The politics involving various minority groups have become a veritable concern. Well-meaning views, dialogues, and inceptions of new laws are very important. Yet, unless and until the complacent ‘majority’ makes a conscious effort, even causes an outcry to promote and protect their ‘minority’ siblings’ rights, real change is very hard to imagine. For their society to be ‘vaguely equal’, the ‘majority’ has to come out defending the rights of ‘minority’ protesting, condemning, and help in prosecuting the perpetrators of all forms of discrimination. The country’s proposed Anti-Discrimination law, hopefully would provide impetus for such collective actions.
[Please Note:We do not have any information on when the proposed law would be promulgated or, indeed, whether this is the final version of the law. Hence, our comments and observations are solely based on the draft law which is currently available through the Law Commission’s link provided below.]
Bangladesh’s Proposed Anti-Discrimination Law — Touching the Untouchables
By Irfan Chowdhury for Alal O Dulal
Perhaps it is fair to say that throughout human history, the majority have felt at ease in abusing minorities. Situations have differed, but the culminating effect have been the same: subjugation and exploitation of the weak. Not that there weren’t episodes of enlightenment when human beings were urged to treat fellow humans equally – male or female, black, white or brindle, upper or lower castes, homo- or heterosexual, Hindu, Muslim, Christian, Buddhist, Sikh, Jain or Jew. Yet, in spite of the saints and prophets and their everlasting foreboding that one’s sins will be punished by the almighty, members of the human race needed a set of rules and earthly punishments to keep them in line. That resulted, of course, in the creation of a rule of law.
Now imagine a fledgling nation engaged in its pursuit of just leadership, mechanism of governance, outlets for economic aspiration and social progression – a nation where gaps between the dominant ruling class and its subjects become ever more conspicuous. A society whose ancestors were adept in adjusting to the arbitrary application of laws and decrees of rulers long before the advent of present-day court systems. Whether it was the Hindu Kings, the Muslim Moghuls or the British administrators, the laws were rarely to benefit the subjects. Contrary to what was claimed, laws mostly protected the interest of the ruling elite, seldom protecting weak minority groups – considered picayune, as was their significance whether expressed in terms of religion, ethnicity, indigenous status, gender or sexual orientation.
Still, any forms of measure against anti-discrimination should be welcomed. One such law has now been drafted for Bangladesh, aiming to challenge a deeply-rooted class attitude in our culture. These most recent laws, maybe the first for the country, offer basic human rights to a group of extremely disadvantaged people who, from an ancient past, have been social outcasts suffering despicable contempt from wider society, denigrating them perennially to perform menial tasks such as sweeping, cleaning, washing, handling stinking dead bodies and similar utterly undesirable tasks.
Interestingly, in spite of a modern touch emanating from social and economic development, and despite increasingly rapid education and ensuing enlightenment of the masses, these families of menial workers not only continue to be destined to perform those tasks but sadly society’s collective attitude towards them has not changed. At least an internationally recognised term, ‘Dalits’, indicating a lower cast, has been coined in recent times for their appropriate demarcation in our social psyche.
It should be noted that the proposed laws are also intended to protect a range of other vulnerable groups such as women, sex workers, transsexuals, mentally and physically disabled and religious minorities. The proposed legislation thus hopes to prohibit any discrimination – based on race, religion, health, economic status, ethnicity, health, birth, birthplace or socio-economic status – and to provide state protection to the potentially vulnerable. Before we sink into absolute negativism and dystopia engendered by the atrocious law and order situation in the country and the increasingly horrible treatment of minority groups, let’s consider the summary of the proposed law:
Key reasons for drafting this law. The introduction section provides background information and details the need for drafting this law. The Constitution, although, grants (through the articles 19, 27, 28 and 29) equal rights to all citizen and prohibits any discrimination, and while Bangladesh is a signatory to a number of International Human Rights Treaties each of which contains a guarantee in relation to non-discrimination and equality, the reality on the ground is not only different and divergent but also far from reassuring for the victims of various discrimination. At present, apparently, some of the limitations of the Constitution in providing basic rights to the disadvantaged groups are that:
- In situations when the rights are violated, while the state can be held accountable there is no clear constitutional direction for taking actions against an individual or a private organisation;
- The Constitution only takes account of discriminations due to religion, colour, race, sex and birthplace, but in reality there are other forms of discriminations suffered by many groups and professions;
- While the constitution presently bars discriminations based on ideology, sex, birthplace, colour, religion, or race, there is no specific direction suggested against ‘social discrimination’ or ‘untouchability’ – due to which it is difficult for a suffering individual to invoke protection from the Court (Law).
The introduction section also highlights the necessities and reasons to:
- Clearly define ‘discrimination’ including all forms of discrimination;
- Provide legal and state protection to different disadvantaged groups;
- Change the mindset and behaviours of the wider society towards neglected, isolated and deprived communities, in particular by treating such discriminations as punishable crimes; and
- Take actions to improve the situations of the disadvantaged groups.
