FACULTY OF LAW University of Lund Masters of International Human Rights Law Master thesis

20 points

By Mahfuzur Rahman

Title
Gender Equality: Bangladesh and the UN Convention on the Elimination of all forms of Discrimination against Women (CEDAW)
Supervisor

Professor Gran Melander

Autumn 2003

Dedication To My beloved Parents

Contents
SUMMARY..........................................................................................1 ACKNOWLEDGEMENT ....................................................................2 ABBREVIATIONS..............................................................................3 1 . INTRODUCTION............................................................................4 2 . CONCEPT OF GENDER EQUALITY............................................7
2.1Gender..........................................................................................................................7 2.2 Gender Equality.........................................................................................................7 2.3 Gender Mainstreaming.............................................................................................8

3 MAIN INTERNATIONAL INSTRUMENTS CONCERNING EQUAL RIGHTS ............................................................................................10

3.1. Introduction......................................................................................................10 3.2 Universal Declaration of Human Rights (UDHR)..................................10

3.3 International Covenant on Economic, Social and Cultural Rights (ICESCR) And The International Covenant on Civil and Political Rights (ICCPR) ..........................................................................................................................................12 3.4 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)..........................................................................................................13 3.4.1 Introduction...........................................................................13 3.4.2 Obligation of States under CEDAW.........................................14 3.4.3 Respect, Protect, Fulfil and Promote CEDAW.................................16

4.GENDER EQUALITY AND LAW..................................................19

4.1 Introduction..............................................................................................................19 4.2 Personal Laws...........................................................................................................20 4.2.1 Introduction.....................................................................................................20 4.2.2 Marriage............................................................................................................21 4.2.3 Consent .............................................................................................................22 4.2.4 Dower and Dowry.............................................................................................23 4.2.5 Polygamy ..........................................................................................................24 4.2.6 Divorce...............................................................................................................25 4.2.7 Maintenance ......................................................................................................27 4.2.8 Guardianship .....................................................................................................28 4.2.9 Property and Inheritance....................................................................................29 4.3 Hindu Laws ..........................................................................................................31

4.4 Political Rights..........................................................................................................32 4.4.1 Women in Political Parties...............................................................................33 4.9 Nationality.................................................................................................................34

5.GENDER EQUALITY IN THE EDUCATION AND HEALTH........36

5.1Introduction...............................................................................................................36 5.2Constitution................................................................................................................37 5.3 HIV Situation ...........................................................................................................37 5.4Literacy......................................................................................................................38

6.GENDER EQUALITY AND EMPLOYMENT ...............................40

6.1Introduction...............................................................................................................40 6.2Constitution................................................................................................................40 6.3 Equal Pay .................................................................................................................41 .........................................................................................................................................43 6.4Problem facing working woman..............................................................................43

7 GENDER BASED VIOLENCE......................................................44

7.1 Introduction..............................................................................................................44 7.2Forms of Violence......................................................................................................45 7.3Legal Measures..........................................................................................................46 7.4Sexual Harassment....................................................................................................46 7.5 Women Trafficking and Prostitution.....................................................................47 7.5.1 Law and Policy ..................................................................................................49 7.6 Assault and Acid Victim..........................................................................................50

8.GOVERNMENT MEASURES TO ENFORCE CEDAW IN BANGLADESH..................................................................................53

8.1 Introduction..............................................................................................................53 8.2 National Plans, Policies and Institutional Machineries.......................................54 8.2.1 Introduction........................................................................................................54 8.2.2 Ministry of Women and Children Affairs (MOWCA)......................................54 8.2.3 National Machinery for Promoting Gender Equality........................................55 8.3 Reports Under CEDAW and observation of the CEDAW Committee...............57 8.4 Problem of Reservation............................................................................................58

9. THE ROLE OF NGOS TO PROMOTE GENDER EQUALITY....61

Bilateral and Multilateralal Agencies and Gender equality.......................................62

10. RECOMMENDATION ................................................................64 11. CONCLUSION ...........................................................................66 BIBLIOGRAPHY..............................................................................69

Summary
This Thesis constitutes the Gender Equality: Bangladesh and the UN Convention on the Elimination of all forms of Discrimination against Women (CEDAW) .The object of this thesis is to highlight the Gender equality in Bangladesh and the Bangladesh Government obligation under CEDAW and the discrepancy of national legislation comparison with CEDAW which have been ratified by Government of Bangladesh (GOB) in 1984 with few reservations. But yet GOB did not make enough measure to ensure equal rights for man and women. This paper will assist GOB to ensure equal rights for man and women in Bangladesh in the perspective of CEDAW. Because CEDAW is only one international instrument which ensure the equal enjoyment of civil, political, economic, social and cultural rights for women. Whether GOB has ratified the International Convention of Civil and Political Rights (ICCPR) and International Convention of Economic Social and Cultural Rights (ICESCR) but did not ratify the optional protocol of ICCPR, but GOB has ratified the optional protocol of CEDAW. It is also outline the present situation of women in Bangladesh and problem and obstacle to ensure the gender equality. It has also been designed to provide guidance as to how CEDAW would implement in Bangladesh national legal system and the remove the discrepancy of discriminatory law of gender equality. This paper focuses on the following key areas, Introduction; Concept of Gender Equality; Main International Instruments Concerning Equal Rights; Gender Equality and Law; Gender Equality in the Education and Health; Gender Equality and Employment; Gender Based Violence; Government Measures to Enforce CEDAW in Bangladesh; The role of NGOs to promote Gender Equality. Finally I would like to mention some suggestions and how far CEDAW could applicable in the national legislation in the Chapter Recommendation and Conclusion.

Acknowledgement
How can I express my all feelings in this short space of acknowledgement to whom I owe heavily to gratitude to my supervisor Professor Gran Melander, Chairman of the Board, The Raoul Wallenberg Institute, Lund University, Sweden, who paid very kind guidance and help in completing this thesis.

I would like to express my gratitude to SIDA (Swedish International

Development Agency) for financial support to finish the Masters of

International Human Rights Law Programme. My heartiest gratitude goes on to the Professor Gudmundur Alfredsson
, Director of the Raoul Wallenberg Institute, for his kind advice . I wish to express my gratitude to the Librarian and staffs of the Raoul Wallenberg Institute of their good support. Finally I want to thank all of my colleagues whose co-operation and encourage assist me a lot to complete this Master thesis. Lund, 2003

Abbreviations
ADB- Asian Development Bank BRAC-Bangladesh Rural Advancement Committee CEDAW- Convention on the Elimination of all forms of Discrimination against Women. GOB- Government of Bangladesh ICCPR-International Covenant of Civil and Political Rights ICESCR- International Covenant of Economic Social and Cultural Rights ILO- International Labor Organization MOWCA- Ministry of Women and Children Affairs MFLO- Muslim Family Law Ordinance NCWD- National Council for Women Development NAP- National Action Plan SNA- Sectoral Needs Assessment STD -Sexually Transmitted Disease UDHR- Universal Declaration of Human Rights UN -United Nations

. Introduction

Gender is an old word, which has taken on a new meaning. Sex is a fact of human biology; we are born male or female. On this biological difference we construct a structure of social attitudes and assumptions, behaviors and activities and these are our gender roles and identities. Gender analysis reveals the roles and relationships of women and men in society and the inequalities in those relationships. Gender equality objectives may find their rationale in the equal rights perspective, equal rights for women being part of the framework of universal human rights. As such, the goal of gender equality deserves support in its own rights. Equality is the foundation of every society, which aspires to democracy, social justice and human rights. In virtually all societies and spheres of activity, women are subjected to inequalities in law and in fact. Human rights and fundamental freedoms are the inherent rights of every human being. Since states of the world have recognised and affirmed faith and commitment on the Universal Declaration of human Rights, the responsibility goes to the government to translate their faith and commitment into reality. Practically, the people worldwide are deprived of the taste of human rights and fundamental freedoms to a great extent. Women worldwide are groaning under heavy pressure of inhumanity. It is an undeniable fact that, of all violations, the denial of womens rights is the most grievous and blameworthy, as there is a tendency of treating women as sub-human. Human rights terminology embodies the demand that the unequal status of women be addressed as a violation of their rights, as breach of the obligations of governments to guarantee equal rights to all. . Discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men. In the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of

society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity. [CEDAW, preamble] The CEDAW is one of the mostly recognized international instrument for the no-discrimination against women. It has been long time international agenda to ensuring and eliminating discrimination against women. Before CEDAW there has been adopted many international human rights instrument but there was none for specifically women human rights and nondiscrimination against women. Therefore, CEDAW has been adopted in 18 December 1979 considered as a most extensive international instrument for gender equality. Bangladesh is a one of the most densely populated and poor country in the world more than 146.7 million (UN, 2003) people in the size of 144,000 sq. km1. Few countries have more men than women, Bangladesh is one of them. In Bangladesh in 2000, there were 106 males for 100 females, based on the estimated population (UN, Social Indicators). This is due to a large undercount of females during censuses and to mortality rate that is higher for women than for men .The projected life expectancy for women is 60.92 years, whereas it is 61.8 for men2, a difference of only one year. Gender discrimination is widespread in all spheres and at all levels in Bangladesh such as legal rights, health, nutrition, education, employment and political participation. Bangladesh is one of the states parties to CEDAW and is under an obligation to take the measures required by the convention to eliminate discrimination and ensure the equal enjoyment of human rights by women. Though there are different agents and factors contributing to the enforcement of human rights, the role played by the government is pivotal. The human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights. The full and equal participation
CIA , The World Fact Book, 1st August 2003, http://www.cia.gov/cia/publications/factbook/geos/bg.html 2 Quick Reference Guides on Bangladesh - People: Life expectancy at birth (Facts About Bangladesh), http://www.reference-guides.com
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of women in political, civil, economic, social and cultural life, at the national, regional and international levels, and the eradication of all forms of discrimination on grounds of sex are priority objectives of the international community. (The Vienna Declaration and Programme of Action, Part I, Para 18) 3 Therefore, this paper shall attempt to examine the gender equality in Bangladesh in the perspective of CEDAW and the Government measures to eliminate the discrepancy for equal rights of women.

adopted by the World Conference on Human Rights, Vienna, 25 June 1993 (A/CONF. 157/24 (Part I), chap. III)
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2 . Concept of Gender Equality

2.1Gender
Gender is a culturally specific set of characteristics that identifies the social behavior of women and men, and the relationship between them. Gender therefore, refers not simply to women or men, but to the relationship between them, and the way it is socially constructed. Women and men are included in the concept of gender. Like the concepts of class, race and ethnicity, gender is an analytical tool for understanding social process.4 Gender refers to the social differences and relations between men and women, which hare learned, vary widely among societies and cultures, and change over time. The term gender does not replace the term sex, which refers exclusively to biological differences between men and women. The term gender is used to analyze the roles, responsibilities, constraints, opportunities and needs of women and men in all areas an in any given social context. Gender roles are learned behaviors in a given society, community or other social group. They condition activities; tasks and responsibilities are perceived as male or female. Gender roles are affected by age, class, race, ethnicity and religion, and by the geographical, economic and political environment5.

2.2 Gender Equality

Gender equality means that women and men enjoy the same status. Gender equality means that women and men have equal conditions for realizing their full human rights and potential to contribute to national, political, economic, social, and cultural development, and to benefit from the results. Today, the concept of gender equality acknowledges that different treatment of women
The Canadian Charter of Rights and Freedoms, Constitution Act, 1982 (79) ABC Of Women Worker's Rights And Gender Equality, ILO, Geneva, 2000, pp.47-48.
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and men sometimes are required to achieve sameness of results, because of different life conditions or to compensate for past discrimination.6 Gender equality, equality between men and women, entails the concept that all human beings, both men and women, are free to develop their personal abilities and make choices without the limitations set by stereotypes, rigid gender roles and prejudices. Gender equality means that the different behavior, aspirations and needs of women and men are considered, valued and favored equality. It does not mean that women and men have to become the same, but that their rights, responsibilities and opportunities will not depend on whether they are born male or female. Gender equity means fairness of treatment for women and men, according to their respective needs. This may include equal treatment or treatment that is different but which is considered equivalent in terms of rights, benefits, obligations and opportunities7.

