Dr. Faustina Pereira is a human rights lawyer, scholar, and a gender and development specialist. She is Professor, General Education in Law, and Head, Legal Empowerment and Sustainable Development, Centre for Peace and Justice, BRAC University. She has served in senior leadership positions in national and international organisations, including Ain o Salish Kendra (ASK), BRAC and the International Development Law Organisation (IDLO). She is an alumna of Dhaka University. In 1998, she received her Doctorate in International Human Rights Law from the University of Notre Dame, USA, and later completed a Post-Doctorate from the National University of Ireland, Galway, as the first Bank of Ireland Fellow. Tahseen Lubaba from Law Desk talks to her on following issues.
Law Desk (LD): The theme for this year's International Women's Day is "I am Generation Equality: Realising Women's Rights". What does this theme mean to you?
Faustina Pereira (FP): This year's theme marks a 25 year journey since the Beijing Declaration and Platform for Action - endorsed by 189 governments, at the Fourth World Conference on Women in 1995. It was at this Conference where a most basic and fundamental truth was articulated to the world, that, "human rights are women's rights and women's rights are human rights." Since then, several important milestones have been achieved, globally and in Bangladesh, to bring this truth to life.
For me, this theme is a call, on the one hand, to account for what has been achieved so far based on decades of sacrifice, courage and activism of those who have gone before us. And on the other hand, it is a call to chart the way ahead to the best of our abilities, to remedy the remaining gaps, wrongs and exclusions that stand in the way of the full expression of women's equality, whether they are historically inherited or emerging in new forms.
LD: The High Court Division (HCD) has issued a rule asking the government to frame a scheme for awarding compensation to rape victims. Do you view this as a positive step in the direction of ensuring gender justice?
FP: Yes, if appropriately framed and implemented, this compensation scheme could provide a degree of relief to the victims and survivors of sexual assault (including rape) and to their dependents and family members. However, we must be careful to understand the rationale for this compensation scheme. It cannot by any means be seen to bypass the responsibility of the State to bring the perpetrator or rapist to justice. Rather, compensation needs to be seen as one of several components of holistic justice; carried alongside a process where the full weight of the law is meted upon the perpetrator/s.
A number of countries have well established compensation schemes. These include the UK, the USA, Australia and India. Here the intent, purpose and scope, together with the implementation mechanisms are clearly set out. A compensation scheme for Bangladesh must be based on principles of justice and reparation. In addition to covering actual expenses for medical tests, transportation, food, funeral, lawyer's fees, psychological counselling, and costs of raising a child born as a result of the rape; the costs that add up due to the contextual realities and barriers that victims and their families face on the arduous road to justice, must also be accounted for. The gravity of the offence and injury suffered must be calculated comprehensively - based on mental, physical, emotional or economic suffering. Moreover, this Scheme should cover all victims and survivors of sexual assault and rape, including men and boys.
LD: The HCD has banned the two-finger test in rape prosecutions and has issued circulars requiring that only female magistrates record the statement of rape victims - do you see these as effective measures in ensuring procedural fairness in rape trials? What more can be done?
FP: The sentiment and intention behind this directive is quite understandable, particularly from a perspective of cultural context. It is one step in the right direction of victim-friendly pre-trial procedure. However, we are mistaken to assume that just because the statement or deposition is recorded by a woman magistrate the victim would be at ease or free of rebuke or fear. Women too can be carriers of misogyny, insensitivity, judgmentalism, hostility or disbelief. Therefore, all magistrates, particularly those who come in contact with victims of sexual assault or minors or those with disabilities, should undergo appropriate training to sensitively and professionally carry out their functions. In fact, to bring about responsiveness of the system to victims of sexual offences, trainings should be rolled out to all relevant judicial officers, police, legal aid lawyers and prosecutors. An overall or holistic approach towards rape law and procedural reform is required as a matter of urgency. We can take lessons on how this has been approached in other jurisdictions. In India, for example, Vulnerable Witness Deposition Complexes were set up in 2012 inside courts. The significance of such establishments is that they help to spatially separate and shield the prosecutrix from the accused during deposition.
