Decriminalization of Adult Consensual Same Sex Acts: Love Wins in India and Bangladesh Still Awaits

“I am what I am,

So take me as I am”

-Johann Wolfgang von Goethe

Dipak Misra, the Chief Justice of India (CJI) has started his landmark verdict to decriminalize adult consensual same sex activities with this quotation. A five-judge bench of the Indian Supreme Court (SC) has cracked down the section 377 of the Indian Penal Code (IPC) unanimously in four different judgments on 6 September albeit the same section will still stand on the statute to deal with the ‘unnatural’ sexual offences against non-consensual sexual relationship between adults, minor and animal like sodomy and bestiality. This revolutionary judgment rewrites the history of the Indian minority LGBTQIA+ community. The century old Section 377 of the IPC, 1860 actually contains Victorian Christian morality that criminalize all sorts of sexual activities those are ‘against the order of nature’ and not penile-vaginal including homosexual and heterosexual behaviors, oral or anal sex etc.

However, the marginalized LGBTQIA+ community in India has a long history of plights and the legal battle to declare the dreaded S. 377 void begun in 1994 when ABVA, an NGO brought a petition in the Delhi High Court to scrap the S. 377 from the IPC. Afterwards, Naz Foundation filed a public interest litigation in 2001 whereas the court initially rejected that petition in 2004 although the SC ordered the High Court subsequently to hear the petition due to massive protest against the decision of the High Court. However, the Delhi High Court held in 2009 that the law is discriminatory and violates fundamental right of individual, thus found the section unconstitutional. Regrettably, it was a short-lived judgment and reversed by the apex court in 2013 while the judgment remarked the LGBTQIA+ community as ‘minuscule’ minority in India. Additionally, the SC validated the mentioned section and held that it is the parliament that can repeal the said provision not the court. Nonetheless, the review petition against this decision filed by the Naz Foundation was also dismissed by the SC in 2014. In the mean time, the SC has declared couple of milestone verdicts regarding the recognition of the transgender people as third gender and elimination of discrimination against them in 2014 and acknowledgement of the right to privacy as fundamental right under the constitution in 2017 while the court observed sexual orientation as an essential component of identity and the rights of LGBTQIA+ are real rights founded on sound constitutional doctrine. Finally, in early 2018 the SC bench led by CJI Dipak Misra sends the Naz Foundation petition to a larger bench for reconsideration and now this five-judge bench consisting of Dipak Misra, CJ; R F Nariman, J; Dr D Y Chandrachud, J; Indu Malhotra, J and A M Khanwilkar, J observed that ‘it cannot wait for a majoritarian government, if the fundamental right of the citizens are getting violated in the process’ and make it no longer illegal to love in early September this year.

However, CJI Dipak Misra opines that individual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity and privacy of human beings constitute the cardinal four corner of the Indian constitution. He agrees with the view that a person who has come of age and has the capability to think on his/her own has a right to choose his/her life partner. No one can escape from their individuality… Look for the rainbow in every crowd, CJ Dipak Misra added and according to him denial of self-expression is like death.

It is the individual orientation, which is naturally natural, and his/her identity and the inherent dignity and choice attached to his/her being not a matter to try before the court. Justice Chandrachud has rightly pointed out that constitutional morality, not societal morality, should be the driving force for deciding the validity of Section 377 while Justice Indu Malhotra remarked that “history owes an apology to the members of the LGBT community and their families for the delay in providing redressal for the ‘ignominy’ and ‘ostracism’ they have faced through the centuries”. They also held that homosexuality is ‘not an aberration’ but a ‘variation of sexuality’ and sexual orientation was an innate attribute of one's identity which cannot be altered.

Furthermore, the court declared its arbitral and irrational how the S. 377 criminalizes consensual sex between two adults in private. Same sex acts of intimacy require the same constitutional protection as heterosexual intimacy and it is the responsibility of the State to ensure that freedom. The court also affirmed that it is not mental disorder but something innate to a human being. The verdict also confirmed these people’s right to marry, adopt and have family. Moreover, the right to privacy and dignity as enumerated in Art. 21 of the Indian constitution and infringement of that right only because of sexual orientation is purely discriminatory. Partially struck down of the law is a move forward to return back the dignity to the citizen and honoring the individual rights and privacy that has been used to suppress innocent citizens in the last 157 years.

However, Bangladesh also has the same S. 377 in the Penal Code which stipulates whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Consequently, the members of the LGBTQIA+ community are compelled to survive under the fear of reprisal and persecution and suffered unjustified hostile discrimination only because of their inherent sexual orientation. Albeit now it is evident and recognized that sexual orientation of an individual is natural and part of a range of human sexuality which is not under the control of anyone.  Hence it is the individual who will decide whom s/he will love not the law.

Nonetheless, equality, dignity, privacy, non-discrimination etc. are guaranteed by the Bangladesh constitution like India whereas the State cannot do discrimination on the ground of race, sex, color, place of birth, religion under the constitutional obligation. Moreover, the State should not interfere in individual’s personal choice and right to privacy. Thus no one can be penalized only on the ground of their sexual identity.

However, there is no large-scale movement against this archaic law in Bangladesh due to many reasons including fundamentalism, threat to life, limited freedom of expression on this issue, social taboo, cultural stigma, religious restriction etc. Prominent LGBTQI+ rights activist Xulhas Mannan and Mahbub Tonoy were being killed in 2016 and many activists are being threated by the fundamentalis.  

Nevertheless, unlike India the law has never been challenged before the court in Bangladesh whereas it clearly violates the fundamental rights of equality, non-discrimination, right to life, privacy enumerated in the Articles 27, 28, 32, 39, 43 of the constitution. Sexually minority members are also entitled to full autonomy over the most intimate decisions relating to their personal life, including the choice of their partners and such choices must be protected under Art. 32 as the right to life and personal liberty would encompass the right to sexual autonomy as well.