2.3 Gender Mainstreaming

Gender mainstreaming is "the process of assessing the implications for women and men for any planned action, including legislation, policies or programmes, in any area and at all levels. It is a strategy for making Women's and men's concerns and experiences an integral dimension in the design, implementation, monitoring and evaluation of policies and programmes in all political, economic and societal spheres so that women and men benefit equally, and inequality is not perpetuated. The ultimate goal is to achieve gender equality8." Gender mainstreaming involves not restricting efforts to promote equality to the implementation of specific measures to help women, but mobilizing all general policies and measures specifically for the purpose of achieving equality by actively and openly taking into account at the planning stage their possible effects on the respective situation of men and women (gender perspective). This means systematically examining measures and policies and
6 7 8

Ibid. Ibid. p. 48

Agreed Conclusions on Gender Mainstreaming, ECOSOC, 1997

taking into account such possible effects when defining and implementing them. Action to promote equality requires an ambitious approach, which presupposes the recognition of male and female identities and the willingness to establish a balanced distribution of responsibilities between women and men. The promotion of equality must not be confused with the simple objective of balancing the statistics: it is a question of promoting long-lasting changes in parental roles, family structures, institutional practices, the organization of work and time, their personal development and independence, but also concerns men and the whole of society, in which it can encourage progress and be a token of democracy and pluralism. "The systematic consideration of the differences between the conditions, situations and needs of women and men in all Community policies and actions: this is the basic feature of the principle of mainstreaming. This does not mean simply making Community programmes or resources more accessible to women, but rather the simultaneous mobilization of legal instruments, financial resources and the Community's analytical and organizational capacities in order to introduce in all areas the desire to build balanced relationships between women and men. In this respect it is necessary and important to base the policy of equality between women and men on a sound statistical analysis of the situation of women and men in the various areas of life and the changes taking place in societies9.

Britha Mikkelsen, Team leader Ted Freeman, Team leader,Mirza Najmul Huda Sevilla Leowinatha Jowshan A. Rahman Mainstreaming Gender Equality, Sidas support for the promotion of gender equality in partner countries Country Report Bangladesh, , A Sida EVALUATION REPORT 02/01:1
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3 Main International Instruments Concerning Equal Rights

3.1. Introduction
The foundation of the UN was a response to failure of states to respect human rights of individuals, including their own citizens10. The principle of the equal enjoyment of human rights irrespective of sex was introduced by the adoption of the United Nations Charter in 194511. This principle forms the core of the human rights vision of the Charter, which states that human rights and fundamental freedoms should be available to all human beings without discrimination on the basis of race, sex, language or religion12. The principle of the equal rights of women and men is thus one of the pillars upon which the United Nations was founded. It is also included in the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations 194813. It is now included in most international conventions adopted by the United Nations, its specialized agencies and regional organizations. The basic foundation of rules concerning equal rights and prohibition of discrimination is that the human rights enshrined into the conventions should be guaranteed to everyone irrespective of grounds such as race, color, sex language and religion, unless a reasonable and objective justification for not doing so can be demonstrated.

3.2 Universal Declaration of Human Rights (UDHR)

The concept of non-discrimination on the basis of sex found further elaboration with the adoption by the UN General Assembly of the Universal
R.J.Cook, Women, C.C. Joyner (ed.,) The United Nations and International Law (1997) Cambridge: Cambridge University press and American Society of International Law, p. 184.
10 11 12

See Articles 1(3), 13(1) (b), 55(c), 62(2) and 76 (c) of the UN Charter 1945

Thomas Buergenthal in: Steiner, Henry J./Alston, Philip, International Human Rights in Context, Clarendon Press, Oxford (1996) p 143 13 See, Articles 1, 2 and 7 of the UDHR 1948.

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Declaration of Human Rights (UDHR)14. The Universal Declaration of Human Rights (UDHR), adopted in 1948, proclaims numerous rights to which people everywhere are entitled. A "common standard of achievement for all peoples and of all nations", the Declaration delineates civil and political rights such as the right to freedom from torture, illegal arrest, free speech and freedom of conscience. It also establishes "freedom from want" as an essential dimension of human rights and dignity. Consequently, it encompasses economic, social and cultural rights, including work-related rights, the right to social security, the right to education, and the right to an adequate standard of living. The UDHR was followed by other instruments, including the Convention against Genocide (1948) and the Convention on the Elimination of Racial Discrimination (1965). In 1966, two overarching human rights treaties - the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR) - were adopted, which together with the UDHR form the International Bill of Human Rights providing the source of the core standards of international human rights law. The Covenants elaborate many of the rights in the UDHR, albeit with greater detail, and also address the protection of particular categories of people, including refugees and children. In contrast to the UDHR, however, they are multilateral treaties, which upon ratification or accession create binding international legal obligations for the State concerned. The principle of the equal rights of women and men is contained in the Charter of the United Nations, the Universal Declaration of Human Rights and all subsequent major international human rights instruments. It is most comprehensively elaborated in the Convention on the Elimination of All Forms of Discrimination against Women, which codifies women's rights to non-discrimination on the basis of sex, and equality as self-standing norms in international law. It also establishes that women and men are entitled, on a basis of equality, to the enjoyment and exercise of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any
14

Adopted on 10 December 1948, GA Res.217 A (III), UN Doc. A/810, 1948

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other field and thus moves beyond the two Covenants by incorporating both families of rights in one instrument, establishing them as mutually reinforcing15.

3.3 International Covenant on Economic, Social and Cultural Rights (ICESCR) And The International Covenant on Civil and Political Rights (ICCPR)
International Covenant on Economic, Social and Cultural Rights (ICESCR) and The International Covenant on Civil and Political Rights (ICCPR) have opened for signature, ratification and accession by the General Assembly of the United Nations 1966 and entered into force 1976. Under Article 2 of the Conventions States undertake to ensure all individuals within their territory the rights recognized in the Conventions without distinction of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. But the non-discrimination guarantee under the ICCPR goes further since, in addition to the prohibition of the discrimination in regard to the rights provided for in the Conventions, the ICCPR includes an autonomous right of all persons not to be subjected to discrimination, but Article 26 states that: All persons are equal before the law and are entitled without any discrimination to the equal protection to the law. In this respect, the law shall prohibit any discrimination on any ground such as race, color , sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 26 prohibits discrimination in law or in fact any field regulated and protected by public authorities16. The non-discrimination principle is not limited to the rights set forth in the Convention, but can also be applied to economic, social and cultural rights. Gender specific discrimination is not only prohibited by the general nondiscrimination clauses in Art.2 (1) and 26 of the ICCPR. In addition, states parties in Art. 3 undertake the specific obligation to ensure the equal right of
Professor Savitri Goonesekere A rights-based approach to realizing gender equality, , 1998 news, DAW news archives, http://www.un.org/womenwatch/daw/index.html 16 General Comments of the Human Rights Committee No. 18 (1989) on nondiscrimination, para. 12. UN doc. A/45/40, p. 173-175.
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man and women to enjoyment of all civil and political rights set forth in the Covenant17.

3.4 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)
3.4.1 Introduction
For more than a hundred years the issue of womens rights and equality for women has been salient in public debate. The Convention for the Elimination of Discrimination Against Women (CEDAW) is an international treaty intended to guarantee rights for women, and represents the culmination of the 19th century movement for womens rights. The Convention sets standards for women's rights in the political, cultural, economic, social, and family sectors, and delineates many forms of gender discrimination. Furthermore, the Convention calls for specific actions to remedy discrimination18. The United Nations General Assembly adopted CEDAW on December 18, 1979, and the Convention entered into force on September 3, 1981, after it had been ratified by 20 states. As of early 2003, 174 states have ratified the treaty19. A wide principle of non-discrimination is introduced in Article 1 of the CEDAW which stipulates that discrimination against women should be understood 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 freedom in the political, economic, social, cultural, civil or any other field.

Wolfgang Benedek, Esther M. Kisaakye and Gerd Oberleitner, The Human Rights of Women: International Instruments and African Experiences, World University Service, Austria, 2002, Manfred Nowak, The Prohibition of Gender-specific Discrimination under the International Covenant on Civil and Political Rights, at P 107-108. 18 Ratification of CEDAW (Convention for the Elimination of Discrimination Against Women) , Michael Kevane, Preliminary draft - comments welcome , March 10, 2003
17

United Nations Division for the Advancement of Women, http://www.un.org/womenwatch/daw/cedaw/states.htm, last visited 25 th September 2003
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3.4.2 Obligation of States under CEDAW

CEDAW requires states parties to eliminate discrimination against women in the enjoyment of civil, political, economic and cultural rights. It also establishes programmatic measures for states to pursue in achieving equal enjoyment by women and men of their human rights. In pursuing CEDAWs goals, state parties are encouraged to introduce measures of affirmative action designed to promote gender equality20. CEDAW Convention, much as any other human rights treaty, lays down governmental obligations corresponding to individual rights and freedoms. Governmental obligations laid down in the Convention encompass three levels, i), Formal recognition that all human rights and fundamental freedoms apply to women as they do to men; ii) Prohibition of discrimination in the enjoyment of those formally guaranteed rights and certain of equal opportunities for women to exercise all rights and freedoms; iii) Identification and elimination of gender-specific obstacles to the equal enjoyment of rights and freedoms. The obligation of states under CEDAW is indicated under the convention both in general and specific terms. Articles 2, 3, 4, and 5 provide the general obligations of states, which could be applied in relation to the entire rights protected by the convention. The specific provisions of the convention, articles 6-16, on the other hand provide the specific duties corresponding the rights in each provision. CEDAW aims to eliminate all forms of discrimination against women so as to ensure the equal enjoyment of human rights by women and the equal participation of women in all aspects of life. For the realization of this goal, article 2 begins by obligating states to condemn discrimination in all its forms and to take measures towards the elimination of discrimination against women. The article enumerates the specific measures states should take for the purpose. Accordingly, states are
Azza Karam, with Frene Ginwala, Nadezhda Shvedova, Gehan Abu-Zayd, Richard E. Matland, Drude Dahlerup. Karen Olsen de Figueres, Shirin Rai, Joni Lovenduski, Mavivi Myakayaka-Manzini, Hege Skjeie, Christine Pintat and Kalliope Migirou, Women in Parliament Beyond Numbers, International Institute for Democracy and Electoral Assistance, (International IDEA) 1998
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required to incorporate a principle of equality in their constitution and to ensure its implementation. They are also expected to prohibit discrimination against women, provide legal protection for the equal rights of women and to ensure the effectiveness of such protection through national tribunals and other public institutions. Article 2, in addition obligates states not only to refrain from discriminating against women but also to take appropriate measures to eliminate discrimination against women by non-state agents. The obligation of states to take appropriate measures to modify or abolish existing laws, customs and practices, which constitute discrimination against women, is also contained under the article. Unlike other treaties, the CEDAW convention calls for the elimination of all forms of discrimination of all Sex discrimination. In other words instead of calling for gender neutrality (i.e. the same treatment for man men and women), the convention prohibits any practices that perpetuate womens inequality21. As Rebecca Cook points out (Cook, 1995), under the womens convention states assume obligations of both means and results, that is both obligations to act by a specific means towards the achievement of aspirational goals and obligations to achieve results by whatever means are determined to be appropriate22. This obligation is further strengthened by article 5 of the convention. Article 5 of the convention hence, obligates states parties to eliminate cultural and other practices based on the prejudice of the stereotyped roles for men and women. The obligation of states under article 3 is not confined to prohibiting discriminatory laws and practices. Rather, it goes ahead and requires states to ensure the full development and advancement of women so as to guarantee the equal enjoyment of human rights. The states have to make sure that there is no obstacle barring women from enjoying their rights. This in turn entails an obligation of changing or modifying laws and practices that are overtly discriminatory as well as those that are neutral on their face and have discriminatory effect. Therefore this article will catch discriminatory
Julie Mertus, Florence Butegwa DorotyQ,Thomas, Morgaret A.Schuler, Women, Law & Development International and Human Rights watch womens Rights project, Women Human Rights Step by Step, Practical Guide to Using International Human Rights Law and Mechanisms to Defend Womens Human Rights, 1997, P-36 22 Ibid.
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practices that may not be covered by the definition under article one. In
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addition to the changing or modification of discriminatory laws and practices, states are to take measures aimed at the full development and advancement of women. One possible way of bringing about the full development and advancement of women to enable them enjoys their human rights equally is the taking of temporary special measures under article 4 of CEDAW. The provision further indicates that such measures aimed at accelerating the de facto equality of women are to be discontinued when equality is attained. The specific provisions of CEDAW, which deal with certain rights, reiterate the general obligations elaborated above. The provisions obligate states to recognize the equal rights of women indifferent areas and to ensure the equality of women before the law.24 Thus, states are expected to take all appropriate measures to ensure the equal rights of women in political and public life, education, health care, employment, marriage and family relations, economic and social life and to pay special attention to the situation of rural women25. Article 24 reinforces the obligation of states contained in the general and specific provisions by calling up on states to take all necessary measures towards the realization of the rights recognized by the convention. The obligations of states under CEDAW touch up on the different categories of duties discussed earlier. Hence, the obligations of states to respect, protect, fulfill and promote are incorporated .

