Modern law, traditional ‘Salish’

and civil society activism in

Bangladesh
Habibul Haque Khondker Zayed University

Abstract attention and have been studied from various points

One of the challenges of modernisation in Bangladesh of view and theoretical orientations, modernisation
is played out in the confrontation between the insti- of the legal sphere remains a neglected field. The field
tutionalisation of modern law and the practice of tra- of women’s studies in Bangladesh has also grown in
ditional arbitration, known as Salish. Often this volume and diversity (Women for Women, 1975;
traditional, informal or semi-formal adjudication Alamgir, 1977; Chaudhury and Ahmed, 1978; Chen,
process which survives in the rural society deals with 1986; Kabeer, 2001; White, 1992). Yet, despite a host
issues related to social and cultural norms and prac- of problems related to the administration of law, the
tices. Though not confined to, the bulk of ‘salish or institutionalisation of modern legal systems, the cul-
informal adjudication involves women and their var- tural acceptance and respect for the rule of law in gen-
ious ‘infringements’ of moral behaviours. The pro- eral and specially with reference to the women of
posed paper deals with the efforts of civil society Bangladesh remain unstudied. One area which is of
organisations in Bangladesh in general with specific immediate interest to our paper is reforms, and when
focus on the Ain Salish Kendro (ASK), a legal aid or- necessary, replacement of the traditional systems of
ganisation and an important member of the civil so- arbitration based on customary laws deserves more at-
ciety organisations in Bangladesh to flesh out the tention than it has received so far. In this paper, I am
confrontations between formal law and informal law, interested in examining the role of civil society ac-
rationalisation of public life, and the interface be- tivism in spreading the ethos of rights, especially the
tween state and civil society on the one hand and civil rights to protection of law against arbitrary adjudica-
society and the traditional rural society on the other. tions and arbitrations. These arbitrations are based on
The paper will shed light on the challenges and prom- age-old traditions known locally as ‘salish’. Much of
ises of effective implementation of law as well as the the ‘salish’ or localised arbitrations administered by
problems of indigenisation of the adjudication process rural elders often follow religious edicts or ‘fatwa’ or
without sacrificing the ideals of justice, i.e., neutrality, some rough interpretation of religious codes to arbi-
fairness and equality that enshrine modern juridical trate disputes. When these disputes, especially if they
process. involved infringement of moral norms, sexual con-
ducts, or any such behaviors involving the relation-
ship between members of the opposite sex, the
Introduction judgments are invariably biased against women. Sen-
While problems of economic, political, and social tencing in such cases is harsh, often barbaric, and the
modernisation in Bangladesh, a low-income country staging of such unconscionable punishments are pub-
with a population 160 million receive a great deal of lic to inflict maximum humiliation.

isa.e-Forum
© 2012 The Author(s)
© 2012 ISA (Editorial Arrangement of isa.e-Forum)

