Bangladesh’s Reservation in CEDAW & Human Right Protection; Causes, Justifications and Prospects

Bangladesh’s Reservation in CEDAW & Human Right Protection; Causes, Justifications and Prospects

  1. Introduction

Every human being is entitled to some inherent and inalienable rights, enjoyment of which is subject to non-discrimination particularly on the ground of sex. Since the inception of human civilization women all over the world have been victims of discrimination and exploitation as their rights and status are denied which result in lack of access in economic, social, educational and other fields; where gender stereotype thinking, unequal status and vulnerable position of women are primary reasons. However, UN Charter proclaimed equal rights for women, seek promotion and respect for rights without distinction particularly on ground of sex. Universal Declaration of Human Rights 1948 (UDHR) also contains equal rights for men and women without discrimination. Moreover, International Covenant on Civil and Political Rights 1966 (ICCPR) obliges States parties to ensure equal rights for women to the enjoyment of civil and political rights;[1] whereas International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) provides that States parties should ensure equality for women to enjoy economic, social and cultural rights.[2] Despite all these bill of rights for example: UDHR, ICCPR and ICESCR are ensuring women rights without discrimination, women have always been subjected to inequalities , subordination and grave discrimination in all sectors. Subsequently,  on 1979 UN General Assembly adopted the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which came into force in 1981. CEDAW is a comprehensive treaty on the rights of women which establishes legally binding obligations upon State parties to follow the legal standards set by it to end discrimination against women by ensuring equality between men and women. In addition, CEDAW’s Optional Protocol establishes procedure enabling complaints on alleged violation of the convention by State parties and an inquiry procedure allowing CEDAW Committee to conduct inquiries into serious and systematic abuses on women’s human rights in country concerned. Bangladesh ratified CEDAW in 1984 and Optional Protocol in 2000 [3] and since then Bangladesh has been regular in submitting periodic reports to CEDAW Committee.

Bangladesh has reservation in two Articles, as country has declared that it has reserved the right not to abide by these two provisions of the treaty in conformity with Article 2.1(d) of the 1969 Vienna Convention on the Law of Treaties. Bangladesh has taken qualified right of reservation as an absolute right which has been contradicting international obligation to ensure women equality and non-discrimination. Such reservations have also been contradicting fundamental principles stated in Constitution of Bangladesh along with some fundamental rights, which have been hindering in establishing equality of men and women as per obligation laid down by CEDAW as well. Government’s justification is that, these Articles are conflicting with Sharia Law and Muslim Personal Laws and also against ideal of secularism. Though, as per the statement of CEDAW Committee on reservation, periodic reports submitted by State and shadow reports prepared by civil-society indicate the existence of potential for withdrawal of reservations.[4]

  1. Bangladesh’s Reservations on CEDAW & Causes Behind

While ratifying CEDAW Bangladesh did the same with initial reservations on Articles 2, 13(a), 16.1(c), and 16.1(f) [5]. Later on, reservations from Article 13(a) [6] relating to ‘the right to family benefits’ and 16.1(f) relating to ‘equal guardianship’ were withdrawn in 1997 [7]; however, reservations on Articles 2 and 16.1(c) are still in existence.[8] Article 2 is seen as groundwork of the convention which is central to the objects and as a consequence its importance cannot be mistreated.  Article 2 [9] mandates that State parties ratifies the convention by declaring their intent to enshrine gender equality into their domestic legislation including Constitution, repeal all discriminatory provisions in their laws, enact new provisions to guard women against discrimination, take legislative and administrative measures to prohibit discrimination along with legal protection for women’s right, refrain from taking discriminatory measures and take policy measures abolishing discrimination against women.[10] Article 16.1(c) provides ‘the same rights and responsibilities during marriage and at its dissolution.’ [11]