In fact, this section strongly argues that it’s a state’s responsibility to create an environment where the disadvantaged group could enjoy the constitutional rights and protections. This stresses that it is a necessity now to legislate special laws to ensure the rights of the disadvantaged groups, and to punish or to take appropriate legal actions against those – government or private – organisations or individuals who discriminate and hinder anyone to enjoy their constitutional rights.
‘Dalits’ are so neglected, depraved and dispossessed of their human rights, and that the attitude of the wider community towards them is so conceited and disdainful that it begs devising a special legal shell for their care. To illustrate one of their many woes, they are constantly being subjected to prejudice; these people who clean our streets and palaces are forced to live in squalid surroundings; they are barred from participating in society’s natural events.
Who does this law protect? The law defines ’disadvantaged community’ as any community that is being discriminated against due to its economic, social, religious, race, colour, clan, sex, age, language, birthplace, birth, disability or profession (Page 9, Chapter 1 Section 2 Ka).
What does it say about investigation of incidents/complaints? Complaints can be lodged directly to the National Human Rights Commission. Cases can also be filed in the courts, in which case judicial inquiry will have to be conducted and magistrates should submit reports to the court within 30 days. Regardless of the courts’ findings or procedures, appropriately designated officials of the ‘Anti-discrimination Crime Cell’ will carry out their investigations of lodged complaints.
They will have to lodge a ‘preliminary report’ within seven (7) days, following which, if a decision is made to undertake formal investigation, ‘investigating officers’ will be assigned, who, after investigation, will file a diary in the ‘Thana’ (local police satiation) as information and evidence. Thereafter a number of usual legal steps are prescribed (Pages 13-15 , Chapter 3 , Sections 5, 6 and 7). The above could mean that two simultaneous processes would take place in respect of the same complaint, one at the ‘Abolition Of Discrimination Special Court’ and one through the relevant police station. I am unsure whether this is to give extra-protection or more access to legal system for victims.
What are the punishments? A table (on Pages 15- 17 in Chapter 4) lists punishments against various crimes such as obstructing observation of religious festivals, rites and rituals; giving away a disabled child to other families or clans; denying right to education for a disabled child by disowning the child; spreading rumours creating discrimination or obstructing a marriage/union; discriminating in the payment of salaries and wages; obstructing the desire of members of ‘disability groups’ to buy or sell properties; restricting them from receiving government provided public privileges such as education and hospital services as enjoyed by other citizens. These are pretty serious crimes in any society, however developed or under-developed, and they must be policed and offenders must face the justice system. Ten (10) years of imprisonment with Tk.1000000 cash penalty is prescribed as the highest punishment. Other cash penalties and jail terms are stipulated, depending on the crime and its severity.
The promise of speedy justice . Provision of law is one thing, but speedy punishment is quite another. Dragging out legal proceedings in a very under-resourced court system is a common ploy used by perpetrators in order to avoid sentences. The draft legislation suggests some conditions that might stop cases from being dragged out. ”The hearing can be adjourned only on reasonable excuses, but under no circumstance can hearings be adjourned more than twice” (Page 19, Chapter 5, section 10.5). However, the procedure to be followed in realising compensation is the one laid down in the Code of Civil Procedure. Accordingly, there would be long delays in realising compensation as the process of our civil courts is very long and dilatory.
Possible pardons for the first time offenders. If a first offender expresses explicit remorse and vows in writing not to repeat such an offence, the court can resolve the case by issuing appropriate instructions (Page 19, Chapter 5, Section 11). While this may appear quite sensible on paper, in practice there is significant potential for this provision to be misused. Opportunities to express remorse by the criminal and forgiveness from the victim are understandable. However, in remote and regional locations this provision would be specially susceptible to abuse. We know this from numerous documented anecdotes (some contained in our coverage of the abuse and torture of tribal people and minority groups).
District Judges to head ‘Anti-discrimination Special Court’. The government in consultation with the Supreme Court can appoint Judges in each district to preside over the ‘Anti-discrimination Special Court’ (Page 17, Chapter 5 Section 2).
Disadvantaged groups to be included in census . The law suggests that disadvantaged groups are to be included in the national census, more information about them being collected and steps are taken to improve their well-being (Page 21 Chapter 6, section 15.1 (Ka).
Well meaning but… As you can see from a very brief high-level summary above, the proposed legislation is encompassing and should provide a much-needed shield against discrimination. We welcome immediate introduction of the proposed legislation, but we are sceptical that ours is a society proficient in dodging laws, whether they relate to crucial income tax, land tenure, or something as basic as traffic laws for those chaotic roads.