1
 K hondker

At the same time, Bangladesh has made significant sciousness driven. Some of the consciousness-driven
progress in the human development indicators, espe- NGOS or civil society groups such as Ain o Salish
cially pertaining to women’s literacy, reduction of ma- Kendro (ASK) or Nijera Kori have been very active in
ternal mortality, thus meeting some of the goals of raising consciousness of the women in Bangladesh,
the Millennium development goals. Yet, a large num- providing them legal assistance in times of need, etc.
ber of women are exposed to systematic exploitation, In addition to ASK, there are number of legal aid or-
domination and humiliation on a day to day basis. ganisations in Bangladesh in the NGO sector. In fact,
Despite tangible improvements in the overall condi- law has become a vehicle for social activism in
tions and status of women as evidenced in the UN Bangladesh. As Sheldrick suggests, ‘Law, with its lan-
data, paradoxically, a large number of rural women re- guage of justice, fairness and equity, seems well suited
main vulnerable to the stranglehold of patriarchal in- to advancing claims for social justice….social move-
stitutions of which the traditional arbitration or ‘salish’ ments frequently employ the strategies and tactics cen-
is, perhaps, the worst. By monopolising the domain tered around the concept of rights’ (Sheldrick,
of administration of justice, this practice ensures con- 2004:10).
trol over women’s bodies and lives. Newspapers and In this paper, I examine the role of ASK in pro-
reports put out by various research and non-govern- moting the rights of the women and making them
mental organisations bring to light countless cases of aware of their rights as guaranteed in the constitution
violations of women’s rights and their continued vul- of the People’s Republic of Bangladesh. ASK, since its
nerability. formation in 1986, has made significant contribution
One of the positive developments in Bangladesh to the protection of the rights of women in rural
has been the rise of a civil society, albeit, urban based Bangladesh. After a brief discussion of the evolution
and led by English educated middle and upper classes of modern legal systems in Bangladesh, I present a
of Bangladesh society. Many of these NGOs have number of cases where rural women of various ages
achieved some degree of penetration into the rural so- were subjected to tortures, dreadful abuse, and death
ciety. The non-governmental organisations, in recent under the cover of ‘salish’, the so-called traditional ad-
years, have proliferated in Bangladesh. One of the rea- judication and then discuss the role of the civil society
sons for the proliferation of NGOs is the absence of organisations, Ain-O-Salish Kendro in particular, in
government effectiveness. Some of the NGOs such as fighting this menace.
BRAC or Grameen Bank (it is sometimes disputed as
to whether Grameen Bank is an NGO or just a bank
with a social agenda [a social business, perhaps] or a Development of Modern Law in
business house), which began as an NGO, has grown Bangladesh
very big. BRAC is regarded as the largest NGO in the Bangladesh, as part of the historically defined Indian
world in terms of its budget and personnel. Skeptics sub-continent, has been exposed to the forces of global
regard it as a government within the government or a modernity since the colonial days dating back to the
parallel government. There is a plethora of critique late eighteenth century. One of the markers of insti-
against the NGOs in Bangladesh. Some of the cri- tutional modernisation was the introduction of the
tiques from the left denounce the NGOs as either colonial legal system.
agents of capitalism or western cultural imperialism. Henry Maine’s distinction between status based so-
Critics from the religious right portray NGOs as mis- cieties to contract based society may be somewhat
sionary agents for conversion of poor Bangladeshi overdrawn but it presents an ideal-typical polar types.
Muslims into Christianity. In fact, in recent years sev- In most societies, legal codes are embedded in tradi-
eral Islamic NGOs have flourished. Elsewhere, I have tional customs, social norms, and broader cultural
suggested that broadly, the NGOs in Bangladesh can boundaries. Bangladesh is no exception. In rural
be divided into two types: money driven and con- Bangladesh, where the reaches of the state law are

