Recently Published 2014 © Ain o Salish Kendra (ASK)
Introduction
Hameeda Hossain
Published 2014 © Ain o Salish Kendra (ASK). BDT 200 Taka
When ASK took on the task of providing access to justice, by mediating disputes or taking up complaints in court it sought to do this with respect and dignity for all. Its primary aim was to provide access through the law for individuals or communities who otherwise remained excluded from the system of justice.
As ASK engaged with cases of systemic discrimination and exploitation, of oppression or state violence, the parameters of its activism extended within a broader human rights framework. The law could be used as a tool in establishing rights and correcting wrongs in a particular case, but to promote these as constitutional safeguards or universal standards called for a more public engagement for state interventions.
The promotion and protection of human rights called for an awareness of rights amongst the disempowered and a realization of responsibilities by the powerful. Individuals seeking help needed to know what their rights were and how to exercise these rights; in resorting to legal intervention they also learned the limitations of individual legal action.
ASK’s legal support was preceded with strategies to promote awareness of rights amongst potential victims and to raise public consciousness; at the same time it tried to sensitize those who were in a position to dispense justice. ASK’s documentation of cases of discrimination and violations which showed the social and legal deficits in the practice of human rights and in particular women’s rights in Bangladesh was a rich source for knowledge dissemination through the media.
An early opportunity was provided by an offer from the national newspaper Daily Star to print brief weekly columns on cases filed with ASK to illustrate the effect of its legal intervention. Since much of ASK’s legal aid was in support of women in marital or family disputes, ASK’s columns started a public discourse on women’s rights. These columns were followed by articles on other emerging issues which were a cause of concern for human rights defenders. Both members and staff were encouraged to write for the media, to express their own opinions or to reflect ASK’s position.
In 1997 ASK published its first volume entitled Rights and Realities, which included articles of contemporary human rights issues written between 1993 to 1996. Articles written in English and Bangla led to separate language publications. This second English volume of Rights and Realities includes articles written between the years 1992 to 2014.
The themes covered in this volume formed part of contemporary debates during these years. For this volume the subjects selected include articles on the war of independence and trials of war criminals, access to justice, right to life and liberty, right to freedom of thought, belief and expression; since ASK had taken legal action in cases of violation of rights of workers, women and working children, it prompted discussion on their rights. While a few articles have a broad, theoretical construct, most of them respond to concerns that were raised in a particular year. In some sections fact finding reports from the field by ASK staff or members supplement the analytical articles.
The War and Thereafter
Citizens’ demands for an accounting for war crimes committed in the war of independence in 1971 have persisted since the beginning. Their challenge of impunity through a process of transformative justice evolved into a powerful populist movement steered by several groups such as Projonmo’71, Gono Adadalot (People’s Tribunal held in 1992 under the leadership of Jahanara Imam), Sector Commanders Forum and others.
ASK’s publication Narir Ekattor o Juddho Poroborti kottho Kahini (whose English translation Rising from the Ashes: Women’s Narratives of 1971 was published later in 2013) related the oral histories of women survivors of war crimes. Several of ASK’s members also participated in regional and international initiatives for justice. In 2001, two of its members attended the Tokyo Tribunal-where they presented the case for Bangladesh. The preparations for the drafting of the Rome Statutes and the Gender Caucus engaged several members of the organisation.
These experiences led members to write for the local media as well as for professional journals abroad. In the first section on the issue of trial for war crimes, Bina D’Costa and Sara Hossain analyse the challenges faced by the courts in prosecuting cases of sexual violence in 1971 and the risks of survivors in testifying to such disruptions in their lives. Their analysis raises fundamental issues of restoration and healing for the individual and transformation of the society. Sultana Kamal’s “A Duty to Carry out the Duty” – a lecture delivered at the Jahanara Imam Memorial in 2004 – revisits the crimes against humanity committed in 1971 and explains the political reasons for the delay in the pursuit of justice. “A Denial of History” examines how political changes have affected the memorialization of history and impeded the reckoning for crimes against humanity. A very moving personal account of 1971 by Meghna Guhathakurta expands into a discussion on a quest for freedom beyond 1971. Zaved Hasan Mahmud turns our attention to an international trial for war crimes committed in former Yugoslavia in 1997.
Access to Justice
Building a just society that is embedded in inequalities and discrimination and the challenge of building a just state when its institutions are built on a hierarchical order has remained a challenge in Bangladesh. Human rights defenders have turned to the judicial system to correct wrongs or to raise concern with institutional violations of human rights. The essays in this section raise concern with non compliance of executive with judicial decisions and discuss practical problems in the system of justice that lead to long delays, or fail to understand special needs.
