Bangladesh: The draft bill on domestic violence - some recommendations
Source:
South Asia Citizen's Wire The Law Commission of Bangladesh recently took the initiative of drafting a Bill on domestic violence. Ain-o-Salish Kendra (ASK), a well-known human rights and legal aid organization has welcomed the Law Commission's initiative.
Domestic violence is one of the most widespread and least recognized human rights abuses in the world. Bangladesh is no exception in this regard.
Recent research by the One Stop Crisis Centre (OCC) revealed that almost 70% of sexual abuse suffered by women occurred within their own homes. The Draft DV Bill is an important step towards the legal recognition of domestic violence in Bangladesh.
In its introduction to the Bill, the Law Commission recognizes the fact that domestic violence is not restricted to those who are economically disadvantaged, but cuts across all barriers of class and community. Importantly, it also recognizes that multiple strategies are needed to combat domestic violence, and that domestic violence legislation is necessary but not sufficient.
The Law Commission has tailored this Bill to the Bangladeshi context, and attempted to address the particular manifestations of domestic violence in Bangladesh, such as harassment on the failure to have a son, violence related to dowry, and acid attacks. It has also adopted a number of innovative measures, including interim protection orders, protection orders, compensation for the victim, and counseling orders.
This Draft Bill combines civil law and criminal law measures, which acknowledges the fact that many victims of domestic violence do not want criminal prosecution of the abuser as a first resort. Its structure, in brief, is as follows: a victim of domestic violence can contact an enforcement officer who will investigate the complaint and put it before the Family Court. The Court is empowered to issue protection orders that bar the abuser from committing a range of acts and provide for safe accommodation for the victim if needed. If the abuser breaches the protection order, he is liable to a fine and imprisonment for this breach, in addition to being liable to prosecution for any other offences (such as assault or dowry demands) that he might have committed when he abused the victim.
ASK has responded in detail to the Draft Bill on Domestic Violence, with a view to making it more comprehensive and effective in the Bangladeshi context.
The Draft Bill has many strong positives. These include the following:
ASK is concerned about the role of "enforcement officer" in the draft Bill, which makes the police directly responsible for receiving and investigating complaints under the Bill.
In addition, the Bill lacks any punishment or complaints mechanism for enforcement officers.
Recommendation: Rather than "enforcement officers" the DV law should create a distinct cadre of "protection officers", who are trained to deal sensitively with problems of domestic violence. In addition, the Bill should include a robust oversight mechanism to monitor the performance of these officers.
The current Bill does not offer protection to those who are separated or divorced.
Recommendation: The Bill should be amended to offer protection to persons who live in a shared household, or have ever lived, in a shared household.
The Bill includes domestic servants below the age of eighteen within the ambit of domestic relationships. ASK feels that a detailed discussion is needed on whether domestic servants should be included under a DV law or whether they should be protected by labour/employment laws.
Recommendation: There is a need for further discussion on the appropriateness of including domestic servants under a DV law and analysis the protection available to domestic servants under current law. This must be followed by the appropriate legal and policy steps needed to ensure that domestic servants work in safe, violence-free conditions and are fairly remunerated.
The definition of domestic violence in the draft Bill excludes some important aspects of such violence, like economic abuse, marital rape and forced marriage.
Recommendation: Economic abuse, marital rape and forced marriage should be included within the definition of domestic violence.
The draft Bill provides that protection orders can last for a maximum of 12 months. This could seriously undermine civil-law protection for the victim of DV. Recommendation: There should be no maximum limit for protection orders.
The draft Bill provides that the offender can be excluded from the shared home, but also provides that if alternative accommodation can be found for the victim, it is the victim who must move out of the shared home rather than the offender.
Recommendation: The Bill should ensure that it is the offender who, if necessary, moves out of a shared home rather than the victim. Otherwise, the fear of losing the home and access to children would prevent victims from complaining about domestic violence.
The draft Bill states that when a protection order is breached, an "offence of domestic violence" is committed. The current language of the Draft Bill creates inconsistencies with many provisions of the existing criminal law, because it creates the possibility that the same action by an abuser, for example, harassing a spouse for dowry, could be prosecuted under anti-dowry legislation as well as DV legislation, with different procedures and penalties under each law.
Recommendation: The draft Bill should make the action of breaching the protection order a criminal offence (rather than creating a separate "offence of domestic violence", and enjoin the magistrate trying the breach of a protection order to lay charges against the offender for any other offences that he has committed under existing criminal law.
The draft Bill provides for rather weak protection to the victim, as compared to DV laws in other countries. If the abuser breaches the protection order, the protection order is renewed. The abuser faces criminal prosecution only on a second breach of the protection order. Moreover, the punishment for the second breach is restricted to a maximum of 6 months imprisonment and/or a Tk 10,000 fine. The punishment for a third breach is also restricted to a maximum of 1 year's imprisonment and/or a Tk 20,000 fine.
Recommendation: The very first breach of a protection order should be followed by arrest and prosecution. The maximum penalty for breaching the protection order should be higher; the maximum fine should be raised to Tk 1 Lakh.
ASK also recommends ensuring that the court can rely on the sole testimony of the victim to conclude that a protection order is required and that the abuser has breached the protection order.
There is a need for general procedural clarification in the Bill, including time limits for investigation and trial.
In analyzing the draft DV Bill, ASK has reviewed DV laws in other jurisdictions, and done a section by section review of the present draft Bill. The above discussion is a summary of ASK's comprehensive comments. These comprehensive comments and recommendations have been submitted to the Law Ministry by ASK.
The writer is a practicing lawyer and working as an associate of Ain O' Shalish Kendra (ASK).
