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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 196
November 27, 2010

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"The more laws, the less justice": When it comes to women

Saira Rahman Khan

The more laws, the less justice' is a quotation from the famous Roman Senator, Marcus Tullius Cicero. What Cicero was saying was, basically, that one cannot keep making laws to fit every component of society and rule every act society does. Piling up laws only makes governance more rigid. You cannot have a law for everything. I find that this is presently the case in Bangladesh, where there are too many laws, where the amendment of a few would have sufficed because the 'rush order' manner in which such laws have been drafted and passed has caused some serious flaws in them, which can lead to mischief and confusion. To date Bangladesh has several criminal laws specifically aimed at curbing violence against women. A large majority of the problems such laws address are already contained in the Penal Code of 1860. However, the plethora of laws is, of course, not the only reason why there is less justice for women in Bangladesh. Why do we need so many laws? Are they for the protection of the people or have they been drafted with high-priced 'consultants' in order to appease the international community as part of their projects? Are they really capable of curbing violence against women?

The Penal Code of 1860 relied upon in the criminal justice system in Bangladesh today is a relic from the colonial times, which has been amended from time to time. It addresses such 'violence against women' related issues such as: causing miscarriage; hurt and grievous hurt; assault; kidnapping; wrongful confinement; murder; throwing of corrosive substance; rape; false marriage; insult and annoyance to name a few. However, in recent times, laws such as the Nari o Shishu Nirjaton Domon Ain 2000 (Amended in 2003) and the Acid Crime Control Act of 2002 have taken up several of these issues and added more stringent punishments, including capital punishment. Not only that, there are two laws regarding the issue of acid violence the Acid Crime Control Act of 2002 and the Acid Control Act of 2002. The necessity of two laws on the issue is, quite frankly, unnecessary. If the Penal Code can carry off a multitude of crimes in one single tome, why not acid-related laws? Even more recently, the Parliament passed a Domestic Violence Act, to add to the government's show of justice for its women citizens.

As regards definitions and interpretations, there are several flaws in the new laws. Here I will highlight just a few. The Acid Crime Control Act 2002 has managed to compartmentalise the female anatomy and provides for separate sentences depending on which part of the body has been affected. I find that very demeaning for the affected woman. I have worked with survivors of acid violence for over a year and have seen the havoc such violence can wreck on the body and mind, regardless of which body part has been affected. Having separate punishments depending on whether the acid has burnt the face or arms or legs or genital area does not seem right. Medical evidence determines the gravity of the offence and how serious the harm is. That ought to be the indicator for punishment. 'Acid' is not clearly defined in the Penal Code of 1860 or in the Act of 2000, but is defined in the Acid Control Act of 2002. So if the substance is found to be 'acid' the crime will be tried under the Act of 2002, if it is a 'corrosive or burning substance' it will be tried under the Act of 2000 and the Penal Code of 1860 will be obscured. To add to the confusion, there are also two separate Tribunals under the two Acts and even the two acid laws of 2002 have different interpretations of 'acid'! So, is acid not a corrosive and burning substance? Again, section 9 of the Act of 2000 (as amended in 2003) provides that if death is caused due to rape or acts committed after rape, the punishment is death or life imprisonment. The prosecution has to prove two crimes here rape and murder and that the latter was a consequence of the former. Under the Penal Code, the two crimes can be argued separately and there are separate punishments, but there is only one punishment under the Act of 2002, making the charges more difficult to prove and leaving the judges with no space to use equity.

The news laws contain harsher punishments than those found in the Penal Code of 1860 12 offences are punishable with up to the death sentence in the Act of 2000 and three in the Acid Crime Control Act of 2002. In contrast, the Penal Code of 1860, which has more than 500 sections, carries a death penalty for only eight crimes. The death sentence is no longer an effective deterrence. So, how necessary are these laws if they cannot contain the violence? Would it not have been easier to amend the Penal Code, as has been done before? Again, if the Nari O Shishu Nirjaton Domon Ain 2000 (Amended in 2003) contains provisions relating to acid violence, then why have another Acid Crime Control Act 2002? If the Penal Code and the Suppression of Immoral Traffic Act 1933 condemn trafficking and prostitution, then why is it repeated in the Act of 2000? It will come to no surprise if the Parliament passes another law specifically on the topic of 'eve teasing' even though the Penal Code of 1860 and other laws have provisions for such actions! The different definitions and punishments contained in the laws for a single offence make it difficult for both the victim and the judge to get and dispense justice in an effective, equitable manner. Women's rights organisations have lobbied for new laws to protect women and curb violence, but it is clear here that there is not actual meeting of the minds. If there was, there would be one single, new law on issues of violence against women covering every possible issue including domestic violence. This would have been amended and evolved as new problems arose. Furthermore, such women's organisations deal with aspects of violence against women and all their interests have been reflected in the laws they have lobbied for. However, one glaring issue has totally been ignored by them. Why have they not found it necessary to have yet another law for the protection of victims and witnesses? Instead of the practice of 'oiling an oily head' (excuse the translation), this really is one law that is urgently necessary in Bangladesh, and not just for women victims and witnesses.

However, it is not just the multitude of laws that is hindering the system but also the archaic language that needs some serious re-structuring. One of the courses that I teach at law school is 'Criminal Law' that encompasses several laws, including, of course, the Penal Code of 1860, the Suppression of Immoral Traffic Act 1933, the Nari-o-Shishu Nirjaton Domon Ain 2000 and the Acid laws of 2002. I have always had enthusiastic students who take great interest in solving problems and are very vocal about the injustices they see around them. However, they are stumped when they come across Victorian phrases such as 'to insult the modesty of a woman' and 'gratifying unnatural lust'. Even when I explain the phrases, several of my students turn a very 'modest' shade of red! Such phrases are the language of the Penal Code, drafted in the 19th century, where women's ankles were not a topic of polite discussion. However, the Penal Code also boldly declares 'rape' to be an offence and also contains the words 'adultery', and surprisingly 'carnal intercourse' albeit under the section dealing with 'unnatural offences'. So what to make of such phrases? How are they defined? When will the 'modesty' of a woman be insulted? Do all women have the same ideas or practices of 'modesty'? In this dangerous era of 'sexual harassment, 'modesty' seems to be totally disregarded. It does not matter how 'modest' a girl or women is. Unfortunately, the phrase 'insult to her modesty' has been copied into the new, 'modern' laws protecting women and children from violence. At this day and age, where issues of sexual harassment and rape and sexual violence are discussed with open honesty all over the world, why do the drafters of such laws still hide behind such ambiguous, long-forgotten phrases?

One may argue that the laws are covering every possible aspect of violence against women and victims will find it easier to get justice if they seek relief under such laws. However, as has also been argued, not only are there some serious flaws in the present laws protecting women, but also that these laws, too, do not seem to be working to control the violence. It is a common consensus that both the lack of understanding the law and the lack of implementation of the law are reasons that are seriously hampering justice. Even if we ignore the flaws in the prevalent laws and focus on the lack of implementation, we will see that it is possibly one of the main causes for the continuation of violence against women. Why is the law not implemented properly? Corruption; poor investigation; lack of evidence; poor preservation of evidence and reluctance of the police to handle domestic violence issues are some of the reasons. Others include the obvious ambiguity in the language of the new laws, ignorance of the law, the inability to go to the police station to complain due to threats by the perpetrator; inability to continue court appearance due to financial or social reasons; and inefficient legal representation. So despite there being more than enough laws for the punishment of various forms of violence against women, here too we see that even though there are more laws (for women), there is still less justice for very different reasons!

The writer is Associate Professor, School of Law, BRAC University.


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