Why we need an anti-discrimination law
ISHITA DUTTA provides a comprehensive overview of the forms of
discrimination practised and ways to remedy the situation.
Photo Courtesy: HANDICAP INTERNATIONAL
The rights to equality and non-discrimination are fundamental tenets of international human rights law1 and are present as crosscutting themes in international human rights instruments ranging from the Universal Declaration of Human Rights, 1948 to, most recently, the Convention on the Rights of People with Disabilities, 2008. The Constitution of Bangladesh, as originally drafted, also clearly protects the right to equality and non-discrimination. Despite the existence of these national and international legal guarantees, discrimination in Bangladesh persists and is pervasive. This may have less or more visible manifestations, ranging from reduced access to nutrition and education for the girl children2 to limited protection against acts of gender-based violence such as rape, acid attacks, or sexual harassment.
Discrimination in practice
International and national rights organisations have begun to document the forms in which discrimination operates in Bangladesh. This article draws upon from a paper prepared by BLAST for two Dalit rights organisations, FAIR, the Bangladesh Horijon Oikko Porishod, and the Manusher Jonno Foundation, where the nature of discrimination and the need for a legal response were discussed extensively. Let us consider the manifestations of discrimination in Bangladesh:
Discrimination based on caste
The constitutional ban on caste discrimination is not enforced and caste hierarchies and related discrimination permeate both Muslim and Hindu populations in Bangladesh. The majority of Dalits live far below the poverty line and have extremely limited access to health and education services as well as adequate housing. Further, traditional caste-based occupations are now being taken away from them by members of the majority community as quotas reserving seats for dalits are not in place or not well know Dalit3 women face multiple forms of discrimination and violence as a result of both their caste and gender. Many girls born to Dalit families marry very young, have limited scope for mobility and lack financial independence.4
Discrimination based on race
The 15th Amendment to the Constitution inserted a new fundamental principle with respect to the protection and development of the culture and traditions of “small ethnic minorities” (emphasis supplied). This provision has important repercussions on Article 28 (4) which permits the state to take 'special measures' for the benefit of backward classes of people. However, there exists ambiguity as to the extent of their interaction. Indigenous people in Bangladesh continue to face discrimination. They are disproportionately vulnerable to land grabbing and are routinely denied legal redress. Further, social discrimination operates in the form of the indigenous peoples' lack of agency and voice in determining outcomes of governmental or non-governmental development projects to outright denial of access to public establishments such as restaurants and hotels in certain rural areas.5
Discrimination based on religion
The Constitution of Bangladesh originally envisaged the State as a secular polity where politics was to be completely immune of religion.6 However, the Eighth Amendment to the Constitution declared “Islam” as the state religion effectively creating a class distinction between Muslims and non-Muslims. Even though the 15th Amendment to the Constitution in 2011 restored secularism as a 'fundamental principles of State policy', its retention of Islam as the state religion is antithetical to the achievement of secularism and serves to entrench discrimination between Muslim and non-Muslim citizens of Bangladesh. Discrimination against religious minorities by the State has also occurred through the medium of abusive laws aimed at depriving religious minorities of their land, most specifically the Vested Property Act.7 Religious minorities have also faced discrimination in access to protection from the state in cases of communal violence. Reports from international human rights organisations recorded this disturbing trend in the past with respect to the Ahmadiyya community, sporadic attacks on Buddhist temples in the CHT and more recently, in case of attacks against Buddhists in Ramu.8
Discrimination on the basis of gender
Despite the express constitutional prohibition, discrimination against women remains widely prevalent. A raft of personal laws, based on religion, entrench discrimination in respect of the choice regarding marriage, rights within marriage and on its dissolution and inheritance. Such personal laws further trap women in abusive marriages, providing no exit or alternative even from situations of extreme abuse.9 Discrimination through the law exists in both personal laws and criminal laws. Patently gender-discriminatory provisions include Section 155 (4) of the Evidence Act which permits the defence to introduce character evidence about a woman victim of rape, and procedures such as the “two-finger test” which is part of medical evidence collection procedures to establish rape. Socio-cultural mores and norms such as the absence of decision making power within the home and community, lack of access to adequate health care, nutrition, education and employment opportunities, all contribute to the widespread practice of child and early marriage, as well as forced marriage.10
