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Partners for Law in Development (PLD) - is a legal resource group working in the elds of social
justice and womens rights in India. Founded in 1998, the organization locates womens rights
as integral to its work on social justice, engaging with it in contexts of family, sexuality, culture,
caste, conict and development. We believe that social justice goals are best shaped by human
rights and the Constitutional guarantees that establish the framework for realization of the
rights of the marginalized and the disadvantaged. We promote and facilitate application of
rights through capacity and perspective development programmes, production of knowledge
resources, and advocacy.
Publisher:
Partners for Law in Development
F-18, First Floor, Jangpura Extension
New Delhi- 110014
Tel. No.: 011- 24316832 / 33
Telefax: 011- 24316833
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www.pld-india.org
Copyright 2010
Partners for Law in Development (PLD), New Delhi
ISBN: 81-904013-4-3
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Acknowledgements
This report is almost entirely based on interviews and discussions during eld
visits, presentations at conferences, and observation of activities. The number
of activists, organisations, lawyers, local leaders and community women who
extended their time, shared their work, goals, challenges and related concerns
are far too many for a paragraph to hold. The appendix contains the list of
names of people with location/country/organisation references and despite
endeavors at being comprehensive, it misses many who participated in small
group discussions. To each of these persons, mentioned and those inadvertently
missed out, we owe a debt of gratitude. Indeed, without their enthusiastic
engagement with the subject and the patience with our demands, travel delays,
last minute appointments, the eld work, and consequently this report, could
not have been possible. It would be terribly amiss to not mention that on one
occasion in Arunachal, local activists convened a meeting twice to make up for
the breakdown of phone network and delays of long road journeys. It would
also be partial to not mention the festivities in Arunachal, gifts of books and
quantities of written materials in Dhaka, home cooked meals everywhere, and in
Indonesia, a spread of specially prepared vegetarian food in most organisations
visited, that dened the generosity this project benetted from.
The logistics and coordination at the country level was vital to accomplishing
the eld work and meeting the large number of people we did in the limited
time available. For this invaluable assistance, our heartfelt gratitude to Kamala
Chandrakirana and the Komnas Perampuan team in Indonesia; to Sara Hossain
and the Ain O Salish team in Bangladesh; and Sapana Malla Pradhan in Nepal.
In India we are grateful to Sharifa Khannum and the STEPS team for their
hospitality and support in Puddukkottai; Jarjum Ete for amazing coordination
across districts in Arunachal. Thanks are due to ASHA, the organization in Ranchi
for providing local support to the one day consultation on tribal customary
law, to Hasina Khan of Awaz e Niswan and Noorjehan of WRAG in Mumbai, for
getting together their entire teams, coincidentally just when both organisations
were shifting ofce premises. Mention must also be made of Jaya Jha, the
3
programme ofcer who joined in a large part of the eld work, helped prepare
the minutes of the eld visits. For feedback on the relevant chapters of this report,
mention must be made of Jarjum Ete (Arunachal Pradesh), Faustina Pereira and
Sumaiya Islam (Bangladesh), Kamala Chandrakirana (Indonesia), Sachi Kumari
(Jharkhand), and V. Geetha (Muslim womens organisations). We are thankful
to them for taking time from their busy schedules, to send in comments and
corrections. Outside of the country specic inputs, this report has benetted
from discussions with Kamala Chandrakirana, Uma Chakravarti, and V. Geetha.
This report is part of a project, which has emerged from a larger process of
engagement and discussions and it would be incomplete to not mention the
insights gained from discussions that have been ongoing within Asia Pacic
Forum on Women, Law and Development (Chiangmai) on fundamentalisms and
the inaugural conference of Musawah in Kuala Lumpur, on this project; and last
but very importantly the work and contribution of the Yakin Erturk on culture
during her time as the Special Rapporteur on Violence Against Women, its Causes
and Consequences, that signicantly shifted the way culture and womens rights
came to be viewed within the human rights discourse.
As this report is largely based on discussions and eld observations, some errors
are very likely. We apologise in advance for the mistakes in the reporting of
events, details, and would welcome corrections and feedback from the readers.
Another inevitable outcome of a report based on discussions is the likelihood of
perspectives and understandings differing from those of the authors of the work
in the eld, or the communities they work with. The perspectives of this report
are PLDs alone, and may sometimes not correspond with the self description of
the respondents/source of information. These variations in understandings are
part of the diversity of our positions, and a reection of the partial nature of
this inquiry, that makes this documentation merely a work-in-progress.
Madhu Mehra
Executive Director
Abbreviations
ADR: Alternative Dispute Resolution
ANBTI: Aliansi Nasional Bhinneka Tunggal Ika, Indonesia
APWWS: Arunachal Pradesh Womens Welfare Society
ASHA: Association for Social and Human Awareness, Ranchi
ASK: Ain O Shalish Kendra, Bangladesh
BMMA: Bharatiya Muslim Mahila Andolan, India
BRAC: Bangladesh Rural Advancement Committee
CA: Constituent Assembly
CBO: Community Based Organisation
CEDAW: Convention on the Elimination of All Forms of Discrimination against
Women, 1979
CPN (M): Communist Party of Nepal (Maoist)
CSDS: Centre for the Study of Developing Societies, New Delhi
CSS: Chotanagpur Sanskritik Sangh, Ranchi
CWDS: Centre for Womens Development Studies, New Delhi
DC: District Collector
FWLD: Forum for Women, Law and Development, Nepal
HRLS: Human Rights and Legal Aid Services, Bangladesh
KP: Komnas Perampuan, Indonesia
LACC: Legal Aid and Consultancy Centre
LBH APIK: Lembaga Bantuan Hukum Asosiasi Perempuan Indonesia
MAP: Manavadhikar Aiyathi Porishad, Bangladesh
MNS: Mananvadhikar Nari Samaj, Bangladesh
MWRN: Muslim Womens Rights Network, India
MSP: Manav Adhikar Sangrashan Porishad, Bangladesh
NEFA: North East Frontier Agency
NGO: Non Government Organisation
NU: Nahdlatul Ulama, Indonesia
OBC: Other Backward Class
PBB: The Crescent Star Party, Indonesia
PKS: The Prosperous Justice Party, Indonesia
PPP: The United Development Party, Indonesia
5
ABBREVIATIONS
Contents
Acknowledgments
List of Abbreviations
Introduction
Bangladesh
3
5
9
12
Indonesia
31
Religion as a Resource
for Promoting Gender Equality,
Plurality and Justice
Nepal
52
India
s
s
s
Arunachal Pradesh:
Dening a Womens Agenda
in the Context of Tribal Patriarchy
Jharkhand: Exploring Linkages between
Governance, Customs, Land
and Womens Equality
Speaking up as Muslim Women:
Mobilisation and Network Building
Initiatives in India
72
72
95
114
133
144
151
7
Introduction
The last decade has witnessed the adoption of new strategies by womens groups
that expand the equality agenda into the domain of culture. Many of these
initiatives are not limited to secular constitutional challenges, but consciously
draw upon cultural identities, symbols and sometimes religion/cultural
terminology to contest socio-economic inequalities in the cultural domain. These
engagements seek to primarily voice concerns of constituencies that have been
marginalised and suppressed, in particular women. To understand how these
strategies, both secular and religious, relate to human rights, Partners for Law in
Development (PLD) undertook eld work in four countries in South/South East
Asia. This report documents initiatives that engage with culture, including those
that draw upon religion, to examine how these relate to and advance human
rights. This documentation assumes greater importance in light of the creation
of the new mandate of the Independent Expert in the eld of Cultural Rights in
2009 within the UN human rights system, which is in the process of dening the
scope of cultural rights. In light of the competing ways in which culture is used,
it is important to distinguish the emerging engagements that advance womens
rights from cultural discourses that invoke relativist or essentialist arguments and
limit womens equality agenda. Also there is a need to assess the relevance of the
latter to debates on and issues of human rights.
