LEGAL STATUS OF WOMEN IN BANGLADESH
According to Smith, Turkey is the only Muslim country with a secular law that includes family and personal law; in Bangladesh, as in most other Muslim countries, “there is a kind of dual system of a secular civil and a religious family code” (Smith 1987, 237). The constitution, penal code and civil and criminal procedure codes are secular in character and apply to Muslims and non-Muslims alike. Muslims, who account for over 80 per cent of the population of Bangladesh, are also governed by Muslim personal or family laws which are based on the principles of sharia (Kamal 1989, 4; Khan 1988, 17-18). Bangladeshi Hindus, in turn, are governed by Hindu personal law. [An estimated 90 per cent of the Muslim population of Bangladesh belongs to the Hanafi school of Islam (Kamal 1989, 4; World Bank 1990, 18). Most Bangladeshi Hindus follow the Dayaabhaga School of Hindu Law (United Nations 8 Apr. 1993, 9). Hindu personal law will not be discussed in this paper; for a brief examination of its discriminatory aspects and property and inheritance provisions, please see Naripokkho, p. 11. According to the Committee on the Elimination of Discrimination against Women (CEDAW), no steps have yet been taken to modify Hindu personal law (United Nations 8 Apr. 1993, 31)]. (Naripokkho Oct. 1992, 11).
Although ideally there are no areas of overlap between secular law and Muslim family or personal law, subsection 7.(2) of the constitution is unequivocal about how any such conflicts should be resolved: “This Constitution is…the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void” (Blaustein Jan. 1993, 29). In practice, however, whether or not the constitution is given precedence over religious law seems to depend on the political objectives of the government. According to one source, if the government is feeling weak domestically or requires a broad-based popular mandate that hinges on the support of Islamic fundamentalists, gender-related issues–the “key factor distinguishing the two ideological packages”–are often the first to be conceded (Kabeer Oct. 1989, 29). However, if it is foreign aid or political legitimacy the government is seeking, it is quick to champion women’s rights. In the words of one observer, “when the totality of state policy is considered, its championship of women’s rights can be seen in an extremely cynical light. …it professes to believe in both the emancipation of women as well as its negation” (ibid.).
3.1 Constitutional Guarantees
Subsections 28.(1) through 28.(4) of the 1972 Constitution of the People’s Republic of Bangladesh guarantee the fundamental rights of women and forbid any form of discrimination on the basis of sex:
(1)The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth.
(2)Women shall have equal rights with men in all spheres of the State and of public life.
(3)No citizen shall, on grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution.
(4)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 (Blaustein Jan. 1993, 41).
Section 27 further states that “all citizens are equal before law and are entitled to equal protection of law,” while subsection 26.(1) affirms that “all existing law inconsistent with [these] provisions…shall…become void” (ibid.).
Thus the constitution not only guarantees equality between the sexes, but by allowing for special provisions in their favour, acknowledges the reality of the unequal status of women. This “protectiveness” toward women also exists in the Civil Procedure Code and Criminal Procedure Code, where women are exempt from arrest for debts, as well as in provisions for preferential treatment in certain areas of the labour market (Khan 1988, 16). While these provisions demonstrate concern for the vulnerable position of women in Bangladeshi society, observers note that such laws may limit their opportunities to be treated as equals in all spheres of life (ibid.; World Bank 1990, 20). For example, government concern about women being lured into prostitution resulted in an executive order prohibiting “fourth class women employees…from travelling abroad unless accompanied by their spouse” or in possession of a special government clearance (ibid.). According to a World Bank report, “whenever women are perceived to be in danger, the system tends to curtail women’s freedom of movement rather than to deal with the situation directly” (ibid.).
3.2 Muslim Family Law
Despite criticism from some political parties and minority groups, on 7 June 1988 the parliament of Bangladesh passed a bill making Islam the state religion (Keesing’s 1989, 36558; Xinhua 7 June 1988). The move was reportedly an attempt by the government to curry favour with the Muslim faithful and politically undermine the fundamentalist Jamaat-i-Islami (Keesing’s 1989, 36558).
While Islam is the dominant ideology governing relations between women and men in Bangladesh, one observer notes that the country’s geographic and historic isolation have made it resistant to the “divine, theocratic, centralist and establishment-based” version of Islam, linked to Arabic learning and oriented to the Middle East, practised for instance in Pakistan (New Left Review Mar.-Apr. 1988, 96).
This fact partially explains the low support in Bangladesh for the type of fundamentalism characterizing state policy towards women in other Islamic countries, and has helped frustrate any systematic attempts to curtail women’s rights in the name of Islam (ibid.; Kabeer Oct. 1989, 2).