However, the independent Bangladesh has completely failed to ensure equality of the LGBTQIA+ people like other majority heterosexual people to lead a dignified private life without fear of persecution. Hence the exemplary decision of the Indian constitutional court brings a golden opportunity for Bangladesh as well to test the constitutionality of the controversial S. 377 as the constitutional rights and principles are identical between these countries. Bangladeshi judiciary should adopt the transformative constitutional approach and progressiveness to interpret the constitution to uphold the right of an underprivileged group and to ensure equality.

Published on the Law & Our Rights page of the Daily Star on 11 September 2018 at page 12.

Why Not a Law for Bangladeshi Transgenders'?

The Pakistani National Assembly has recently taken an incredibly historical decision by enacting the Transgender Persons (Protection of Rights) Act. This is a unique piece of legislation by which the legislators of Pakistan not only guarantee basic rights of the transgender people for the first time but also outlawing discrimination against them.

However, traditionally the exploitations against the transgender community in Bangladesh are not different from Pakistan. The saga of plights got legal status back in colonial period by the introduction of the Criminal Tribes Act 1871 which tagged the transgender people as genetically criminal. Consequently, it condemned their individual dignity and humbling them in social echelons which eventually encouraged their family to repudiate them. As a result, they started to do prostitution, blackmailing and other illegal means of earning for their survival what they are still doing to some extent in our present society. However, the mentioned enactment repealed in 1949 although their livelihood, discrimination, neglect and oppression remain the same in this land.

However, Pakistan’s journey towards the official protection of the rights of the trans and criminalizing discrimination against them commenced in 2009 by the landmark Dr.  Mohammad Aslam Khaki and another v Senior Superintendent of Police (Operation) Rawalpindi and Others case. In the verdict, the Supreme Court of Pakistan had ordered the government to take effective measures to ensure the basic rights including the right to education, inheritance, vote, marriage, registration of identity etc. for the transsexuals as the other citizens of the country enjoy usually. Consequently, senator Zaheer-Ud-Din-Babar Awan brought a private member’s bill to safeguard the basic rights of the transgender persons to the parliament in 2017.

The newly introduced Act shows courage to accept the right to inheritance by the transgender person which was often disputed under some debated religious interpretation and now finally they can claim their share of property from their ancestor according to their own perceived gender identity. This provision has resolved a major issue to hold property from their family which will ultimately make them financially solvent and builds a relationship with the family.

The said law also allows the right to self-identity as male, female or a blend of both or neither and to have that identity in official documents like passport, national ID etc. as well and the Act describes ‘a person's innermost and individual sense of self as male, female or a blend of both, or neither; that can correspond or not to the sex assigned at birth’. Furthermore, it confirms their voting right in all national, provincial and local elections.

Contrarily, it forbids all sorts of discrimination against transgender persons in educational institutions, occupation, transportation service provider, employment, access to public amenities, residence, health care, movement, public office and custody. Moreover, this piece of legislation ensures fair and equal opportunity in all public and private employment and prohibits discrimination on the ground of gender identity only. Additionally, it obliges all establishments to appoint an officer to address the grievance(s) raised by trans people.

Further, the Transgender Persons (Protection of Rights) Act has provision on access to proper medical care and review of medical curriculum regarding the transgender and inclusive education, scope of self-employment and vocational training for this community. Also, it obliges the government to rescue, protect rehabilitate and build safe house for trans person who feels at risk and give psychological counseling to those who require it. In addition, it says to arrange separate room in jail for trans offender. Nevertheless, this Act also stipulates punishment for sexual and physical violence against the transgenders’, denial of access to public places, forceful eviction of from living place, endangering the life, health and safety etc. of a trans person.

However, being a sexual minority community, the legal position of the transgender community is highly vulnerable in Bangladesh although they have been added in the voter list since 2009 and in 2013 the government has recognized them as ‘third gender’ category. Also, they are eligible to get passport according to their third gender identity. Nevertheless, the tag ‘third gender’ is objectionable as it denotes men as first and female as the second category and creates superiority and inferiority among the gender. We often listen allegation from the trans that they are being denied getting access from many public places like public toilets, schools, hospitals etc. due to their sexual identity. They are facing endless harassments in their daily life that even do not conclude after their death while they are being refused to bury in the same graveyard with other people.

The trans person in Bangladesh still cannot imagine their right to get parental property as there exist misleading interpretation of religious rule regarding the distribution of property and adverse interest of their socially established co-sharers. While Pakistan being a more conservative society than Bangladesh take such an illustrative initiative to eliminate discrimination and ensure equality there astonishingly Bangladesh remains silent about the just rights of the transgender community as a citizen in the country.

Albeit the exemplary initiative has been taken by the Pakistani MPs is appreciating yet they have scopes to do more for the trans such as the right to religious beliefs of the transgender person, right to marriage and family etc. are not yet settled by the present law. Nonetheless, Bangladesh should not wait more to protect the basic rights of this marginal community whereas the Constitution of the land guarantees 'equality before law' and 'equal protection of law' under article 27 and prohibits any discrimination only on the grounds of sex, gender, race, place of birth, religion etc. under article 28.

Hence, Bangladesh should enact a holistic piece of legislation giving full equality, freedom and rights of the transgender people and criminalize all kinds of discrimination and exploitation against them. We dream such a Sonar Bangla where everybody would be treated as equal and none would be subject to any kind of social exploitation. Therefore, if Bangladesh observes indefinite silence to eliminate curse from this community that would be a great shame as a nation for all of us.