There is no xed denition of what 'culture' is, but for the purposes of this report
we refer to the General Comment 21 to the International Covenant on Economic,
Social, and Cultural Rights which observes that 'In the Committees view, culture is
a broad, inclusive concept encompassing all manifestations of human existence.
The expression cultural life is an explicit reference to culture as a living process,
historical, dynamic and evolving, with a past, a present and a future.' 1 The Special
Rapporteur on Violence Against Women, in her report on intersections between
culture and violence against women notes that 'Culture can be dened as the set of
shared spiritual, material, intellectual and emotional features of human experience
1 Committee on Economic, Social and Cultural Rights, General Comment 21, E/C.12/GC/21 (21st
December 2009)
INTRODUCTION
that is created and constructed within social praxis.' 2 In terms of the understanding
derived from our eld work, culture in diverse contexts appeared to be a composite
of various inuences, in which religion, ethnicity, and political environment,
economic conditions, livelihoods, social, and geographic inuences all play a role.
10
The eld work was carried out in four countries - Bangladesh, India, Indonesia and
Nepal to gain a comparative understanding of diverse strategies. The strategies are
presented country-wise in light of the political, demographic, and economic contexts,
to demonstrate the extent to which the external context determines the availability
and relevance of different strategies. For instance, the emergence of interventions and
approaches that draw upon cultural and religious resources owe their origin to the
increasing inuence of fundamentalism, cultural and identity politics in governance
and political agendas. These strategies operate at various levels not only do they
contest specic areas of discrimination, but more importantly, contest the knowledge
and authority of the religious/cultural orthodoxy over the cultural domain. The country
reports do not follow a uniform structure but they all set out the external political
context before proceeding to specic strategies and areas of concern. The discussion
on strategies tends to cluster together distinct types of interventions, integrating the
issues these interventions address. The country reports conclude with observations
on broad themes, ndings and challenges particular to the country context.
The reports bring out the gender justice and gender equality concerns for each country
highlighting the debates and the approaches undertaken to negotiate womens
rights, at the community and policy levels and contextualizes it within the external
political scenario. The Bangladesh report discusses two broad strategies related to
family law and women those that involve alternative community interventions
modeled on the shalish or traditional mediation bodies of local elite, and those
that engage with the formal law. The Indonesia report clusters the interventions
that use Islam as a resource for social transformation and gender justice under two
broad categories: those that are initiated by religious organisations and those that
are initiated by secular/non-religious organisations. The report on Nepal locates
the predominant reliance upon legislative reform and judicial review for correcting
2 Report of the Special Rapporteur on violence against women, its causes and consequences
'Intersections between Culture and Violence against Women' A/HRC/4/34 (17th January 2007)
The country reports are based on conversations, interviews conducted during eld
visits, and on presentations made at conferences and workshops attended on relevant
themes. The eld work was conducted between September 2008 and May 2010, and
were 4 to 10 days each for the countries covered outside of India. While the organisations
and individuals we met gave us rich accounts of their work and the context, the
number of interviews to be covered and the overall brevity of the eld visits did limit
a full understanding.3 The limitations of time and resources did not permit covering
all initiatives in the country or indeed all the organisations that have contributed to
this sector of work. Even though some secondary sources of information and NGO
documentation have supported the ndings, this report is partial, and must be viewed
as work in progress. Nonetheless, despite limitations, the report tries to do justice to the
area of work covered and in some cases, has benetted from feedback of the persons
interviewed. It is very likely that the perspectives and accounts documented in the
country reports do not correspond with that of the organisation or activist interviewed.
Given that this documentation is part of a longer engagement with the theme, feedback,
corrections, updating of information are actively sought and welcomed.
3 The details of field visits on the basis of which this report is developed, and the list of persons
interviewed, workshops/ conferences attended are provided in the Appendix
INTRODUCTION
11
BANGLADESH
BANGLADESH
12
BANGLADESH
The 1972 Constitution of Bangladesh ensured a secular nation but the Constitution
was amended in 1988 with a controversial 8th amendment which established
Islam as the state religion. The Constitution stipulates the principles of absolute
trust and faith in Almighty Allah as one of the fundamental principles of state
policy.1 However, the Constitution also ensures that religions other than Islam
may be practiced in peace and harmony in the Republic.2 The Constitution of
Bangladesh reiterates the principle of equality before law, equal treatment and
protection of law as well as non-discrimination irrespective of religion, race,
caste and gender.3 However, these guarantees operate in the public domain,
while the family law of each community is derived from religion. The private
arena of the family is plural and marked by codified religion based law for
Muslims and Christians and uncodified religious/customary laws for Hindus and
indigenous groups.
The influence of the military and Islamic conservative and fundamentalist
forces in the state has varied with Bangladeshs transitions from military to
democratically elected government. The growth of Islamic fundamentalism
and ideology in politics has come to play an influential role in not just the
political sphere and government policies, but has gradually become visible in
public life. The mainstream, centre-left, and secular Awami League is presently
in power in Bangladesh. In 2008, after a two year long state of emergency, the
13
Awami League led alliance was elected with a landslide victory. The present
government is one of the more progressive in recent times and most open to
social justice and reform within the plural family law.
BANGLADESH
Muslims are the majority in Bangladesh consisting of almost 90% of the population
and Hindus are less than 10% forming the largest minority, followed by Buddhists
and Christians. A large majority of the population is rural.4 Indigenous groups
constitute less than 1% of the total population. They live in the Chittagong Hills
and in the regions of Mymensingh, Sylhet, and Rajshahi. Hindus in Bangladesh
are almost evenly distributed in all regions, with concentrations in Khulna,
Jessore, Dinajpur, Faridpur, and Barisal.
14
are conducted and in the approach to resolutions, some of which have become
well defined and assumed a degree of authority. The application of these
approaches through the alternative model of shalish assumes significance as
an invention negotiating womens rights within the context of the family. This
section will introduce the model of the alternative shalish developed by the
NGOs, and compare the structure and functioning of the shalish initiated by two
different organisations to bring out the variations in functioning, perspectives
and capacities as well as the common challenges faced by them.
BANGLADESH
15
BANGLADESH
community, local women with leadership and so on. The alternative model of
the shalish initiated by NGOs is not uniform, but varied. In some cases, it entails
a large community membership, in other cases there are fewer representatives,
and yet others may have a single adjudicator functioning under supervision
of the NGOs. Most of the alternative shalish are part of larger community
empowerment initiatives, with components such as awareness raising, rights
education, livelihood/micro credit built into the programme. The common
feature of the alternative shalish is however that the adjudicator/mediators are
affiliated to a supervising NGO. Given the outreach of many of the large well
established NGOs (originally set up for relief and rehabilitation), the alternative
model of the shalish functions across a large number of districts in the country.8
The shalish usually receive cases related to the family, pertaining to domestic
violence, polygamy, maintenance, alcohol addiction, dowry demands and
divorce. The shalish adjudications are available for all communities, irrespective
of religion, although the majority of the cases are from the Muslim community,
particularly in view of the reluctance of the Hindu community to use systems
outside of it, and the absence of articulation of rights for Hindu women within
the family.
Two models of alternative shalish based in Mymenshingh, a district 120 Km north
of Dhaka, are described. Both have been initiated and are under supervision
and support of NGOs the first, a local NGO called Social Association for Rural
Advancement (SARA) that is supported in its legal work by national law based
organisations, Bangladesh Legal Aid and Services Trust (BLAST) and the Ain O
Salish Kendra (ASK); the second is a district branch of the largest development
NGO in the country, Bangladesh Rural Advancement Committee (BRAC), that
carries out many progrmmes through its branch offices including community
mediation through shalish.