Discrimination against persons with disabilities
While the Disablity Welfare Act, 2001 (DWA) puts in place some measures to enable challenges to disability based discrimination, most persons with disabilities in Bangladesh continue to face legal and practical barriers to equality including discrimination in access to voting rights, lack of free access to educational opportunities, health services and job opportunities without discrimination. Their right to free movement is still restricted and many persons with disabilities remain victims of violence and abuse without remedy.11 The DWA has been critiqued as being welfarist in orientation and inadequate for the purpose of addressing disability based discrimination. Several existing laws and policies in Bangladesh have a discriminatory impact on persons with disabilities. For instance, the Bangladesh Labour Law 2006 protects employers who discharge disabled employees from employment.12
Discrimination on the basis of sexuality/sexual orientation
Sexual orientation is not an enumerated ground of prohibited discrimination under the Constitution of Bangladesh. Further, Section 377 of the Bangladesh Penal Code 1890 continues to punish so called 'unnautral offences' with 10 years or life imprisonment, and is understood as extending to consensual same-sex relations. Given this legal context, and the prevailing social stigma against homosexuality, as well as the risk of being subjected to private violence, or exclusion, there are few people who openly identify themselves as gay or lesbian.13
Discrimination Against People Living with HIV/AIDS (PLHAs)
Health status is not an enumerated ground of discrimination in Bangladesh. Documentation by national and international organisations has identified that PLHAs have in practice been denied both civil rights and socio-economic rights on disclosure of their health status. In addition to being denied deprived of property rights (in particular inheritance due on a partner's death), they have been deprived of access to health or shelter in their in-laws' house after their partner's death.14
Existing legal remedies
The constitutional provisions with respect to equality and discrimination are primarily contained in Articles 27, 28 and 29. Article 27 enunciates the general principle of equality and forbids classification on arbitrary or unreasonable grounds. Article 28(1) relates to a particular application of the principle of equality which prohibits any differential treatment only on the ground of race, caste, religion, sex or place of birth. Accordingly, the High Court Division of the Bangladesh Supreme Court found that fixing of retirement age of flight stewardess below the age of retirement of flight steward constitutes gender discrimination.15 An important exception with regard to the Article 28 (1) prohibition is that the State is not prevented from making special provisions in favour of women or children or for the advancement of any backward section of the society.16 In other words, the state is mandated to undertake affirmative action measures.
Limits of existing legal remedies
The constitutional guarantee of a fundamental right against discrimination does not afford adequate protection due to several internal limitations within the scope of the right. Foremost among these limitations is the fact that the rights against discrimination can be enforced against the state only. Thus, private actors are under no express constitutional obligation to not discriminate. Further, the constitutionally recognised grounds on the basis of which discrimination can be perpetrated are limited to religion, race, caste, sex or place of birth. These grounds are not comprehensive and ignore several categories of persons in need of protection. Constitutional protection against discrimination is also limited by the scope of remedies available. According to Article 102 of the Constitution, the High Court is empowered to pass directions and declarations for the enforcement of fundamental rights. The Constitution does not envisage any remedial measures in the nature of compensation or restitution.
Scope for reform
Addressing discrimination by non-State actors
As noted above, according to the existing legal framework addressing discrimination in Bangladesh, the right against discrimination is only enforceable against the state. This reflects the stance of traditional human rights jurisprudence which focuses primarily on protecting private individuals from abuse by public authorities.17 In reality however, discrimination by private actors is rampant in Bangladesh. Sexual harassment at the workplace is one such instance that until very recently was not specifically legally prohibited. The High Court Division of the Supreme Court of Bangladesh in a landmark judgment gave guidelines defining and prohibiting 'sexual harassment'18, and requiring action on the part of both the State and private actors thereby filling a legislative void that was resulting in discrimination and rights violations of women.
