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Bangladesh: The need for an anti discrimination law

15 February 2013

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Forum - February 2013

Unequal Bangladesh:
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.

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.