The Qu’ran (Koran) forms the basis of Islamic law (sharia) and personal or family law in most of the Muslim world, including Bangladesh. The edicts in the Qu’ran most relevant to the treatment of women deal primarily with four major areas: marriage and related topics, divorce, inheritance and ownership of property, and veiling and seclusion (Smith 1987, 236-37). Because the Qu’ran is considered to be the “literal and unmitigated word of God” (ibid., 235), the precepts laid out in the Qu’ran are strictly followed and changes in Muslim family law occur slowly (ibid., 236). With regard to Bangladesh specifically, civil laws such as the 1939 Muslim Marriage Dissolution Act and the 1961 Family Law Ordinance were formulated to counteract some of the most discriminatory effects of Muslim family law (Alam Sept. 1992, 4-5).
The concept and practice of divorce is one example of the unequal treatment accorded men and women under Muslim family law (Eggen Mar. 1990, 7). Muslim family law allows a man to divorce at any time, while a woman can do so only if stipulated in her marriage contract (Alam Sept. 1992, 5; Eggen Mar. 1990, 7; Khan 1988, 19). Although the 1939 Muslim Marriage Dissolution Act gave Bangladeshi women the right to divorce in certain circumstances and the 1961 Muslim Family Law Ordinance required that both parties serve their partner with notice of intention to divorce, these laws have not been effectively enforced (Alam Sept. 1992, 5; Khan 1988, 20). Furthermore, with respect to remarriage, one observer has pointed out that any woman opposing her husband’s remarrying, in a system where there is no alimony for a divorced woman, and where she will rarely have been given an appropriate education to enable her to earn her own living, runs the risk of destitution (Kamal 1989, 7).
A number of sources have identified other aspects of Muslim family law, such as the laws on inheritance, which similarly discriminate against women (Alam Sept. 1992, 1-6; Begum 1992, 6-16; Kamal 1989, 4; Khan 1988, 17; Naripokkho Oct. 1992, 10).
3.3 Civil Law
In an effort to protect women’s rights and elevate their standing in society, the government has introduced and amended several pieces of legislation (Khan 1988, 20; United Nations 11 Apr. 1986, 8). Among these are the Child Marriage Restraint Act of 1929, the Dowry Prohibition Act of 1980 (amended in 1982), the Cruelty to Women (Deterrent Punishment) Act of 1983 and the Family Court Ordinance of 1985 (amended in 1984) (ibid., World Bank 1990, 21).
3.3.1 The Child Marriage Restraint Act
The 1984 amendment to the 1929 Child Marriage Restraint Act raised the minimum age of marriage from 16 to 18 years for females, and from 18 to 21 for males. Section 4 of the amended act provides punishments for any individual (male or female) above the legal age of marriage who marries a person below the legal age (Khan 1988, 20; United Nations 11 Apr. 1986, 10-11). At least one source notes that the average age of marriage for females has risen to 17.6 years (Naripokkho Oct. 1992, 14), but others suggest that the amendment is not being effectively enforced, particularly in rural areas where it is still customary for females to marry at 15 or 16 years of age (Canada 1992, 11; Wilson-Smillie Feb. 1990, 4). The Coordinating Council for Human Rights in Bangladesh (CCHRB) indicates that girls as young as six or seven are being married to boys of nine or ten years by parents confronting poverty (CCHRB Mar. 1993, 69).
3.3.2 The Dowry Prohibition Act
The Dowry Prohibition Act, enacted in 1980 and amended in 1982, makes the giving, taking or demanding of a dowry an offence punishable by fine, imprisonment of up to one year or both (United Nations 11 Apr. 1986, 8-9; World Bank 1990, 21). However, according to the International Women’s Rights Action Watch, an international network monitoring the implementation of the Convention on the Elimination of All Forms of Discrimination Against Women, the Dowry Prohibition Act “is so contrary to social norms and practices that it is simply ignored” (Dec. 1992, 2). Aisha Khanam, a prominent woman activist, feels that the act has served as a deterrent and has created some awareness of the problem, but adds that “it has failed to come up to expectation due to lack of administrative support, lack of clarity in the legislation and social bias against women” (Women’s Feature Service May-June 1989, 22).
Although the Dowry Prohibition Act offers protection to women in law, few Bangladeshi women have the financial resources to exercise these rights in the courts. Mohammad Abdul Matin, executive director of the Bangladesh Society for the Enforcement of Human Rights (BSEHR), notes that in most cases brought before the courts, “the women are too poor to continue with costly and time-consuming procedures” (ibid.). Social stigmatization is another factor keeping women from exercising their legal rights. In the words of one BSEHR investigating officer, “in 98 percent of the cases … a woman who complains against her husband cannot return honourably to his home” (ibid., 23).
Slow administrative procedures and a lack of cooperation from law enforcement agencies have led to a large number of dowry-related cases being held up in the courts (ibid., 22). Another problem is that charges under the Dowry Prohibition Act are often filed in reaction to dowry demands made by husbands and in-laws after the marriage has taken place. Because the act defines dowry as “property or valuable security given or agreed to be given as consideration for the marriage of the parties,” investigating and court authorities have dismissed cases involving demands for money made after marriage (Bhuiyan 1991, 19-20). Additionally, the Finance Ordinance of 1985, which encourages parents to make tax-free gifts to their daughters, has been described by one source as a possible cover to facilitate dowry (International Women’s Rights Action Watch Dec. 1992, 2-3). Other sources corroborate the fact that the Dowry Prohibition Act has not been effectively enforced (Canada 1992, 11; World Bank 1990, 21).
