HOW EFFECTIVE ARE THE LAWS OF BANGLADESH IN PROTECTING WOMEN FROM SEXUAL HARASSMENT?

- Barrister Lutfun Nahar

Sexual_Harassment_It_has_to_stop

Published On - August 17, 2015 [Vol. 3, Jul - Dec, 2015]

ABSTRACT

Sexual harassment is a gender discrimination and human rights violation of women. Many women in Bangladesh are forced to deal with harassment and un-warranted attention, just because they are women. Women are vulnerable to the harassment as they lack in power and self confidence, and are socialized that they are to suffer in silence. This Article is concerning the laws of sexual harassment in Bangladesh. The main purpose of it is to show the extend of legal measures available on sexual harassment in the country and the initiatives taken by the Government to combat it.  In the article, an overview has been given on what we understand by sexual harassment and its effect, the international laws on sexual harassment, Bangladesh laws on sexual harassment and the opinions expressed by the Special Rapporteur on violence against women.

INTRODUCTION:

The Bangali’s biggest festival Pohela Boishakh is usually filled with fun, joy, food and music. It is the beginning of a new year with lots of hopes and wishes. However, the joyous moment of Bengali New Year of 1422 was tainted by violence against women, i.e. sexual harassment.

A group of men sexually assaulted a number of women in the Teacher Student Centre (TSC) area near the Suhrawardy Udyan gate on Bengali New Year of 1422 (April 14, 2015). It sparked widespread public outrage on the streets and social media platforms. They mostly blamed the police for inaction and the Dhaka University authorities for mismanagement during the programmes.Witnesses to the incident said that although the law enforcers were stationed only some 18 metres from the spot, they did nothing to rescue the women or arrest those who launched the sexual assaults. Three students of the university were even hurt while trying to save the victims.

The assaults took place within less than two months after three-four women were sexually harassed in public near the entrance of Suhrawardy Udyan at the TSC intersection during the Amar Ekushey Book Fair.

These incidents show the discrimination and inequality against women that is prevalent in Bangladesh. An overwhelming majority of women who have stepped outside their homes in pursuit of education and livelihood have encountered some level of sexual harassment in this country. Sexual harassment is a form of gender discrimination. Men may be subjected to sexual harassment but majority of the victims are women. Many sexually harassed individuals put up with damaging physical and pshycological effects of sexual harassment because taking action can be daunting, especially in environments that do not provide moral and practical support. Sexual harassment is often described as harmless ‘flirting’ and an expression of men’s appreciation of women, which clearly ignores the fact that flirting is mutually consensual behaviour between two, whereas harassment is not.

In response to the growing awareness about the adverse impacts of sexual harassment, there have been increasing efforts around the world not only to break the silence on sexual harassment but also to take pro-active steps in addressing it. To  eliminate the discrimination from the society, the state should be the  proactive initiator to hold the steering role with its strong commitments and interventions. Explicit recognition and protection against acts of sexual harassment is very essential in this day and age.

The purpose of this Article is to show theextend of legal measures available on sexual harassment in Bangladesh.  In the article, an overview has been given on what we understand by sexual harassment and its effect, the international laws on sexual harassment, Bangladesh laws on sexual harassment and the opinions expressed by the Special Rapporteur on violence against women.

MEANING OF SEXUAL HARASSMENT:

The term “sexual harassment” first came into use in the late 1970s in the United States. The term’s origins are generally traced to a course on women and work taught by Lin Farley at Cornell University. In 1979, Catherine MacKinnon, a legal scholar from the United States, made the first argument that sexual harassment is a form of sex discrimination prohibited by the constitution and civil rights laws of the United States. Since then many international bodies, national legislatures and courts have prohibited sexual harassment but have not agreed on a universal definition of the term.

The United Nations General Recommendation 19 to the “Convention on the Elimination of all Forms of Discrimination Against Women” reaffirms these elements by defining sexual harassment to include “such unwelcome sexually determined behavior as physical contact and advances, sexually colored remarks, showing pornography and sexual demands, whether by words or actions.”