3.4.3 Respect, Protect, Fulfil and Promote CEDAW

The Vienna Convention on the Laws of Treaties lays down the binding nature of a treaty in force 26. A party may not invoke the provisions of its international law as justification for its failure to perform a treaty27. The obligation to respect is reflected in the CEDAW by the prohibition of all forms of discrimination against women. Through this obligation states are required to respect the equal rights of women by refraining from
Rebecca J. Cook, State Accountability under the Womens Convention, Rebecca J. Cook (ed.), in Human Rights of Women: National and International perspectives, 1994, p.236 24 Articles 9 and 15 of CEDAW 25 Articles 7,8,10,11,12,13,14, and 16 of CEDAW 26 Article 26 of the Vienna Convention on the Laws of Treaties, 1969 27 Article 27 of the Vienna Convention on the Laws of Treaties, 1969
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discriminating against them both formally and in practice. Hence, states are obligated to abolish discriminatory laws if any. They are also required to ensure that their organs do not discriminate against women in any way. The duty to take measures to protect women against discrimination constitutes the obligation to protect. Since the obligation to respect affords protection against discrimination by state organs, it could be said that this duty implies the obligation of states to afford protection on the horizontal level. Therefore states in addition to their obligations not to discriminate against women should protect them against discrimination by private parties. This could be achieved though the enactment of laws and the provision of appropriate implementation machinery. The obligation to provide or fulfill, on the other hand, obligates states to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of the rights protected by the convention. In other words states should take a variety measures aimed at ensuring the elimination of discrimination against women, the equal participation of women in different aspects of life and the equal enjoyment of human rights by them. The duty to promote finally obligates states to undertake promotional activities to modify customs and practices that constitute discrimination against women and are obstacles to the equal enjoyment of human rights by women. The obligations of states to respect, protect, provide and promote extend to all the rights recognized by the convention. It is indicated under article one that the conventions goal of eliminating discrimination against women extends to all human rights and freedoms in political, economic, social, and cultural or any other field. This indicates that the convention is not limited to the rights reiterated in its provisions and resort should be had to other instruments dealing with the specific rights such as ICCPR and ICESCR to give content to the protection it affords. Therefore, CEDAW aims to ensure the equal enjoyment of the rights guaranteed by other human rights instruments while at the same time singles out issues that have proved to be problematic in most parts of the world. The committee established under article 17, as was indicated earlier has the task of following up the implementation of the convention by states parties. The 17

committee discharges its task by reviewing state reports, which are submitted to it according to article 18. States parties, therefore, have an additional obligation to submit reports to the committee on the measures they have taken to implement the convention. The committee after reviewing the reports submitted issues recommendations. State parties, then are expected to take measures in compliance with the recommendations of the committee. The following chapters will attempt to review the national legislation of Bangladesh in light of CEDAW.

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4.Gender Equality and Law

4.1 Introduction
The Constitution of Bangladesh28 is the basic principles of national legislation. All other laws will follow the Bangladesh Constitution. In Bangladesh Constitution there are several provisions which are related to women both directly and indirectly. They are as follows: Article 15 of the Constitution, while making provision for basic necessities to all citizens, specially gives the State the responsibility of providing social security to widows, amongst others. Again, Article 18 gives the State the responsibility to take effective measures to prevent prostitution. Article 19 recognizes the equal opportunity to all citizens that no discrimination on the basis of sex shall be permitted. It states, the state shall endeavor to ensure equal opportunity to all its citizens. Articles 27 and 28 of the Constitution relate to the topic of equality and discrimination. Article 27 states categorically, All citizens are equal before the law, and are entitled to equal protection by the Law. Article 28 maintains that the State shall not discriminate against any citizen on grounds only sex, religion, race, caste, sex or place of birth; Clause 2 of this article also assures that women have equal rights with men in all spheres of State and of Public life- though no such assurance is given outside these spheres. Clause 4 of the same article permits the State to make Special provisions in fervor of women or children or for the advancement of any backward section of citizens. However, the provisions of the Constitution are not always consistent with respect to ensuring the rights of women as equal to men. Contradictory provisions of the article 29 of the Constitution bears articulate testimony to this. Article 29 deals with employment in the service of the country. Thus on the one hand, clause 2 of the article states that no citizen, shall on grounds only of.. Sex be ineligible for, or discriminated against in respect of any employment or office in the service of the Republic, and on the other hand, clause 3 of the same article provides provisions under which the State has been given the right to reserve certain employment of office on the
28

The Constitution of Bangladesh, 1972

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grounds that it is in its nature unsuited to the members of opposite sex. This is undoubtedly a breach of equal rights and thus points out that the framers of the constitution could not fail to acknowledge tacitly the fact of inequality present in the status of women. It is also inconsistency with the article 2 of CEDAW which states that States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women. But problem is that Bangladesh has made a reservation on article 2 of CEDAW.

4.2 Personal Laws

4.2.1 Introduction
Bangladesh is mostly inhabitant by Islamic faith population. About 88 (July 2002)29 percent populations are Muslims. Hindus make up most of the remainder, and the country has small communities of Buddhists, Christians, and animists. During two hundred years of British rule in the sub-continent of India (now comprising the countries of Bangladesh, India, Pakistan), the British Government followed the policy of applying the Muslim personal laws to the Muslim population, and the Hindu personal laws to the Hindu Population. Legal concepts and laws in the public, civil and criminal fields were anglicized along British lines, but few changes were made in the personal laws. Since the partition of India 1947, there has been no change in the Muslim personal laws, except for the Muslim family Laws Ordinance (MFLO) passed in 1961. The 1961 Ordinance brought about some changes in the family laws; these laws are still in use in Bangladesh. But times have changed, as the position of women has also changed thus bringing about the need for review in the personal laws of the people. The legal status of the Muslim women in Bangladesh is defined by the principles of Sharia through Muslim Personal Law along with the general law, which is non-religious and secular in its character. The Muslim personal law covers the field of marriage, divorce, dower, maintenance, guardianship of children and inheritance whereas the general law covers the rights under
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www.discoverybangladesh.com October 28, 2003

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the constitution, penal codes, the civil and criminal procedure codes, evidence act etc. Though the Constitution guarantees equal rights for men and women in public life it does not extend this to the private sphere where the various personal laws based on religion are recognized. These are some discrepancy with regard to various provisions such as marriage and divorce, inheritance, guardianship, etc. Now I would like to describe the Muslim family legislation in Bangladesh in regards with CEDAW.

4.2.2 Marriage
In classical Muslim law it is permissible for every Muslim of sound mind, who has attained puberty, to enter into a contract of marriage. Under Muslim law, a marriage is a contract between two individuals, and the consent of both parents before witness is essential for the contract to be considered valid. The Muslim Family Laws Ordinance 1961 specifies the legal age of marriage at 18 years for women and 21 years for men, which is not equal man and women to get marry. A Muslim male can contract valid marriage with a Muslim as also with a Ketabi (Jew or Christian). But his marriage with idolatries will be irregular. On the other hand, A Muslim woman may not contract a valid marriage with any one else but a Muslim. A marriage with a Christian or a Jew would be irregular while a marriage with a Hindu would be invalid (that is any children born would be illegitimate) but the marriage of a Muslim woman to a nonMuslim is not accepted i.e. not legal30. Marriages of Muslim men to Hindu women and Muslim women to non-Muslim men have to take place in civil courts with the spouses declaring that they do not practice any religious faith. This inequality to enter marriage is incompatible with constitution and CEDAW article 16 (1) (a), which states the equal rights to enter into marriage. However The Committee on the Rights of the Child insists that the minimum age for marriage should be equal for both sexes in order to eliminate this discriminatory heritage which is prevalent worldwide.
Law for Muslim Women in Bangladesh, Sultana Kamal- Advocate- Bangladesh. See http://www.wluml.org/english/pubs/pdf/dossier4/D4-Bangladesh.pdf.
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4.2.3 Consent
Consent is the one of the primary requirement for marriage. The right to marry, including the requirement of free and full consent by each of the intending spouses, is clearly established under international human rights law and protected by national laws in many jurisdictions. However, customary and traditional practices, exacerbated by ineffective enforcement of the law, and inappropriate policies and procedures, constrain the practical realization of this right31. In practice forced marriage is a common incident in Bangladesh. Forced marriage clearly violates a range of fundamental rights guaranteed by the Constitution of Bangladesh. Although the right to marry is not explicitly protected by legislation in Bangladesh. Further, forcing any person into a marriage is a punishable offence under the criminal laws. In the most clear articulation of forced marriage as a harmful traditional practice that cannot be justified in the name of culture or religion. Abduction for the purpose of forced marriage is explicitly criminalized32. In extreme cases, prosecutions may also be brought for offences committed in the course of a forced marriage, such as murder, rape, slavery and wrongful confinement33 Forced marriage goes against the provisions of the Constitution and CEDAW, which guarantee the right to marry with free and full consent.
The UN Committee on the Elimination of All Forms of Discrimination has found that forced marriage marriages arranged for payment or preferment on the basis of custom, religious beliefs or the ethnic origins of particular groups of people continues to prevail in a number of countries; in relation to cases in the UK. See the UN Committee on the Elimination of All Forms of Discrimination (CEDAW), General Recommendation No 21.
31

Penal Code 1860, s 366 : Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will or in order that she may be forced or seduced to illicit intercourse, or knowing is to be likely that she will be forced or seduced to illicit intercourse shall be punished [with imprisonment ] and whoever by means of criminal intimidation or abuse of authority or any other method of compulsion induces any woman to go from any place
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with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.
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Penal Code 1860, ss 37071, 365

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Bangladesh has also ratified the Convention on Consent to Marriage, Minimum Age for marriage and Registration of Marriages, 196234.

4.2.4 Dower and Dowry

According to the marriage contract the groom should pay "dower" to the bride following the Islamic "Sharia". Marriage usually involves a settlement from the groom to the bride the amount of which is determined at the time of marriage.. This provision is intended to protect the wife since the "Sharia" does not envisage any provisions for maintenance upon divorce. In Bangladesh the amount of dower is payable to the wife before divorce or at the death of her husband. After a husband's death the wife is entitled to a living allowance, and only after having met this requirement can his property be divided among his heirs of which his wife is one (receiving one-eighth of his estate). Dowry is transfer from the bride or her family to the groom and his family. Dowry is the payment of a settlement from the family of the bride to the groom. This practice has grown in near past even though it is not a part of the Muslim marriage contract. Traditionally among the Muslims dowry was a voluntary gift given to a bride by her father out of affection. Now it has become an economic compulsion, as parents know they cannot get their daughters married without paying dowry to the prospective groom. The man's family asks for prior commitments before marriage. If the girl's family fail to fulfill these commitments the marriage negotiations may be broken off which causes disgrace to the bride and her family. Even after marriage sometimes the bride is abused and tortured for full payment of dowry or with new demands, leading in extreme cases to suicide or homicide. In 1980 the Parliament passed an Act called the Dowry Prohibition Act which was amended in 1982 by a Martial Law Regulation to prohibit taking or giving of dowry and made the giving or demand for dowry, before or at the time of and even after marriage, an offence punishable with imprisonment for one year or with a fine, or with both. Non-payment of "Dower" and demand for "Dowry" has become a social phenomenon, which the Dowry Prohibition Act seeks to eliminate. Although legal recourse against dowry exists it is
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5th October 1998

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generally not used as the social custom or providing dowry has become so pervasive and accepted that it is not possible to give a daughter in marriage without it. Dowry is a big problem in Bangladesh especially in rural area, which is violating the article 16 of CEDAW.

4.2.5 Polygamy
Limited polygamy is permitted under traditional Muslim Law .A Muslim male can take four wives at a time under certain condition, but a Muslim woman cannot take more than one husband. Even a male marries having already four wives. The fifth marriage is not void, but only irregular. Though Islamic Law vastly improved the then status of woman, the idea of woman being a property could not be altogether thrown away as can be found from the permissibility of plurality of wives. According to the Sharia a man may take up to four wives but only if he can treat them all equally. Therefore after marriage he is obligated to treat them all equally. Otherwise the same rights and responsibilities of spouses towards each other apply as do in monogamous marriages. In Bangladesh, polygamy has become an established part of traditional Islamic Law and practice. Polygamy is permitted under Section 6 of Muslim Family Law Ordinance 1961.However, realizing the evil effects of and the injustice inherent in the polygamy of men Muslim Family Laws Ordinance, 1961 was passed. Sec.6 of the Ordinance provides that no man, during the subsistence of existing marriage, shall contract another marriage without prior written permission of Arbitration Council and violation of this provision entails liability of conviction and punishment. The Arbitration Council while dealing with an application for permission to marry during the subsistence of a marriage would consider whether the existing wife consents to such marriage and whether it is necessary and just to grant the permission. But this legislation failed to produce the desired result because due to protracted procedure in courts few inclined to bring violations to court and because the Arbitration Council being consisted by males very often were not un-willing to accord permission on the slightest pretexts. The law did not make adequate provision to control the discretion of the Arbitration council.