The core reason behind such reservations provided by Government is ‘conflicted with Sharia law based on Holy Quran and Sunnah.’ Moreover, another reason cited by Government was the potential movements by the Islamic fundamentalist groups against the withdrawal of the reservations.[12] Therefore, cautious steps are being taken so as not to jeopardize application of the principles of CEDAW. Here, Government has always been cautious about religious sentiment and maintaining neutrality towards the concept of religion and to establish the ideals of secularism rather than protecting women’s human rights more efficiently by ensuring equality between men and women, and by eradicating discrimination against women in different sectors. In this regard, since 2004 lack of governments’ sufficient political will to remove the reservation is being vital cause in this regard; as safeguarding religious sentiment and keeping religious fundamentalist groups contented are indispensable to gain political benefits. Moreover, personal laws are put under light with the religious provisions of different religious faiths, which in some cases have discriminatory provisions relating to marriage and divorce, inheritance, guardianship etc.; modification of which needs agreements by the leaders of all religious faiths, and Government argues that, the society is not yet ready to accept such modification and possible repercussions of the conservative religious groups exist.[13] Besides, deep rooted wrong conception of its own religious conceptions, practices and Sharia Law is an imperative cause behind Bangladesh’s reservations.

 

  • What Constitution of Bangladesh Says About Equal Rights of Women and Non-discrimination?


Article 7 of the Constitution of People’s Republic of Bangladesh establishes Constitutional Supremacy, which also refers that all powers shall be exercised in conformity of Constitution which is the solemn expression of People’s will. [14] Such Article has clearly established supremacy of Constitution over Sharia Law and personal laws as well. Constitution also states number of fundamental rights which also ensures equality for women and non-discrimination; and explicitly states that any law inconsistent with the fundamental rights shall be void.[15] Article 19(3) obliges State to ensure equal opportunity for women in every sphere; [16] Article 27 promotes equality before law; Article 28(1) prohibits discrimination on the ground of sex; Article 28(2) ensures equal rights of women in every sphere of public life and Article 28(4) make it legal to take special provisions in favor of women. Despite these provisions proclaiming, promoting and ensuring equality for and non-discrimination against women, Bangladesh holds reservations upon Article 2 of the CEDAW [17], which unboundedly crucial provision for the objects and purposes of the convention. Such reservations are also contradictory with Constitutional provisions as well.

 

  1. Bangladesh’s Reservations; Whether Justified or Not?

 

In 1969 the Vienna Convention on the Law of Treaties was adopted to codify practice and provide legal guidance on the meaning of reservations and a uniform procedure for entering them; which provides that reservations may not be made that are ‘incompatible with the object and purpose of the treaty.’[18] Moreover, CEDAW adopts the ‘impermissibility principle’ contained in Article 19(c) of the Vienna Convention, which states that ‘any reservation which is incompatible with the object and purpose of the treaty shall not be permitted.’[19] The CEDAW Committee considers Article 2 as the core provision, as it is central to the objects and purposes of the convention and as a consequence its importance cannot be neglected.[20]

The ground, as repeatedly claimed by Bangladesh, for such reservation is that these provisions contradict the Sharia law based on Holy Quran and Sunnah, however the contradiction hasn’t been specified by Government. Bangladesh is secular in name however isn’t governed by Sharia law per se; it is only the private sphere i.e. personal and family issues that are governed by the laws based on religious provisions, only in the absence of a uniform family code; which affect family and personal matters such as inheritance, marriage, and divorce.[21] In Bangladesh, people from other religions also reside upon to whom Sharia law isn’t applicable. Other Muslim majority countries like Turkey, Yemen, Jordan, Lebanon and Kuwait have ratified CEDAW without any reservations.

Constitution of Bangladesh contains a number of provisions for ensuring women equality and eradicating discrimination; State has enacted good number of women friendly laws and policies over the last few decades. Bangladesh has been promising the withdrawal of reservation and in the  5th report during 2004 Bangladeshi representatives asserted their intention to withdraw all the reservations which was appreciated by CEDAW Committee.[22] In 8th periodic report submitted in 2015, Bangladesh only portrayed its concern in withdrawal of reservation without mentioning any concrete step in this regard.[23] CEDAW Committee has been expressing its utmost concern regarding Bangladesh’s continuous reservation which is indeed affecting the core object and essence of CEDAW in this region.