2
Moder n Law, Traditional ‘Salish’ and C ivil
S ociety Activism in B angladesh

limited or have had very little penetration, customary erned, by and large, by socially accepted and popular
laws administered by the local headman, (morol in customs. In the west, in the first half of the twentieth
local parlance), dominate. The practice of ‘salish’ has century the relations of the legal order with the wider
a long history in the context of Bangladesh. The forces social order became established beyond question as a
of modern laws and the ancillary institutions have had central (perhaps the central) juristic and jurispruden-
little impact in the everyday lives of the people of tial concern. Attention was increasingly directed to the
Bangladesh. A society, where respect for elders, espe- effects of law upon ‘the complex of human attitudes,
cially older male figures, who happen to be part of the behaviour, organisation, environment, skills and pow-
landed elites in rural Bangladesh (and before the na- ers involved in the maintenance of particular societies,
tion came into existence, Bengal). These practices are or kinds of societies; and conversely on the effects of
deeply entrenched. these upon the particular social order’ (Stone, 1966:3).
Since modern laws could not replace the tradi- The history of laws in India goes back to the
tional customary practices of arbitration and sentenc- Hindu religious texts, Vedas and Upanishads and
ing, it came to coexist with the practices of ‘salish’. In Manu is considered the first law giver. But these were,
the framework of legal pluralism such coexistence of in fact, religious injunctions that people had to obey.
the two streams of laws may seem to be a pragmatic Laws outside of religion or secular laws began with the
compromise, but in reality, it often makes a mockery Maurya period, which remains a paradigmatic case of
of justice. A reformed system of ‘salish’ constituted by secular tradition in India, lasted from Mauryas (321-
people with knowledge of laws, and ensuring protec- 185 BCE) and the Mughals (16th – 19th centuries)
tion of the rights of the defendant (if need be, by with the latter giving way to the current common law
means of providing a system of legal consul) may con- system.
tribute to the enhancement of administration of jus- The East India Company was granted charter by
tice at the grassroots level. King George I in 1726 to establish ‘Mayor’s Courts’
‘Salish’ covers a wide range of rule violations and in Madras, Bombay and Calcutta (now Chennai,
‘inappropriate’ (according to whom?) behaviours in Mumbai and Kolkata respectively) (The Bar Council
the rural context. The force of traditional, i.e. patriar- of India). This was the introduction of modern law in
chal customary laws on the body and behaviours of Bangladesh since Calcutta was the major urban center
women, present a classic example of Fouccauldian dis- in the province of Bengal.
course, and of governmentality. Women’s bodies are Codification of law in India ‘began with the form-
under constant surveillance, their moral behaviours ing of the first Law Commission. Under the steward-
monitored and scrutinised, and are under constant ship of its chairman, Thomas Babington Macaulay,
surveillance to the extent that even a slightest infringe- the Indian Penal Code was drafted, enacted and
ment would have met with sharp reactions and rapid brought into force by 1862. The Code of Criminal
adjudication followed by harsh punishment. Procedure was also drafted by the same commission.
As women in traditional Bengal were not aware, Host of other statutes and codes like Evidence Act
let alone fight for their rights, the practice of ‘salish’ (1872) and Contracts Act (1872)’ (The Bar Council
went unchallenged and remained part of a tradition of India).
that most people accepted. Conformity, rather than Modern laws came to India with the rule of the
rebellion or protest, was the norm. With growing con- East India Company in the latter half of the eigh-
cern with human rights in general and women’s rights teenth century. The legal systems began to spread from
in particular, women started questioning the domi- city to city, even after the formal incorporation of
nance of the traditional practices of ‘salish’. India into the British empire in the middle of the
For illustrative purposes, one can draw some par- nineteenth century, in the wake of the failed revolt –
allels between rural Bangladesh with medieval Europe. now known and labeled as ‘the first war of
In late medieval Europe, private relations were gov- independence’. The company law was metamor-