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The CEDAW Committee found that polygamy conflicted with the wording and sprit of the Convention and noted that some States parties, whose constitutions guarantee equal rights, permit polygamous marriage in accordance with personal or customary law. This violates the constitutional rights of women, and breaches the provisions of the Convention35. Many Muslim country has changed and ban the polygamy. For example Tunisia has banned the polygamy. Bangladesh could follow the Tunisian example. Besides polygamy is also prohibited by International Human Rights Law.

4.2.6 Divorce
It is in the field of divorce that the most flagrant inequality between husband and wife exists in the Sharia law. The husband has the right of unilateral divorce, for no cause at all. The wife has no such right, and when her husband exercises his right, the wife has no redress. The women can have judicial separation on specified grounds through intervention of Court. Muslim marriage can be dissolved by agreement between the husband and wife and it may take the force of Khula or Mubarrat. In Khula, the marriage is dissolved by an agreement between the parties for a consideration paid, or to be paid, by the wife to the husband, it being necessary condition that the desire to separate should come from the wife. Where desire to the separation is mutual, it is said to be Mubarat. A wife is entitled to Khula as of right or restoration of what she had received in consideration of marriage, if she satisfies the conscience of the court that it will otherwise mean forcing her into a hateful union. As stated above, a Muslim female does not have the right to divorce in the way a male has, but she could seek judicial divorce on grounds permitted by Muslim Law. The Dissolution of Muslim Marriage Act, 1939 (Act N VIII of 1939 (Vide Pakistan Code 1966, Vol.IX, P.716). was passed in order to consolidate and to clarify those grounds and also to add some new grounds. A wife is entitled to obtain a judicial divorce on neglect or failure of the husband to provide maintenance for two years. But if the wife refuses herself to her husband without any lawful excuse and deserts her husband, or otherwise willfully fails to perform her marital duties, she has no right to
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CEDAW- General recommendation No, 19

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claim maintenance and cannot obtain a decree for dissolution of marriage on the ground of nonpayment of maintenance. The fact that the wife is a woman of means would not be a defense to the claim of judicial divorce for nonpayment of maintenance. A Muslim woman can obtain judicial divorce on any ground recognized by Muslim Law. Thus a wife is entitled to judicial divorce if the husband brings false charge of adultery against her unless the husband bona fide retracts the charge of adultery. To constitute a valid retraction, it must be made before the commencement of the hearing of the suit, it must be bona fide and there must be an admission by the husband about making the charge and an unconditional acknowledgement by him that the charge is false. Incompatibility of temperament as results in a hateful union has been accepted as a ground for seeking judicial divorce. Before the Dissolution of Muslim Marriage Act 1939 apostasy from Islam of either party operated as a complete and immediate dissolution of marriage. After passing of the Act, apostasy from Islam of the wife does not dissolve the marriage (Sec.4 of the Act) while apostasy of the husband dissolves the marriage immediately36. In Bangladesh with the introduction of the Muslim Family Law Ordinance 1961, section 7 of the Ordinance provides that Divorce given by the husband shall not take effect until the husband has given notice of the Divorce to the chairman of local administrative unit, Union Parishad37 and ninety days have elapsed after issuance of the said notice and within the said period the husband can revoke the Divorce. The husband is also to give a copy of the said notice to the wife. The Chairman on receipt of the notice would constitute Arbitration Council for effecting a re-conciliation, which, if successful, would render the divorce ineffective. It is an offence not only to notify the Chairman about exercise of Divorce by the husband. The provisions of Sec. 7 of the Ordinance apply mutatis mutandis in case of divorce exercised by the wife and the divorce does not take effect unless notice thereof is given to the Chairman and 90 days have elapsed thereafter. According to the Muslim Family Law ordinance the husband can delegate his power of divorce to his unconditionally or with condition and that is called
36 37

Principles of Mohammedan Law, 17th Ed.Bombay 1972 D.F.Mulla. p.305

Lowest tier of Local Government in Bangladesh

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Talak-e-Tawfeez. When any condition is stipulated the wife can divorce her husband in the happening of that condition. Now the divorced parties can remarry without the formality of the marriage with third party. (Sec7 (6), Muslim Family Laws Ordinance, 1961.). Still there are some inconsistencies to equal rights in the field of desolation of marriage. Where the unequal provision is inconsistent with CEDAW article 16(1) (c) which states same rights and responsibilities during marriage and at its dissolution. But regret is that Bangladesh has still reservation on this article.

4.2.7 Maintenance
In accordance with Muslim Law, the father is bound to maintain his daughter until she is married. The fact that the mother has the custody of the daughter till the latter attains puberty does not relieve the father of his obligation to maintain the daughter. If the father is poor, but the mother is in easy circumstances, the mother has the obligation to maintain the daughter. But a father is not bound to maintain a daughter who is capable of being maintained out of her own property. A Muslim mother is entitled to maintenance from her son if she is poor or if the son is financially solvent. A Muslim husband is bound to maintain his wife so long the wife remains faithful to him and obeys his reasonable orders. If the wife refuses herself to her husband without any lawful excuse and deserts her husband or otherwise willfully fails to perform her marital obligations she has no right to claim maintenance from the husband. But if the wife refuses to perform her marital obligations on the failure of the husband to pay the prompt dower the husband will not be absolved of his liability to maintain his wife. A Muslim woman in the event of divorce is entitled to maintenance by the husband till the expiry of the period of Iddat (e.i.90 days, and in case of a pregnant wife till the end of the Pregnancy). A Muslim male maintains his daughter as best as his means permit and a husband also maintains his wife to the best of his ability so long the relationship remains good, but if the relationship is estranged, the condition

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of the wife is very difficult. The social milieu and cumbersome court procedure made it difficult for the wife to have maintenance through Court. Muslim Family Laws Ordinance, 1961 tried to evolve a procedure through which the wife can easily have her remedy, but it has not produced any appreciable improvement. The Family Courts Ordinance, 1985, however, has been promulgated to deal with divorce and related matters and provisions have been made to dispose the cases of within the shortest time possible. A Muslim widow is essentially dependent on her son, for, generally even her share in the property of her husband remains in the hands of the son and ironically enough, her fate depends upon the attitude of the daughter-in-law. But if the widow has no son to depend upon the relations of the husband; her condition in most cases is miserable.

4.2.8 Guardianship
In the matter of guardianship of children, a Muslim woman is definitely at odds. Under Muslim Law, the mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the child. But she is not the natural guardian either of the person or property of the child; the father alone, or if he is dead, his executor is the legal guardian. In any event, in Muslim Law, the mother is never entitled to the guardianship of her children. However, a mother is always entitled in the first instance to the care and custody of her young children. Her sons she may keep till they are seven, and her daughters till puberty. The father is responsible for their maintenance during that period. A mother may lose custody of her children, particularity her daughters, if she re-marries a stranger, someone that is, who is not barred to the children by the rule of consanguinity. These are the basic rules, but they have been modified, not only by the Guardian and Wards Act, but there is also a fairly substantial amount of case-law on the subject, which on the whole has been very sane38. It is laid down by the Guardian and Wards Act, 1890 that the courts have stated that these provisions are for the benefit and protection of the child, and that it is the courts paramount duty to consider the welfare of the children over the rights of the parents.
Salma Sobhan - Legal Status of Women in Bangladesh, Bangladesh Institute of Law and international Affairs, Dhaka 1978, p. 29
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This provision is inconsistency with CEDAW article 16 (1) (f), which states; the same rights and responsibilities with regard to guardianship, ward ship, and trusteeship

4.2.9 Property and Inheritance

According to traditional Muslim law agnatic relations occupy a predominant position, inheriting the major share of the estate left by the deceased. Muslim law of inheritance has two distinct elements, namely, the customs of ancient Arabia and the rules lay down by the Holy Quran and prophet Mohammad. Under the Customary law of pre-Islamic Arabia the women in whatever capacity were excluded from inheritance. The Holy Quran made quite a considerable change of the position. According to the Muslim Law there are three kinds of heirs (i) Sharers who are entitled to a prescribed share of the inheritance, (ii) residuaries who take on prescribed share, but succeed to the residue left after satisfying the claims of the sharers, and (iii) distant kindreds who are blood relations other than the sharers and residuaries, and succeed generally in the absence of sharers and residuaries. In the classification of the heirs, it is important to note that though the sons son and sons daughter have been made residuary and sharer respectively, daughters children have been made distant kindreds.39 The principles of succession among the sharers and residuaries are two-fold, i.) The nearest in blood relationship excluded the remote one and ii.) Whoever is related to the deceased through any person shall not inherit while the person is living.40 Under the Muslim Law, the wife (or wives taken together) get one-eighth if there is child, and one fourth if there be no child from the estate of her
Women's Legal Status in Bangladesh by Sufia Ahmed and Jahanara Choudhyry, published in Situation of Women in Bangladesh, Women for Women 1979. P.295 40 D.F. Mulla - Principles of Mohamedan Law, 17th Ed. M.M. Tripathi (Private Ltd) Bombay 1972. P70.
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husband, though the husband gets exactly double. Mother gets from the estate of her sons one-sixth when there is child of her son or when there are two or more brothers or sisters or one brother and one sister of her son, and one third when there is no child and not more than one brother or sister of her son. On the other hand, the father gets from the estate of his son onesixth if there be child of his son and in the absence of any child of his son, he gets the entire residue after satisfying other sharers claim, and so on and so forth.41 It is significant that the Holy Quran has provided that daughter, mother and wife would under all circumstances be entitled to some share in the inheritance and are not liable to exclusion from inheritance, but they are not treated at par with their male counterparts, i.e. son, father and husband and to this extent rules of inheritance are discriminatory. Women in fact were not given parity in the matter of their shares and as a general rule; the female is given one-half the share of the male. The case of sister's inheritance is equally discriminatory. According to the rule of nearer in relationship excluding the remoter in relationship, children of a pre-deceased son or daughter would not inherit if a person died leaving another son. This often rendered the child or child of pre-deceased child destitute. This inequity, however, has been removed by Muslim Family Laws Ordinance, 1961 42 which provides that the children of the predeceased child would inherit the share which the pre-deceased children would have inherited had he or she been alive. But the widow of a predeceased son remains as helpless as before as she does not inherit anything of this ordinance. So far as testamentary succession is concerned, a Muslim cannot bequeath more than a third of his estate and this can only be to some one who is not already an heir. Therefore, a Muslim cannot by "Will" bequeath all property to his only daughter if there are other heirs. But a will in excess of the legal third may be validated by the consent of the heirs, as may a will to any heir. Laws of inheritance are also violated. The inheritance due to a widow and sister is often used by sons and brothers. There are many instances of abuse of the law of inheritance.
Ibid., at p-72 An ordinance to give effect to certain recommendations of the Commission on Marriage and Family Laws dealing with succession, registration of marriage, polygamy, divorce, maintenance, dower, ect.
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If a widow demands her rightful inheritance, she is expected to live in her husbands household and not with her parents. Many daughters do not claim their share of the inheritance but give it to their brothers, and so remain on good terms and avoid the risk of being rejected43. Inequality in the field of right to inheritance in inconsistence with article 16 (1) (h) of CEDAW which states; the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

4.3 Hindu Laws

While the civil laws are applicable to the Hindu population in Bangladesh, the spheres of marriage, divorce, inheritance and guardianship are governed by the Hindu personal laws-which have remained more or less unchanged in Bangladesh since the partition of India in 1947. Neither the Government of Pakistan nor the Government of Bangladesh has made attempts to amend the Hindu personal laws. The women are very worse situation in their inheritance, marriage, divorce and guardianship matter. In the Hindu religion, marriage is a sacrament44, not a contract- it is the destiny of all Hindu women. In Hindu law, there is no provision for divorce. The supreme duty of any father is to have his daughters marry so they can play their part in bringing salvation to their father and husbands. The girls consent in marriage is not required; divorce is not possible; unrestricted polygamy is allowed. The father is always the preferred guardian of his children. While a mother can be the guardian, her rights are inferior to those of the father. The rights of inheritance are complex, and those people who are spiritually able to benefit the deceased have the rightful claim. Thus, not all daughters of a man are equally eligible to inherit. In order of priority, unmarried

In case of divorce of widowhood, many require the assistance of their brothers-either in the form of advice, or for running errands, or for assistance in dealing with the outside world, or for finance. To ensure this assistance, many women do not claim their rightful inheritance. 44 CEDAW Bangladesh report 1st April 1997
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daughters and married daughters with sons can inherit. Married daughters with only daughters and barren married daughters beyond the childbearing age and widows without sons do not inherit. Bangladesh government did not have any reservation about Hindu personal law in the CEDAW. Bangladesh government could take initiative to reform the Hindu law. A suit is required for dissolution of marriage for Christian. Divorce is allowed by the Divorce Act 1869 whereby both men and women can apply to the court for dissolution of marriage. Christian men can divorce their wives for adultery alone but a Christian women has to prove adultery and one other matrimonial offence45. Polygamy is prohibited. Marriage while already being married is illegal. The husband is liable to the offence of bigamy, which is punishable under Section 494 of the Penal Code 1868. Christians provide for equal inheritance between sons and daughters and wills can be made to bequeath property. Christian women's inheritance is guided by the Succession Act of 1925.