Though, Bangladesh had ratified the Optional Protocol to the convention, its reservations to Articles 2 and 16.1(c) has been hindering effective application of Protocol to certain rights provided for in the CEDAW. Moreover, while ratifying the Optional Protocol, Bangladesh made declaration to Article 10(1) of the Optional Protocol,[24] as for Bangladesh does not recognize the competence of the CEDAW Committee provided for in Articles 8 and 9 for inquiry; where Article 8 provides inquiry procedure upon receiving reliable information indicating grave or systematic violations by a State party of rights set forth in the Convention; and Article 9 provides provisions for including measures taken in response to such an inquiry in annual report. This declaration has been encumbering the inquiry procedure which is to be initiated upon receipt of information regarding grave and systematic violation of rights stated in CEDAW by State party. Women facing systematic and omission of State to ensure equality for women is also regarded as discrimination as per Article 1 of CEDAW [25] and defilement of rights set forth in CEDAW. Number of such incidents are going without redresses, however for declaration made by Bangladesh to Optional Protocol it’s not being possible for CEDAW Committee to initiate any inquiry to examine the information, pass comments or recommendations and oblige Bangladesh to take necessary measures. Inquiry procedure is regarded as one of the core provisions of Optional Protocol enabling CEDAW Committee to oversee the activities of State parties and thus safeguards rights of women’s enshrined in CEDAW; nonetheless Bangladesh has made declaration here as well. Bangladesh has provided legislative measures of availing remedies as it has national courts e.g. Nari–o-Shishu Nirjatan Daman Tribunal, Magistrate Courts and Family Courts for providing redresses, [26] however importance of inquiry by CEDAW Committee and recommendations provided thereafter which have supervisory value cannot be replaced by national legislative measures, as systematic violation of women’s require some special handling.

In light of above mentioned facts, it’s quite clear that Bangladesh’s reservations don’t seem justified, as same is causing irregularities in implementation of CEDAW properly to ensure women’s equality free from discrimination. Reservations are also invalid comparing to the Constitutional provisions and other laws and practice as well.

 

  1. Recommendations

 

Reservation upon Article 16.1(c) can now be removed and adaptation of comprehensive ‘Uniform Family Code’ can be an operative solution. Years ago, uniform family code was proposed, and even drafted by civil society organizations and such proposed code can either be used as guideline or such code can be given effect of legislation after necessary modifications (if any). Uniform family code can effectively provide scope of legally granting same rights and responsibilities to women during marriage and dissolution like men; as marital rights and responsibilities of women are governed by statutory laws to a very limited extent and in some cases they are more likely to be governed by customs which are patriarchal in nature. For instance, in case of Muslim woman her rights e.g. ‘visiting her parents,’ ‘continuing study or job after marriage’ etc. and responsibilities e.g. ‘obedience,’ ‘maintaining fidelity and trustworthiness’ etc. during marriage are governed by Sharia, rather than any statutory laws.[27] As a result, Muslim women face discrimination while enjoying her rights during marriage for the lack of enforceability, as these rights don’t have statutory overtone and there is no Sharia Court in Bangladesh to enforce these rights. In case of responsibilities, some of them are treated as unilateral responsibilities of wife; rather these are multilateral in nature as husband and wife both are equally responsible to maintain fidelity and trustworthiness of their marriage. In case of rights and responsibilities during dissolution, women enjoy fewer rights unlike men despite existence of statutory laws governing the matters. In case of Hindu women, for non-existence of any codified statutory law their rights and responsibilities during marriage and dissolution are being regulated by customs which are more man-centered and thus equality is not being possible to be ensured in this regard. So, here women get deprived of same rights and responsibility, though CEDAW requires State parties to ensure the same under Article 16.1(c). Adaptation of comprehensive ‘Uniform Family Code’ considering all these inequalities and discriminations faced by women in this regard can provide provisions to maintain equality for women regarding their rights and responsibility during marriage and dissolution; and thus discrimination can possibly be removed.