3
 K hondker

phosed into a state-wide legal system. The British women and children act). Besides, there is the Penal
common law tradition thus came to what is now Code to protect physical and mental violence. On
Bangladesh. May 14, 2009 the High Court Division of the
The legal system in Bangladesh is over-burdened supreme court of Bangladesh expanded the definition
with a large number of cases with limited availability of violence to include ‘sexual harassment’, apart from
of judges and able prosecutors. Legal system is part the Constitution of the Republic which provides
of a larger social system in Bangladesh characterised equal legal protection regardless of gender, ethnicity
by inefficiency and incompetence. A relatively weak and religion.
administration of justice is not unique by any means; Article 31 of the Constitution states unambigu-
it is part of a general deficit of governance. ously,
The imposition of modern laws never tried to re-
place traditional practices of ‘salish’. Informal ‘salish’ 31. To enjoy the protection of the law, and to be
treated in accordance with law, and only in accor-
has some role in adjudicating interpersonal or familial dance with law, is the inalienable right of every citi-
conflicts. Such arbitrations are often accepted by the zen, wherever he may be, and of every other person
feuding parties. However, what is unacceptable is the for the time being within Bangladesh, and in particu-
lar no action detrimental to the life, liberty, body, rep-
unlawful authority of the local elders to impose brutal utation or property of any person shall be taken
sentencing on the alleged offenders. The impositions except in accordance with law.
of punishments, which are often public, humiliate the
victims of this system to the extent that many of them Constitutionally, there is no gender inequality in
commit suicide. Despite the rulings of the High Bangladesh. In fact, Article 19 of the Constitution en-
Court, a number of cases of ‘salish’-driven sentencing sures promotion of gender equality in Bangladesh.
have taken place in Bangladesh.
Trial by ‘salish’ is clearly unconstitutional. Article 19. Equality of opportunity.
35 clause 3 specifically mentions ‘court or tribunal es- The State shall endeavor to ensure equality of oppor-
tablished by law’. The implication here is law of the tunity to all citizens.
country. According to clause 35 of the Bangladesh
The State shall adopt effective measures to remove so-
Constitution: cial and economic inequality between man and man
and to ensure the equitable distribution of wealth
35. Protection in respect of trial and punishment. among citizens, and of opportunities in order to at-
tain a uniform level of economic development
(1) No person shall be convicted to any offence ex- throughout the Republic.
cept for violation of al law in force at the time of the
commission of the act charged as an offence, nor be Article 19 recognises the political rights of women by
subjected to a penalty greater than, or different from
that which might have been inflicted under the law in
clearly enunciating that no discrimination on the basis
force at the time of the commission of the offence. of sex shall be permitted as it states in clause 1. Arti-
cles 27 and 28 of the Constitution relate to the topic
(2) No person shall be prosecuted and punished for
of equality and discrimination. Article 27 states cate-
the same offence more than once.
gorically, “All citizens are equal before the law, and are
(3) Every person accused of a criminal offence shall entitled to equal protection by the Law”.
have the right to a speedy and public trial by an inde-
pendent and impartial court or tribunal established Article 28
by law.
(1) The State shall not discriminate against any citi-
Bangladesh does not lack necessary laws. In fact, a zen on grounds only of religion, race, caste, sex or
number of laws exist to protect the rights of women place of birth.
and children in Bangladesh. Nari O Shishu Nirjaton
Domon Ain 2000 (prevention of torture against (2) Women shall have equal rights with men in all
spheres of the State and of public life.” (Bangladesh

4
Moder n Law, Traditional ‘Salish’ and C ivil
S ociety Activism in B angladesh

Constitution, 1972). No such assurance was given January 1995: Children deterred from going to
outside these spheres (Sobhan, 1978:5). BRAC schools. Imams refused to perform burial
Despite the constitutional guarantee of equal rights rites for children in BRAC schools.
and protection, such egalitarian and democratic ideals
remain eclipsed by the shadow of a society that re- February 1995: Schools were burnt following fat-
mains under the grip of religious obscurantism. was.

3. Against women’s development:

The Eclipse January 1994: 600 mulberry trees cultivated by
In 1995, following one of the most barbaric cases of women were cut down by Madrassah students.
‘Salish’ judgment where a couple was subjected to
stoning for their alleged ‘adultery’, a documentary March 1994: 10 women were divorced for working
film was made. The film was based on interviews of with NGOs and ostracised for working outside the
cross-sections of people in Bangladesh. On January home which is against Islam.
10, 1993 in Sylhet, a northeastern district of
Bangladesh, a couple was accused of cohabitation and 4. Against freedom of speech:
thus unlawful sexual relationship. Although the cou- May and June 1994: Religious extremists attacked
ple claimed they were married and as in the case of or committed arson in several daily Bangla newspa-
rural Bangladesh they did not have papers (certifi- per offices such as Bhorer Kagoj, Aajker Kagoj, and
cates) to prove their marriage as such, the local ‘salish’ Jonokontho. In June 1991: case filed charging edi-
did not recognise their marriage. Even the parents of tors of Jonokontho under section 295(c) with mali-
the 23 year-old woman, Nurjahan, were punished. cious and deliberate intent of hurting religious
The couple was punished for committing adultery or sentiment of the people. Warrants of arrests issued
zina according to the so-called Islamic laws of the against editors.
Middle Ages. Nurjahan and her husband Mutalib
were buried in a waist-deep pit and were pelted with 5. Blasphemy Law:
101 stones. Both of them survived the punishment. June 1992: Jamaat-i-Islami tables a bill in Parlia-
But overcome with humiliation, later that day Nur- ment to make blasphemy punishable by death.
jahan committed suicide. This horrific violation of
fundamental rights was picked up by the media and In the words of Dr Hameeda Hossain, Chairman of
became a talking point for the entire nation. ASK and a founding member of the organization: ‘As
A report published by Ain Salish Kendro (ASK) a legal aid and human rights centre, Ain O Salish
recorded the various aspects of social life in Kendra (ASK) has been concerned with the recent
Bangladesh against which fatwas were declared in the surfacing of intolerance by religious extremists mani-
period between 1992 and 1995. fested in an increasing violence and violation of
human rights both in the region and within the coun-
1. Against use of contraceptives: try. The chronology of violations of legal and human
June 1993: 35 women in village in Serajgonj were rights committed in the name of religion in the last
ostracized because they used contraceptives. two years, in particular, illustrates the threats to civil
society. The attacks have been directed against
November 1993: Two imams were suspended from women, in particular, but also against other progres-
their mosque duties because their wives used contra- sive groups’ (WLUML, 1996).
ceptives. In a recent survey it has been seen that from 01
January 2005 to 28 February 2011, 1257 women
2. Against education: were killed, 348 were ill-treated and 243 committed