Surobhi Chopra
The Daily Star, July 15, 2006
In its introduction to the Bill, the Law Commission recognizes the fact that domestic violence is not restricted to those who are economically disadvantaged, but cuts across all barriers of class and community. Importantly, it also recognizes that multiple strategies are needed to combat domestic violence, and that domestic violence legislation is necessary but not sufficient.
The Law Commission has tailored this Bill to the Bangladeshi context, and attempted to address the particular manifestations of domestic violence in Bangladesh, such as harassment on the failure to have a son, violence related to dowry, and acid attacks. It has also adopted a number of innovative measures, including interim protection orders, protection orders, compensation for the victim, and counseling orders.
This Draft Bill combines civil law and criminal law measures, which acknowledges the fact that many victims of domestic violence do not want criminal prosecution of the abuser as a first resort. Its structure, in brief, is as follows: a victim of domestic violence can contact an enforcement officer who will investigate the complaint and put it before the Family Court. The Court is empowered to issue protection orders that bar the abuser from committing a range of acts and provide for safe accommodation for the victim if needed. If the abuser breaches the protection order, he is liable to a fine and imprisonment for this breach, in addition to being liable to prosecution for any other offences (such as assault or dowry demands) that he might have committed when he abused the victim.
ASK has responded in detail to the Draft Bill on Domestic Violence, with a view to making it more comprehensive and effective in the Bangladeshi context.
The Draft Bill has many strong positives. These include the following:
- The Bill extends to the whole of Bangladesh and grants jurisdiction to Family Courts.
- The Bill is gender neutral, and includes a range of domestic relationships within its ambit.
- The Bill provides for a person other than the victim of domestic violence to make an application to the court on behalf of the victim.
- The definition of domestic violence extends beyond merely physical violence, to include sexual and psychological violence as well.
- The Bill provides for interim protection orders while an applicant's complaint is being investigated.
- The Bill provides for a range of measures that can be included in a protection order, including barring the abuser from entering the shared home.
- The Bill empowers the court to grant compensation to the victim where appropriate, of any amount.
- The Bill empowers the court to order counseling for the abuser and / or the victim.
ASK is concerned about the role of "enforcement officer" in the draft Bill, which makes the police directly responsible for receiving and investigating complaints under the Bill.
In addition, the Bill lacks any punishment or complaints mechanism for enforcement officers.
Recommendation: Rather than "enforcement officers" the DV law should create a distinct cadre of "protection officers", who are trained to deal sensitively with problems of domestic violence. In addition, the Bill should include a robust oversight mechanism to monitor the performance of these officers.
The current Bill does not offer protection to those who are separated or divorced.
Recommendation: The Bill should be amended to offer protection to persons who live in a shared household, or have ever lived, in a shared household.
The Bill includes domestic servants below the age of eighteen within the ambit of domestic relationships. ASK feels that a detailed discussion is needed on whether domestic servants should be included under a DV law or whether they should be protected by labour/employment laws.
Recommendation: There is a need for further discussion on the appropriateness of including domestic servants under a DV law and analysis the protection available to domestic servants under current law. This must be followed by the appropriate legal and policy steps needed to ensure that domestic servants work in safe, violence-free conditions and are fairly remunerated.
The definition of domestic violence in the draft Bill excludes some important aspects of such violence, like economic abuse, marital rape and forced marriage.
Recommendation: Economic abuse, marital rape and forced marriage should be included within the definition of domestic violence.
The draft Bill provides that protection orders can last for a maximum of 12 months. This could seriously undermine civil-law protection for the victim of DV. Recommendation: There should be no maximum limit for protection orders.
The draft Bill provides that the offender can be excluded from the shared home, but also provides that if alternative accommodation can be found for the victim, it is the victim who must move out of the shared home rather than the offender.
Recommendation: The Bill should ensure that it is the offender who, if necessary, moves out of a shared home rather than the victim. Otherwise, the fear of losing the home and access to children would prevent victims from complaining about domestic violence.
The draft Bill states that when a protection order is breached, an "offence of domestic violence" is committed. The current language of the Draft Bill creates inconsistencies with many provisions of the existing criminal law, because it creates the possibility that the same action by an abuser, for example, harassing a spouse for dowry, could be prosecuted under anti-dowry legislation as well as DV legislation, with different procedures and penalties under each law.
Recommendation: The draft Bill should make the action of breaching the protection order a criminal offence (rather than creating a separate "offence of domestic violence", and enjoin the magistrate trying the breach of a protection order to lay charges against the offender for any other offences that he has committed under existing criminal law.
The draft Bill provides for rather weak protection to the victim, as compared to DV laws in other countries. If the abuser breaches the protection order, the protection order is renewed. The abuser faces criminal prosecution only on a second breach of the protection order. Moreover, the punishment for the second breach is restricted to a maximum of 6 months imprisonment and/or a Tk 10,000 fine. The punishment for a third breach is also restricted to a maximum of 1 year's imprisonment and/or a Tk 20,000 fine.
Recommendation: The very first breach of a protection order should be followed by arrest and prosecution. The maximum penalty for breaching the protection order should be higher; the maximum fine should be raised to Tk 1 Lakh.
ASK also recommends ensuring that the court can rely on the sole testimony of the victim to conclude that a protection order is required and that the abuser has breached the protection order.
There is a need for general procedural clarification in the Bill, including time limits for investigation and trial.
In analyzing the draft DV Bill, ASK has reviewed DV laws in other jurisdictions, and done a section by section review of the present draft Bill. The above discussion is a summary of ASK's comprehensive comments. These comprehensive comments and recommendations have been submitted to the Law Ministry by ASK.
The writer is a practicing lawyer and working as an associate of Ain O' Shalish Kendra (ASK).
Surobhi Chopra
The Daily Star, July 15, 2006