Withdrawal of reservation from Article 2 remain a hard task for the State as high chances of protest and pressure from different religious groups remain; and such incidents occurred from time to time when attempts were taken for such withdrawal. However, in the past, government has passed laws in the domain of religious laws and these have been accepted as based on the considerations of well-being of people, society and in the larger public interest. As far contradiction with Sharia law concerns, which is the main argument of government against withdrawal, provisions of Sharia law are not immutable and are able to be reinterpreted as per the need of the time. Effective dialogues between Government and member of various religious organizations to achieve consensus on this issue is surely a compulsory pre-requisite step for moving towards withdrawal as tension of anti-withdrawal protests cannot be ignored. To some extents, withdrawal of reservations depends upon the political will of the Government, as such will play crucial role in this regard. Since 2004 State has been promising to withdraw the reservations and periodic reports have also showed the mere intention to withdraw the reservation. Now it’s high time that, these promises and intention should be coupled with necessary positive actions towards the withdrawal, which shall demonstrate Government’s will to actually withdraw the reservations. Moreover, Bangladesh may follow the example of other Muslims States and seek cooperation (if needed) which have ratified and implemented CEDAW in their territory without any reservation, which shall increase international relation and cooperation as well.

Article 2 of CEDAW has implied systematic obligation upon State parties including variety of measures like law reform, undertaking legal and administrative measures, institutional reform, reform in customs and practices etc. It’s true that, for a State like Bangladesh it would be quite unrealistic to introduce reforms in fields of law, administration, institution and custom overnight; as conforming to the provisions of Article 2 and thus implementing the same also require systematic steps. So far law reform concerns, Bangladesh has long ago incorporated principle of equality of men and women in Constitution along with making legislations to realize this principle in practice. Moreover, State has also passed good number of laws over the years which have prohibited discriminations against women, protected women’s rights in certain fields and provided protection through national tribunals- which all are in conformity with obligations stated in Article 2 of CEDAW and such steps can be considered as creditable ones.

However, practical scenario is quite different, as when it comes to the proper implementation of these legislations the rate is poorly low, as enforcement mechanism and administration system to enforce and administer these laws effectively are sterile.

Judicial and executive sectors of country need to undergone modification which will include legal, administrative and structural development, so as to make the system better equipped and competent to ensure equality for women and abolish discrimination towards them by utilizing legislative and administrative tools in proper way. Such footstep shall be creating an environment more favorable towards ensuring equality of men and women, where discrimination against women will not exist.

When it comes to customs and practice, since earliest period our society has always been a male dominated one, where women have vulnerable position facing suppression, violence, inequality and discrimination; and such dominance of men and vulnerability of women became a custom and practice; which still exists in society despite considerable progress of women today in almost all the sectors. Misconception about religion, stereotype thinking, lack of education, dependency of women over men, socio-economic structures etc. are some reasons behind these outdated practices. It’s highly necessary to change such disagreeable customs and practices and broad-minded attitude towards women should be contained by people; without which equality of men and women would be challenging to ensure. For reforming such anarchic customs and practices, which indicate women as inferior group to men- family education and practice; proper religious education eradicating misconception and orthodox thinking; institutional education teaching the necessity and way of attaining women empowerment and equality of women are much essential.

Government should focus on women empowerment from practical aspect rather than theoretical approach. Besides Government’s undertakings, contribution of society, family and individuals will be much compulsory in this regard. It’s necessary to ensure social and economic security for women in Bangladesh as they are rapidly heading towards empowerment; and their participation and contribution in every sphere should inevitably be recognized. In this regard, proper implementation of CEDAW shall work as effective mean to provide harmonious environment where women’s rights would be protected for their progress, along with social and economic security.

As per report of Citizens’ Initiatives on CEDAW, Bangladesh (CIC-BD) which is a civil-society organization there remain potential for withdrawal of reservation subject to exclusion of some socio-cultural and economic constraints that severely restrict establishment of equal rights for women in the country.[28] These limitations should effectively be removed so as to create environment for such withdrawal; and in doing so appropriate legislative and administrative steps are essential to be taken by the State supplemented by initiatives of NGOs, civil-society organization and society itself.