3.3.3 Cruelty to Women Act
The 1983 Cruelty to Women Act, also known as the Deterrent Punishment Act, reiterated certain offences that were first defined in the Penal Code of 1960, and strengthened the penalties for infractions (World Bank 1990, 20). The act made the rape, sexual exploitation for gain, abduction, kidnapping or attempt to cause the death of a woman, offences subject to life imprisonment or death (Wilson-Smillie Feb. 1990, 4; United Nations 11 Apr. 1986, 9-10). In September 1992 the government also brought in the Anti-Terrorism Ordinance, which provides stiff penalties for the abduction or harassment of women, among other offences (United Nations 8 Apr. 1993, 30-31).
In response to questions raised at the 12th session of the UN Committee on the Elimination of Discrimination against Women about the effectiveness in dowry disputes of the Cruelty to Women Act, a Bangladesh government representative indicated that the act has led to a decrease in the incidence of death and injury and an increase in the rate of prosecutions (United Nations 28 May 1993, 56-57). However, other sources argue that there has actually been a rise in dowry-related crime (Bhuiyan 1991, 15; Women’s Feature Service May-June 1989, 21) and that dowry practices remain the single largest cause of violence against women in Bangladesh (Khan 1988, 20; United Nations 8 Apr. 1993, 30). Because of the social stigma attached to crimes of domestic violence, few women have come forward to press charges under the act (Canada 1992, 11).
Crimes of violence against women are also common outside the home, and here too implementation and enforcement of the law are lacking. Although the Cruelty to Women Act provides sanctions against the sexual exploitation of women for gain, the traffic in Bangladeshi women in the “slave trade market,” mainly to Pakistan and India, remains “a major human rights concern” (CCHRB Nov. 1992, 79). According to police estimates, as many as 5,000 Bangladeshis, mostly women and children, are smuggled out of the country every year (Reuters 24 Apr. 1991).
In cases of rape, women are reluctant to go to the police because they are often harassed by the offender and because both police and witnesses are reportedly easily “influenced and bribed” (Bhuiyan 1991, 48). Furthermore, the definition of rape employed in the Penal Code does not allow for cases where an employer obtains consent from an employee for sexual relations through the threat of job loss (ibid., 44).
3.3.4 The Family Court Ordinance
The Family Court Ordinance of 1985 set up a system of family courts at the upazila (county) level, providing for the legal redress of cases involving marriage, divorce, dowry and the maintenance, custody and guardianship of children (Wilson-Smillie Feb. 1990, 4; Khan 1988, 20; United Nations 11 Apr. 1986, 17-18). Although the system has reportedly speeded up the disposition of such cases (Khan 1988, 20) and “has been helpful for women in getting justice” (United Nations 8 Apr. 1993, 38), most women lack information about their legal rights, and together with the social stigma attached to taking these issues to court, this has limited the ordinance’s effectiveness (Wilson-Smillie Feb. 1990, 4). Another source notes that the ordinance only affirms the unequal treatment accorded men and women: “while a husband does not need to go to court [to obtain a divorce], a wife must litigate in this forum, which calls for an unnecessarily long procedure” (World Bank 1990, 21). Even if the court rules in favour of the litigant, the judgement still requires validation from the offices of the local government. The source further notes that this procedure is “not an improvement since women already had to seek dissolution of their marriage in court under the [Muslim] Family Law Ordinance of 1961” (ibid., 22).
3.4 International Human Rights Law
Of the 75 existing international instruments on human rights, to date Bangladesh has accepted 11, including the Convention on the Rights of the Child, the Convention on the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Others, and the Convention on the Elimination of All Forms of Discrimination Against Women (CCHRB Nov. 1992, 3-4).
When the government ratified the Convention on the Elimination of All Forms of Discrimination Against Women in 1984, it submitted a restrictive interpretation giving precedence to Islamic law where it conflicts with the convention (Gillespie May 1990, 10). Bangladesh continues to maintain reservations to certain provisions of the convention, including article 2 on the pursuit “by all appropriate means and without delay a policy of eliminating discrimination against women,” paragraph 13.(1)(a) on the right to family benefits, paragraph 16.(1)(c), which ensures “the same rights and responsibilities during marriage and at its dissolution,” and paragraph 16.(1)(f) on the rights and responsibilities with respect to guardianship and adoption of children (United Nations 28 May 1993, 62; ibid. n.d., 6-12). In response to questions on article 2 at the 12th session of the Committee on the Elimination of Discrimination against Women, the representative from Bangladesh noted that while the constitution had granted equal rights to men and women, a degree of inequality was still present in both Muslim and Hindu personal law (ibid. 28 May 1993, 52).