Published on The Independent as Op-ed on 21 June 2018 at page 7.
Published on the Daily Observer as Sub-editorial on 21 June 2018 at page 6.
Published on the daily Sangbad as a Sub-editorial on 2 July 2018 at page 6.
Published on the Friday Times (Pakistan) on 13 July 2018.

In Quest of an Energy Justice Framework for Bangladesh

Energy Justice is a new concept that is being used in the academia around the globe over the last decade. Although there is no universal single definition, but energy justice evolved with an object to ensure universal access to a safe, affordable and sustainable energy for all individuals, across all areas and to protect from disproportionate share of costs or negative impacts relating to building, operating and maintaining electric power generation, transmission, distribution system and to ensure equitable access to benefits from each system. Nonetheless, representative and impartial involvement of the citizens with the energy related decision-making process is another crucial aspect of energy justice.

However, the idea of energy justice basically comes out from the concept of social justice and environmental justice. According to earlier ideas, energy justice carries three core tenets which were popularly referred as triumvirate of tenets, focusing distributional, procedural and recognition justice whereas subsequent principle-based approach to energy justice developed eight core principles: 1. the availability principle urges to have sufficient modern energy resources; 2. the affordability principle argues that all people, including the poor, should get energy in reasonable price and should not pay no more than 10% of their income for energy services; 3. the due process principle requires the countries to follow the rule of law and human rights in their production and use of energy; 4. the good governance principle implies that all people should have access to all information regarding energy and environment, and citizens must have participation to fair, transparent, and accountable forms of energy decision-making process; 5. the sustainability principle is an obligation on the state to ensure long-term sustainable energy development with prudent management and to confirm sustainable use and sovereign rights over natural resources; 6. the intragenerational equity principle is a principle which emphasizes that people have the right to fairly access a certain set of minimal energy services enabling them to enjoy a basic minimum of wellbeing; 7. the intergenerational equity principle suggests future generations have a right to enjoy a good life undisturbed by the damage our energy systems inflict on the world today; and finally, 8. the responsibility principle refers to all nations’ duty to protect the natural environment and its sustainability as well as diminish energy-related environmental threats.

Nevertheless, being a developing country, maintaining balance among the energy triangle i.e. energy equity, environmental sustainability and energy security is the major challenge for Bangladesh where both the economy and demand for energy are growing simultaneously and rapidly. Hence Bangladesh is in such a tricky situation in the context of the present world while the globe is committed to reduce the greenhouse gas emission significantly in coming years whereas it must confirm affordable and continuous supply of power to boost up its current economic growth in one hand and safeguard sustainable development on the other hand.

To ensure this, Bangladesh cannot be fully dependent on its own natural resources like coal and gas to produce electricity as these are emitting massive amount of CO2. Furthermore, the current gas reserves of Bangladesh are not sufficient for industrialization and power generation concurrently. Consequently, it becomes heavyily reliant on importation of coal, oil and gas from overseas which again create threat to supply and national security as well where the global reserves are also reducing quickly. Alternatively, Bangladesh can concentrate on renewable and ecofriendly sources of energy like solar, wind, biomass, thermal, hydro power, geothermal etc. but again those are not cheap like the traditional burning fossil fuels. Thus, Bangladesh needs a comprehensive energy justice framework concentrating on all the eight principles to safeguard sustainable development towards the real ‘Sonar Bangla’.

Conversely, construction of a power plant beside a biodiversity hotspot is a clear threat to the eco system. Decisions on where to build nuclear waste repositories may raise severe concerns over the health and agriculture of the marginal rural communities. Moreover, forceful eviction of local community including the indigenous people or acquisition of land without proper consultation, compensation, participation or giving full information will definitely do injustice with them. Moreover, disproportionate distribution of renewable energy sources, such as wind and solar energy, may require re-thinking the distribution of energy costs and subsidies in societies that play host to high levels of social stratification and division. For example, a transition to renewable energy systems may deprive low-income households of meeting basic energy demand, due to increasingly higher prices as the costs of subsidies are passed on to consumers.

Albeit Bangladesh has recently legislated new law and policy focusing on the renewable sources of energy and already constituted the Sustainable and Renewable Energy Development Authority to accelerate the process but still it produces about 90% of its electricity from fossils while the internal reserves are finishing quickly. Additionally, the price of power becomes so high for low income people in last couple of years. There is also major lack of due process and good governance in energy sector all over the country which ultimately obstruct sustainable development for the nation. Absence of informed decision and consent in most of the energy project further makes it more difficult for the native to know their benefits and burdens, and the intention of the corporate entities. Nonetheless, better representation of different marginal and ethnic groups in energy policymaking institutions potentially offers a more proactive approach in achieving justice.

However, energy justice emphases on inequalities within energy systems and transitions and advocates for the equitable sharing of both the benefits and burdens of energy system services and for more inclusive decision-making processes. It can also be used as a framework to identify when, where, and how injustices occur within energy systems and how these injustices can be eliminated. Therefore, implementing all aspects of energy justice holistically is the most convenient way to resolve the long-rooted energy trilemma for Bangladesh.

Published as Sub-editorial on the Daily Sun on 26 May 2018 at page 6.

Published on the Energy Bangla on 25 may 2018.

Published on the Energy News BD on 25 may 2018.
Published as lead Sub-editorial on the daily New Age on 27 May 2018 at page 8.
Published as a Subject of the day (Op-ed) on The Independent on 31 May 2018 at page 7.

Claim Compensation for Aircraft Crash

The recent US-Bangla passenger aircraft crash incident near the Tribhuvan International Airport in Kathmandu, Nepal is regarded as largest ever passenger aircraft tragedy in the history of Bangladesh after the pathetic 1984’s incident in Dhaka. At least fifty people were killed and very few are alive with injury after the happening of the accident. However, an exhaustive investigation is essential to find out the exact reason(s) behind this plane crash. Nevertheless, one or many parties including the pilots, the aircraft authority, the airport authority, the original producer of the aircraft may be responsible for the occurrence of this disaster. Nonetheless, there are some strict liability mechanisms to ensure compensation for the victim or victim’s family as there are multi-party involvement to operate airline business.

