Cover Story

Time to Get Back on Track

Aasha Mehreen Amin

The conspiracy against women can possibly be traced back to the Biblical version of the Original Sin story in which Eve leads Adam astray by making him eat from the forbidden apple. Thus the role of the woman has been set from ancient times; a woman must be kept under a leash, like a wild animal, she must be tamed and moulded so that she can be useful and productive. Unleash her shackles and she will surely take her man into the darkest path and destroy him and herself. This male paranoia has continued over time, accumulating the grime of each kind of male chauvinism rolling on blissfully from one era to another until it comes across an obstacle or two, kicks it around a little and then moves on to the next chunk of time. Translate this rather strange parable into the 21st century and what do you get? The situation is not much different; in many parts of the world they are identical. Women are seen as lesser beings than men, they are unclean, they are less intelligent, not to mention physically weak, they should stick to being dutiful daughter, wife and mother; they must above all, be controlled. Despite a strong and committed women's movement and international conventions such as CEDAW, governments and societies, continue to deprive women of their economic, social and political rights.

The biggest weapon to keep the women in check is by claiming the limits and boundaries that circumscribe women's lives as those dictated by the practised religion. To make the weapon more potent, laws of the land, formed again, by men, unwittingly or completely intentionally, work hand in hand with the populist version of religion to discriminate against women in practically every sphere of life. In the Bangladesh context women for example, are plagued by a set of laws, depending on which religious community they belong to even if such laws are contradictory to the constitution of the country. Even some of the articles of the constitution serve to propagate rather than eliminate gender discrimination.

The need for a Uniform Family Code, harped on by the women's movement for decades, has become crucial and mandatory especially since it has been demanded at the international level through the CEDAW Committee, which is celebrating its 25th anniversary this year.

The Constitution of Bangladesh declares equal rights for men and women in all spheres of public life. The problem is that it is only in the spheres of state and public life that equality is guaranteed through the Constitution. This means that in the private or personal sphere women are bound by the religious laws of her community. So even if her husband continuously tortures his wife, until she is killed, the state is unlikely to intervene, as it considers this a 'private matter'. Of course once she is killed and it is established as a homicide it becomes a murder case it will be dealt with by the law of the land.

Trying to understand the dichotomy of public and private spheres is exasperating. According to Dr. Faustina Pereira, a Supreme Court Advocate and author of the book 'Fractured Scales' that deals with this very issue, the legal system of Bangladesh is categorised into two distinct branches. One is Constitutional Law and the other is General Law or those that are not directly governed by the Constitution. The Constitution being the supreme law of the land demands that any law inconsistent with its provisions is void. Thus laws considered under the General Law must technically conform to the Constitution.

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

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

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

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

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

A uniform system of individual justice, says Pereira depends on the role of law to sustain tolerance and mutual respect among citizens and between state and citizen.

Pereira further points out that Bangladesh is a democratic People's Republic and not a religious based state. So the constitution is supreme and nothing can supersede the constitution which gives considerable guarantees to ensure gender equality. “We cannot have two standards for one and the same situation. Differences cannot be made on the basis of gender or religion” adds Pereira.

Of course new laws have been enacted after strenuous lobbying by women's activist groups to safeguard women's legal rights and improve their social status. The Dowry Prohibition Act of 1980 looks good on paper but has been far from being enforceable as evidenced by the number of dowry related acts of violence and deaths.

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

The Nari-O- Shishu Nirjatan Daman Ain 2000 (Law on the Suppression of Violence Against Women and Children 2000) has for the first time expanded the definition of rape considerably although it does not acknowledge marital rape. Sexual assault and sexual harassment have been made punishable offences under this Act. "The law on children is one of the best examples of the workings of a clear distinction between religion as a private matter and the area of personal welfare of citizens as subject to state intervention. Says Pereira, “The laws on children and personal disputes relating to children such as the Guardians and Wards Act, the Majority Act and the Child Marriage Restraint Act, are all applied uniformly to all children and citizens of Bangladesh, irrespective of gender or religion despite these areas being clearly within religious-personal sphere of citizen's lives," she continues.