Then there is cultural and social disregard of the law. For example, we are aware that laws – whether to prohibit child labour or to stop violence against women – are failing to protect the victims. Consider the discrimination women face in this society, as quoted below, in spite of the law: “The nation is signatory to a number of United Nations Human Rights treaties including the Convention on the Elimination of All Forms of Discrimination against Women and the rights of women is protected under the 1972 Constitution, where the following Articles can be found:
- Article 10 of the Constitution provides that steps shall be taken to ensure participation of women in all spheres of national life.
- Article 19 (1) provides that the State shall endeavor to ensure equality of opportunity to all citizens. Article 27 specifies that all citizens are equal before the law and are entitled to equal protection of the law. Moreover, Article 28 (1) provides that the State shall not discriminate against any citizen on grounds of religion, race, caste, sex, or place of birth.
- Article 28 (2) more directly and categorically says that women shall have equal rights with men in all spheres of the State and of public life. This latter provision means that all rights mentioned in the Constitution, such as right to life, right to personal liberty, right to property, freedom of movement, freedom of speech, freedom to exercise a profession or occupation are equally applicable to women in Bangladesh.
Despite legal support for women’s rights, Bangladesh women are still not, in practice, given equal treatment. Practices of inequality are manifold, of which the following deserve special mention:
- In the case of wages in the informal sector, women are paid a lower grade than men for the same work;
- In divorce, women need a court order to enforce their right to divorce, which requires proving the validity of their reason for seeking divorce. Men, on the other hand, do not need such court order and thus they can divorce their wives even without any proper reason, and at any time they wish;
- In inheritance, a woman is generally given half the share of her male counterpart. A son would exclude his paternal uncle or aunt from inheriting from his deceased’s father’s property, while a daughter would not cause such consequence.” (http://www.hurights.or.jp/archives/focus/section2/2003/06/rights-in-law-and-in-practice-the-case-of-bangladesh.html)
This deliberate heedlessness and indifferent attitude towards law, any law, is specially significant given recent violence and aggression against a number of minority groups, including the tribal people in the Chittagong Hill Tracts and Hindu communities across the country. As with anti-discrimination laws in any country, they’re well meaning and in theory should reassure the intended target groups.
However, that depends on how laws are administered. This may also be a reason why a society needs to be governed. Why would we need a government if there was the slightest possibility that we are all ‘rational’, ‘level-headed’, ‘well-reasoned’ individuals with near perfect ‘self-control’, not doing destructive things such as attacking others, stealing others’ possessions or even inflicting self-harm through drug abuse or gambling.
And think more: if all of us were equal – in our ability, wealth, education, health, beauty or possessions – would there be any need to nudge us through a system of rewards, penalties or punishments? In such a utopian scenario, we would all be a happy bunch of self-governing free sprits doing ever bigger and better things – for us and for the greater society. However, reality not only imposes earthly governments, forts, courts, courtiers, or legal systems upon us, the last of which more than often need refinement.
All governments, even autocratic ones, sometimes come up with an occasional good initiative. Somewhere in the 80s there was a horrible upsurge of acid throwing on girls following rejection of proposals of love or marriage. If I am recalling it correctly the Ershad regime issued a tough punishment (I think it was a death penalty followed by a few executions), along with tireless work of national and international organisations, that reduced the incidence. But acid-attacks and other forms of violence against women are still rampant in Bangladesh, in spite of the law.
We know from last year’s Delhi rape case that serious public protest and demands for swift justice ensured quick follow-ups, investigations and trials, which meted out punishment to the perpetrators. To protect our disadvantaged people or our minority brothers and sisters, there has to be a serious public outcry, which unfortunately at present is absent. I do not think a set of laws and punishments on paper would change the situation.
Equality is an aspiration in many societies, not least in developing countries. Anti-discrimination laws, affirmative actions and conscious efforts to correct social attitudes are some obvious methods to get closer a more equal society. However, the prime complexities for both developed or developing regions in achieving such goals are proper and committed development of machinery of legislation, often proven to be expensive, time consuming and limited in its effectiveness. Yet, such machinery may work as a major deterrent for individuals and organisations indulging in wholesale discrimination, and hence offer effectiveness as the first layer of protective shields for potential victims of abuse. And they (the laws) are a firm acknowledgement and protection issued by the state, regardless of their occasional, inappropriate or mal-application.
This is why at Alal O Dulal we welcome the Government of Bangladesh’s efforts in drafting an anti-discrimination law intended to protect the rights of suffering disadvantaged groups. We hope it gets deserved awareness and that it is applied impartially.
The proposed Anti-Discrimination Law can be accessed in full in Bengali at: http://www.lawcommissionbangladesh.org/reports/126-BB%20Act%202014%20Concept%20Paper.pdf
Media Articles and Further Readings on Dalits in Bangladesh:
Irfan Chowdhury is an opinion columnist.