5
 K hondker

suicide due to dowry related violence; 526 women Many of the informal trials in rural Bangladesh are
were victims of acid violence; and 1876 women and conducted in light of the fatwa, declared by the reli-
1598 girl children were victims of rape. The same gious leaders. The High Court in a verdict in July
source also shows that in 2010, 216 girls and women 2010 declared all kinds of extrajudicial punishment
were victims of harassment (Saleheen, 2012). including those made in the name of fatwa in local ar-
The following are some of the recent incidents of bitration illegal. This was an important decision but
violence and cruelty against women as results of ‘sal- fell short of banning fatwa.
ish’: The court, however, directed the authorities con-
cerned to take punitive action against the people in-
Kashiganj, Rangpur volved in enforcing fatwa against women. Anyone
‘Hafiza Begum Happy and Saheda Begum of involved, present, or taking part in or assisting any
Kashiganj village under Badarganj upazila were tor- such conviction or execution would come under
tured after a ‘salish’ (arbitration). Sources said, ignor- purview of the offences under the penal code and be
ing husband’s advice Happy in the last UP election subject to punishment, the court observed. It also ob-
worked in favour of UP member candidate Ilyias Ali. served infliction of brutal punishment including can-
Saheda also worked in favor of Ilyias Ali. Happy’s hus- ing, whipping and beating in local ‘salish’ (arbitration)
band Hashem Ali committed suicide on June 25 al- by persons devoid of judicial authority constitutes vi-
legedly as she did not comply with his advice. Later, a olation of the constitutional rights. The court said the
number of influential people including newly elected people’s rights to life and equal protection have to be
UP chairman Aynal Haque and UP member Abdul treated in accordance with the law.
Kader held a ‘salish’ on June 26 and gave verdict As per the rules of the Constitution, the citizens
against the two women’ (July 20, 2011 The Daily will not be subject to cruel, inhumane and degrading
Star). treatment or punishment, the High Court said in its
ruling.
In August, 2011 Ferdausi Begum, 32, wife of an ex- The civil society organisations filed a writ in 2009
patriate Bangladeshi worker fell foul with a self-ap- and the lawyers filed two separate writs in 2010 with
pointed bunch of rural arbitrators in Habiganj. On the High Court seeking necessary directives from the
charges of relationship with another man, Ferdausi court to stop extrajudicial punishment in the name of
Negum was publicly whipped and ostracised from the fatwa. The petitions were filed following several news-
community. Haunted by the pain and shame of tor- paper reports and investigations by the petitioners into
ture, she jumped along with her four children before violence inflicted on women in the name of fatwa by
a running train. She and her two children died instan- local religious leaders and powerful corners. The peti-
taneously, leaving the other two critically injured. Her tions were filed by rights organisations – Bangladesh
husband Jilon Mia, worked as an expatriate worker in Legal Aid and Services Trust (BLAST), Ain o Salish
Saudi Arabia. Kendra (ASK), Bangladesh Mahila Parishad, BRAC
Human Rights and Legal Services, and Nijera Kori,
Shirin Akhter, a teenaged madrasah student took her and four Supreme Court lawyers – Advocate Salahud-
life by hanging from a ceiling fan in Madaripur. The din Dolon, Barrister Mahbub Shafique, Advocate
tragedy originated in a small tiff centering on an alle- AKM Hafizul Alam and Barrister Imaran-ul Hye.
gation of a goat chewing up grass into the so-called It was alleged in the petitions that a number of
complainant’s land. She was declared guilty in the deaths, suicides and incidents of grievous hurt of
local ‘salish’. The public humiliation she suffered on women were reported arising from punishment given
being caned and forced to touch the feet of the com- in ‘salish’, but the law-enforcement agencies took no
plainant was simply too much for the teenager to bear. action to prevent those unlawful actions. Such kinds
of conviction and punishment were clearly

