished with imprisonment for either description, which may extend to two years or with fine not exceeding Tk100,000 or both.

Nari o Shishu Nirjatan Daman Tribunal

There are one or more tribunal in each District Headquarter to try offences under this Act established by the law. The tribunal consists of one judge and the government shall appoint the judge among the District or Session Judges. The government shall appoint such judge as the judge of the tribunal in addition to his/her duty.

Offences related to women and punishments

Section 4 7 Offence Causing death or attempting to cause death of any woman by burner, corrosive or poisonous substance Kidnapping a sale or buy Punishment Death penalty or transportation for life and also with fine not exceeding Tk100,000

If child is born in consequence of rape

l The maintenance of that child shall be borne by the

Offences against women

According to the Act, the following offences shall be tried by the Nari o Shishu Nirjatan Daman Tribunal: death, attempt to cause death, hurt, damaging of sight or ear, disfiguring face, breast, sexual organ, limb or any other part of the body, throwing any burner, caustic or poisonous substance over a child or a woman, trafficking, kidnapping, taking ransoms, rape, sexual oppression and causing or attempting to cause death for dowry.

woman for the purpose of immoral act or Transportation for life or with imprisonment for either description, which may extend to 14 years and also with fine Rigorous imprisonment for life and also with fine Death penalty or transportation for life and also with fine not exceeding Tk100,000

person who commits rape

l The tribunal may determine after the birth of the child,

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Whoever detains a woman to levy a ransom Committing rape with a woman and the women dies later as a consequence of rape

Investigation of an offence
Any investigation of an offence under this Act shall be completed within 60 days from the date of receiving any information regarding the offence or passing of any order by 11

Satisfying one's sexual urge illegally, by touching the Imprisonment for either description which may sexual organ or other organ of a woman with any organ or extend to 10 years but not less than two years of rigorous imprisonment and also with fine with any substance Causes death or attempts to cause death for dowry by the Imprisonment for life and also with fine husband of a woman or his father, mother, guardian or any other person on behalf of the husband

in whose custody the child shall be and how much money shall be provided to the legal guardian, by the person who commits rape, as expense for the maintenance of the child l His expense shall be provided for upto the period, the child attains 21 years if male and, marriage of the female child, if not disabled, and until the date he/she obtains the capability to earn his/her living, if disabled. l Raju Mollah is an advocate at the Dhaka Judges Court and author of several law books.