In general, the role sexual harassment is believed to play in the subordination of women in society has led many countries, including the United States, the United Kingdom, Canada, Australia, Japan and South Africa, to recognize sexual harassment as an actionable form of sex discrimination.

Sexual harassment is a violation of women’s human rights and a prohibited form of violence against women in many countries. Sexually harassing conduct causes devastating physical and psychological injuries to a large percentage of women around the world.

American scholars maintain that “sexual harassment often has a serious and negative impact on women’s physical and emotional health, and the more severe the harassment, the more severe the reaction. The reactions frequently reported by women include anxiety, depression, sleep disturbance, weight loss or gain, loss of appetite, and headaches. Researchers have also found that there is a link between sexual harassment and Post-Traumatic Stress Disorder.”

Women’s advocates around the world work to further women’s right to be free from sexual harassment. Critical to these efforts to combat sexual harassment has been the growing recognition of sexual harassment as a form of violence against women which violates women’s human rights. States are obligated under international law to take effective steps to protect women from violence and to hold harassers and/or their employers accountable for sexual harassment in the workplace.

INTERNATIONAL LAWS ON SEXUAL HARASSMENT:

Convention on the Elimination of All Forms of Discrimination Against Women :-

On December 18, 1979, the Convention on the Elimination of All Forms of Discrimination Against Women (in short, CEDAW) was opened for signature. The treaty came into force and closed for signature on September 3, 1981 with the ratification of 20 states. CEDAW is often described as an international bill of rights for women.  Consisting of a preamble and 30 articles, it defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination The Convention defines discrimination against women as “…any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”

By accepting the Convention, States commit themselves to undertake a series of measures to end discrimination against women in all forms.State parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the Convention.

Declaration on the Elimination of Violence against Women :-

The 1993 World Conference on Human Rights recognized violence against women as a human rights violation and called for the appointment of a Special Rapporteur on violence against women in the Vienna Declaration and Programme of Action. It contributed to the 1993 Declaration on the Elimination of Violence against Women.

The 1993 Declaration on the Elimination of Violence against Women (Resolution No. 48/104 of 20 December 1993) became the first international instrument explicitly addressing violence against women, providing a framework for national and international action. It defines violence against women as any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.

The Declaration states three categories of violence against women: violence perpetrated by the State, such as violence against women in custody and as part of warfare; violence occurring within the general community, including rape, sexual harassment, trafficking in women and intimidation at work; and violence in the family and in the private sphere, for example selective abortions.

According to the Declaration, violence against women is rooted in the historically unequal power relations between women and men. It also explains that violence against women is ‘one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.’

The UN member states are therefore urged to legislate against the violence, work preventively and improve the situation of victimised women.

LAWS OF BANGLADESH ON SEXUAL HARASSMENT:

Bangladesh has signed its commitments  to  the “Convention  for  the  Elimination  of  All Forms of Discrimination Against Women” in 1984 as well as “Declaration on the Elimination of Violence against Women” and endorsed Beijing Platform for Action  (BPFA) in 1995 to attain  the  objectives  of  safeguarding  gender  equality,  legal rights and thus empowerment of women. The 1995 Beijing Platform for Action identifies specific actions for Governments to take to prevent and respond to violence against women and girls. Ending violence is one of 12 areas for priority action. The platform includes an expansive definition of forms of violence. The Government has also adopted National Women Development Policy 2008. In the said policy, the Government reiterated its position to comply with different international covenants and instruments to protect the rights of women.

The journey to ensure women empowerment in  Bangladesh began  since  the  independence  in  1971 by  ensuring  the  equal rights  in  the  Constitution.  The  Constitution of Bangladesh guarantees equal  rights  for both men  and  women  in  all  spheres  of state and public life. Article 28 (1) states that the State shall not discriminate against any  citizen on  grounds only  of religion, race,  caste, sex or place of birth. In addition, Article 28 (4) states“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”. Article 10 further provides that steps shall be  taken to ensureparticipation  of  women  in  all  spheres  of national  life  as  a  fundamental principle  of state  policy (Ministry  of   Law,  Justice  and  Parliamentary Affairs,  1972).