Aeroplane accident has many dimensions like on board accident, off board accident, luggage missing, damage of property due to aircraft crash, whether it was domestic or international flight etc. Nevertheless, if any passenger is being injured or died due to an airplane crash, the victim or where the victim is died the victim’s family can claim compensation from the air carrier. Nevertheless, one can claim compensation regardless of the terms and conditions put by the airline or travel agent while purchasing the ticket.

Civil aviation was governed by the Warsaw Convention formulated in 1929 in earlier days. However, Warsaw convention is no longer in operation while the Unification of Certain Rules for International Carriage by Air which is popularly known as the Montreal Convention has replaced it on 1999 as the later brings better protection and compensation for the passengers. Montreal Convention outlines detail about the responsibility of aircraft authority and rights of the passenger in case of death, injury, damage to baggage, delay to cargo etc. However, Bangladesh is a state party to the Montreal Convention and signed this convention in 2003 but has yet to ratify it.

According to the Article 17 of the convention "The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking." The meaning of accident under this Convention is an unexpected or unusual event or happening that is external to the passenger (Air France v Sakes, 1985, 470 US 392). It can undoubtedly be said that the US-Bangla incident is an accident which happened without any intervention from the passenger and deaths and injuries are also occurred on board and the sufferers are entitled to claim compensation under the convention.

Article 21 of the mentioned Convention says the liability of the airline is to pay up to 1,13,100 Special Drawing Rights (SDR) in case of death or injury of each passenger. The value of the SDRs is calculated as defined by the International Monetary Fund (IMF). However, it revises after every five years and the review will be carried out on the weighted average of the annual rates of increase or decrease in the consumer price indices of the various countries. For this reason, different passengers from different countries of a same aircraft crash may receive different amount of compensation. Nevertheless, the Convention also has prescribed limit for the non-party countries of IMF.

However, the family of every Bangladeshi died passenger can get about maximum 1,74,000 USD (which is more than 1 crore in our currency) under the Montreal Convention. Additionally, the victim’s family may claim higher than this amount if they think the amount is not sufficient for their loss. In that case, the air carrier can contest that claim before the court and they can avoid the higher amount if they can prove that the died took place due to the negligence or other wrongful act or omission of a third party other than the airline or its staff or agent.

The survivor from a plane crash is suffering from two types of losses, namely monetary and mentally. Monetary sufferings of an injured person including medical treatment cost, loss of income, loss of an organ (if any) whereas the mental loss denotes the pain and sufferings arising out of that accident to that person. However, the died person’s family members are also eligible to claim the loss for their pain and suffering for the cause of loosing their near one as well.

In accordance with the Article 33 of the said Convention, every injured person is entitled to get compensation in his/her country of origin regardless of the place of accident. Furthermore, the responsibility of the air carrier is strict liability in that case and there is no need to prove any negligence from the part of the aircraft or any third-party intervention. Nevertheless, we should keep in mind that the time limit under the Montreal Convention to claim the compensation for personal injury is two years after the happening of the accident.

However, the process of determining whether a passenger is suffering from a recognized mental condition is entitled to be compensated is heavily complex. In addition, it is very tough to get any compensation for purely phycological injury without having any physical wound (Morris v KML, 2002, UKHL 7).

However, in the present US-Bangla aircraft crash case we come to know from the media that all the passengers were insured and the aeroplane authority will give compensation to all the victims and their family whichever is applicable. Nevertheless, Bangladesh needs to enact a comprehensive aviation transportation safety law urgently giving the effect of the Montreal Convention and to ensure safety and security of the air passenger, baggage and cargo as well. Albeit the Civil Aviation Authority of Bangladesh has already recommended to the Ministry of Civil Aviation and Tourism to enact the law, but it has yet to enact. Now the government must ensure that the victims and their families are getting proper compensation according to the international law although we cannot measure the value of a life in money. There is no way to avoid the obligation set by international law and it is the government’s duty to monitor and even interfere if necessary to comply with that obligation. 

Published on the My Republica of Nepal on 17 March 2018 at page 7.

Published on the Dhaka Tribune on 16 March 2018.

Published as Lead Sub-Editorial on the Daily Observer on 18 March 2018 at page 6.

Published on the Daily Sun on 18 March 2018 at page 7.

A Bangla Version has been published on the daily Jugantor on 15 March 2018 at page 5

Combating Hatred Attack on Social Media

Posting hatred comments and victim blaming after any incident specially in case of sexual crime against women have emerged vastly on social media particularly on facebook in Bangladesh nowadays. Often many people not only put their irresponsible comments publicly rather they spread hates among the community which may even instigate someone to do crime subsequently.

However, social media activities have been increasing enormously in recent couple of years in the country and a huge population from all classes of the society are being accustomed to operate it regularly. Not all are equally conscious to cross check the credibility of that detested comments or status posted by someone else. Sometimes, these insensible users also make it viral by sharing those kinds of posts without considering anything. Here lies the great danger of social media in a society like us. Hence, there is every possibility to bring disorder into the society; if the person who first put that sort of things on social media is not conscious about the consequences of his/her act.

However, as the spectrum of social media is increasing every day, hence it is not always practicable to monitor each comment and post every time. In addition, some incognizant people may post it without having any malice in mind and without knowing anything. Nevertheless, law enforcement agencies must be conscious in handling the trend to spread hate attacks and victim blaming after the happening of an incident. We only observe their vigilance when it came against the government and regrettably notice cases and other legal actions against free thinkers and bloggers instead of smear campaigners.