Social Action for Rural Advancement (SARA): SARA was established in 1983
to work on development and womens empowerment. It facilitates shalish
16
8 The Chittagong Hill Tracts rely primarily on traditional forms of adjudication. According to
preliminary studies by BRAC Research Division in 2009, the reasons given for not being able to
access the formal legal system included unfair treatment, lack of understanding of court procedure,
high costs of travel and litigation, and huge backlog of pending cases.
thorough the different community groups formed at the local level, that take
up cases in addition to participating in the larger programme of SARA. There
are three community level groups formed by the organisation to facilitate
community work including undertaking mediation or shalish, one that is for
general community issues, Manav Adhikar Sangrashan Porishad (MSP), the
second for womens issues, the Mananvadhikar Nari Samaj (MNS), and the third
comprises of a group of local lawyers, Manavadhikar Aiyathi Porishad (MAP)
who handle cases where mediation is not successful or cases that cannot be
addressed through mediation (such as rape, murder, trafficking). SARAs role is to
not mediate but to facilitate it through organising community groups, building
their capacities and mentoring them.
MNS is organised into various unions, and each union contains about 12 cluster
groups consisting of approximately fifteen members, between the ages of
eighteen to fifty years. It is therefore a federated body with a wide outreach.
The head of a cluster group is usually a highly respected woman of the locality,
such as, a school teacher. SARA builds the capacity of the MNS through monthly
meetings on issues such as dowry, domestic violence, early marriages, polygamy
and divorce. The MNS handles cases at their level, gathers facts, visits the house
of the parties to assess the situation, and hears both parties. From the cases
they handle, they decide which require mediation through the shalish and
communicate this to the general community body, the MSP then appoints a
shalish to carry out the mediation. The chairperson and a few select persons
are nominated to conduct the shalish. Their shalish has successfully resolved
issues particularly in relation to making the hilla or the requirement of
intermediary marriage for divorced couples to re-unite, and the triple talaq
socially unacceptable. In a case where the husband regretted pronouncing oral
talaq to his wife because she cooked rice late, he wanted to continue living
with her but was boycotted by the neighbours for failing to perform the hilla
(intermediary marriage) rites. The husband approached MNS and this case was
BANGLADESH
The MNS works solely on womens cases, comprising mostly of family law issues.
It provides the space for women to voice their concerns relating to their cases
more easily and is simultaneously a medium for women members of the MNS
to gain confidence and leadership.
17
BANGLADESH
sent to the shalish, which held his marriage to be valid without any need for an
intermediary marriage. In all their case work, a written consent is taken from
the woman to avoid community backlash at a later stage.
Bangladesh Rural Advancement Committee (BRAC): BRAC is one of the worlds
largest NGOs focusing on empowering people and communities in situations of
poverty, illiteracy, disease and social injustice. BRACs Human Rights and Legal
Aid Services (HRLS) program, established in 1986, is dedicated to protecting
and promoting human rights through legal empowerment especially for the
poor and marginalized. The HRLS program operates 537 legal aid clinics in
61 districts of Bangladesh and is the largest NGO led legal aid program in the
world. The programmes strategy includes legal and human rights education,
legal aid, rapid response to reported incidents of human rights violations
and capacity building of panel lawyers, community leaders and community
paralegals. HRLS also facilitates Alternative Dispute Resolution (ADR) by the
community programme organisers at the thana level or the sub district level.
The ADR takes place in a specially assigned room in the BRAC area office.
During the ADR, both parties are asked to bring with them two additional
members of their community (of their own preference). The HRLS Program
Organizer facilitates the ADR, often under the supervision of a staff lawyer.
HRLS also raises rights awareness where participating women attend a 22 day
training on human rights and legal entitlements. The trainer or shebika is
usually a local person selected by BRAC and trained over 7 days a month for
a period of 4 months to deliver the course and act as a focal person in the
community for HRLS.
According to BRAC, while social changes as a result of this work may be limited,
there is clear increase in awareness at the community level. Women know
they can claim mehr, even if they may choose to not do so as per the custom.
They receive about 50-60 new complaints every month per district, and of the
cases received, 90% of the cases involve womens issues such as dowry and
maintenance, domestic violence, rape, acid burn and land related disputes.
18
9 Based on discussions with Firdaus Azim. See the Appendix for details
10 Interestingly, an increasing number of garment workers welfare committees are demanding
the allocation of separate space and time for prayers.
BANGLADESH
A similar trend is visible amongst Hindus with young women being drawn
to religious discourses that weave gender and justice issues within religious
learning. The Ramakrishna Mission, one of the liberal Hindu organisations,
holds study sessions on the Bhagwat Gita in Bangladesh, and includes reference
for gender justice.
19
BANGLADESH
11 Based on discussions with Meghna Guhathakurta. See the Appendix for details
in relation to what the contents should be, fears about the undue influence
of Islamic laws over other personal laws, and fears about the secularization of
Bangladeshi laws in a manner unacceptable to Muslims. The Law Commission
of Bangladesh disapproved of a common family code in 2005 observing that
personal laws as practiced in Bangladesh have originated from different belief
system,12 that lead to treating marriage as a contract amongst Muslims and a
sacrament amongst Hindus. Many activists believe that greater work needs to
go into documenting the rights that such a law must protect, and feel that such
a law should be free of pre-conditions that require the couple to state that they
do not believe in religion in order to register their marriage under such law.
This is necessary to avoid the obstacles present in the existing Special Marriage
Act. 13
Muslim law
Triple/oral talaq: The law requires that as soon as the man pronounces talaq in
any form he must submit a written notice of the same to the Union Parsihad
Chairman and his wife.14 The talaq is effective, unless revoked expressly or
impliedly by an action, only after 90 days of from the date of intimation of its
notice.15 The law also prescribes for a compulsory arbitration within 30 days of
giving notice.16 These pre-conditions have in effect rendered an oral/triple talaq
without legal validity, even though its practice continues.
12 The Law Commission of Bangladesh Opinion on the Study Report for Marriage, Inheritance
and Family Laws in Bangladesh Towards a Common Family Code(2005)
13 For example, section 2 of the Special Marriage Act 1872 of Bangladesh compels a person to
denounce his/her religion. This has led to reluctance in using the law, especially in cases where
both the parties are from the same religion and in inter-religious marriage where the parties are
willing to convert.
14 Section7(1) of the Muslim Family Ordinance Act, 1961.
15 Section 7(3) of the Muslim Family Ordinance Act, 1961
16 Section 7(4) of the Muslim Family Ordinance Act, 1961
BANGLADESH
21
BANGLADESH
22
Hindu Law
BANGLADESH
23
BANGLADESH
registration is therefore seen as the path of least resistance for Hindu women to
get space to negotiate rights minimally through the legal system.
24
Inheritance rights and the vested property:22 Hindu women have a tenuous
and limited right to inherit property from either the father or the husband. 23
Hindu women are also entitled to 3TRIDHAN, which is property over which
they generally have absolute control. Dominant sections within the Hindu
community oppose giving inheritance rights to women as it is argued that
could lead to a situation where Muslim men will marry Hindu women in
order to take their land. This insecurity and fear within the Hindus arises
from the experience of having had most of their land taken away under the
Vested Property Act 1974. The law on vested property (previously known as
the Enemy Property Act), allowed the government to confiscate the property
of emigrating Hindus deemed to be enemies of Pakistan, during the 1965 war
between India and Pakistan. The Act was used to confiscate the properties
of Hindus, the majority of acquisitions under it took place after 1965 until
recent times, which has led to a great deal of resentment and suspicion
against the state. The law was used to acquire not just vacant property, but
also occupied properties with documents in place, and the acquisitions
continued to take place after the independence of Bangladesh. A total of 1.2
million households or 6 million Hindus were affected from 1965 to 2006, and
the community has lost at least 2.6 million acres of land. 24 Consequently,
property within the Hindu community has become an insecure resource.