6
Moder n Law, Traditional ‘Salish’ and C ivil
S ociety Activism in B angladesh

extra-judicial. The petitioners referred to international after nearly 80 lashes. Fatally injured Hena was rushed
obligation under the Convention Against Torture and to Naria health complex where she succumbed to her
Other Cruel, Inhuman or Degrading Treatment or injuries.
Punishment, 1984 and the Convention on the Elim- The death of 14-year-old Hena of Chamta village
ination of All Forms of Discrimination Against in Shariatpur district after she was forced to suffer ar-
Women, 1979. bitrary punishment at the hands of self-styled adjudi-
Earlier on August 25, 2009, the High Court di- cators provides a glaring example of how vulnerable
rected the secretary to Ministry of Local Government women still are in Bangladesh society. The victim was
and Rural Development, officials of the law-enforce- raped by one of her relatives who probably she trusted.
ment agencies and the chairmen of union parishads Contrary to showing any sympathy for the griev-
and municipalities to take immediate measures against ous wrong done to her, the local elders in a ‘salish’
extrajudicial penalties in ‘salish’. It also issued a rule blamed the victim and sentenced her to one hundred
asking them to show cause as to why their failure to lashes following a fatwa issued by the prayer leader of
prevent such illegal acts in compliance with their the village mosque. The victim, already traumatised
statutory obligations should not be declared illegal. by the rape, had to suffer the lashes. ‘The word cruel
The High Court bench of Justice Mohammad is not enough to describe the mental state of those
Gholam Rabbani in 2001 in another verdict declared who perpetrated the monstrosity’, wrote one analyst
fatwa illegal, although an appeal is pending with the in a national newspaper.
Appellate Division in this regard. The verdict of 2010
was wider than that of 2001 in scope having declared ‘It was too much for the hapless girl from a poor
household to bear. The parents, being too afraid to
all kinds of extrajudicial punishment illegal. The ver- protest, had nothing to do but helplessly watch the
dict of July 2010 also asked the law enforcers to re- tragic end of their beloved daughter at the local Up-
main vigilant against extrajudicial punishment and azila Health Complex as she succumbed to the physi-
cal and mental wounds she was compelled to suffer.
report to the court about such incidents (The Daily And thus was a girl’s right to live and see justice was
Star, July 9, 2010). denied by some so-called village guardians. Unfortu-
In the name of traditional justice, rural women in nately, the vile drama of the murder of the girl by a
hurriedly constituted “village arbitration court” was
Bangladesh, irrespective of their, religion, ethnic back-
staged despite the existence of a High Court (HC)
ground and, sometimes, social status, continue to suf- order that declares all kinds of extrajudicial trial, in-
fer because the hands of the modern laws fail to reach cluding those by fatwa, illegal and anti-constitutional.
them. In sustaining the traditional, localised arbitra- The said HC rule further provides that the executors,
accomplices or even those present at the scene of such
tion system dominant religion also plays a role. Inter- trial would come under the purview of offence ac-
pretation, or misinterpretation of Islam in Bangladesh cording to the penal code’.
plays a role in it because few would dare criticise a
practice for which some – even tenuous or just dubi- Nevertheless, the murder of the girl, Hena, in the
ous support can be found in some hadith or sunna name of a so-called trial could prick the conscience of
(traditions of the prophet). The following two cases the whole nation after it was reported in the media.
illustrate the points well: And that, too, was possible only after the bereaved fa-
On January 23, 2011, fourteen-year old Hena ther of the girl, out of desperation, lodged a case
Akhter was raped by her married cousin, 40-year-old against the culprits involved with the local police sta-
Mahbub from the same village. Next day, a fatwa was tion, defying the intimidation of the powerful quarters
announced at a village arbitration that she must be of the village.
given 100 lashes. Her family was forced to accept vil- The case of Hena provides yet another illustration
lage arbitration which imposed physical punishment of the local level arbitrations, where it is mostly the
in the name of religion on the victim, who was denied poor and the vulnerable who are at the receiving end.
of immediate medical treatment. She fell unconscious And the so-called trials through ‘salish’ (village arbi-