However, undoubtedly there are some people who intentionally not only spread hate on social media but also circulate their extremist views in various forms. Apart from instigating extremism, there are a lot of extremely offensive Youtube videos which contain speeches against equality of women in every sphere of life.

Nonetheless, one may argue that, we have constitutionally guaranteed freedom of expression and social media account is it holder’s private place to express opinion. Obviously, everybody has their personal view and s/he can operate his/her social media account according to his/her own wish unless it brings some harm to others. One in no way can spread hate or extremism for the sake of freedom and privacy.

Moreover, freedom of expression is neither unconditional nor unlimited both nationally and internationally. That very constitution which enshrined freedom of expression as a fundamental right itself inserts at least eight restrictions in exercising that right. Conversely, Article 19 of the International Covenant on Social and Political Rights (ICCPR) which ensures freedom of opinion and expression globally also has provision to constrain that right subject to certain restriction imposed by law.

Nevertheless, if anybody do any crime after getting inspiration from a hate campaign on social media then the person who first posted it or from whom that person came to know it would be liable as abettor. As according to section 107 of the Penal Code ‘a person is said to instigate another when he incites, urges, encourages, provokes, counsels, procures or command him to do something’. It is worthy to mention that the abettor will be responsible equally like the actual offender. Thus, it is evident that there is lawful way to combat these online campaigners.

Additionally, the much criticized section 57 of the Information Communication Technology Act, 2013 has provision against these kinds of propaganda and intentional hate campaigns to destabilize the society and to instigate crime as it says that a person commits a crime when he or she intentionally publishes or broadcasts something which is false and obscene by reading, watching or listening to the material in a particular condition such that a person may be inspired to do something which causes defamation, undermines law and order or creates a possibility of doing so, distorts the image of a person or the state, hurts people's religious sentiment or creates the possibility of doing so, or instigates people against a particular person or a group and maximum punishment of which is imprisoned for 10 years along with a fine of Tk 1 crore. In addition, the proposed Digital Security law also has similar provision to deal with the situation arising on online.

Therefore, this is high time to combat intentional online smear attackers legally and designated stakeholders must not be ignorant to stop hate crime on online immediately.

Published on the Law & Our Rights page of The Daily Star at page 12.

Laws Should Benefit All

The young girl named Zakia Sultana Rupa was raped and subsequently killed brutally by some transport workers. After 173 days of committing these heinous crimes, four culprits of total five got capital punishment and another got seven years rigorous imprisonment along with one lakh taka fine from the subordinate court on 12 February.

In the verdict, the court ordered to handover the fined amount and the bus used in this incident to the family of the victim. This is also an exceptional initiative by the court. Although there are instances of receiving compensations but the initiative of giving the bus used in these rape and murder case is rare. However, it is not possible to understand the reason behind the court’s decision at this stage without reading the copy of the judgment. Nevertheless, the strict liability principle of law imposes an obligation on the employer to take responsibility of the employee(s) sometimes and the court may consider this principle although there is doubt whether the decision will remain the same in appeal.

It is undoubtedly praiseworthy that the concerned agencies finished all the trial procedures of these horrific crimes within six months from the date of the incident and gave such exemplary punishments to all the perpetrators. The incident in brief for those whose memory has become gloomy: Rupa was a law student apart from doing a job as well in Mymensingh. On the night of the incident, she was returning to Mymensingh by Chaya Paribahan after attending the teachers’ registration examination in Bogra. In the meanwhile, when all other passengers of the bus got off, Rupa was first raped by the transport workers at Kalihati of Tangail and later the criminals confirmed her death and left the body in the forest of Madhupur. Subsequently, police recovered an unidentified body and following an autopsy, the body was buried. Reading the news in the media, Rupa’s relatives went to Madhupur Police Station and identified her with photographs. Later, police arrested all the five accused and they confessed their guilt under section no. 164 before the magistrate.

Rupa’s rape and murder were very much similar to the Indian ‘Nirbhoya’ incident. Like in India public opinion was raised against this heinous crime especially in social media; everyone was seeking fair trial urgently. And finally, we are fortunate enough to see a speedy trial which is rare in the context of Bangladesh. However, there are many impacts of the quick trial in a society. Before forgetting the pains and sufferings of a victim, it would give a message that criminals will never go unpunished. In addition, the relatives of the victim may feel relaxed by placing some relief to the permanent wound of their hearts. Not only justice must be done, but also it must be seen to be done.

Indisputably it can be said that after Rupa’s rape and murder, the working women and others travelling by the public transport at night were highly concerned about their safety. In our country, women are constantly subject to sexual harassment in public transports even in the daylight; whereas this incident threatened their security outside the home. However, in India, not only mass people but also the administration and the policy makers realised very well about the necessity of changing the law. Consequently, in 2013, they formed a committee under the leadership of former Chief Justice J.S. Verma, to reform the rape-related laws. Most of the recommendations of that committee were implemented in India as well.

Regrettably, our policymakers have not yet got this message that we are also in the same position to reform the obsolete colonial law after so much brutal rape and killing incidents including against the infants. The definition of rape enumerated under section 375 of the Penal Code, 1860 itself is faulty where rape can only be committed by penile penetration to the vagina without having consent. This more than hundred and fifty years old definition of penile-vagina rape is no longer enough to cover the crime sufficiently. Moreover, in this modern era, marital rape is no more exempted from being punished in any civilised country of the world. Like us, there is also no existence of unscientific “two-finger” test to prove the rape. Nor there is any attempt to questioning the character of the victim during the trial to disprove the offence.