This insecurity has been used to clamp down on womens right to inherit.
22 The law on vested property is not a personal law of the Hindus in Bangladesh but it has had
an effect on the rights of Hindu woman. This section draws upon interviews with Aroma Dutta
and Sultana Kamal. See the Appendix for details
23 Hindu religious law prescribes five classes of female heirs: the widow, the daughter, the
mother, the mothers mother and the fathers mother. Within the daughters class, inheritances
go first to unmarried daughters, then to daughters who have a son. Childless daughters or those
without any sons are excluded from the succession right. Widows only inherit a limited title of life
estate in the property so they may not dispose it. (Bangladesh Women Lawyers Association, Hindu
Family Law: An Action Study on Proposed Reform of Hindu Family Law, BNWLA)
24 See Abdul Barkat and others, Deprivation of Hindu Minority in Bangladesh-Living with
Vested Property Pathak Shamabesh, Dhaka, 2008, p.121.
Human rights groups took up this Act and have pressed the government of
Bangladesh to revoke this law and return properties to Hindus.25 The Vested
Property (Return) Act was promulgated in 2001. The 2001 Act has been criticised
for being a half hearted measure of tokenism.26 The specific loopholes in the
2001 Act are:
r If there is no male heir then the property stays with the government
r Only those properties would be returned that were declared vested by
1969. (A large part of the properties were acquired after 1969).
r The Act does not provide compensation or return of those properties
that were permanently transferred or leased to statutory organisations or
individuals.
BANGLADESH
Under the initial Act, a time limit of 180 days was provided to publish the list
of properties to be returned. In 2002, the government allowed for an unlimited
time period within which the list was to be published and property returned.
Negotiations on amending the Act are currently taking place with the present
government. Human rights groups have suggested that in families that have
no male heirs, the women should be allowed to inherit only for the purposes of
returning the vested properties. This suggestion of women inheriting only for the
limited purposes of this Act has however not found favour with the community.
The personal laws applicable to Christians in Bangladesh are those which were
implemented by the British during British rule.27 However, local customs have
taken precedence over legal codes.28 The limited rights that are available in statutes
for Christian women are not utilised as customs hold precedence. For example,
Christian women can inherit property under the law but customs disallow them from
using this right. There is no provision for divorce. Judicial separation is permissible
amongst Christians only on two grounds adultery and conversion.
25 This section is based on an interview with Shamsul Huda. See the Appendix for details
26 See for example Abdul Barkat and others, Deprivation of Hindu Minority in BangladeshLiving with Vested Property Pathak Shamabesh, Dhaka, 2008, p.56-58.
27 The Divorce Act of 1869 applies in Bangladesh
28 This section is based on an interview with Faustina Periera, Advocate, Bangladesh Supreme
Court and BRAC. See the Appendix for further details.
25
The Catholic Church is cognisant of the amendments made in the Indian Divorce
Act in 2001 but it discourages changes on similar lines in Bangladesh. Previous
attempts to reform law were unsuccessful. Protestants have become an active
party in demanding reform. The Law Commission drafted a reformed Bill on
Christian marriages but it has not been enacted.29
BANGLADESH
26
29 Law Commission of Bangladesh Report on Proposed Amendment of the Divorce Act (2006)
30 ALRD has started editing, adding and deleting the existing CHT Act to get the present practice
incorporated in it. They want to have as an outcome a document that can be published so that
people will at least be aware of their laws and rights. A large section of the act is on land-its use,
rent collection, etc and the other section is on social life.
Some of the challenges common to the legal aid and mediation is the threat of a
backlash. There are reports of threats and attacks on the NGO staff by conservative
forces and local interest groups, and SARA tries to protect its intervention
through written consent forms to justify taking up cases. Both SARA and BRAC
have received threats, had its offices attacked and staff assaulted.32 A concern
related to all mediations arises from the perspective of the mediator, as this
influences the options made available to women and the outcomes in terms of
justice for women. For example, in cases of domestic violence, or a matrimonial
breakup the shalish can negotiate an alternative for women, opening options
that may not be traditionally available, or it may encourage women to stay
within the marriage because they are economically dependent. Such challenges
involve improving the conceptual understanding of the shalish on patriarchy,
justice and going beyond knowledge of legal rights. A related concern is that of
the approach adopted by the shalish to what extent does the shalish listen to
31 This section draws upon discussions with Raja Devasish Roy. See the Appendix for details
32 Furthermore the ADR and legal aid facilitated by the NGO sector threatens the customary
hierarchy in these villages. Recourse to a formal system is thus perceived by some local leaders as
undermining their authority.
BANGLADESH
27
BANGLADESH
28
what women want, and negotiate solutions towards that. The shalish very often
tends to present options to the woman on the basis of what the negotiators seek
rather than what the woman wants. BRAC is in the process of restructuring its
programme to address the needs of its beneficiaries, so that legal aid is a means
of empowerment and behavioural change. The programme seeks to develop
the role of female barefoot lawyers/shebikas within the community so that they
combine advocacy and problem solving with preventive action. This involves
revising the capacity building to include concepts of gender equality and gender
justice in addition to information on rights. Another challenge of community
based work on law is that of corrupt local lawyers charging a fee from clients,
and exploiting the legal aid programme. BRACs selection procedures of panel
lawyers are rigorous to ensure they weed out corrupt/ malintentioned lawyers,
but these are admittedly not fool proof. As far as possible, they rely upon the
services of programme organisers and staff lawyers rather than lawyers for legal
aid, select lawyers who have substantial experience with a record of doing probono work.
Both SARA and BRAC district centres hardly receive cases from the Hindu
community although the shalish is open to members of all religions.33 There
is an apprehension of backlash in taking up cases of women from the Hindu
community, so innovative approaches are found to work around the problem.
BRAC reports a case of a Hindu woman who wanted divorce in order to remarry, a remedy that is not available under the Hindu law. BRAC helped her in
preparing an affidavit stating that she was of sound mind and had decided to
leave her husband, had the affidavit notarised. Although this was not a legal
document, it legal trappings lent a degree of formality to allow the woman to
separate from her husband and cease relations with him. SARAs community
group for women, the MNS, state that one of the reasons for not getting cases of
Hindu women is that womens rights in the family are not stated under Hindu
law so there is no social or legal space to argue in her support. They report
having received only one case of a Hindu woman since 2004. The case involved
the claim of a widow to sell property to maintain her children. Talks with her
family failed as they refused to agree, but the community agreed with her since
33 A large number of Hindu women attend the rights awareness course conducted by HRLS.
the MNS focussed on the angle of childrens welfare, rather than her right. She
gained some support only because her claim was not of a personal nature but
for the benefit of the children. As the matter could not be resolved informally,
a legal case was filed through BLAST.
Formal Law
The relationship of minorities with the state, like in most other places, is
manifested in socio-economic under-development, unresolved political
tensions that have served to justify autonomy with respect to their family
law, and stifle discussions for womens rights within the family. The degree
of autonomy for minorities even within the framework of plural family
law is more heightened than that for majority community, given the
states reluctance to recognise womens voices seeking change, as validly
representative of the needs of the community. The state continues as in
other similar contexts, to view male leaders, particularly religious and
conservative leaders as representing the community. This status quo accounts
for a severely under-developed interface between womens rights in Hindu
families and the legal system.