During  the  recent decades,  the  initiative  to protect equal  rights  of  women  and  non-discrimination   has   gained   momentum   and   has   been   successful   in mobilizing   and synchronizing  women  to uphold their  rights. Bangladesh  Government  has  been  pro actively   adopting in adoption  of preemptive policies,  legislations, strategies and  taking national  affirmative  action   plans   and   program for   accelerating   the implementation   process   in achieving  the  goal  of holistic empowerment  of  women  in  Bangladesh (MoWCA,  2009). Notable  actions have  been taken  by  the  government to protect women’s  legal  rights  and improve  their  social  status . Those include  enacting  of The Dowry  Prohibition  Act, 1980 which forbids  anyone  from  giving  or  receiving  dowry and The Nari-O-Shishu  Nirjatan Daman Ain,2000 (Law on the Suppression of Violence against Women and Children,2000) for  the  first  time  expanded  the definition  of  rape  considerably  and  the  sexual  assault  and sexual  harassment  have been  made  punishable  offences; Acid  Crime  Prevention Act, 2000 and Acid  control  Act,  2000 to  prevent  from  the  acid  violence. For  preventing  women  fromviolence, government has enacted Family Violence Prevention and Protection Act, 2010 and National Women policy, 2011 was adopted for the empowerment of women. Interventions like One Stop Crisis Centres are operating at regional level for women victims of violence who receive medical treatment, police assistance, legal support and rehabilitation service as well as establishment of National Trauma Counselling Centre is an applauding intervention by the government. Awareness raising programs and advocacy arebeing conducted with specific focus on engaging males in prevention of violence against women and changing stereotype mind set in the society. The pro-women policies, strategies and measures of theGovernment undertaken in the last decades have positively influencedto empowerwomen and to bring themin the main stream of development.

The Suppression of Violence against Women and Children Act came into force in February 2000. It is intended to address the need for more effective prosecution of perpetrators of violence against women and children than existed previously, and provides redress for victims of various manifestations of violence, including trafficking and acid throwing.Punishment for sexual oppression is stated in Section 10 of the Act, which includes “Whoever, to satisfy his sexual urge illegally, assaults a woman sexually or makes any indecent gesture, his act shall be deemed to be sexual oppression and he shall be punished with imprisonment for either description which may extend to seven years but not less than two years of rigorous imprisonment and also with fine”.

Even though women in Bangladesh have equal rights both under  the  Constitution  and  most  of  the  other  laws,  the actual legal status and entitlement are greatly influenced by culture, customs, norms both social and religious.

At present, there are no legislative provisions to address sexual harassment of women and girl; and in the absence of the legislative provisions the need to find out an effective and/or alternative mechanism to cater the need is an urgent social imperative.

CASE LAWS ON SEXUAL HARASSMENT:

Following disturbing and depressing reports by the media and organised protests by the civil society in the wake of increasing incidents of sexual harassment on campus and at workplaces in Bangladesh, Bangladesh National Women Lawyers Association (BNWLA) invoked Writ Petition No. 5916 of 2008 under Article 102 of the Constitution for prevention, protection and redress against sexual harassment at educational institutions and workplaces.

In response to public interest litigation filed by BNWLA, a division bench comprising of Justices Syed Mahmud Hossain and Kamrul Islam Siddiqui of the High Court Division delivered a milestone judgment (14 May 2009) by issuing certain directives in the form of guidelines to be treated as law and strictly complied by educational institutions and employers in the public as well as private sectors with immediate effect. The verdict is monumental in the context of promotion of gender equality in Bangladesh in as much as it aims to create a safe and healthy working environment for women.

It defined harassment and said the compliance of the guidelines was mandatory until those were passed into law in Parliament.