Faustina Pereira in “When the Will is Far from the Way” is an enquiry into the executive’s failure to implement judicial directions in the case of right to shelter of slum dwellers and sex workers, separation of the judiciary or why the High Court decision on section 54 remains pending following an appeal by the government. Asaduzaman in “Justice Delayed, Justice Denied” explains the inordinate delay in trials leading to a manipulation of justice. Deena Nargis and Faustina Pereira writing in 2000 trace the course of legal action to prevent fatwa instigated penalties. The special needs of mentally challenged persons are often ignored in society as well as in our judicial and legal system. This has prompted Hussain M Fazlul Bari to write about ASK’s demand of justice notice so that proper conditions are created for them. In exploring the alternative Zakir Hossain’s essay explains why mediation is becoming a popular mode of dispute resolution and describes ASK’s program of mediating disputes in association with local partners.
Freedom of Thought, Belief and Expression
Constitutional guarantees and international commitments to safeguard freedom of thought, belief and expression have been difficult to implement given the legacy of bureaucratic governance, excesses of political control and the prevalence of social intolerance. Government sanctions have often silenced dissenting voices in the media, but suppressed resistance.
State building and politics of power have relied upon a control of thought, belief and expression. The religious right used the space provided by electoral politics in the nineties strategically to attack these fundamental freedoms. Emboldened by a weak or inert state, street activism was devised by the religious right to condemn statements of belief as apostasy and freedom of expression as blasphemy. Several writers including Dr Ahmed Sharif, Sufia Kamal, Shamsur Rahman, Taslima Nasrin were declared as apostates. Khatme e Nabuwat rallied with madrassah students to declare that Ahmadiyas as non-Muslims and to ban their publications. Fatwas were pronounced to pillory women for exercising choice and even trees planted by them as a source of income were uprooted. All this in the name of religion threatened anarchy.
As voices of resistance gained momentum, ASK and other human rights groups turned to the law and to judicial action to protect individuals, minority communities and institutions. The articles published between 1990 and 2014 are an answer to the intolerance of pluralism and diversity which resulted from the politicization of religion, identity politics and repressive laws. Meghna Guhathakurta study on “Alternative Voices of Peace Building” recognizes newly emerging and diverse voices of resistance to injustice.
ASK’s legal action in defence of Ahmadiyas, the Hindu communities (2001) and challenging fatwas led to introspective and analytical writings. An historical manifestation of the use of religion in nation building is provided in “Politics of Religious Identity” by Salma Sobhan (1995). In a discussion on judicial decisions Sara Hossain (2004) illustrates the strategic use of law and public campaigns by the religious right to silence dissent and argues for proactive policies, laws and action that create political tolerance and pluralism.
The communal markers of 1947 that created barriers between religious communities continue to act as impediments to a plural national state, and often result in violent outbreaks. Meghna Guhathakurta’s essay “Minorities Women and Peace: A South Asian Perspective” (2008) gives a powerful analyses of authoritarian, centrist, patriarchal states marked by kinship hegemonies formed by ethnicity, religion and gender. Examples of recent incidences of communal violence in “Obhoynagar” testify to the continuing fears that haunt Hindu communities in Bangladesh.
Three papers in this section warn us of how laws have been used as tools of repression. Salma Sobhan, in arguing against the demand posed by the Jamat i Islam member in Parliament for a blasphemy law, refers to amendments introduced by General Ziaul Haque in Pakistan in section 295—of the Penal Code which was used to terrorise citizens. This is followed by Zaved Hasan Mahmud’s proposal for “Freedom of the Press and Some Related Issues” and Sultana Kamal’s strong critique of a proposed law on “tele-tapping”.
Right to Life and Liberty
Law enforcement mechanisms have paid scant respect to constitutional guarantees for the right to life and international commitments to the ICCPR and CAT. Citizens have expressed serious concern with the methods of law enforcement that have endangered life and liberty. The use of fire power in defence or use of torture to facilitate interrogation have clearly violated human rights norms. As a human rights organisation ASK has objected to the denial of the right to a fair judicial process, which such arbitrary action entails.
In this section several essays by lawyers critique the use of force by the state which threatens life and liberty. M. Amirul Haq Tuhin, writing in commemoration of the International Day of the Disappeared has summarised the incidences of disappearances under different regimes, both military and civilian. “Justice Gone Awry” questions the impunity of Pakistan military action in 1971 as well the impunity of military action in Bangladesh. Zaved Hasan Mahmud voies a sharp critique of a proposal for shoot at sight which leads to a deprivation of life. Asaduzaman makes a strong argument against the use of custodial torture by the police and draws attention to the guidelines for arrest given by the High Court. Khurshid Alam has contributed a valuable essay on the “Abolition of the Death Penalty in South Africa” which could inspire a campaign in Bangladesh.