The advances made in relation to Muslim family law have successfully
contained patriarchal rights though development of procedural conditions.
Even as this strategy has avoided a substantive challenge to the rights at the
normative level, they have, through the device of procedural conditions,
BANGLADESH
One of the striking aspects that come across during rights interventions in
Bangladesh is that the debates addressing religious based plural laws are
couched in the secular language of rights without much reference to Islam, and
they do not resort to religious interpretations or the projection of a religious
identity, or indeed demonstration of engagement with religion. Even so, these
debates are keenly aware of the place Islam occupies in the Constitutional and
political context, and reflect an avoidance of formulations and terminology
that would be counter productive. The liberatory ideals of the independence
movement and the fundamental rights remain tangible resources that activists
and organisations draw upon to negotiate challenges in the area of family law
and elsewhere.
29
BANGLADESH
diluted the legality of customary practices relating to triple talaq, the hilla
and the mehr. The discussions on registration of marriage by Hindu women,
reflects a similar approach of creating an entry point for rights interventions
through an administrative procedure. The debates on law reform in terms of
minorities are more optimistic in the current political environment; and the
strategic focus on registration over codification of the law, seems to reflect the
larger trend of family law engagement in Bangladesh, in making headway by
addressing the substantive inequalities through procedural and administrative
interventions.
30
INDONESIA
Religion As A Resource For Promoting Gender Equality,
Plurality And Justice
The study looked at different facets that cultural rights acquire while asserting
human rights and womens equality, and probed the relationship of the strategies
employed to the political history and context in which they are implemented.
These interventions in the arena of culture in Indonesia include but are not
confined to progressive interpretations of religious texts, and identifying aspects
supporting womens rights within Islam. They also encompass the use of Islam
as a social movement to complement secular Constitutional principles, in the
construction of a plural, tolerant and liberal national identity. Notably, some
religious organisations have made gender justice a component of their work
in the community, reflecting the autonomy enjoyed by religious formations
at the local levels. Many of these developments have been facilitated and
strengthened in collaboration with NGOs, both secular and Muslim womens
groups. The secular womens groups on their part, view their engagements
INDONESIA
31
INDONESIA
within culture as being necessary for expanding the arena within which social
justice is asserted (without having to abdicate their secular moorings). This
report situates these engagements and strategies in the context of the political
and cultural background of Indonesia, where alliance building between the
secular and the religious is necessary for outreach to the community and for
resisting fundamentalism. It categories the engagements with womens rights,
in two parts - those that are initiated by Islamic formations, and those that
are led by secular organisations and movements. Even as these two categories
are anchored in different philosophical traditions, their work reflects interface
and intersections to serve the dual purpose of affirming womens rights and
resisting fundamentalism. Both these broad streams, engage actively with
culture, contesting injustice, supporting plurality and difference to enhance
avenues for justice.
32
INDONESIA
Following the financial crisis of 1997-98 and the fall of Suharto, Indonesia has
been in a transition phase moving away from authoritarian rule towards greater
democracy. TheREFORMASI(reform) period is characterised by neo liberalism, as
well as greater political and social openness. It has also been accompanied by
growing Islamisation. The Asian financial crisis fuelled a political transition, but
also changed power equations and gave democratic space for political Islam
and fundamentalisms to reconfigure authoritarianism at the local level. This
space has also been used by progressive voices to resist fundamentalism and
seek justice and accountability for past violations. As part of this expression,
social movements and womens groups have brought into public domain, the
record of violence in Aceh, West Papua, the 1965 purge, the May 1998 riots
pressing the state to pay attention to issues of environment, natural resources,
ethnic conflicts and violence against women. In fact, theREFORMASIera began
with demands for accountability for the violence directed at the ChineseIndonesian minority community, in particular, the brutal sexual assault against
ethnic Chinese women. In response to these demands, the Komnas Perempuan
(KP) was established as demonstration of the States commitment to combat
violence against women. The engagements on gender justice and protection of
womens rights are clustered under two distinct heads those by the religious
formations and those by the secular ones. The discussions under each category,
brings out the way in which the two intersect and complement the goals of
gender justice.
33
INDONESIA
Following the financial crisis of 1997-98 and the fall of Suharto, Indonesia has
been in a transition phase moving away from authoritarian rule towards greater
democracy. TheREFORMASI(reform) period is characterised by neo liberalism, as
well as greater political and social openness. It has also been accompanied by
growing Islamisation. The Asian financial crisis fuelled a political transition, but
also changed power equations and gave democratic space for political Islam
and fundamentalisms to reconfigure authoritarianism at the local level. This
space has also been used by progressive voices to resist fundamentalism and
seek justice and accountability for past violations. As part of this expression,
social movements and womens groups have brought into public domain, the
record of violence in Aceh, West Papua, the 1965 purge, the May 1998 riots
pressing the state to pay attention to issues of environment, natural resources,
ethnic conflicts and violence against women. In fact, theREFORMASIera began
with demands for accountability for the violence directed at the ChineseIndonesian minority community, in particular, the brutal sexual assault against
ethnic Chinese women. In response to these demands, the Komnas Perempuan
(KP) was established as demonstration of the States commitment to combat
violence against women. The engagements on gender justice and protection of
womens rights are clustered under two distinct heads those by the religious
formations and those by the secular ones. The discussions under each category,
brings out the way in which the two intersect and complement the goals of
gender justice.
33
with two women members of the NU at the national level34, discussions and
field visits were made to three PESANTRENS known for their progressive social
justice work, to hold discussions with the +YAYIS(male religious teacher at the
PEASANTEN), one .YAYI(female teacher at the PESANTREN), two of which housed
womens crisis centres in their premises.35
INDONESIA
34
34 Sinta Nuriah Wahid, the wife of the ex-President, Late, Abdurrahaman Wahid (popularly
known as Gus Dur) and Neng Dara. See the Appendix for further details
35 The three pesentren are, Mawar Balquis, womens crisis centre, Pesantren Babakan Ciwaringin
and Puspita Amal Hayati. See the Appendix for further details.
36 It contested elections in 1955 and emerged as the 3rd largest party. After the 1955 elections the
NU decided to remain a social movement and that it would not participate in politics. However,
in 1984 the NU returned to politics and in 1997 it merged with the United Development Party
(PPP).
37 In 1945, Sukarno proclaimed the The Pancasila Principles as the philosophical foundation of
Indonesia. The principles are: (1) Belief in the one and only God; (2) Just and civilized humanity;
(3) The unity of Indonesia; (4) Democracy guided by the inner wisdom in the unanimity arising
out of deliberations amongst representatives; and (5) Social justice for the whole of the people of
Indonesia.
38 The NU also came to be known as neo modern under the leadership of Gus Dur
INDONESIA
At the structural level too, NUs leadership has liberal leanings, supporting
39 The Muhammadiyah is split into two ideological groups; one sect is modernized, while the
other believes in Wahabbism. The Muhammadiyah is more conservative than the NU, but it is
more modern in terms of adopting western education.
35
INDONESIA
36
The pesantrens are residential schools of religious learning at the local level,
supported wholly by local communities, and are largely rural. The pesantren
tradition goes back to the 15th century when Islam was introduced to Indonesia.
It is here that Islam assimilated with local traditions and culture rather than
seeking to replace the local culture. The pesantrens provide only religious
education, but the students combine this with modern education received in
madrasas on payment of additional fee. The madrasas are generally situated in
separate premises, close to the pesantren or sometimes, in the same premises.