 

  1. Concluding Remark

 

Half of the population in Bangladesh is comprised of women. Bangladesh is speedily heading towards development, however no development may be achieved and sustained keeping half population i.e., women in inequality facing substantial discrimination. Implementing provisions of CEDAW to fullest may result in effectively ensuring equal rights of women and saving them from discrimination to a satisfactory extent. However, for reservations of Bangladesh to some Articles of CEDAW it has referral value until now, resulting in women facing repression, suppression, inequality and gross discrimination in almost every sphere starting from family life to public sectors. It’s high time for Government to fulfill its commitment towards women of the country, ensuring substantive equality for women and eliminating discrimination and accepting CEDAW’s obligation and withdrawing the remaining reservations shall be imperative steps in this regard.

 

[1] International Covenant on Civil and Political Rights 1966, Art. 3

[2] International Covenant on Economic, Social and Cultural Rights 1966, Art. 3

[3] Sharifa Begum. & Bangladesh Institute of Development Studies ‘The CEDAW implementation in Bangladesh : legal perspectives and constraints’ (2011) BIDS 2

[4]Maliha Khan, ‘CEDAW at a dead end in Bangladesh?’ The Daily Star (Bangladesh, March 08, 2019); Citizens’ Initiatives on CEDAW, Bangladesh (CIC-BD) ‘Eighth CEDAW Shadow Report  to the UN CEDA Committee’ (2016);  <http://hrlibrary.umn.edu/iwraw/shadow/bangladeshreport.htm>

[5]Begum (n 3) 3

[6] States Parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) The right to family benefits

[7] States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount

[8] Khan, (n 4)

[9]CEDAW, Art.2

[10] ibid; Citizens’ Initiatives on CEDAW, Bangladesh (CIC-BD), ‘INTERNATIONAL CEDAW DAY 2015 Withdrawal of reservation’ (Bangladesh, 3 September 2015); Convention on the Elimination of All Forms of Discrimination Against Women 1979, Art. 2

[11] (ibid.p.2.)

[12] Khan (n 4)

[13] The Eighth Periodic Report of The Government of the People’s Republic of Bangladesh on Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), (May 2015)

[14] Constitution of People’s Republic of Bangladesh, Art. 7

[15] ibid, Art. 26(1)

[16] ibid, Art. 19(3)

[17] Khan (n 4)

[18] Vienna Convention on the Law of Treaties 1969, Art. 19(c)

[19] Convention on the Elimination of All Forms of Discrimination Against Women 1979, Art. 28(2)

[20] Samarth Trigunayat, ‘Validity of Reservations of Bangladesh against Article 2 of CEDAW’ (Modern Diplomacy, 12 November 2019) <https://moderndiplomacy.eu/2019/11/12/validity-of-reservations-of-bangladesh-against-article-2-of-cedaw/> accessed 1st October 2020

[21] Khan (n 4); Citizen’s Initiatives (n 4)

[22]The Fifth Periodic Report of The Government of the People’s Republic of Bangladesh on Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), (9 July 2004) <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwim_bO6r57uAhUrzzgGHWUJDxUQFjAAegQIARAC&url=http%3A%2F%2Fwww2.ohchr.org%2Fenglish%2Fbodies%2Fcedaw%2Fdocs%2Fco%2FBangladeshCO31.pdf&usg=AOvVaw17xMUt_qpFkYerLQz6GCvs> accessed 1st October 2020

[23]  The Eighth Periodic (n 13)

[24] https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8-b&chapter=4&clang=_en

[25] For the purposes of the present Convention, the term “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field

[26] HUMAN RIGHTS-8(b)Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women-New York, 6 October 1999

[27] Dr Muhammad Ekramul Haque- Muslim Family Law Sharia and Modern World (First Published June 2015) 96-100

[28] Citizens’ Initiatives (n 4)