Expanding grounds of discrimination
The grounds of discrimination that are constitutionally enumerated in Bangladesh are not comprehensive. The obvious omissions in this regard are age, disability, sexual orientation and health status. Most constitutions of the world contain a limited list of grounds that reflect the social and legal context of the time during which the Constitution was drafted. These grounds have subsequently been expanded mainly through judicial interpretation. The Naz Foundation judgment of the Delhi High Court which effectively made sexual orientation a ground protected against discrimination in India, is exemplary in this regard.19
Possible models for dealing with discrimination
The three main sources of anti discrimination law across all jurisdictions are: Constitutional Law, Statutory Law and International Law.
In Bangladesh, the Constitutional foundation protecting citizens against discrimination is already in existence. The Constitutional scheme including a general equality guarantee, a specific anti-discrimination provision, and express authorisation for affirmative action provisions serve as the foundation upon which further specific anti discrimination law may be enacted.
In terms of specific law, comparative lessons may be drawn from other jurisdictions in South Asia, where laws have been passed to grant blanket protection to certain groups of people such as the Persons With Disabilities (Equal Opportunities, Protection Of Rights And Full Participation) Act 1995 protecting the disabled in India or the Untouchability (Control & Prevention) Act enacted to protect persons subjected to caste based discrimination in Nepal. By contrast, the South African anti discrimination law model comprising of constitutional protection against 'unfair discrimination' and the Promotion of Equality & Prevention of Unfair Discrimination Act, 2000 (the Equality Act) are illustrations of a comprehensive legislative code that addresses discrimination in private or public spheres in all matters other than employment.20
Additionally, protection against discrimination may be derived from international law obligations of Bangladesh. As stated above, the principles of non-discrimination and right to equality are present in all major international human rights conventions and treaties. Bangladesh being a signatory to the instruments such as the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, is obligated to enforce the anti discrimination guarantee contained therein. These treaties impose obligations upon the legislature of Bangladesh to enact appropriate laws, upon the executive to take appropriate measures to ensure enforcement and upon the judiciary to interpret the laws of the land in such a way that the rights contained in the treaties, including the right against discrimination, may be effectively enforced.
Towards enacting anti discrimination legislation
The chief obstacle in efforts to realise legal remedies in discrimination in Bangladesh has been the negligible reliance on the law as a medium of protection. This is demonstrated by the remarkably low levels of litigation on discrimination in our superior courts to date. As noted above, most cases on discrimination relate to service matters, and concern the terms and conditions of government service. The law has been instrumental only in so far as a combination of statutes and executive orders has resulted in adoption of special measures for the advancement of women, children and backward classes. The obvious inference is that legal provisions that prohibit discrimination are not sufficient by themselves in protecting the vulnerable. The major obstacle lies in accessing mechanisms to enforce the law. This necessitates a reorientation of the laws to focus on the agency of the victim of discrimination to seek redress as opposed to an attempt by the state to unilaterally prohibit discrimination.
The current state of affairs leaves a lot to be desired in terms of achieving equality and non discrimination for all. The first step in this direction will be to create an enabling atmosphere where issues of discrimination can be freely identified and discussed. The obvious next step would be to discuss with key stakeholders including affected communities the nature of discrimination and the need for particular remeides, and then through a process of open and transparent debate at various levels, to proceed to frame legislation to deal with discrimination.
This article is based on a presentation prepared by the author and Sara Hossain for BLAST at the 'Seminar on Relevance of an Anti Discrimination Law in establishing the Dignity of Marginalized Communities in Bangladesh' organised by FAIR and Bangladesh Harijan Oikko Parishad and Manusher Jonno and held at the National Press Club, Dhaka on 8 January, 2013.