4.4 Political Rights

The Constitution of Bangladesh provides equal opportunities for women to participate in politics and public life and it is in the unique situation of having women in the posts of both Prime Minister and Leader of the Opposition. Furthermore Bangladesh is in the even more unique position in having two women Prime Ministers succeeding each other. Women as voters are gaining in visibility and political strength. In Bangladesh Constitution there is a 30-reserve seat for women46. There has been some visible progress in womens participation at the local government level. A major breakthrough was the enactment of a law for direct election

to reserved seats for women in all the three-tiers of the local government47.
Ibid. Bangladesh Constitution 1972 Article 65 (3), This provision was created through a constitutional amendment in 1979 as a temporary special measure for 10 years. It was renewed for a second, ten-year term in 1999. 47 Namely the zilla/district, upazila/sub-district and union levels. However only the Union Parishadfunctions as a local government. The other tiers, which exist in theory, have yet o be activated by Parliament
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Notwithstanding all barriers of purdah (literally: veiled) and patriarchy, women have become more politically visible in the last two decades. A quota has ensured women's presence in the local government and National Parliament. Among women politicians, the older group entered politics through social work, while some among them and the new generation of women have emerged from student politics. Despite many odds, statistics and analyses reveal a slowly growing trend towards women's political participation. However, they face an ominous challenge. It is very difficult for women to work effectively in this system unless such practices are eradicated.

4.4.1 Women in Political Parties

Party affiliation depends on membership drives and on the organizational and electoral needs of each party. The actual number of women members in different political parties, however, cannot be determined, since genderspecific records are not maintained. Nevertheless, a slow trend towards women's greater participation has emerged over the decade. As party workers, women render valuable contributions in the mobilization of voters, especially among other women. Although there are only a few women in leadership positions. There is limited female involvement in party hierarchical structures. However, the top leadership positions in each of the two largest parties are occupied by women. They became leaders during crisis periods and have been successful as driving forces and unifying factors of their respective parties. Significantly, neither of them inherited the mantle of leadership when their party was in power. Once placed in the position of leadership, they were able to generate their own dynamics and momentum to lead their parties through difficult times. Nevertheless, their close and inner circle of advisors mostly consists of men. The election manifestos and constitutions of different political parties reveal that there is little emphasis on gender equality in party platforms. The Bangladesh Nationalist Party (BNP), the current ruling party, places importance on women's roles in development and on income generating activities for self-reliance, and pledges to implement the United Nations

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Declaration on Women's Rights step-by-step. The Awami League, the major opposition party, stresses the principle of fundamental human rights. Gender equity is mentioned in terms of social and political rights. The left-wing parties recognize that gender equity should be established. However, women's issues are not given any priority by political parties. There is no agenda or plan of action and no recommendation for legal or electoral reforms. The Jamaat-e-Islami does not believe in gender equality and even expressed its explicit preference for gender segregation in all spheres of life. But the notion of gender equity is gaining ground at a slow pace48. A lively debate is taking place around increasing the number of reserved seats for women in the Parliament from 30 to 64, to represent all the districts. An equally strong demand is raised by womens organizations to fill these seats through direct election rather than selection by the majority party in Parliament. CEDAW under articles 7 and 8 obligates states to take all the necessary measure to ensure the equal participation of women in public and political life. The Committee noted the positive impact of the presence of 30 reserved seats for women in Parliament and local bodies, as well as in the public sector. It especially appreciated the fact that Bangladesh was one of the few countries in the world with a female Prime Minister and a female Leader of the Opposition.

4.9 Nationality
Nationality defines an individuals relationship with a State, and give rise to rights and duties under international and domestic law49. Nationality in Bangladesh is determined by birth. Although no reservation has been made to this article 9 of the CEDAW the Bangladeshi Citizenship Act is discriminatory. Women have equal rights with men to acquire, change or retain their nationality. They can obtain passports without the signatures of their husbands or fathers. However they do not have equal rights with
Country Briefing Paper, WOMEN IN BANGLADESH,ASIAN DEVELOPMENT BANK, Programs Department (West),August 2001, p-14 49 Bringing International Human Rights Law Home, Judicial colloquium on the Domestic Application of the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child, United Nations, New York, 2000, p-4
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respect to the nationality of their children. According to Citizenship Act of 1951, citizenship can be transmitted from the father to his children but not from the mother. Also a woman's husband cannot be entitled to citizenship through her. The spouse of a Bangladeshi man may receive citizenship but the contrary is not true. Measures are being taken by Government to ensure equality between men and women with regard to citizenship rights. In fact the laws in this area are part of the colonial legacy and have not recently been reviewed or revised50.

50

Bangladesh CEDAW report , 1st April 1997

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5.Gender Equality in the Education and Health

5.1Introduction
Gender disparity is also evident in the education patterns in Bangladesh. The prevailing system nurtures a general reluctance to educate female children. Parents are far from enthusiastic about sending their daughters to school. They remain unconvinced about the utility and value of educating a daughter. If any investment in education is to be made, it is to done in favor of the boy child. Rural parents reason that it is the boys who will provide economic support in their old age and therefore, the investment in education remains within the family. Investment in the education for the girl child, on the other hand, passes on with her as she leaves home after marriage. Moreover, enlightened brides are not very popular among the men who believe that they are less amenable to discipline. Therefore, if the family has enough resources to send children to school, they will send the boys even if the girls are brighter.51 Article 10 of the CEDAW provided to take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education The CEDAW notes, in its preamble, that "in situations of poverty, women have the least access to food, health, education, training and opportunities for employment and other needs. In article 12 of the CEDAW states to take all appropriate measures to eliminate discrimination against women in the field of health care. Gender discrimination, even when not directly related to health carefor example denying girls and women access to education, information, and various forms of economic, social and political participationcan create increased health risk. Even if the best public health services are available, a woman has to be able to decide when and how she is going to access them,

Jahan, R., Women in Bangladesh in Women for Women, Dhaka, 1975, pp.1-30, at p.4.
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and that implies that she has to have the ability to control and make decisions about her life. Gender discrepancy also found in the health sector. Given the size of the population, health expenditures receive inadequate allocation at the household level. Women are more disadvantaged than men in terms of access to health care. Unlike most countries of the world, the life expectancy of women in Bangladesh is slightly lower than men. Women family members are less likely to receive modern medical care and they generally rely on traditional and cheap methods of health care. Even today, trained personnel attend only one third of births in Bangladesh. The maternal mortality rate is still very high at 68.05 deaths per1000 live births52. The CEDAW Committee was concerned about the fact that maternal mortality and infant mortality rates remained high and that available primary health and reproductive health services were still inadequate and often inaccessible to poor, rural and marginalized women. Moreover, family planning services still mainly targeted women, and not enough education on male responsibility in reproduction had been introduced.

5.2Constitution
Article 17 of the Constitution of the Peoples Republic of Bangladesh stipulates that the state shall adopt effective measures for the purpose of a) establishing a uniform, mass oriented and universal system of education and extending free and compulsory education to such stage as may be determined by law; b) relating education to the needs of society and producing properly trained and motivated citizens to serve those needs; c) removing illiteracy within such time as may be determined by law.

5.3 HIV Situation

Since the development of a global response to the HIV/AIDS pandemic began more than a decade ago, remarkable strides have been made in our
Quick Reference Guides on Bangladesh, http://www.referenceguides.com/cia_world_factbook/Bangladesh/People/Infant_mortality_rate/
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understanding of the nature, scope and impact of HIV/AIDS on individuals, communities and societies around the world. The most striking development is the recognition of the role that gender plays in fuelling the pandemic and influencing its impact. There are also biological differences between men and women, which have an impact on their vulnerability and access to care. For instance, young women are particularly vulnerable to HIV due to fragile vaginal and anal epithelia. HIV-Positive women face a particular set of problems associated with pregnancy, delivery and breast-feeding. They may suffer undue discrimination through being counseled not to proceed with their pregnancy, or because their HIV status is diagnosed through a sick child. These are some of the biological factors that do not affect men and adversely impact women.53 Although Bangladesh is a low STD/AIDS prevalence country, it has already established a project to address the possible emergence of AIDS and Sexually Transmitted Diseases as a health crisis. All determinants of a serious problem exist: infection, malnutrition, proximity to high prevalence countries, prevalence of STDs, core groups with high risk behaviors, migrant populations, lack of information and unsafe practices of blood transfusion. Communication campaigns addressed at all population segments are in place with a special focus on populations at risk such as prostitutes. A National AIDS Committee has been formed to formulate policies and strategies to deal with AIDS related issues. Health risks for women engaged in prostitution are especially high54. This existing situation is violating the CEDAW article 12, which states to eliminate discrimination against women in the field of health care in order to ensure on a basis of equality of men and women

5.4Literacy
Illiteracy remains the greatest barrier to any improvement in the position of women in employment, health, the exercise of legal and constitutional rights, and in generally attaining equality status.55
UNAIDA, Gender and HIV/AIDA: Taking stock of research and programmes, March 1999 54 Bangladesh CEDAW report, April 1, 1997 55 Government of India, Towards Equality: Report of the Committee on the Status of women in India; Department of Social Welfare, New Delhi, 1974, p.264.
53

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The Majority of the population of Bangladesh are illiterate and those, most are women. However illiteracy is the main obstacle to ensure equal rights to man and women. In the year 2000 total adult literacy in Bangladesh 41.3 percent, among them 52.3 percent adult male and only 29.9 percent adult female56. Government of Bangladesh should that more steps to ensure equality in the literacy which is granted in the Constitution and CEDAW.

56

Source, World Bank/WDI-2002

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6.Gender Equality and Employment

6.1Introduction
The status of any given section of population in a society is intimately connected with its economic position, which depends upon rights. Roles and opportunities for participation in economic activities. Therefore, in addition to education, employment, too, can be considered as a variable measuring the status of women. An equal opportunity for economic participation is or should be the right of all men and women, because, discrimination against women is incompatible with human dignity and the welfare of the family and of society.57

6.2Constitution
The Constitution of Bangladesh embodies the principle of gender equality, prohibits discrimination on the basis of sex and promotes equality of opportunity for women to participate in politics and in public life. It also provides for special provisions for women as a particularly disadvantaged group. The following provisions are relevant to women and equality in employment: The preamble pledges that the State shall aim to promote a society in which the rule of law, fundamental human rights and political, economic and social freedom, equality and justice, will be secured for all citizens. In local Government institutions, the State must encourage and promote the representation of peasants, workers and women. Article 10 states that the State will work to ensure the participation of women in all spheres of national life. Sub-article 15 (b), affirms the right to work, at a reasonable wage. Subarticle 15 (d) provides the right to social security in situations of unemployment, illness, disability or widowhood.
Declaration on the Elimination of Discrimination against women, United Nations. 1967
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Article 19 upholds the principle of equality of opportunity. Under article 20, citizens must be paid for work on the basis of the principle from each according to his abilities to each according to his work. Article 27 provides for equal protection before the law. Article 28 outlaws discrimination on the grounds of, inter alia, sex; reaffirms women's equal rights in all spheres of public life; and allows for special provisions in favor of women's advancement. Article 29 provides for equality of opportunity in public employment, which is defined as: equal employment opportunity for all citizens employed in the service of the State; non-discrimination in employment for all citizens in the service of the State; and, special provisions for adequate representation of the population within State-sponsored employment. Though the Constitution guarantees equal rights for men and women in public life, it does not extend equality provisions into the private sphere, where religious laws are recognized. Personal laws (i.e. religious laws) in the private sphere are in some cases discriminatory against women

6.3 Equal Pay

Although there is a good law for equal employment in the Bangladesh Constitution in reality there is a lot of discrimination in the various sector both private and public. There is no law for the national minimum wage. There are scopes to fix the minimum wage in sector based: In every 3 years, the minimum wage is supposed to be revised but it is not followed in the all sectors. In 1994, the minimum wage for the garment workers was fixed at Tk58. 930/ per month for the unskilled workers and Tk. 2300/ for skilled workers. This minimum wage was not revised till now. Even till now, the minimum wage of 1994, was not implemented in the whole sector. Till now, in many cases the unskilled workers receive Tk. 800/ per month. Most of the garment factories do not follow the labor law and ILO conventions. Most of the cases the workers cannot enjoy the weekly holiday. There is no Job security, social security, gratuity or provident fund for the garment workers. Most of the cases the management do not provide appointment letters or contract letters, identity cards and service books. According to the Labor
58