7
 K hondker

tration) are often run by the powerful quarters of the forced to accept the judgment imposed on them be-
locality while the half-literate village adjudicators and cause of the muscle power of the perpetrators.
fatwa issuing mollahs are in cahoots with the local In both cases, the local community leaders sought
elite. help of religion to carry out their abominable act.
According to Ain o Salish Kendra’s (ASK) estimate While the Imam of the local mosque Hafez Mafiz en-
given in July 2010, some 10 to 12 such fatwa-based dorsed Hena’s dorra (lashes), Reverend Bernand Tudu
village trials took place the year before. As indicated considered as the guardian of the parish, did not in-
in the foregoing, the reported number of such trials tervene while arbitration went on in the church’s
is just the tip of the iceberg. More studies and in- premise, which was an injustice on Serafina. Islamic
depth researches are necessary to determine the actual scholar and academician Dr. Shamsher Ali com-
extent of the crimes being thus committed in the vil- mented to the press: ‘There is an established system
lages unknown to the civilised world (Alim, 2011). of law in this country for rape cases. Other than cases
In another incident, another girl, Serafina Mardi, like marriage and inheritance, we do not apply Islamic
a Christian girl died from burn injuries on February law for social mishaps like rape’. He further added
21, 2011. She had set herself ablaze in disgust as she that although there was specific punishment men-
did not get any justice since she was gang raped by tioned in the Quran for cases of adultery, nothing for
nine men of her village on April 4, 2010. Bypassing rape was stated. Referring to Hena’s case he said: ‘As
the legal system of the country, Serafina too was we are not governed by Shariah Council, such village
forced to accept ‘salish’, or community arbitration arbitration has no basis at all. When anybody uses re-
that promised her monetary compensation from the ligion to dictate such justice, religion itself is being
rapists and marriage to one of them. Failing to get jus- maligned’.
tice, the young girl finally committed suicide. Father Advocate Albert Rozerio, Secretary Gen-
In both cases, one Christian and the other Mus- eral, Episcopal Commission for Justice and Peace in
lim, the local community bypassed the existing law of Bangladesh and Legal Advisor, Dhaka Catholic Arch-
the land and used a version of religion to impose so- diocese, defended the action of Reverend Bernand
called traditional justice on these unfortunate girls. Tudu, saying: ‘The initiative for the arbitration was
Unlike Hena, Serafina’s family was able to file a rape not taken by the Father. As Fathers we always want
case, but, community leaders along with the Shurshu- peace and since our Christian religion preaches peace,
nipara Catholic Church, in an attempt to save the Father Tudu must have supported the arbitration
unity of the community forced the victim’s family to thinking it as a good step towards peace and settle-
withdraw the case. On April 23, 2010 they arranged ment’. In reply to whether Church had the authority
arbitration and imposed an out-of court-settlement to carry out arbitration and deal with crimes like rape,
with the victim while the rape case was still under Father Albert said: ‘Each religious community or
trial. The disturbing question in both the cases was parish is under one or more parish priest. To assist
how the existing system of law was totally ignored and him, a parish council looks after the education,
the victims were forced to accept arbitration judgment health, social justice and legal arbitration of the com-
by local community leaders. Referring to the arbitra- munity. The president of the parish is a Father and
tions that took place in Hena and Serafina’s case, Nina there is an understanding that to maintain the peace
Gowsami, lawyer of Ain O Salish Kendra, a legal aid of the parish they are allowed to take any decision.
and human rights organisation, commented: ‘Such But this does not have any legal basis. It can work only
arbitration has no validity. There should be no arbi- as a support to the existing law of the land but has no
tration for rape case as it is completely non-com- legal power’. Father Albert added: ‘We have Cannon
poundable’. Citing the above cases, the Human Laws to govern a congregation, but for crimes like
Rights lawyer added that the victims’ families never rape, murder, robbery the law of the state has to be
voluntarily went for arbitration; rather, they were followed’.