1. Office of the High Commissioner of Human Rights, CCPR General Comment No. 18, Non-Discrimination, 11/10/1989. Available at: http://www.unhchr.ch/ tbs/doc.nsf/0/ 3888 b0541 f85 01c9c12563ed004b8d0e
2. UNICEF, “Women and Girls in Bangladesh: Key Statistics” Available at: http://www.unicef.org/ bangladesh/ Women _and_ girls_in_Bangladesh.pdfon
3. Joint NGO Submission by Bangladesh Dalit and Excluded Rights Movement, Nagorik Uddyog and the International Dalit Solidarity Network Related to Bangladesh 4th UPR session, February 2009 Available at: http://idsn.org/fileadmin/ user_folder/pdf/ Old_files/ un/pdf/UPR_Bangladesh.pdf
4. Bangladesh Dalit and Excluded Rights Movement and Nagorik Uddyog, “Dalit Women in Bangladesh: Multiple Exclusions”, March 2011 Available at: http:// idsn.org/fileadmin /user_folder/pdf/New_files/Bangladesh/Dalit_Women_in_Bangladesh_-_Multiple_Exclusions.pdf
5. A Brief Account of Human Rights Situation of the Indigenous Peoples in Bangladesh, Assessed by Asian Indigenous Peoples Pact (AIPP) Chiang Mai, Thailand, January-August 2007, Available at: http://www.iphrdefenders.net/docs/Bangladesh%20-%20CN% 20edited%20_clean%20copy_%5B1%5D.pdf
6. Saleem Samad, “State of Minorities in Bangladesh: From Secular to Islamic Hegemony”,
Country Paper presented at "Regional Consultation on Minority Rights in South Asia", 20-22 August 1998,
Available at: http://mukto-mona.net/ Articles/saleem/ secular_to_islamic.htm
7. Naeem Mohaiemen, “Rights of Religious Minorities”, in ASK, Human Rights Report 2008, Available at: http:// www.askbd.org/hr_report2008/15_Religious.pdf
8. Odhikar & Asian Human Rights Commission, “BANGLADESH: State's unpardonable failures deserve credible investigation”, October 17, 2012 Available at: http://www. humanrights. asia/ news/ahrc-news/AHRC-STM-204-2012
9. Human Rights Watch, Will I Get My Dues…Before I Die, September, 2012 www.hrw.org/reports/2012/09/17/will-i-get-my-dues-i-die
10. Supra at 2
11. Mozammel Haque, “Rights of Persons with Disabilities”, in ASK, Human Rights Report, 2008, Available at: http://www.askbd. org/hr_report2008/21_DISABILITY.pdf
12. Hezzy Smith, “Disability Rights and the Road to Legal Reform”, Daily Star, Forum Vol 5, Issue 12, December 2011
13. Dina M Siddiqui., “Rights of Sexual Minorities”, in ASK, Human Rights Report 2008, Available at: http://www.askbd. org/hr_report2008/15_Religious.pdf
14. Aditya Bondopandhyay, Shale Ahmed , Same-Sex Love in a Difficult Climate: A study into the life situation of Sexual Minority (Lesbian, Gay, Bisexual, and Transgender) persons in Bangladesh, August-December 2010, Dhaka, Bangladesh Bandhu Social Welfare Society, Bangladesh,
15. Rabia Bashri Irene v. Bangladesh Biman, 52 DLR 308; Dalia Parveen v Bangladesh, 48 DLR 132
16. Article 28 (4), Constitution of Bangladesh: “Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens.”
17. Human Rights Council, General Comment No. 2, Available at: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/e81905199807e27dc12563ed00463bc9?Opendocument
18. Bangladesh National Women Lawyers Association (BNWLA) Vs. Bangladesh, 14 BLC 2009 694
19. European Communities, 2012, Comparative study of the anti discrimination and equality laws of US, Canada, South Africa and India Available at: http://ec.europa.eu /justice/discrimination/ files/comparative _study_ad_ equality_ laws_of_ us_canada_ sa_ india_en.pdf
Ishita Dutta is a legal researcher working on women's rights issues with Bangladesh Legal Aid & Services Trust (BLAST) and can be reached at firstname.lastname@example.org.