India brought about massive changes after getting recommendations from the Verma committee to deal with the offence of rape properly. In order to define correctly, they even placed the word “sexual assault” instead of using “rape”. Now, the offence is no longer limited to women only rather they also included children as well and widen the ‘penile-vagina’ rape to penetration by any object and any extent to the vagina, anus or mouth. Further, following the recommendations of the Verma Committee, the Indian government took initiatives to dispose of these kinds of sensitive cases speedily.

However, according to our current law, there is no way of being victims of rape for male children. Furthermore, we do not categorise rape depending upon the gravity of the crime. We do not have any special provision for pregnant-women rape, gang rape, rape in police custody, rape of patients in the hospital or rape of an employee by a government official by using his official capacity whereas each of these crimes has different significance and requires different levels of punishment.

We all are very happy because of the exemplary trial of Rupa rape and murder case. However, in this case, the self-proclaimed offenders are belonging to the marginalised section of the society. They might not have been able to delay the judgment or bias the proceedings. After the rape and killing of Shohagi Jahan Tanu of Comilla on 20 March 2016, the country also observed massive protest to claim justice for Tanu. But the police are still struggling to submit charge sheet against the perpetrators. Similarly, after the killing of the famous journalist couple Sagar-Runi, many influential journalists led the movement, but due to some unknown reasons the criminal(s) are not brought to justice yet.

Recently, two indigenous sisters have allegedly been raped in the hill tract area. Subsequently, they have been disappeared suddenly from the hospital and police have denied taking their case from the very beginning. But each and every citizen of this country belongs to the state and everybody has equal rights to get justice immediately irrespective of his/her identity. We do not only want to see speedy justice if the criminal is not wealthy or influential but also want justice to be equally applicable to all effectively.

Published on the daily Sun as Sub-Editorial on 17 February 2018 at page 6.
Published on The Asian Age as Op-Ed on 17-02-2018 at page 9.
Published on The New Age as lead Sub-Editorial on 19 February 2018 at page 8.
Published on the Daily Observer as lead Sub-Editorial on 19 February at page 6.

Denied Property Right of Transgenders in Bangladesh

SOURAV AND HUSSAIN

Social convention says there are two types of people based on their chromosome and genitalia: men and women. Charles Darwin’s writings on sexual selection reaffirms, only these two sexes exist for the purpose of reproduction. But in fact, various cultures have long recognized members who buck the biological binary. These people are neither man nor woman; or both; or people with male body and female behaviour or vice versa. Today there are many populations with alternative identities, such as hijras in South Asia, kathoeys in Thailand, and muxes in Mexico. Surprisingly, there also remains state like Iran that does not recognise alternative genders and legalise sex reassignment surgery.

Though the concepts of human rights and equal rights have been a matter of 20th century, only recently has the fight for legal recognition and respect of a ‘third category of gender’ along with male and female gender has begun to bear fruit. The terminology not only categories itself as third but also makes a superiority and inferiority between the rest two genders identity. From ancient Greece to digital Bangladesh, the political, cultural and legal emergence of a complex, controversial term, ‘third gender’ has not been so easy. 

However, ‘Hijra’ or mostly male to female transgenders have a long history in South Asia.

The saga of plights of hijras, a community that includes intersex people – those born with both male and female biological traits, transgender people – those whose gender identity does not match their sex assigned birth, eunuchs, unix and even cross-dressers have a long history in this region which got legal shape by enactment of the Criminal Tribes Act, 1871 during the colonial era. This piece of legislation tagged them as genetically criminal which ultimately condemned the dignity of transgender people, humiliating them in social echelons and consequently forcing their family to separate them form society. Eventually they had adopted begging, prostitution and other questionable professions for their survival. This Act was repealed in 1949 but exploitation and discrimination towards them continued. 

On this note we should remind ourselves, the Nepal Supreme Court (2007) was the first in this south-east Asia region to officially recognise the third gender people. At least 10,000 hijras currently live in Bangladesh, according to national statistics, but the number can be 10 times higher. They have had the right to vote since 2009. In November 2013, the government announced the recognition of "hijra" as a third gender category in all national documents and passports. But no progress has been made so far to ensure the rights of the “third gender” citizens of Bangladesh. Even severe allegations rise from them that basic rights like access to public toilets and burying after death are also being denied due to the only reason of their unique gender identity.

Various rights groups are continuously pressurizing the stakeholders to eliminate the social stigma towards transgender community and ensure equal civil rights to merge them within the mainstream. Like many other basic rights, transgender people are also deprived from inheriting property. However, the much-needed discussion on right to inherit property of a transgender person is highly neglected in this territory. Alike most south Asian countries, also in Bangladesh being biologically non-binary, i.e. neither male or female, is socially considered to be a "gender disorder", hence at the birth or early childhood, most of the parents get rid of their transgender babies which also in the long run influence to form a mentality in both parents and transgender children that s/he is not a part of that family, hence not entitled to inherit property.

However, by national law none can be deprived of getting his/her ancestral property due to their gender identity only. We should be mindful of the fact that the principle of equality and non-discrimination along with human dignity and social justice has been incorporated under the Constitution of Bangladesh. Moreover article 27 guarantees 'equality before law' and 'equal protection of law' while article 28 prohibits any discrimination only on the grounds of sex, gender, race, place of birth, religion etc. Rather this apex law of the soil, empowers government to take special initiative in favour of underdeveloped and marginal people. Hence denying right to inherit property from family on the basis of purely generic non-conformed gender identity is a clear violation of constitution, the supreme charter of the land. 

Depending on the type of law the state has, Inheritance law governs the rights of a decedent's survivors to inherit property. However, the share of property is highly dominated by gender identity of each person according to religions which are also discriminatory. Nonetheless, State cannot deny one’s basic rights to inherit property by alleging the absence of provision in religion merely. If the religion is silent on this point, then the State must take initiative to fulfil its constitutional obligation not to differently treat anyone and to ensure equality among it's citizens. It would be erroneous to forget that every human has right to choose his/her gender identity and the State cannot discriminate anyone based on such issue.