Tk. = Taka; 1 US$ ~ 58 Tk. (2003)

41

Law, the maximum working hour per day is 10 including the 2 hours overtime. But in most of the cases workers are forced to work 14 to 16 hours per day. Some times they work whole night. Overtime work is compulsory and forceful. There is not housing facilities from the owners. Most of the cases maternity leaves is absence. Most of the cases there is no transportation facilities. Most of the cases, there is no doctor, first aid, sufficient light and ventilation. In some cases there are no sufficient and pure drinking water and toilets for the workers. According to law, women work is prohibited after 8 pm. But the women workers are bound to work until 10 pm or 11 pm. Even in some cases they work the whole night. Most of the cases maternity leaves is absence. Most of the factories do not have the day care centers. Most of the cases, management do not pay the monthly wage and overtime payment within 7th of the next month. In many cases monthly wage and overtime payment is out standing for 2/3 months. Health-safety and security condition are not sufficient. Management do not allow the workers to join the trade union or formation of trade union though the workers have the trade union rights according to the labor law and ILO conventions. Management fires the workers if he/she joint in the trade union. Some times they threaded the workers and even close down the plant for the formation of trade union. Management does not ensure the security of the women workers. Women workers faced rape and sexual harassment out side the factories and some times inside the factories. There is other form of sex discrimination. Women workers are deprived from Equal wage, Equal dignity, Equal rights and Equal promotions59. At present Garment is the main industry in Bangladesh now. Womens are hugely employed in this sector. This sector have developed here rapidly because of it is a labor intensive industry, ordinary technology, cheap labor and small capital. In the Garments industry most of the workers are female. In reality the condition of garments workers in Bangladesh is very bad. There are some changes due to the labor unrest, trade union movements, social pressure and for the pressure of developed countries consumers. But till now Living standard of workers is unacceptable.
59

source: http://www.nadir.org/nadir/initiativ/agp/s26/banglad/

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Lack of equality in the employment sector in the Bangladesh violating the Constitutional provision of Bangladesh and also article 11 of the CEDAW which said to take all appropriate measures to eliminate discrimination against women in the field of employment.

6.4Problem facing working woman

The female laborers and office employees face many problems in their working places. They do not have separate facilities60 such as lounge, dining areas which, in a society characterized by purdah are essential to create a congenial working atmosphere. Childcare center is not available. Lack of baby care centers is also hindering female participation in the labor force. Another acute problem, especially in the urban areas, is that of transportation to and from office. Accommodation for women in the urban areas is another serious problem. Single women (including widows and divorces) especially those from the rural areas, who have jobs in the urban areas, have to stay with relatives or in hostels. Landlords are some times become very reluctant to rent out accommodation to single women.

However, there may be others who do not believe in sheltered status of women. Therefore. They may be opposed to having separate facilities may contribute to the erosion of the purdah system.
60

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7 Gender Based Violence

7.1 Introduction
Violence against women an 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. It encompasses all forms of violation of womens rights, including threats and reprisals, exploitation, harassment, and other forms of control. CEDAW requires States to eliminate discrimination against women of all civil, political, economic, social and cultural rights. While it does not explicitly address the question of violence against women, this matter has been dealt with comprehensively by the committee on the CEDAW. In its General Recommendation 1961 , the committee stated that the definition of discrimination given by article 1 of the Convention included gender-based violence, that is, violence that is directed against a women because she is a women or violence that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of the Convention, regardless of whether those provisions or nullifies the enjoyment by women of human rights and freedoms under general international law or under human rights conventions, is discrimination within the meaning of article 1 of the Convention62. ".women will not be free from violence until there is equality, and equality cannot be achieved until the violence and the threat of violence is eliminated from womens lives." Canadian Panel on Violence Against Women, 1993

Now I would like to states some specific situation violence against Women in Bangladesh.

61 62

Eleventh session, 1992 CEDAW General Recommendation 19, paras.6 and 7

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7.2Forms of Violence
Current events in Bangladesh point to an alarming picture of increase in the rate of violent acts against women. These acts include murder for non-payment of dowry, acid throwing, abduction, battering, sexual abuse, and trafficking. This is disconcerting in view of the considerable efforts that have been put in place to advocate against such crimes. Neither sensitization to the issues nor tougher laws seem to have served as deterrents to the violence. It seems clear that part of this increase is attributable to the increase in number of incidents being reported both by the media and by the victims or their families. Recently, violence against women has reached another dimension with the rise in the number of trials through the fatwa (religious judgments) in rural areas. Village elders usually form a shalish or tribunal to settle some local disputes. This traditional custom of excluding women in the rural shalish can be manipulated by the local mullahs (religious leaders) and the social elite to find women guilty of extramarital sexual affairs and other acts. Punishments are meted out (in accordance with religious laws as interpreted locally) in contravention to the existing penal code. Some women were flogged publicly and a few among them have committed suicide. Prompt protest and local actions by women's organizations, NGOs, and human rights groups forced local administrators to take legal measures against the perpetrators. 63 The complexity of legal procedures and poor professional competence on the part of the law enforcement agents to deal with cases of violence against women undermine the effectiveness of legislation aimed at combating violence. Similarly, the indifference of police officials and their negligence in enforcing the law are vital constraints that need to be improved before positive results can be expected.

Country Briefing Paper, WOMEN IN BANGLADESH,ASIAN DEVELOPMENT BANK, Programs Department (West),August 2001, p 5
63

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7.3Legal Measures
Several legal measures were adopted to safeguard womens legal rights. In 1983, the Cruelty to Women Ordinance was promulgated. This law made kidnapping, trafficking, rape, attempt to cause death, acid throwing, etc., as offenses with a maximum penalty of lifetime imprisonment or the death sentence. The Anti-Terrorism Ordinance (1992) provided for punishment for all kinds of terrorism including harassing and abducting women and children. The Immoral Trafficking Act (1993) provides for punishment for forcing a girl into prostitution. In 1995, the Women and Child Repression (Special Provision) Act was enacted. It provides capital punishment to offenders. An increasing incidence of rape and violation of women by the police and law enforcement agencies in several well-publicized cases brought to light loopholes in its execution. Hence, the Act has been revised and renamed as the Women and Child Repression Prevention Act of 2000. In spite of these provisions, loopholes in existing laws, lack of proper implementation, and the weak commitment of law enforcement agencies are major obstacles. It may be concluded that laws alone cannot be the only deterrent against violence. They must be backed up by conscious public opinion, prompt action, and efforts to change societys attitude towards women.64

7.4Sexual Harassment
The current sexual harassment law in Bangladesh provides a point of departure, even if its language is troubling. Working women face a double hazard, inside the work-place as well as on the street. There are no written codes for behaviour on the street and, in any case, moral codes of decency are applied select-lively. This is a social reality that must be addressed in the law. More-over, sexual harassment laws need to accommodate forms of gender harassment which are not explicitly sexual. It may very well be that the hostility being expressed through harassment is a sign of male social power, not sexual power. Assuming that laws that refer to female modesty

64

Ibid., at p5-6

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are inherently limiting. These are rights that are en-shrined in the Constitution of Bangladesh. Enacting progressive laws by itself will not suffice to change the situation, however. As we all know, it is critical to ensure that existing legislation be implemented and that those in charge of law enforcement be held accountable for their actions. By the same token, the efficacy of laws will be constantly undermined if social attitudes, especially widespread cultural tendencies of blaming the victim in cases of sexual harassment, are not transformed. This requires, among other things, serious gender-sensitisation training for those charged with protecting the rights of citizens, especially police personnel and judges. There can hardly be legal or police protection if the authorities a priori assume guilt or moral laxity on the part of women complainants65.

7.5 Women Trafficking and Prostitution

Trafficking of human being is a growing problem globally which exists both in developed and developing countries. A UN report claimed that the crime fetches no less than seven billion US dollars a year. Especially, trafficking of women and children has been drawing more attention. According to the latest report of the USA government, every year millions of men, women and children are being trafficked. Each year up to two million people are trafficked worldwide, including 150,000 from South Asia and 225,000 from Southeast Asia66. A recent study of the Swedish government indicated that human trafficking rank third, behind drug and arms smuggling in the scale of organized crime. Women and children are most venerable in this regard. With regard to South Asia, the problem of trafficking especially women and children has been making great concern. There is in-country and cross-border trafficking at the same time. As available literature indicates, Bangladesh, Nepal, Sri Lanka and Bhutan are countries of origin while India and Pakistan are destination and transit countries. Women and girls are sold, traded, exchanged for sexual slavery and prostitution, and bonded labors across borders, such as from Bangladesh to India, Pakistan and Middle East and to
Dina M Siddiqi, Bangladesh: Sexual Harassment and the Public Woman , http://www.himalmag.com 66 Source: International Herald Tribune (Internet Edition), 20 July 2002
65

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Thailand via Myanmer, from Nepal to India, from Myanmer to Thailand and Bangladesh. In case of Bangladesh, when trafficking in women has exactly been started is unknown. It is believed that first incident of trafficking in women was traced out in Bangladesh in 1979. The incident became a matter of talk in the early 80s.According a report of the USA State Department on Human Rights, there is extensive trafficking in women for prostitution in Bangladesh. But authentic and reliable statistics is not available. The main reason behind the problem of trafficking is 'demand and supply factor' of women. Contributing factors, which are responsible for the problem, include poverty, unemployment, lack of opportunity, illiteracy, unawareness, over expectation, social and religious customs, impact of globalization and liberalization, expansion of tourism and 'sex industry,' conflict, miniaturization etc. These purposes do not always match the promises made during the recruitment67. Although in most cases trafficking is for prostitution or leads to prostitution, prostitution within the country needs to be discussed separately. There are no statistics on the numbers of prostitutes. The Bangladesh Bureau of Statistics enumerates them as "destitute" and does not recognize prostitution as an occupation. The Constitution states that "the State shall adopt effective measures to prevent prostitution and gambling" [Part II, Fundamental Principles of State Policy, Section 18 (2)]. Prostitutes are often subjected to harassment and violence from the Police who are theoretically supposed to protect their rights. There is need for greater public awareness about forced prostitution, among the general public and in particular among the law enforcing agencies and the judiciary. Unless they are treated as full human being with the same rights and privileges as others, it will not be possible to provide them with any protection or ensure fulfillment of their rights68.

67

Dr. Uttam Kumar Das is an Assistant Professor, Queens University, Dhaka, The Daily Star , Bangladesh, Internet edition, August 31, 2003
68

Bangladesh CEDAW Report, 1 April 1997

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7.5.1 Law and Policy

The Bangladesh constitution provides that the "State Shall endeavor to prevent ambling and prostitution. "Reading the various provisions of different laws, the prostitute is considered a victim, however, despite rigid provisions. The Penal Code of 1860 contains provisions for kidnapping, which in general covers trafficking also. In spite of there being provisions in the Penal Code, these were not being effective in stopping trafficking because of various implementation problems. In 1983 a new Ordinance, the Cruelty to Women (Deterrent Punishment) Ordinance was promulgated. It replaced the relevant sections of the Penal Code. This law increased the punishment to life imprisonment and death penalty for kidnapping or abducting women, trafficking of women and children, attempt to cause death, acid throwing, rape etc69. The Cruelty to Women Ordinance, passed in 1983, calls for sentences of 14 years to life imprisonment for kidnapping or abduction of women, but this is rarely carried out, as there are many loopholes70. In 1995 another law, the Woman and Child Repression (Special Provisions) Act 1995 was enacted. It provides for capital punishment to offenders. It debars the granting of bail to persons accused of heinous offences against women and children. The penalty imposed in section 8 of this act for trafficking and associated offences is life imprisonment and fine. Section 9 stipulates a penalty of 10 years with a minimum of 7 years imprisonment for abduction to commit immoral act on women and children. There are laws against forcing anyone into prostitution or into "immoral acts" (Penal Code 72, 73, 74). Soliciting is also against the law (Criminal Procedure Code). However there are no laws against a person of 18 or above engaging in sexual activity in exchange for money. It is sufficient for a prostitute to have an affidavit delivered by a magistrate stating that she is above 18 for her not to be arrested by the Police. That does not preclude harassment and being asked for bribes. Prostitution is technically neither legal nor illegal but exists in a gap in the law, as in many countries. Therefore prostitutes do not have any legal protection, nor can the State take any legal
69 70

Ibid. Trafficking in Women and Children: The Cases of Bangladesh, p.21, UBINIG, 1995

49

measures against them. As citizens they can demand the same fundamental rights from the State, such as the right to protection and security, the right to shelter and to basic amenities. While laws relating to violence against women, including rape, apply equally to prostitutes, in practice they are discriminated against as they will be classified as 'habituated' to sexual intercourse and proof will be considered to be harder to give/accept. Prostitutes are often subjected to harassment and violence from the Police who are theoretically supposed to protect their rights71.