Sexual Harassment was defined as – unwelcome sexually determined behaviour (whether directly or by implication) as physical contact and advances; Sexually coloured verbal representation;Demand or request for sexual favours;Sexually coloured remark or gesture;Indecent gesture, teasing through abusive language, stalking, joking having sexual implication; Insult through letters, telephone calls, cell phone calls, SMS, notice, cartoon, writing on bench, chair, table, notice boards, walls of office, factory, classroom, washroom having sexual implication; Taking still or video photographs for the purpose of blackmailing and character assassination;Making love proposal and exerting pressure or posing threats in case of refusal to love proposal etc.

The aims and objectives of the guidelines were to create awareness about sexual harassments;  create awareness about the consequences of sexual offences; and create awareness that sexual harassment is punishable offence.

The court in the guidelines asked authorities to set up sexual harassment complaint centres at work places, educational institutions and constitute committees to investigate charges.

Writ Petition No. 4495 of 2009(Advocate Salahuddin Dolon v Bangladesh) was filed by Adv. Salahuddin Dolon, following a news report that the Headmistress of a Primary School in Kurigram had been verbally abused in sexually coloured remarks during a public meeting of her school by a public official, an Upazilla Education Officer, because she had not covered her head in his presence. The judgment was passed by a Division Bench comprising Mr Justice Syed Mahmud Hossain and Ms. Justice Syed Afsar Jahan.

During the course of the hearing, the Education Officer apologized in person to the Headmistress in Court. The High Court directed the Ministry of Education to take immediate steps to implement the Guidelines on Sexual Harassment declared earlier in BNWLA v Bangladesh, and to ensure that no woman working in any educational institution, public or private is forced to wear a veil or cover her head, and may exercise her personal choice whether or not to do so. The Court observed that “It is the personal choice of a woman to wear a veil. If any person tries to compel a woman to wear a veil against her consent or will that amounts to a violation of her fundamental rights as enshrined in the Constitution”.

A public interest Writ petition No. 8769 of 2010 was filed by Bangladesh National Women Lawyers Association (BNWLA), seeking protection of women and girls against stalking.The petition was sparked by over two dozens of deaths resulting from such stalking. The High Court  bench of Justice Md. Imman Ali and Justice Sheikh Hassan Arif declared stalking of girls and women illegal, and directed the government to consider the offence as sexual harassment.

The court also asked the government to properly define “sexual harassment” in the law, and replace the term “eve teasing” with “stalking” as a sexual offence in the Women and Children Repression Prevention Act. Stalking was defined as “A male individual stalks a female if the male engages in a course of conduct-  with the intention of causing sexual harassment or of arousing apprehension of sexual harassment in the female and that includes any of the following: (i) following the female; (ii) contacting the female by post, telephone, fax, text message (SMS/MMS/blogging/twitting), email or other electronic communication or by any other means whatsoever; (iii) causing an unauthorized computer function in a computer owned or used by the female or her family members; (vi) entering or loitering outside or near the female’s place of residence or place of business or work or any other place frequented by the female; (v) keeping the female under surveillance; ( vi) acting in any other way that could reasonably be expected to arouse apprehension or fear in the female for her own safety or  the safety of her family members”.

The Bench also said that there should be a provision for specialised doctors to take care of the mental trauma of the victims, and status of the doctors should be mentioned in the investigation report.

It ordered the government to set up separate cells at every police station across the country to monitor and deal with stalking cases.The court also said that the cells will submit monthly reports to respective superintendents of police, or commissioners of police, who will discuss those at the meetings of District Development Committees under the deputy commissioners to take necessary actions. The court said its directives will be considered as law, and mobile courts will deal with incidents of stalking until the government enacts a fresh law or amend the relevant law for stopping the crime.

COMMENTS FROM THE REPORT OF THE SPECIAL RAPPORTEUR ON VIOLENCE AGAINST WOMEN

Rashida Manjoo, the Special Rapporteur, on her report on violence against women, its causes and consequences, on her mission to Bangladesh (20–29 May 2013) stated that inequality and power imbalances between men and women are among the root causes of violence against women in the country. This is underpinned by the persistence of patriarchal attitudes towards women, as well as stereotypical views regarding their roles and responsibilities.