The daily schedule at the pesantren intersperses religious studies with modern
education at the madrasa (languages, maths, science, history etc). The pesantrens
are co-educational, although the living arrangements and educational spaces for
boys and girls are separate. The madrasas may have co-educational classrooms
where typically, a curtain or some form of partition separates the boys from
the girls. The schedule in the pesantren is rigorous, but the size and facilities
vary with the wealth of the pesantren. What is important however is that at the
local level even in rural areas, religious schools are open to girls on payment
of an affordable fee. At the minimum girls can avail of religious education and
boarding facilities outside the home, even if their fee is not enough to cover
their attendance at the madrasas.
INDONESIA
The education allows the girls the option to pursue higher education, religious
or otherwise - and subsequently, a career. Although pesantrens provide religious
education they do not cut their students off from exposure to the world. The
Pesantren Babakan Ciwaringin, at Cirebon, run by Nyai Masriyah Amva takes
the girls out for picnics once a year, and holds a film screening for them twice a
week. According to Nyai Masriyah, the boarding school provides education for
moral and social development, and an environment for lasting friendships. She
sees education for girls as necessary step towards making them not just good
mothers, but also agents of social transformation in society.
37
INDONESIA
38
Sinta Nuria Wahid has played an active role in initiating the establishment
of womens crisis centres at pesantrens. According to her, the womens crisis
centres in pesantrens provide religious and legal responses to combat violence
against women. This is symbolic as well as strategic - it sends out a message that
religion condemns violence against women, and by attaching the crisis centre
to the pesantren, ensures society takes responsibility to address violence against
women through the resources it contributes to sustaining the pesantren. It also
fulfills an important legal obligation to implement the Domestic Violence Act,
2004. They have founded a few crisis centers in pesantrens, only after ensuring
that the pesantren qualifies the criteria that there are no cases of harassment or
polygamy reported from the pesantren. The criterion is stringent as polygamy
is legal and common amongstKYAIS The two pesantrens visited and their case
work, describe the broad approaches to violence against women.
The Womens Crisis Centre Mawar Balquis in Arjawinangun, Cirebon, primarily
receives cases of domestic violence and of abused children. They primarily
provide counselling, which they describe as combining of religious, social and
legal advice. The procedure for mediation involves calling the opposite party to
their office by a notice for discussion. Where the man feels that the Centre is
partisan towards the woman, the Centres staff meets the man outside their office
or even in his house. The victims are from diverse backgrounds, including women
with formal education as well as those lacking education, it also includes wives of
+YAIS and government officials. The most common cases taken up by the Centre
pertain to domestic violence and matrimonial issues. Where a case is grave, and
requires legal intervention, the Centre takes the assistance of the Cirebon lawyers
association. Similarly, they use the services of a psychologist if required. One of
the biggest problems they face is the lack of shelter facilities for victims, and have
approached the local government for setting up a shelter home.
In domestic violence cases, the Centre obtains a signed agreement/ undertaking
by the perpetrator that he will stop violence. If such an agreement is broken,
they file a police report and it becomes a criminal case. Most domestic violence
cases peter out as the legal system brings with it financial and social pressures,
the stigma of imprisonment for her husband and custody battles over children.
In cases where women receive threats from their husbands family, divorce is
pursued. For women employed gainfully, child custody can be at the expense of
child support, as the husbands do not want to share the financial responsibility
for children. With regard to pre-marital pregnancies of minors arising out of
rape, the Centre negotiates with the school to not expel the girl and works with
her peers to ensure no stigma is attached to the girl. In rape cases the Centre
works with local hospitals for acquiring an abortion for the girl. The Centre also
pursues criminal action and most cases have been successful.
Even though in principle they do not provide mediation in cases of rape and
trafficking, exceptions are made. For instance in a case of a 17 year old girl who
was 7 month pregnant as a result of being abducted and raped, the 27 year old
accused was arrested under charges of kidnapping. They mediated to explore
marriage between the two, and when he refused they filed a case against him. They
continued mediation with the families later, and he finally agreed so the marriage
was conducted in prison. Even as such approaches are socially conservative
and not women centred, the motive behind such mediation is often to obtain
paternity papers necessary to secure child support. Despite being located inside
the pesantren, the work of the crisis intervention centres is not easily accepted,
but seen as interference within the family and a Western concept.
INDONESIA
39
INDONESIA
INDONESIA
41
INDONESIA
42
42 See for example, Independent Report of NGOs concerning Implementation of CEDAW (2007)
INDONESIA
Lies Marcoes, who played a key role in initiating and developing work on
reproductive rights and gender trainings in the context of Islam, came from an
academic background in Islamic studies, but worked in secular feminist groups
as a gender trainer. To connect with Islamic womens groups and the pesantrens
she located herself within the P3M, the Indonesian Society for Pesantren and
Community Development, a national organisation in Jakarta, working on land
reforms and democracy. Here she developed the gender programme under the
project, Fiqh An-Nisa, with a small group of both Islamic and secular feminists,
beginning with curriculum development of a gender and reproductive rights
training course. To make the training compatible to groups working within
religion required a few changes. For instance, instead of beginning with gender
concepts, they began with Ayat, or verses from the Koran, touched upon Islam
before moving to discuss gender relations. Through this programme with the
pesantrens, they were able to jointly examine the curriculum of the pesantrens
for its students, to critique the inequality between curriculum for male and
female students within the pesantrens.
43
INDONEESIA
Rahima, (meaning from the womb in Arabic), was founded in 1995 to develop
the work started by the initiative, Fiqh An-Nisa, within P3P.43 The gender and
reproductive rights trainings initiated through the P3P, opened up immense
possibilities of work on gender equality within the framework of religion that
required dedicated organizational capacities on the subject. Fiqh An-Nisa thus
evolved into Rahima, an independent womens organization. It was founded
by women leaders from secular and religious backgrounds who shared the goal
of expanding gender equality within the domain of religion and culture, to
influence and collaborate with institutions that have the widest outreach and
influence over the society, including the rural population.
44
43 Based on discussions with Dani, Nining and Ciciek at the Rahima office in Jakarta. See the
Appendix for details.
INDONEESIA
In the context of fundamentalism, they find the use of core values and principles
more effective in embracing equality across marginalised and stigmatised
groups, over explicit issue specific articulations. For instance, Rahima adapted
the lyrics of an old spiritual song to include womens rights, changing the title
and lyrics to match the context when its sung. In the context of fundamentalism,
they call it song of justice or equality rather than gender song, salawat of
musawah. Similarly, they lay emphasis on individual choice and independence
to secure womens right to decision making, to support choices of single and
lesbian women, and sexuality rights more broadly. Their strategy is to assert
core principles of life, equality, using prophets stories and verses to support
this, before examining if a given context or situation upholds these principles.
Likewise, they allow their alumni and students to choose the term that works
best in their context, so long as the idea of equality is not compromised. They
provide access to their participants to participate in talk shows on radio, print
leaflets of their writings on themes such as Islamic discourses on abortion,
female witnesses, and distribute it to their alumni.
Asserting State Accountability for Violence against Women the Komnas Perampuan
The womens movement in Indonesia gathered momentum, rallying for
justice and accountability for sexual violence against ethnic Chinese women
in the May 1998 riots, seeking commitment from the REFORMASI government
45
INDONEESIA
46
to act against violence against women.44 The Komnas Perempuan (KP), or the
National Commission on Violence Against Women, was established through a
presidential decree as a demonstration of this state commitment, with leading
members from the womens movement appointed to create an environment
for the elimination of all types of violence against women, and to promote the
enforcement of womens human rights in Indonesia45. It works with a team of
Commissioners or experts from diverse streams, with a staff under the leadership
of a Chairperson, and collaborates with several agencies, NGOs, community
groups and state bodies to initiate activities and implement progammes. The 13
Commissioners are drawn from former judges, police women, religious leaders,
including a member of the Fatayaat and +YAIS. Its work on violence against
women spans private and public forms of violence as one continuum, covering
domestic violence against women family members and domestic workers, as
well as violence in areas of conflict whether perpetrated or non state actors.