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

In the context of CEDAW, essentially a Women's Bill of Rights to be adopted universally, how has Bangladesh fared? The government despite being a signatory to CEDAW continues to hold reservations on Article 2 and article 16 (1). These two provisions deal with comprehensive legislative changes and equality in marriage and divorce. But the biggest blow to the women's movement has been the surreptitious changing of the National Policy for Women's Advancement (NPWA) by members of the then government in 2004.

The (NPWA), formulated in 1997, was a product of extensive consultation with many women's groups and human rights and civil society representatives. It drew upon the Beijing Platform for Action and the hard fought achievements of the Bangladeshi women's movement of over 30 years. In 2004, critical changes to the NPWA were made by Government, without the knowledge of women's rights groups, civil society or even a discussion in Parliament. The 'revised' policy was signed and sealed by the Cabinet and reveal a conspiracy to curtail and even abolish certain crucial rights for women that would effectively take them back a few hundred years.

Pereira cites the sly changes in language made in Articles 7,8,9 and 12 of the Policy which correspond to women's equal right in adoption and implementation of economic policy, ownership and control of resources, inheritance rights, mobility in the public and market share and direct election in the reserved seats of women.

“The changes are contrary to what has been committed by the government internationally in the Periodic Reports submitted by the government to the CEDAW Committee” says Perreira.
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Clearly the revised policy aims to take away both economic and political rights of women. Article 7 ensures employment to all women both educated and illiterate. This has been changed to 'appropriate' employment to 'both educated and illiterate classes of women' which gives the scope of varied interpretations of what is appropriate. In the political arena the desire to leave out women altogether or reduce their role to one that is merely ornamental, is even more obvious. The original version of Article 8 calls for promoting active participation of women in politics and 'direct elections' in the 'increased reserved seats'; the new version only mentions 'increased reserve seats' . The government, in fact did increase the reserved seats to 45 but without direct elections they remained decorative and just useful for political consolidation of the parties.

The 2004 NPWA also completely deleted Article 9 of the original Policy which called for the appointment of women in high positions including Bangladesh high commissions, university grants commission, planning commission and judiciary. The same Article in its original form called for 30 percent at all levels of decision-making including policy-making process to ensure their equal and full participation but the 30 percent was omitted in the revised policy with 'more participation' rather than 'equal and full participation'. Article 12 of the 1997 document calls for encouraging and providing equal opportunities to women in agriculture, fisheries, livestock rearing and forestry whereas in the tampered version it uses the words 'encourage and give priority' to women in these areas which again is vague and does not guarantee equal opportunities.

Thus the fight to get full ratification of CEDAW is still on for women activists and human rights groups who have been relentlessly trying to establish fundamental rights for women as citizens of a sovereign nation. In 2004 a 'Shadow Report' formulated by Ain O Shalish Kendra, Bangladesh Mahila Parishad and Steps Towards Development was submitted to the UNCEDAW committee which pointed out the areas where the government had not complied with CEDAW although at the time nobody knew about the government's clandestine changes to the NPWA.

The next Periodic Report to the CEDAW Committee is due in 2009. Women and human rights activists fervently hope that the NPWA will be reverted back to its original form that is in harmony with CEDAW standards. Many believe that the present, non-political government, despite its apparent reluctance to do so, can make the necessary changes to the NPWA and significantly smoothen the road. “Those of us who are progressive minded and want women's development believe in a rights-based approach,” says Ayesha Khanam, Mahila Parishad's General Secretary at a celebration of CEDAW Committee's 25th anniversary last week, “rather than a protectionist, patriarchial view point”. She adds that it is necessary to reduce the historical gap between men and women due to socio-economic and political factors so that women can participate in a level-playing field. “Affirmative action is needed to reduce this gap” comments Khanam, “it is not enough to just announce laws on equality, these laws must have equity in their results”. In the domain of private life women are still discriminated against because of personal laws. “If there is no equality in her personal life,” says Khanam, a woman cannot be an effective citizen. We hope that the Bangladesh government will fully ratify it (CEDAW).”

Copyright (R) thedailystar.net 2007