However, in 2014, the Law Commission of Bangladesh has recommended the Government to legislate the draft Elimination of Discrimination Act which is under active consideration of the government now. The draft includes discrimination against any individual and community and the grounds for discrimination are religion, faith, community, race, caste, custom, culture, occupation, ethnic originality, gender (including transgender), sexual orientation, disability, pregnancy, marital status, place of birth etc. It suggests punishment for creating obstacles in getting inheritance property rights up to ten years imprisonment or ten lac taka fine or with both. Regrettably we have yet to notice any development regarding upholding rights of third gender community while government shows its concern to eliminate discrimination from the society.

In addition, neither any of the law having force in the country prohibits transgender persons’ from inheriting property nor any religious practice banned them from getting property. Rather both the national law and religious rules remained long silent on this matter. Our conservative society has only argument in hand that there is no precise provision of distribution of property to the transgender or Hijra in religion, but this cannot be an acceptable argument to snatch away individual’s such significant basic rights with huge monetary value. 

Therefore, the State must come forward to uphold a legitimate right of a community and must arrange a mechanism to ensure their property right. It's worth mentioning here that in December 2009, the Supreme Court of Pakistan ordered that the government shall officially recognise a separate gender for Pakistan's hijra community, which includes transgendered people, in much discussed Khaki v Rawalpindi case. The same court also ordered the authority to take effective initiative for non-binary citizens' right to inheritance, education, marriage, registration for identity, voting etc. Besides this, in August 2017 two bills aimed at achieving equal rights for the transgender community have been tabled by Pakistan’s National Assembly. The bills seek to safeguard the rights of trans people “as par with other citizens and residents of the country” by amending the Pakistan Penal Code and the Code of Criminal Procedure. The Transgender Persons (Protection of Rights) Bill 2017 has also been introduced. The proposed legislation would make it illegal for transgender people to be denied of property inheritance, education, and access to housing. The law, if enacted, would also forbid anyone from harassing or discriminating on the basis of gender identity.

Therefore, this is high time for Bangladesh to legislate a new piece of law to ensure their equality, all sorts of rights including right to inheritance of property and to eliminate exploitation and discrimination from every sphere of their life in order to facilitate social acceptance of this community and access to State provided social services. Additionally, in absence of any religious edict the legislature may make mandatory provision for the parents to gift or make a will of certain portion of property for their transgender children.

MR. SOURAV IS PURSUING LLM IN INTERNATIONAL ENERGY LAW AND POLICY AT THE UNIVERSITY OF STIRLING, UK. He is also an Assistant Professor & Coordinator, Department of Law, Dhaka International University, Dhaka, Bangladesh; Advocate, Supreme Court of Bangladesh; Legal Researcher & Activist. His personal blog is: www.legalviewsofsourav.blogspot.com and facebook profile is: raisul.sourav

MS. HUSSAIN IS A BARRISTER AT LAW (THE HONOURABLE SOCIETY OF LINCOLN’S INN). She is also an Advocate at Dhaka Judges’ Court, Legal Researcher and, Equality and Human Rights Activist. Her personal blog is: www.farzanashumona.co.uk and facebook profile is: farzana.shumona

Published on the Young Observer of the Daily Observer on 18 January 2018 at page 8 & 9.

The Culture of Higher Education in the UK

United Kingdom (UK) is one of the major destinations for our higher education since colonial period. We all know prominent figures like Mahatma Gandhi, Rabindranath Tagore, Michael Madhusudan Dutt and many others went to the UK from this region for their higher education and career. At that time, people returned from the UK after ending their education were called as “Bilet Ferot” which dignified their social status. Still, the trend remains the same due to world-class education, high quality of graduates, good employability rate, standard research, famous teachers including Nobel laureates, top-ranked universities etc.

Apart from these, the overall educational environment distinguishes UK from Bangladesh. One can get real flavor of education from here which we don’t usually get in our country due to many factors. However, during my short stay in the UK for higher educational purpose, I noticed some unique characteristics of their higher education. Nevertheless, those may be negligible in the eye of others but all of them contributed to reach today’s standard together. Let I share some of my academic and non-academic experiences of UK’s higher education.

Students’ Union: Each and every universities of UK must have a students’ union. It is the rule to set up a university and they can’t imagine a university without having students’ union activity. There is no formal political activity inside the university, but the students would be able to uphold their interest through the union. Students’ union is mainly responsible to represent students in decision-making process. Every year there will be an election to elect the executive body. The union generally negotiates to protect the interest of the students with the university. In addition, they also operate various surveys about the services of the university and the union as well. Often, they organize various skill development programmes for the students. There are also union shops where students may employ as a part-time worker.  Further, there are various societies under the union where students can join according to their choice. There will be one annual general meeting and other meetings where general students can cast their vote to pass any resolution.

Academic Affairs: From whole semester’s class schedule to exam date, everything is well designed and preplanned in the UK. Typically most of the study materials are uploaded at the beginning of the semester on the university’s distinct learning portal. There are clear policies everywhere like exam policy, students’ leave policy, exam exonerating policy, pregnancy policy, what may constitute academic misconduct etc. Students are expected to learn the materials earlier and participate in class. Everything is well informed in advance and every opportunity is equal to all. In addition, all the examinations are not only written rather it varies on the nature of the module. However, module representatives will get formal recognition after successful completion of their responsibilities throughout the course. Apart from the teachers’ evaluation at the end of the semester, the module representative together with the module coordinator needs to prepare a students’ feedback report on the basis of the feedback given by the students and further decisions relating to improvement of that module will be taken on the basis of that.