Banglaesh’s action in the adoption and/or review of legislation to ensure conformity with international human rights principles and standards is a welcome step. Unfortunately, law reforms will yield little positive results if the root causes of the diverse manifestations of violence against women and persisting stereotypes are not addressed, including through legal, political and social transformation efforts.

She further stated in the report that the right of access to justice and justice itself is problematic on many levels. The judicial system is faced with many challenges that have a negative impact on ensuring equal access to justice. Limited resources, poor infrastructure and the limited number of trained judges and lawyers, among others, have had a negative effect on women’s capacity to seek redress through the judicial system.

Despite constitutional guarantees with regard to due process, the Special Rapporteur was informed that law enforcement agencies often fail to uphold the relevant legal standards when dealing with cases of violence against women.

The Special Rapporteur was informed that a draft law was prepared in 2010 by Bangladesh National Women Lawyers Association in consultation with the Law Commission, and has been submitted to the relevant authorities. The Special Rapporteur was concerned that the law has been at the drafting stage for the past three years.

Despite the adoption of relevant legislation, there is a general lack of awareness of such laws, poor implementation by state agents and a reluctance of women to use the justice system as a means to seek redress. In Bangladesh, the main challenges relating to the investigation, prosecution and punishment of perpetrators for acts of violence against women are due to the lack of: coordinated criminal justice response; expertise and adequate mechanisms to conduct credible investigations; comprehensive redress mechanisms; and understanding of the root causes and consequences of violence against women.

The Government has undertaken a number of legal and institutional initiatives to meet its human rights obligations and address the situation of women and girls in the country. However, these have not been translated into concrete improvements in the lives of the majority of women who remain marginalized, discriminated against and at a high risk of being subjected to violence.

Many programmes and initiatives have been set up with the technical and financial support of development partners and donor agencies. Unfortunately, the Rapporteur found that such programmes have not reached the majority of the population who live outside the capital; and women’s access to justice and protection is still impeded by generalized impunity, limited access to services and shelters, lack of or insufficient legal representation and limited awareness of their rights. Other factors include economic dependency and societal reluctance to recognize numerous forms of violence against women as human rights violations.

The Special Rapporteur made some recommendations to the Government of Bangladesh in the Report. Among them included review and evaluation of criminal and civil laws to ensure effectiveness in eliminating violence against women, and removing provisions that allow for or condone violence against women; Establishing an independent National Women’s Commission mandated to promote and protect the rights of women. This Commission should be equipped with sufficient human, technical and financial resources to fulfil its mandate; Enacting legislation on sexual harassment on the basis of the directives of the Supreme Court of Bangladesh;Strengthening the implementation of relevant legislation applicable to violence against women, and ensuring that appropriate sanctions are imposed on perpetrators and State agents who fail to protect and prevent; Ensuring that all cases of violence against women are dealt with by formal judicial mechanisms so that victims can access effective remedies; Empowering relevant law enforcement agencies to respond promptly to incidents of violence against women; Ensurinh that all incidents of violence against women are effectively investigated by the police and that the perpetrators are sanctioned in proportion to the severity of their crime; Designing and launching targeted awareness-raising campaigns to educate and change the mindsets and attitudes through all available means including schools, the media, community and religious leaders; and Training and sensitizing relevant actors on issues related to women’s rights in order to contribute to changing the predominant social and cultural beliefs and attitudes that are harmful to women;

CONCLUSION:

Sexual harassment is a manifestation of the historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of women’s full advancement. It derives essentially from cultural patterns, in particular the harmful effects of certain traditional or customary practices and is exacerbated by social pressures; women’s lack of access to legal information, aid or protection; the lack of laws that effectively prohibit sexual harassment; failure to reform existing laws; inadequate efforts on the part of public authorities to promote awareness of and enforce existing laws; and the absence of educational and other means to address the causes and consequences of harassment.