Women’s Rights and Violence against Women
When ASK set out to redress injustices faced by women within their families, in public or at work through mediation or legal action, it found that customary patriarchal norms had to be challenged with holistic strategies based on a conceptual understanding of the social, economic and political causes of gender discrimination and its consequence of sexual violence. Women expected the state to enact legal reform and to formulate policies to correct wrongs, but found that its interventions did not challenge systemic inequalities. The state remained patriarchal in its denial of women’s dignity and autonomy and stopped short of promoting political changes that would correct imbalances in gendered equations.
The eleven articles in this section written between 1995 and 2011 cover different experiences of women in the struggle for rights and combating violence. Legal analyses and recommendations form the substance of the first three articles. In her lead article Salma Sobhan expands on the justification for a uniform family code (1995) to promote equality amongst different communities and for an equitable law of inheritance. Khaleda Khatoon (1997) examines the fault lines in the criminal justice system relating to the definition of rape and its prosecution. Ila Chanda (1998) draws upon legal cases to show how procedural delays are used to obstruct a woman’s application for divorce. Fatwa edicts that penalise women and deny their right to choice and autonomy have been challenged in the courts. In “Taking Cognisance of Illegal Fatwas” Deena Nargis and Faustina Pereira have followed the role played by women’s groups in pursuing legal prosecution against those who issue fatwas.
The characteristics of the women’s movements in South Asia and in Bangladesh are the subjects of three papers. Salma Sobhan (1998) dissects the challenges for women in South Asia within a complex vortex of political conflicts since the eighties – collapse of Soviet economy, global capitalist dominance, rise of the religious right and terrorist threats. Can local campaigns for legal reform, political participation and prevention of violence counter global trends.
Faustina Pereira’s (1998) report on a workshop to recommend amendments to the Prevention of Repression on Women and Children raises very vital issues of why special laws need to be enacted to replace existing laws, why the crime of terrorism is integrated into this law, whether capital punishment acts as a deterrent.
Deena Nargis (1997) attributes the fault lines in gender friendly development to the absence of women in public decision making. Two other articles trace the political manipulations of policy making that takes us one step forward and two steps backward. “Women’s Rights in Retreat” (2005) and “Women’s Rights in Jeopardy” (2008) warn us how progressive policy documents drafted in consultation with women’s representatives are whittled down by changes in government.
Child Rights
ASK’s support for child workers started after its members conducted a series of case studies in 1990 by interviewing children working in both the formal and informal sector. Published under the title of Where Children are Adults, ASK’s engagement identified the needs of working children for education, health and protection. This led to the formation of drop in centres where working children could come in their free time to learn and rest. The methodology of jokhon tokhon learning was so popular that the drop in centres now number 122, out of which 6 are for workers in different occupations, 41 for domestic workers and 2 for children in forced begging occupations. While it proposed an end to child labour ASK realised how impractical its ban would be given the levels of poverty and therefore it set up a support system known as HELP (health, education and legal protection) for child workers.
In this chapter Salma Sobhan in 1996 wrote a detailed article on the conditions of domestic workers. More recently Hameeda Hossain wrote two articles the first on the insecurity of a girl child worker and the second on garbage workers in Mutail, where children working along with their mothers face the risks of handling poisonous wastes or falling under bulldozers.
Workers Rights
There is no doubt that the garment export industry has created a major source of employment for women and of course profit for the investors and foreign exchange for the government. The first opportunity is often euphemistically referred to as a means of empowerment, since women now move away from their rural homes into urban space, live in tenement housing and can walk to work.
However, its downside has also been identified in terms of low wages, gender discrimination, sexual harassment and risks of fire hazards in ill equipped factories which have led to approximately 1800 deaths in last era, of mainly women workers.
The nature of capital investment in a global trade has raised considerable debate on the responsibility of each sector in the chain of marketing and production, from brands, retailers, suppliers but the costs have been paid mainly by workers. This has prompted serious debates on the role of the market in mediating between capital and labour. ASK filed cases on behalf of individual women workers against termination, and in coordination with other organizations (such as BLAST, Nijera Kori and Kormojibi Nari) it engaged in class actions against the criminal negligence of manufacturers, and irresponsibility of regulatory mechanisms. Several of these cases are pending hearing in the High Court, but legal action has prompted a debate on compensation and safety issues.
The three articles included in this volume written between 2001 and 2014 highlight the issues of unfair wages and conditions of work, inadequate safety provisions and workers’ compensation. These articles contributed to the debate on workers’ rights and the imbalances between capital and labour in the global trade.
Education and Counselling for Human Rights
ASK has adopted a multi linear approach to dispute resolution. Legal support in cases of violation of rights becomes more effective when survivors and decision makers are made aware of legal and human rights, and those facing emotional stress are provided counselling by experts. In this section Salma Sobhan has contributed two papers, drawing upon her intensive experiences with the legal education strategies used by BRAC. Khursheed Erfan Ahmed, an educationist, who played a lead role in introducing training on psycho-social counselling, has written an essay on the importance of counselling to address psycho social tensions and stress.