7.6 Assault and Acid Victim

While violence against women remains prevalent throughout Asia, acid attacks on women, especially in Bangladesh, stand out as one of its most despicable and barbaric manifestations. The number of acid attacks against women in Bangladesh is very difficult to document because many cases go unreported, as the victims fear reprisals from their attackers. Nonetheless, many Bangladeshi non-government organizations claim that acid attacks have increased at an alarming rate in recent years. The Bangladeshi Acid Survivors' Foundation, established in 1999, notes that "acid violence is a relatively recent phenomenon, with the first documented acid violence case occurring in 1967". Figures from the Foundation indicate a distressing trend: 47 cases were reported in 1996, 130 in 1997, and 200 in 1998. The immediate causes of these appalling and sometimes deadly acid-throwing attacks range from refusals of a marriage proposal, dowry disputes, domestic fights, and disputes over property. The physical effects of an acid attack are hideous. Skin tissue melts, and even bones can be dissolved. Many victims have lost their sight in one or both eyes. Since the victims are mostly poor women living in the countryside, they do not have money for medical treatment. Acid attacks are one of the most vicious and sickening crimes not just because of the extreme pain they inflict on the women who are attacked, but also due to the lifetime stigmatization that follows. The physical and psychological consequences of acid attacks are extensive. Victims suffer
71

Bangladesh CEDAW Report, 1 April 1997

50

from a severe loss of self-esteem, and often are unable to work or study. It is very unlikely that they will ever get married, dramatically affecting the victims' life economically and socially and causing their social isolation. According to the UN Population Fund's State of the World Population 2000 report, in terms of domestic violence against women Bangladesh is secondworst in the world, with 47 percent of all women violently assaulted by their male partners. This very clearly indicates that the Bangladeshi government is not doing enough to curb widespread gender violence. Particularly in the case of women attacked with acid, the lack of medical resources put to their disposal and the impunity enjoyed by most attackers reflects the lack of interest in solving this problem. The improvement of the medical facilities for treatment of acid-burn victims and stronger enforcement of current laws on acid attacks would send a very positive signal to the victims and to Bangladeshi women in general. Women are guaranteed equal legal protection as men under article 2(c) of the CEDAW, to which Bangladesh acceded in 1984. Article 5(a) states that parties to the Convention shall take appropriate measures to modify social and cultural patterns towards the elimination of prejudices and discriminatory practices. Women are also guaranteed equality and protection under article 3 of the Declaration on the Elimination of Violence against Women. Article 4 of the Declaration calls on states to eliminate violence against women irrespective of religious or cultural norms that may be invoked to condone it.72 CEDAW does not restricted to action by or on behalf of the State. For example, under article2 (e) of the CEDAW calls on States parties to take all appropriate measures to eliminate discrimination against women by any person, organization, or enterprise. Therefore, under general international law and specific human rights instruments, Bangladesh may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or fail to investigate and punish acts of violence, and they may be required to provide victims with compensation. The CEDAW
72

E/CN.4/2002/NGO/83 ,31 January 2002

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Committee expressed serious concern about the alarming levels of violence against women in all its forms and especially its most cruel forms, such as acid throwing, stoning and dowry death, and the inability of the Government to enforce existing laws effectively, or to provide immediate relief and justice to victims of such violence. The Committee strongly urged the Government of Bangladesh to strengthen its enforcement and monitoring of existing laws, policies and mechanisms on violence against women so as to provide victims and survivors of violence with responsive and effective measures of protection and to prevent further violence. Bangladesh at present can state that there are adequate laws to protect the rights of women, but their enforcement is weak. Mechanisms to enforce and administer these laws are inadequate and ineffective. Most of the litigations are delayed, as courts are overloaded. The decree or orders passed cannot be made effective.

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8.Government Measures To Enforce CEDAW In Bangladesh

8.1 Introduction
The integration of womens concerns and needs into development planning has both socioeconomic and political considerations. The Constitution of Bangladesh upholds the necessity of equal opportunities between women and men. It sanctions positive measures for disadvantaged groups, particularly women. The Government of Bangladesh (GOB) is also a signatory to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in November 198473. It also subsequently endorsed the 1985 Nairobi Forward Looking Strategy and ratified the Convention on the Rights of the Child (CRC) in 1990. The GOB also endorsed, without any reservation, the Beijing Platform for Action (PFA) in 1995. Other relevant international/regional declarations to which the GOB extends its commitment and support include: ILO Agreements related to equal rights for women in labor conditions, equal pay, and maternity facilities Declaration and Action Program of the World Conference on Human Rights, Vienna 1993 Declaration and Action Program of the World Summit on Social Development, Copenhagen, 1995 South Asian Association for Regional Co-operation (SAARC), Decade for the Girl Child 19992000.
73

[with reservations expressed for Articles 2: Policy measures, 13(a): Rights to family benefits, 16.1(c): same rights and responsibilities during marriage and at its dissolution, and (f): rights and responsibilities on guardianship of children. The reason cited was conflict with Sharia law based on the Holy Quran and Sunna. The reservations on Articles 13 (a) and 16.1 (f) were later withdrawn.]

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8.2 National Plans, Policies and Institutional Machineries

8.2.1 Introduction
A commitment to equal rights for women and men in all spheres of the state and of public life is enshrined in the Constitution of Bangladesh [Article- 28(2)]. However, there remain contradictions between this commitment and other elements of law as a result of pre-existing legislation in such areas as property and inheritance rights for women relative to men. There is also a critical necessity to translate the various legal measures and policy commitments into practical terms, thereby achieving a positive impact on the lives of women and girls in Bangladesh. Besides the overall National Policy for Advancement of Women, gender concerns have also been incorporated into a number of sectoral policies.

8.2.2 Ministry of Women and Children Affairs (MOWCA)

Bangladesh is one of the few countries to have a separate Ministry of Women's Affairs, established in 1978. The Ministry has gone through various stages and structures.74 At present it consists of the Ministry itself and three implementing agencies: the Department of Womens Affairs (DWA), Jatiya Mohila Sangstha (National Womens Council), and Shishu (Childrens) Academy. As part of the National Women Machinery, MOWCA was mandated to act as the central motivating factor on issues of womens

Soon after independence, the Bangladesh Women's Welfare Foundation (BWWF) was created by the Government for the rehabilitation of war-affected women. In 1976, the Jatiyo Mahila Sangstha (National Women's Council) was established as a network of committees from the national to grassroots level for mobilization of women. However, in 1991 it was converted as a statutory body and implementing agency within MOWCA. In 1984 the Department of Women's Affairs was created as an operational wing of the Ministry of Social Welfare and Women's Affairs. A decade later the Ministry of Women's Affairs was given an independent status and its jurisdiction was also expanded to include children's affairs and was renamed as MOWCA.
74

54

equality and development and to promote a broader and more consistent response by all government agencies to the needs and priorities of women.

8.2.3 National Machinery for Promoting Gender Equality

Beside the Ministry of Women and Children Affairs (MOWCA), a number of institutional mechanisms were put in place to implement of the National Action Plan and the various gender equity strategies. They include: A. National Council for Women Development(NCWD) At the national level, the NCWD was established in March 1995. It has 4475members,including the Prime Minister (chairperson) to implement and review socioeconomic development policies to reduce existing gender gaps, and enhance women's status. Since the establishment of NCWD two meetings have been held. At the first meeting (1997) the National Policy for Advancement of Women and the National Action Plan (NAP) were approved. In order to make the NCWD effective, a monitoring and evaluation committee has been set up headed by the Minister of MOWCA. Its function is to monitor the implementation progress of sectoral WID plans and submit quarterly reports to the NCWD. This is a working committee composed of high government officials from line ministries including the Planning Commission, and members of the civil society. The NCWD is no doubt an effective institutional mechanism to provide policy directives on critical womens concerns. However, it has built-in strengths as well as weaknesses. Its strength lies in the profile, prestige, and credibility of its members, which, in fact, also generates weakness because the members have difficulty in allocating enough time to the NCWD. As the highest policymaking body for womens development, the NCWD provides policy

It consists of 14 ministers, secretaries of 13 ministries, a member of the Planning Commission, 5 members of Parliament, and 10 prominent women, nominated by the Government.
75

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guidance to all sectors and monitors implementation of critical policy decisions relating to womens issues and development.

B. Parliamentary Standing Committee for Women and Children Affairs The ten-member Parliamentary Standing Committee was established to review the activities of the Ministry of Women and Children Affairs (MOWCA). The committee meets once a month under the chair of a Member Parliament (MP). C. Womens Development Implementation and Evaluation Committee In order to monitor the programme implementation by related sectors as stipulated in the NAP, the committee was formed under the chair of the Minister, MOWCA. Its members include Secretary/Joint Secretary level officials of the MOWCA, sectoral ministries, implementing agencies and selected representatives of civil society. D. District and Thana Co-ordination Committees To provide outreach support to the central government mechanisms, sub-national level co-ordination committees were established in each of the 64 districts and 460 thanas76. Responsibilities of these committees include monitoring implementation of gender equality efforts by the various sectoral agencies and assessing the situation of violence against women. An Institutional Review of GOBs WID capability identified several gaps. A major concern was the limited understanding of the requirements of a gendermainstreaming approach to promote womens advancement among government agencies and line ministries. Gender issues were not being addressed cross-sectorally. Sectoral Womens programmes were often marginalized and implemented in an isolated manner. The Institutional review
76

Thana means Sub-District

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noted that it is important for all the agencies and ministries to appreciate that the task of facilitating womens development is not only the responsibility of the MOWCA.

8.3 Reports Under CEDAW and observation of the CEDAW Committee

Bangladesh has submitted their initial report in 1986 and reviewed in 1987; CEDAW Committee expressed hope that Bangladesh would withdraw her reservations. Second report submitted in 1990 and reviewed in 1993; CEDAW Committee objected that its questions about the first report continued unanswered, it found the second report inadequate, many substantive CEDAW guarantees were not translated into domestic laws were not in conformity with the Convention in accordance with the reservations and announced that there were no pans for withdrawing reservations. The third and forth report submitted in 1993 and reviewed in 1997 the CEDAW Committee noted the continuing absence of registration of marriages and births the absence of legal protection for women in the informal sector, migrant workers and workers in export processing zones, as well as the absence of specific prisons for women77. After review the report of Bangladesh in 1997, the Committee urged the government to review its remaining two reservations with a view to their withdrawal. Is also urged the government to strengthen the enforcement of its existing laws for the suppression of violence against women, as well as the enforcement of laws prohibiting child marriage and polygamy. The Committee suggested that separate prison
77

A Handbook on CEDAW, Sida, Stockholm 2000. P-58

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facilities be set up for women and labor protection for women in export processing zones and in the informal sector was recommended as priority 78.