Actions to combat sexual harassment need to be urgent and effective.  As there are no legislation on sexual harassment in Bangladesh, it is necessary to enact specific Legislationon it. However, adopting a law is not sufficient to resolve sexual harassment abuses. In addition to law, Governments and other actors in addressing sexual harassment should promote an active and visible policy of mainstreaming a gender perspective in all policies and programmes. Equality, partnership between women and men and respect for human dignity are essential in all stages of the socialization process. Educational systems should promote self-respect, mutual respect, and cooperation between women and men. Prevention action is the key to combat sexual harassment, thus large scale awareness raising is needed.

Sexual harassment is a gender issue and a human right issue. Importantly, it violates the right of women to be treated equally without any discrimination. It is imperative that the stakeholders give the problem its due attention and contribute in promoting a safe and secure environment for women.

REFERENCES:

Stop Violence Against Women, Sexual Harassment

<www.stopvaw.org/Sexual_Harassment2>

Md. Alamgir Hossen,  Measuring Gender -based violence: Results of the Violence Against Women (VAW) Survey in Bangladesh, September 2014 <www.bbs.gov.bd/WebTestApplication/userfiles/Image/knowledge/VAW_%20Survey_Bangladesh_2014.pdf>

South Asia Citizens Web, ‘Bangladesh: High Court Directs Government to Immediately Implement Sexual Harassment Guidelines in all Educational Institutions, and ensure that Women Not Forced to Veil or Cover their Heads’, 8 April 2010 <www.sacw.net/article1394.html>

Article 1, Convention on the Elimination of All Forms of Discrimination against Women <www.un.org/womenwatch/daw/cedaw/text/econvention.htm>

Ashif Islam Shaon, ‘Probe sexual assaults, court asks police, DU VC’, Dhaka Tribune, 17 April 2015 <www.dhakatribune.com/bangladesh/2015/apr/17/probe-sexual-assaults-court-asks-police-du-vc>

UN Women, ‘Global Norms and Standards: Ending Violence against women’ <www.unwomen.org/en/what-we-do/ending-violence-against-women/global-norms-and-standards>

Declaration on the Elimination of Violence against Women <www.includegender.org/about-gender-equality/conventions/the-declaration-on-the-elimination-of-violence-against-women/>

The United Nations Fourth World Conference on Women <www.un.org/womenwatch/daw/beijing/platform/violence.htm>

Bangladesh National Women Lawyers Association (BNWLA) V Government of Bangladesh and Others, Writ Petition No. 5916 of 2008 <www.law.georgetown.edu/rossrights/chapters/BangladeshWomenLawyers.html>

Rowsan Ara Begum, Eradication of Violence against Women (Bangladesh Perspective)<www.nwec.jp/en/data/Rowshan_Bangladesh.pdf>

Advocate Salma Ali, ‘Protecting women from sexual harassment’, The Daily Star, 08 March  2015 <www.thedailystar.net/protecting-women-from-sexual-harassment-14957>

Sapana Pradhan Malla, Sexual Harassment in the Workplace in Asia, UN Division for the Advancement of Women, 17 – 20 May 2005 <www.un.org/womenwatch/daw/egm/vaw-gp-2005/docs/experts/pradhanmalla.sh.pdf>

SAHR, ‘Bangladesh: Stalking now sexual offence’, South Asians for Human Rights, 27 January 2011 <www.southasianrights.org/?p=2316>

Bangladesh National Women Lawyers Association (BNWLA) V Government of Bangladesh and Others, Writ Petition No. 8769 OF 2010 <www.supremecourt.gov.bd/web/documents/298639_WP%20No.%208769%20of%202010.pdf>

Rashida Manjoo, Report of the Special Rapporteur on violence against women, its causes and consequences, Mission to Bangladesh (20–29 May 2013), Human Rights Council, 1 April 2014.

About The Writer

Article Author Image

Barrister Lutfun Nahar

Advocate, Supreme Court of Bangladesh and former Assistant Attorney General of Bangladesh.

LL.B (Hons.) (University of London, UK)
Bar-at-law (Lincoln's Inn, UK)
LL.M (Lund University, Sweden)
Email: l_nahar@yahoo.com

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