The medico-forensic guidelines and procedures now in place to do away with the barbaric practice of the two-finger test, will only succeed if these guidelines are part of an overall transformation. The first step of this transformation is psychological and involves a change of mind-set.
LD: How do you see the HCD order directing the government to amend the Kabinnama forms and exclude the word "Kumari"?
FP: I welcome this directive. I am not aware if the petitioners sought only on removal of this particular terminology or prayed for a broader directive, calling for removal of other derogatory and sexist language in all official forms or processes. Nevertheless, this provides an opportunity for the government to carry out a diagnostic and comprehensive review of offensive terminology in all spheres of official or public use, including our school and college text books. This review must be done keeping in mind the fact that pervasive sexist language is dangerous to the family, the economy, and to society as a whole.
Here I would like to recall an open letter that was sent a year ago to the Chief Justice of India, by Ms. Indira Jaising, one of the senior most lawyers of the Supreme Court of India. Ms. Jaising, who in 2018 was ranked the 20th of the 50 Greatest Leaders of the World by Fortune magazine, outlined how even someone of her stature was regularly subjected to sexist remarks by lawyers which go unnoticed by the Bench. She argues that such tacit acceptance of sexist language in the courtroom and brushing it aside as "didn't mean any harm", gives it a level of legitimacy.
Indeed, language is a vehicle that often carries sexism and misogyny across society and institutions. This is true not only in the court room, for example, where language in legislation and statutes, such as "modesty" and "chastity" of a woman, are still freely used; but it is pervasive across social and political spheres. Such offensive language must be eliminated from our vocabulary and replaced by respectful and non-judgmental terminology.
Therefore, removal of the term "Kumari" from the marriage document, while welcome, must be seen to be an indicator of the need for an overall linguistic review of our official parlance. While "Kumari" denigrates a woman's identity through her sexual availability and status, we must look for other areas in the law and in administrative processes where a woman's identity is secondary to or dependent upon a man's identity.
LD: 2019 was a landmark year in terms of codifying the provisions on workplace sexual harassment into an ILO Convention - where does Bangladesh stand in terms of safety of women in public places e.g. public transports, workplaces and educational institutions?
FP: Indeed, the Violence and Harassment Convention 2019 is a timely and critically important codification. There are several significant features of this Convention, including that it acknowledges that gender-based violence and harassment disproportionately affect women and girls, and recognises that an inclusive, integrated and gender-responsive approach, which tackles underlying causes and risk factors, including gender stereotypes, is essential to ending violence and harassment in the world of work. Another important feature of this Convention is that it links the effects of injustice in the home and family to employment, productivity, health and safety. It calls upon governments, employers' and workers' organisations and labour market institutions to recognise, respond to and address the impacts of domestic violence.
One point of note is that work place harassment, which is essentially based on a power imbalance, can take place between two or more persons of any gender. It is a common mis-conception that it is only limited to harassment of women by male colleagues or employers. Perhaps this perception is created because a majority of cases fall within this dynamic. However, laws on workplace harassment need to extend protections among and between all genders, including transgender and people of different sexual orientations.
In Bangladesh, we are yet to have a separate law on harassment in the workplace. Until such a law is in place, the 11-point directive laid down by the Supreme Court in 2009 (29 BLD HCD 415), provides us the basis for protection and redressal against workplace harassment. In 2018, there was a proposed law drafted by BNWLA (Bangladesh National Women Lawyers' Association) and a number of rights based organisations, titled, 'Sexual Harassment at Workplace Act.' This draft was submitted to the Law Ministry. However, as far as I am aware, there has been no recent significant or tangible progression of this to the Parliament. However, we can hope that the Parliament will pass this important piece of legislation in time to celebrate Bangladesh's fiftieth year of independence!
LD: Thank you for your time.
FP: Thanks very much.