The promotion and protection of human rights is inevitably a long term engagement with both the state and society. It has to be fostered at different levels drawing upon the constitution, making demands on the system of justice and the executive, challenging institutional failures and redressing individual wrongs. The essays included in this volume expand on the experiences of the authors in their association with ASK to defend the rights of citizens for human rights. As such they contribute to an ongoing discourse on promoting human rights and justice and building a democratic society.
Contents
Introduction 7
Chapter 1: The War and Thereafter
Redress for Sexual Violence before the
International Crimes Tribunal in Bangladesh
Lessons from History and Hopes for the Future
Bina D’costa and Sara Hossain
A Duty to Carry Out Duty
Human Rights and the Trial of War Criminals
Sultana Kamal
A Denial of History
Hameeda Hossain
Freedom: The Never Ending Road
Meghna Guhathakurta
First Muslims Face War Crimes Trial atHague Tribunal
Zaved Hasan Mahmood
Chapter 2: Access to Justice
1. When the Will is Far from the Way: Rising
Concern over Non-implementation
of Court Judgment
Faustina Pereira
2. Justice Delayed, Justice Denied
Md. Asaduzzaman
3. Taking Cognizance of Illegal Fatwa
Deena Nargis and Faustina Pereira
4. Mentally Challenged Prisoners: A judicial Reply
Hussain M Fazlul Bari
5. Setting Disputes outside Court
S.M. Zakir Hossain
Chapter 3: Freedom of Thought Belief and Expression
1. Alternative Voices of Peace-building: Bangladesh
Meghna Guhathakurta
Politics of Religious Identity
Salma Sobhan
‘Apostates’, Ahmadiyas and Advocates
Use and Abuse of Offences against
Religion in Bangladesh
Sara Hossain
4. Minorities, Women and Peace
A South Asain Perspective
Meghna Guhathakurta
5. Obhoynogor: ‘Where the Mind is without Fear’?
Meghna Guhathakurta
6. Blasphemy Law in Pakistan
Salma Sobhan
7. Freedom of Press and Some Related Issues
Zaved Hasan Mahmood
8. This is Outrageous
Sultana Kamal
Chapter 4: Right to Life and Liberty
International Day of the Disappeared
Muhammad Amirul Haq Tuhin
Kalpana’s Lasting Contribution
Meghna Guhathakurta
Violence in Dighinala
An Investigation Report by
ASK and Odhikar
Justice Gone Awry
Hameeda Hossain
Shoot at Sight: An Appraisal
Zaved Hasan Mahmud
Custodial Torture: Some Legal Guidelines
Md. Asaduzzaman
Mysterious Death of Arun Chakroborty
in Police Custody
An Investigation Report by ASK and Odhikar
The Saga of Harun
An Instance of Police Brutality
An Investigation Report by ASK and Odhikar
Abolition of Capital Punishment in South Africa
Khurshid Alam
Chapter 5: Women’s Rights and Violence against Women
Justification for Uniform Family Code
Salma Sobhan
The Law of Inheritance: Implications
on the Status of Women
Salma Sobhan
Definition of Rape and Some Important Issues
Khaleda Khatoon
Escalation of Incidence of Rape in Bangladesh
Saira Rahman
When Women Seek Divorce
Ila Chanda
The Women’s Movement and Democratic Exercise
Faustina Pereira
Fewer Women are at Policy Making
Level in NGO’s: “Why Things Why They Are?”
Deena Nargis
Create Spaces for Gendered Interaction
Hameeda Hossain
Women’s Rights in Retreat?
Hameeda Hossain
Women’s Right in Jeopardy
Qumrunnessa Nazly
The Case of South Asian Women’s Movements
Salma Sobhan
Chapter 6: Child Rights
Domestic Workers: Less Exploited Child Labour?
Salma Sobhan
Trials of a Girl Child Last for a Year
Beyond the Day We Celebrate
Hameeda Hossain
Waste Pickers of Mutual
Hameeda Hossain
Chapter 7: Workers Rights
Women, Work, Wages: Forging a Path to
Development?
Hameeda Hossain
The Garment Crisis: Who Done it? 303
Hameeda Hossain
Its Time to Pay Up 308
Hameeda Hossain
Chapter 8: Education and Counseling for Human Rights
Legal Literacy and Community Development
in Bangladesh: Bangladesh Rural
Advancement Committee 311
Salma Sobhan
Opening the Windows of the Mind 329
Salma Sobhan
Balancing the Rope Walk 331
Khursheed Erfan Ahmed
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