Use of Email: Every student has official email address and all university communications will be made through that address. Additionally, every student has a personal tutor who will primarily responsible to deal with all academic aspects of that student. However, if anybody needs to consult any teacher beyond class hour, then s/he has to create an appointment with that teacher via email earlier. Unlike Bangladesh, once the appointment has been created, the teacher will maintain the schedule except any inconvenience occurs at that time. In that case, s/he normally seek apology and offer another time. Teachers are very friendly and cooperative in solving academic matters here as there are separate divisions to deal with financial, emotional and employment matters. Additionally, they are very timely and responsible in class.

Plagiarism: Plagiarism is regarded as serious academic misconduct and punishment of which may range from warning to expulsion from the university depending on the gravity. All academic works must be tested by plagiarism detecting software before submission.

Accommodation: There are two types of accommodation i.e. on campus and off campus run under the university authority. These accommodations can also be divided into many categories e.g. undergraduate accommodation, postgraduate accommodation, family accommodation, male, female, mixed, non-alcoholic, non-smoking etc. However, male and female can reside in same house in UK students’ accommodation. The living environment is very quiet and calm, and none can create any nuisance that may disturb others. If anyone makes any complaint or if anybody infringes any condition like smoking in the room, late night party without authorization, living with guest etc. then the authority will take action which may lead to cancellation of accommodation. The houses are furnished with furniture and necessary electronic machineries including washing machine, refrigerator, microwave oven, vacuum cleaner etc. Each room is allotted to one student only for a fixed tenure according to course duration. So, there is no scope of stay beyond. However, accommodation services often conduct survey about the satisfaction of the resident and response reasonably while making any complaint to them.

Thanks and sorry: You shall listen these couple of terms so many times in a day in the UK. That is why they are regarded as most civilized nation all over the world. Everybody will tell you thank you after every event and if somebody is not able to assist you, s/he will start the sentence with I’m wondering/I’m afraid instead of directly saying you sorry. Moreover, in that event, that person approaches you in such a way that you’ll rather feel embarrass for his/her inability to do so. Another interesting thing is when someone enter into a room and sees you are coming to that room, s/he will keep the door open until your entrance. This is a normal courtesy to them.

Harassment: The university takes any kind of harassment including bullying, sexual harassment, racist uttering etc. very seriously. Both the university and union are doing survey on it regularly and these are handled very sensitively. That is why no teacher is allowed to involve with any kind of emotional relationship with the students during their studentship. Likewise, students are also not allowed to take part in any kind of violent activity. However, pet and kiss are common phenomena in this country. Any person normally can kiss his/her loving one anywhere.

All these little attributes together contribute to enhance the quality of higher education in the UK and still they can attract the students around the globe to go there. Nevertheless, higher education is also a big business there, hence they are very conscious to maintain the standard.

 Published on the Daily Observer (Young Observer) on 11 January 2018

Write a Conclusive Conclusion

We all need to write essay, article or at least need to answer question in exam. It is undebated true that every write up has a conclusion as everything has an end. However, writing a convincing conclusion is not always an easy task. Usually conclusion portraits your finishing thoughts on that particular matter and it is very significant to present an ending with a vibrant writing. Moreover, final part is also your last chance to make an impression to your reader(s). Hence you should know how to write an attractive conclusion. Although there is no formula rather it’s your skills and creative way to give a satisfaction to your reader.

Often people struggle to write a definite conclusion and it becomes weak while losing its track due to many reasons including repetition, equivocation, go off on a tangent, take on an afterthought, introduction of a new thought and so on. However, many people like recommend some actions to be done along with the conclusion. There is no wrong with that, but recommendation portion must be separated from the conclusion as both have individual significance.

As there are too many ways to go wrong, hence you should always be cautious in drawing your conclusion. So, making of a clear-cut plan is very important. Think how can you give a clear picture of your write up to your reader. Frequently, people are only reading the introduction and the conclusion to get a conception at the first instance. Hence, you should be steady in concluding your thoughts as usually we are doing hurry at this stage due to stress, time constraint, lack of thoughts etc. That is why, think about the ending all through the writing and if possible, provide a foreshadowing where necessary. This will assist you to provide a sense of natural conclusion rather than implemented one. Instead, you can through a question at the starting and can put your final decision at the ending.

Moreover, it’s a good technique to terminate by shedding some light of hope in your conclusion. In addition, you can invite further thinking on the issue from your reader at the finishing. Alternatively, you can something to be inquisitive to explore further on the sector. Otherwise, you can put your judgment or concrete decision if the nature of the essay ask that. Actually, it is mainly the nature of your write up which will ultimately tell you what need to be done at the conclusion. Therefore, make yourself clear earlier in this regard.

However, your ending must match your purpose of writing and it should be in proportionate to the rest of the work. Nevertheless, it would be a worthy way to invest your time to read some notable conclusions from a writer’s perspective that you like most to learn how to write a good conclusion. Deeply look into the way they followed to finish. Then you would be able to think best way to rap your thoughts in more conveniently. Nonetheless, still I do a lot of mistakes in drawing a decisive conclusion; hence my final advice to you: try to learn from your errors. Interestingly, I’m going to finish my this write up by giving you some suggestions what should you do and what should not do in writing a better conclusion instead of sketching a good conclusion!

What should do:

Use new language instead of what you already using in your work;

You should also show critical thinking skills by reflecting on the significance of what you’ve written in a new light;

Leave the reader to consider the larger implications of your argument;

Try to make a relationship between introduction and conclusion. What you are saying to your reader at the beginning and what actually we are doing.

What should not do:

Conclusion is more than a summary;

Do not call for a different thing in your conclusion;

Do not make it irrelevant by losing coherence with other parts.

[The writer acknowledges different sources of information with gratitude.]

Published on the Young Observer of the Daily Observer on 4 January 2018.