Its multiple interventions on these issues are mutually reinforcing, so its
training programmes, law reform, advocacy and policy initiatives necessarily
complement case work and monitoring. The most notable feature of the KP
as a state created institution is perhaps its victim centred approach to justice
and the understanding it brings to violence against women. In its coverage of
violence against women from private and public violence, historic and ongoing
violence the KP has established itself as a wholly non-partisan institution
with the capacity to take on state perpetrated and condoned violence against
women, as emphatically as it does violence by private actors in the home
and the community. That in all these processes, the victim is at the centre,
defining justice and participating in the interwoven processes of truth telling,
recovery, and accountability makes the KPs work very unique. It serves as
44 The Volunteers for Humanity, a community-based organization that assisted victims of the
May Tragedy, recorded about 152 cases of rape, including 20 resulting in deaths. The Fact
Finding Team, established in the same year by the Habibie government, to investigate the May
Tragedy, verified that there were at least 76 cases of rape and 14 cases of other forms of sexual
abuse.
45 The KP was created in 1998 under Presidential Decree Number 181/1998, and was subsequently
superseded by Presidential Decree Number 65/2005 to respond to institutional growth. After 10
years of existence, they are looking to overcome the institutional limitations by getting their
powers and funding aligned with the National Human Rights Commission, through which they
currently receive funding. It took 10 years for KP to be recognized as a State body rather than an
NGO, and it is looking to be legally re-constituted to bring it on par with other State bodies.
INDONEESIA
Many of its activities complement each other. The KP has partnered with womens
groups as well as research, academic and professional associations (e.g. lawyers)
to resist fundamentalism through its support to the work on womens rights and
social justice perspectives of Islam, the Constitutional commitment to equality,
plurality and multiculturalism, and to community groups negotiating womens
rights in conflict areas, in particular Aceh.
47
INDONEESIA
48
46 See for example Ratih Ayu Where Their Stories Become Our History (Copy available with
PLD)
47 As above
contested within NU, the process of truth telling has been powerful in that it has
created the space for women to tell their stories, as well as to re-connect with
other survivors, forging a community for individual and collective recovery. The
process of truth telling highlighted the need to re-write text books to correct the
representation of these women, and led to organising of workshops with the
descendents of the women to restore their dignity through acknowledgment of
the violence that was perpetrated on them.
The Prosperous Justice Party (PKS), the United Development Party (PPP) and the
Crescent Star Party (PBB) are the 3 major Islamic political parties that supported
INDONEESIA
The debates over the anti-pornography law reflect the inroads by fundamentalists
into law and public life. The law overtly supports regulation of pornography,
but covertly introduced regulation of womens dress, expression and freedoms,
homogenised a plural culture and put in place civilian surveillance through
the regulation of women bodies, dress and conduct. The Anti-Pornography Bill
was initially introduced in 1999 but rejected by the then president, Habibi,
and was re-introduced in the Parliament on a few occasions for debate. When
the Bill was placed in Parliament in 2006 a coalition of many organisations,
religious leaders, ethnic groups and civil society members came out in strong
opposition to its enactment, as it sought to erase a plural culture and impose
a version of Islamic fundamentalism in an under-handed manner. The law has
particularly drawn protests from Bali where art work has sexual overtones. The
resistance to the bill saw many diverse groups join forces womens groups, the
Fatayaat, individual members of the NU including Sinta Nuriah Wahid, artists
and performers, LGBTI and indigenous groups. The two main groups leading the
resistance at the centre reflected diverse strategies of resistance these were
the Aliansi Nasional Bhinneka Tunggal Ika (ANBTI) and the Lembaga Bantuan
Hukum Asosiasi Perempuan Indonesia (LBH APIK). While the ANBTI rejected the
Bill, the LBH APIK felt it would be more fruitful to negotiate changes within it.
They provided various suggestions including covering the abuse of children in
the sex industry (Article 11) and to narrow the definition of trafficking (Article
8).
49
INDONEESIA
the law and were able to influence national parties. Despite the protests, the
law was passed on October 30, 2009 and while the present law is watered down,
the text remains controversial. Bali, Yogjakarta, Papua and North Sulawasi have
rejected this law.
The law bans images, gestures, or speech deemed to be pornographic,
and punishable with imprisonment upto 10 years with hefty fines. For
instance, downloading pornography from the internet draws upto four years
imprisonment, and it criminalises public performances that incite sexual desire.
Its sweeping terminology allows for discretionary and wide interpretation, with
the potential to criminalise traditional dances and cultural forms of expression,
art and undermine multiculturalism in Indonesia. It also allows civil society to
help prevent pornographic acts and thereby permits surveillance of people by
citizens. In enacting one moral standard for all, the law is said to have eroded
thePANCHSHILA (Pancasila) with the Shariah (Sharia). Arrests under this law have
so far been reported on four erotic dancers48 and a popular rock star.49 The
Act is viewed by a cross section of society as the beginning of a process leading
to disintegration of the country and erosion of diversity. The resistance to it
continues, with monitoring of the law with an objective of exploring a judicial
challenge to its Constitutional validity eventually.50
IV. CHALLENGES
Despite a wide rural base available for mobilising liberal and gender just
principles within Islam, and the intersections between the religious and secular
emancipatory forces, the threat of fundamentalism and its influence over
public policy, law and eventually the state continues to grow. As observed by
Kyai Hussain of Fahimina, the engagement of the NU in politics will undermine
its role as a progressive, liberal, Islamic social movement. The imperative of
electoral gain has and will continue to compel NU leadership to adopt populist
50
INDONEESIA
51
NEPAL
NEPAL
I. POLITICAL HISTORY
Nepal has historically been politically, economically and culturally dominated
by a Hindu PAHADI(hill) group referred to as the Caste Hill Hindu Elite. Nepal
was governed by a monarchy until the final monarch, Gyanendra Shah Dev, was
forced to relinquish his powers in 2008. The Maoist movement was instrumental
in transforming Nepal into a federal democratic republic.
Nepals consolidation as a nation is attributed to Prithvi Narayan Shah, a Gorkha
king who unified three smaller kingdoms into present day Nepal in 1768.
52
NEPAL
The Shah dynasty retained control over Nepal until it was taken over by the
British in 1816, followed by a period of political strife that eventually found
resolution through peace agreements with the British in 1847. As a result of
these agreements, the Ranas were rewarded with a hereditary title and the
office of the Prime Minister in recognition of their support to the British rule,
with the emperor reduced to a figurehead. Following independence, popular
dissatisfaction against the Ranas grew, and by the 1950s the Shah family
returned to power. Tensions against feudalisms began to brew in the western
region which gradually manifested itself as armed struggles. Some political
commentators view these tensions as the beginnings of the armed struggle
against the monarchy in Nepal. According to one view, the armed struggle of the
Nepalese people is as old as the monarchy itself.51 Other ethnic groups and nonruling minorities across Nepal experienced frustration and neglect, particularly
with regard to access to political participation. The frustrations with feudalism,
political monopoly and aspirations for a participatory people orientated state,
led to the pro-democracy peoples movement (Jana Andolan) that forced King
Birendra to give way to the first elected government in 1990, with the monarchy
as the Constitutional Head. However, the changes brought about as a result
of the Jana Andolan and the Constitution adopted in 1990 left the countys
minorities disappointed. Article 4(1) of the Constitution of 1990 declared Nepal to
be a Hindu and Constitutional Monarchical Kingdom, reaffirming the Hindu
superiority over other ethnic and religious groups. Tensions at multiple levels,
including the failure of the transfer of power in 1990 to end feudal landlordism,
the financial crisis of 1994-1995, the frustrations with Nepals dependence on
India and denial of democratic values such as the right to equality and freedom
of speech, combined with the aspirations of ethnic groups gave the Maoists
legitimacy. The Communist Party of Nepal (Maoist), CPN(M) was able to harness
the disappointments of the minority groups, amongst others, and use it to gain
support and strengthen the Peoples War (PW).