8.4 Problem of Reservation

One of the most serious problems encountered in effective implementation of Human rights treaties, is the vast number of reservations and declarations entered by States parties79. Particularly CEDAW that appears to be the most widely reserved human rights treaty today80. The number of far-reaching reservations entered to this treaty has been the subject of a global debate and the CEDAW is seen as the most political of all the human rights instruments81. Whether the reservations to CEDAW are allowed subject to article 28(2), which states: A reservation incompatible with the object and purpose of the present Convention shall not permitted. As well a being the treaty with the second highest number of ratifications ( after the Convention on the Rights of the Child), CEDAW also has a large number of substantive reservations. The reservation of human rights treaties do not simply pose legal questions. Affecting as they do, interests of the most vulnerable and marginalized groups in society such as women and children, they raise very pertinent moral and social issues82.
Ibid at, p-59 Shaheen Sardar Ali, Gender and Human Rights in Islam and International Law, 2000 Kluwer Law International, p.238 80 As of 28 February 1998, 51 reservations and declaration had entered to various provisions of the Womens Convention. The texts of reservations, declaration and obligations with respect to human rights treaties deposited with the secretary. General of the United Nations are published in the annual volume, Multilateral Treaties Deposited With the Secretary-General , U.N. Doc.ST/LEG/SER.E/15(1997) 81 L.A. Rehof, Guide to the Travaux Preparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (1993) Dordrech: Kluwer Academic Publishers, at p.vii. 82 T.van Boven,forword in L.Lijnzaad, Reservations to UN-Human Rights Treaties. Ratify and Ruin? (1995) Dordrecht: Martinus Nijhoff Publishers at P.v.
78 79

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The reaction of Muslim States to the CEDAW has been very strong. There is an assertion by these States that in their view, international human rights treaties are subservient to the overriding supremacy of Islamic law. It is important to make the point here that although many States have entered reservations to the CEDAW, Muslim States are distinctive in identifying the religion of Islam as the main justificatory logic for adopting this particular course of action83. It may be argued that reservations entered by Muslim States are motivated by a wide range of factors including political, socio-economic as well as religious considerations. The situation is further complicated where no uniform position vis-a-via Islamic law is adopted by Muslim States since each jurisdiction presents its own specific blend of an operative and cultural Islam distinct from other Muslim jurisdictions. This is also reflected in the group of newly independent Central Asian Republics and some other Muslim States that have ratified the CEDAW without any reservations 84. Bangladesh has ratified the Convention on the Elimination of All Forms of Discrimination Against Women with reservations [(Articles 2, 13 (a), and 16.1 (c) and 16.1(f)], where Sweden and Mexico made the objection. By entered reservations to Article 2 it becomes very uncertain what obligations Bangladesh should undertaking. Bangladesh formulates its reservation to this article in the following words: The Government of the Peoples Republic of Bangladesh does not consider as binding upon itself the provisions of articles 2 as they conflict with Sharia law based on Holy Quaran and Sunna. Bangladesh government didnt specify what is Sharia law. The Bangladesh Constitution embodies the principle of equality between women and men and declares that constitutional principles shall take precedence over all other existing laws. The Constitution is the highest law of the land and any law inconsistent with the Constitution is automatically void (Articles 7(2) and 26). Thus all pre-Constitutional laws have to withstand the test of the Constitution's basic principles. Bangladesh does not have any "Sharia Law" as such. Rather certain provisions are codified into legislation, such as the Muslim Family Law Ordinance and provisions of the
83 84

Supra note 79, at p 240 Ibid., at p-264

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Sharia are not immutable but subject to reinterpretation based on the needs of the time. In addition Muslims are not the only population in the country. There is a sizeable non-Muslim population to whom the Sharia is not applicable. Bangladesh is committed to its international treaty obligations and the guarantees of equality between men and women and of nondiscrimination against women contained in the UN Charter, the Universal Declaration of Human Rights and other international instruments85.Recently, the Government withdrew the reservations on Articles 13(a) and 16.1(f)86. The remaining reservations are under review. Since the provisions of this Convention are not yet incorporated into national legislation, the Government is not legally bound to them because the reservation of article 2 that government hasnt obligation to eliminate discrimination. In the reservation article 16.1 (c) Bangladesh government is reluctant to ensure the equal rights of spouses. CEDAW Committee commended the initiative of the Government in leading the way for other countries with similar reservations to also consider lifting their reservations. The Committee expressed its concern over the Government's remaining reservations to articles 2 and 16, paragraph 1 (c). The Committee noted that it regards article 2 as a fundamental and core provision of the Convention, while article 16 is critical to the full enjoyment by women of their rights. To make a reservation on article 2 its being contrary to the spirit of the Convention itself and in contradiction to the provisions of the Constitution of Bangladesh.

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 18 OF THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN, Third and fourth periodic reports of BANGLADESH 86 Third and fourth periodic reports of Bangladesh (CEDAW/C/BGD/3-4) at Committees 357th and 358th meetings, on 23 July 1997 (see CEDAW/C/SR.357 and 358).
85

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9. The role of NGOs to promote Gender Equality

Bangladesh is well known for its non-governmental organizations (NGOs), some of which are among the largest or most famous in the world. Notable contributions have been made by NGOs especially in the area of womens empowerment. After Beijing, some of the NGOs and womens organizations took up some programmes on critical areas of concerns. A major concentration was on the areas of human rights, violence against women, trafficking in women and children, migrant laborers, women and health, gender training, women and poverty. Advocacy and community involvement have seen some effective strategies adopted by the NGOs in their efforts to redress gender disparity issues. For example, the community-based non-formal schools of Bangladesh Rural Advancement Committee (BRAC) are known the world over. Currently 9.5 million poor people in Bangladesh have access to micro-credit services through the programmes run by Grameen Bank, BRAC, Proshika and other NGOs. Of these about 85 percent are women. The progressive media has also become a significant champion of gender equality and social justice. Many cases concerning human rights violation draw public attention because of the light shed on them by the media. Some corrective measures leading to positive changes have been made possible through such high-profile media exposures that lead to public pressure. Successful partnerships between government and civil society have been found to be an effective strategy for achieving the gender equity goals. A key feature of NGO activity in Bangladesh has been the parallel delivery of

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services in education, health, water, and other key areas by a broad system of NGOs working often in a program structure developed by government. This provider client relationship sometimes facilitates and sometimes limits the influence, which NGOs may have on national policy and programmes. NGOs are interested in strengthening countrys compliance with the CEDAW. Intense and broad-based campaign for removing gender-discrimination and gender violence through legal redress has been undertaken by women's organizations both at the national and local levels. The NGO Mahila Parishad's mobilization for legal reforms, supported by others, have focused on the enactment of new and stringent laws providing deterrent punishments for gender-violence both at home and outside; enactment of a uniform family code to supplant the various personal laws perpetuating gender-inequality within the family in the various religious communities; and full ratification of the CEDAW and implementation of the labor laws including the International Labor Organization convention that would ensure women's rights in the society and at the workplace. To heighten women's legal awareness, legal literacy training along with legal aid and referral services to victims of gender-violence is given by many organizations. Now days NGOs are submitting the shadow report to CEDAW Committee in the context to Governments periodic report, which is very helpful, the Committee to examine the governments report.

Bilateral and Multilateralal Agencies and Gender equality

In Bangladesh, almost all international development agencies have women's programs. Generally these agencies have either a bilateral or multilateral agreement with the Government of Bangladesh. They provide aid and assistance and also help in the formulation of policies in close cooperation and coordination with the Government, NGOs, civil society, research and women's groups, etc. They also have a donor consortium where the country's performance is reviewed and the major policy thrust is decided and the aid is 62

sanctioned. Donors also liaison with each other and with their national partners in donors liaison committee. In addition to ADB, the major multilateral bodies include the UN System, the World Bank, and the European Community. Major bilateral aid agencies include the Canadian International Development Agency, Japan International Cooperation Agency, United States Agency for International Development, Danish International Development Assistance, Department for International Development UK, Swedish International Development Cooperation Agency, Norwegian Agency for Development Cooperation, etc. Overall, donor agencies have exerted a positive influence by helping to bring the gender issue closer to the top of Bangladeshs development agenda87.

Country Briefing Paper, WOMEN IN BANGLADESH, ASIAN DEVELOPMENT BANK, Programs Department (West),August 2001
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10. Recommendation
1. Bangladesh Government should immediately withdraw the rest of reservation on article 2 and 16 (1) (c) of CEDAW to ensure the rights and obligation under the CEDAW. Bangladesh Government should explicitly explain about the Sharia law in respect of reservation. Bangladesh Government could follow the other Muslim Countries instance which dont have any reservation in the CEDAW. 2. The importance of women's participation in the political process should be recognized by the Government and political parties. Women's perception of their political role could be enhanced through education, training, awareness, advocacy, employment, and legal measures. Mass media and other agencies can be used to help motivate women. There is a need to disseminate more information about the need for equal political participation of women. 3. Most important concern about the Gender Equality in Bangladesh is personal law. Bangladesh Government could take initiative to transition the situation. Judges should come forward to positive interoperation of Muslim family law. In recent Morocco which is a Muslim country has changed there personal family law code which states women will get property rights within marriage, and both spouses will have equal authority in the family88. Bangladesh Government could follow the Moroccos instance. 4. Every marriage solemnized under Muslim Law must be registered. 5. Government should take step to prohibit the polygamy and could follow the Tunisian example, which prohibited polygamy 1957. 6. In Bangladesh steps should be taken to reform the Hindu Law to raise the status of Hindu women as has been done in India under the Hindu Marriage Act of 1955 7. Bangladesh Government should take more initiative to eliminate discrimination in the health and education sector.

88

BBC, News, 11 October 2003

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8. Bangladesh Government should make more hardy law to protect women from violence and make sure the proper implementation of the law by law enforcement agent. 9. Bangladesh Government should timely report to the CEDAW committee. 10. Bangladesh Law Commission89 should take more initiative to reform the law, which is discriminatory against women. 11. Bangladesh Government should do more to strong national women institution to promote the equal rights for man and women. And Bangladesh Government should provide more funding for this sector.

89

Bangladesh Law Commission Established : (The Law Commission Act 1996 Act no. XIX of 1996).

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11. Conclusion
Although the legal status of women in Bangladesh may be an enviable one as they are guaranteed equal rights with men in all spheres under Article 28 (2) of the Constitution of Bangladesh, the enforcement of the right is far from effective. Similarly, while most of the population of Bangladesh are Muslims whose rights with regards to marriage, divorce and inheritance are governed by their Muslim family law. However, although Muslim law provides property rights to females, the shares of males and females are not equal.90 Implementation of International law in the domestic level is very difficult, depending upon the nature of national politics and individual country resources. States that have ratified the Convention are under an international legal obligation to take all necessary measures towards its implementation, including incorporation in their domestic legal systems. CEDAW principles have been integrated into new constitutions and added to more established constitutions and added to more established constitutions through amendments. They can also gain constitutional status in a less direct fashion, when courts are convinced to use the Womens Convention to help give existing constitutional guarantees of womens equality more detailed and concrete meaning. If a State has ratified the Convention, judges in its domestic courts generally have the authority to consider it, either as part of national law or as an aid to interpreting national law. But in reality many judges in Bangladesh are unfamiliar and uncomfortable with the idea of doing so.
For more on the Muslim Laws on inheritance see David, P., A Textbook on Muslim Law, London, 1979; Fyzee A.A.A. ; Outlines of Muhammadadan Law (4th edition, 7th impression), Delhi, 1993
90

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The protection that is accorded through the civil laws are outweighed by the inequalities reflected in many areas of personal laws governing the life of women. Women's socio-economic status differs from their legal status. The former often determines the latter. Although the Government is determined to take steps to eliminate discrimination against women through legal measures, women cannot even enjoy those rights provided by existing laws due to the lack of enforcement. The disparity between the rights women have by law and what they actually enjoy arises partly from the lack of knowledge of women and men about internationally and nationally recognized womens rights and the lack of commitment by the judiciary and law enforcement agencies. Various procedures make it difficult for women to access and use the judicial system. The lack of a central database on marriage and divorce registrations, or any means of crosschecking such registrations, means that it is virtually impossible to prevent polygamy. Although the Muslim Family Law allows women to inherit, social customs and family pressure often prevent women from claiming their share. Women lack the financial resources required and lack access to lawyers and courts, which restricts their recourse to the legal system. Laws on trafficking, for instance, are hard to apply, as often members of the law enforcing agencies are themselves involved in the trafficking activities. Although, Bangladesh ratified the Convention as early as November 1984, no steps have been taken to incorporate the obligations under the Convention into national legislation. Nor have any systematic steps been taken for widespread awareness and action programmes to create an enabling environment for the withdrawal of reservations and for the progressive implementation of the Convention. A few programmes to support the advancement of women have been introduced, in particular in the education sector. The totality of these programmes, however, account for only a fraction of the national effort required to support and empower women and girls to fight the daily discrimination they face in social, political, economic and cultural life. For the Gender equality in Bangladesh, there is a need for a persistent drive against those social customs, beliefs and traditions which belittle the value of women as compared to men. Efforts must be made to change attitudes that 67

women are inferior to men and that motherhood is the most desirable role for a women. Unless this negative attitude is changed and women are given equal education and employment opportunities and the right to share in the means of production they would fail to realize their socio-economic and political rights in the society.

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9. Khan Noor Ephroz, Women and Law , Muslim Personal Law Perspective, Rawat publications, Jaipur and New Delhi, 2003 10. MARJORIE AGOSIN, Women, Gender, and Human Rights, A Global Perspective, Rutgers University Press, New Brunswick, New Jersey, and London, 2001 11. Melander, Gran and Alfredsson, Gudmumdur (eds.), The Raoul Wallenberg Compilation of Human Rights Instruments, 1997. 12. Rebecca J. Cook, Human Rights of Women, National and International Perspective, 1995 13. SHIRIN M. RAI, Mainstreaming gender, democratizing the State?, Institutional mechanisms for the advancement of women. United Nations, 2003. 14. Shaheen Sardar Ali, Gender and Human Rights in Islam and International Law, Kluwer Law International, 2000 15. Wolfgang Benedek, Esther M. Kisaakye and Gerd Oberleitner, The Human Rights of Women: International Instruments and African Experiences, World University Service Austria, 2002

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