The royal massacre of 2001 became symbolic of the dysfunctional, self-serving
nature of the monarchy and its historic failures to deliver to the nation. The
51 Anand Swarup Verma and Gautam Navlakha Peoples War in Nepal: Genesis and Development
Economic and Political Weekly, May 19, 2007 at pp. 1839.
53
NEPAL
54
The womens movement was part of and drew upon the rising levels of
consciousness of minorities and growing expressions of equality, to carve
an agenda for womens equality in the Constitutional process. The debates
on recognition of disadvantage based on ethnicity, religion, sex and gender
brought diverse groups to engage with the Constitution drafting process to
carve an inclusive Constitutional framework that acknowledges the historic
disadvantages of specific groups through provisioning of political representation
and affirmative action. The main debates and gains in terms of inclusion,
equality and multiculturalism are summarised below.
52 Nepal has a history of enforcing a new Constitution with every change in its political system.
The first constitution of 1948 was never implemented and since then a new Constitution has been
enacted and implemented in 1951(interim), 1959, 1962, and 1990.
53 The Constituent Assembly has been divided into four committees and each committee is
responsible for a particular aspect of formulating the Constitution. The committees are:
1) Legislature-Parliament Committee
2) Thematic Committee-It has been divided into 10 sub-committees based on the 10 themes to
be covered in the constitution: fundamental rights and directive principles, restructuring States
and districts, determining the form of governance of the State, distribution of natural resources
and public revenue, form of legislative body, structure of constitutional bodies, judicial system,
protection fund for minorities, national interest preservation, and, cultural and social solidarity.
3) Procedural Committee- This includes committee on citizens to inform them of the progress,
committee on data collection of public opinion on the Constitution, and the committee on capacity
building and source management of the Assembly.
4) The Constitutional Committee is responsible for the actual drafting of the Constitution.
NEPAL
54 Article 63(4) of Interim Constitution: The principle of inclusiveness shall be taken into
consideration while selecting the candidates by the political parties..the political parties shall
have to ensure proportional representation of women, Dalit, oppressed tribes/indigenous tribes,
backwards, Madhesi and other groups, as provided for in the law.
Notwithstanding anything contained in this clause, in case of women there should be at least one
third of total representation obtained
55 The Constituent Assembly is a Unicameral Parliament, consisting of 601 members; 240 members
were elected through a direct electoral process representing single-member constituencies across
the country; 335 members were nominated from party lists through a proportional representation
system; and 26 are nominated by the cabinet.
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56
The historically excluded groups comprising of the lower castes, the ethnic
groups (Janajatis), religious minorities (Buddhists, Muslims, and Christians),
and by people of Indian ethnicity (Madhesis) living in the economically crucial
Tarai region in the south of the country, have contested the frameworks
for recognition and representation. There were debates on the creation of
Constitutional Commissions for each marginalised group including Janjatis,
Madhesi, and Muslims. However, this proposal has not found favour with
CA members primarily for pragmatic reasons related to the difficulties of
monitoring multiple commissions. In respect of the CA, there are anxieties
and dissatisfaction in relation to represetentation of minority groups as well
as the proportion of representation. For instance, the Christians have not been
accorded any representation. A major bone of contention for the Madheshi is
they are under-represented in Parliament, and they demand an increase in the
seats allocated to them in proportion to their population.
The Madhesis is a large ethnic group that has gained specific recognition and
representation in the interim Constitution. It is a loose term used for persons
who are ethnically from Indias Bihar and East Uttar Pradesh regions, residing
in the southern plain region called Terai, in Nepal, comprising of sub groups
that are neither culturally nor religiously homogenous. Despite this diversity,
their shared experience of discrimination in terms of citizenship, language and
lack of representation in the police, armed forces and the bureaucracy has
unified the group for the demand for autonomy within Nepal, to fully address
the historic exclusion. They feel let down by the Interim Constitutions failure to
include a provision recognising the Terai region as an autonomous province in
a federal Nepal, with devolution of powers to regions, zones and districts. This
grievance fuelled violent riots by the Madhesis following the adoption of the
Interim Constitution from late 2006 leading to eruption of large scale violence
in March 2007. As a result, the government renewed its talks with Madhesi
groups in April 2007, despite which tensions between the state and the Madhesi
groups remain.
Muslims are a small minority, less than 5% of the total population. Prior to 1992,
they were not allowed to build mosques in Nepal. A six point compromise had
been reached between the previous government and Muslims, comprising of (i) recognition as a separate group, (ii) setting up a permanent Haj Committee,
(iii) securing Madrasas and building mosques, (iv) protection of religious places,
(v) forming a Commission for Muslims and (vi) quotas for education.
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The amendment has introduced womens right to inherit property from birth,
removing the condition for daughters to attain 35 years. It also recognises a
wifes equal right to her husbands property immediately after marriage, and a
widows right to claim her share of property from the joint family after the death
of her husband, that remains hers upon re-marriage. It similarly, recognises the
right of the divorced woman to retain her share of the husbands property even
if she remarries. Despite these reforms, the law retains a discriminatory clause
that requires inherited property to be returned by a daughter upon marriage.
The present law delineates different sources of inheritance for married and
unmarried women with married womens share restricted to the husbands
property and unmarried womens share to the fathers property. A daughter
however, can ask for partition at any time before her marriage but cannot claim
her share after getting married. At present, married daughters do not have
inheritance rights on ancestral property. FWLD is in the process of challenging
56 The present law, Country Civil Code of 1963, applies to all communities regardless of religion.
Although there is no explicit reference to religion it is considerably influenced by Hindu law.
57 The petition was filed in 1993 by Meera Dhungana, who is associated with FWLD
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reduced the extent of discrimination in the last few years.56 Prior to these
legislative amendments, daughters could not inherit property, except if they
remained unmarried upon reaching the age of 35 years. This right was strictly
conditional upon her age and unmarried status and accordingly required the
daughter to return the property if she got married. Married women got a share
in the husbands property only after they either attained the age of 35 years or
after 15 years of marriage. These conditions were challenged in the Supreme
Court as being discriminatory of the equality guarantee in the Constitution.57 As
a result of this challenge, the Supreme Court issued directives in 1995 to amend
the discrimination in the law. In accordance with these directions, the Legal Aid
and Consultancy Centre (LACC) and the Forum for Women, Law and Development
(FWLD) along with other groups drafted the 11th Amendment to the Country
Code on womens inheritance rights. The Bill faced enormous resistance from
many sections of the society, even some womens groups who viewed daughters
right to succession as destructive of the familial ties that culturally defined the
brother-sister relationship. Eventually, in 2002 after a long struggle, the Bill
popularly referred to as the Womens Right Bill, was finally passed.
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In reality however, women, much less unmarried women are not likely to ask for
division of property. Most wives do not claim their share of the property except
upon divorce or separation. It is rare for unmarried daughters to exercise such
right as the majority are likely to be too young to comprehend rights, and that
such an assertion will strain their family relations. FWLD has thus far received
only two such cases. These are s 4HE CASE OF A YEAR OLD SINGLE WOMAN WHO ASSERTED HER CLAIM AFTER SHE WAS