8
Moder n Law, Traditional ‘Salish’ and C ivil
S ociety Activism in B angladesh

Although rape, its trial and judgment are not continues to fail in delivering quick and exemplary
specifically mentioned in the Holy books, the Quran punishment to rapists, girls like Hena and Serafina
and the Bible, yet rape victims and their families were will continue to make the headlines for the wrong rea-
forced to accept judgment by illegal arbitration be- son and the vulnerability of women irrespective of
cause of the lengthy and complicated legal framework their religion, race and social status will continue to
of the country. ‘Families often look for prompt rem- amplify’ (Khan, 2011).
edy so they bypass the legal system. Although there is In another case, a woman in Srimongal was lashed
a time frame for the trials under the Nari-O-Shishu 101 times for speaking to a man from a different com-
Nirjatan Daman Ain 2000, but it is hardly followed munity while a woman in Sirajganj was caned 100
because of non-participation of public prosecution as times with fines for showing the audacity to file a
well as police. Since police has more cases than they complaint of rape with the court, and another woman
can handle they often request for time extension for of the same district was whipped in public after refus-
investigation. Meanwhile, the perpetrators are released ing a relative’s sexual advances.
on bail and they frequently harass and threaten the A writ petition, jointly filed by five organizations
victim and her family. This also gives them time to – Bangladesh Legal Aid and Services Trust,
call local arbitration and impose out-of court settle- Bangladesh Mahila Parishad, Ain O Salish Kendra,
ments’. BRAC and Nijera Kori in view of a series of reports
Besides local community and religious leaders, the on extra-judicial punishments, including whipping
entire legal process played an inexplicable role in deal- and caning, at village arbitrations (‘salish’). The peti-
ing with the rape cases of Hena and Serafina. In tion pointed out a number of incidents of extra judi-
Hena’s case, the investigation officer and police in- cial punishments. In one case, a woman and a man
spector wrongly filed the case and the civil surgeon were lashed 101 times following orders given by vil-
and doctors of Shariatpur Sadar Hospital came up lage elders in Nobiganj of Habiganj district at a village
with a false post-mortem report. In Serafina’s case the arbitration in presence of a chairman. In response, the
public prosecutor and the lower judiciary did not High Court directed the authorities concerned to in-
question Serafina’s statement when she said she had vestigate into the incidents of extra-judicial punish-
filed a false case of rape, even when her medical report ments by beating and lashing people in the name of
clearly showed she had been gang raped. The court arbitration or conciliation, and to take action against
informally knew about the illegal out-of-court settle- those responsible (The Daily Star, August 26, 2009).
ment and acquitted the nine rapists. Nina says, ‘Gov- The High Court ordered district officials in Shari-
ernment was the plaintiff in this case. As long as the atpur to explain why they failed to protect 14-year-
government does not withdraw the case, trial can still old rape victim Hena from being whipped to death
be held even if the victim withdraws and witnesses do as per a fatwa on Monday. The deputy commissioner,
not cooperate. The trial of Serafina’s case could have the superintendent of police of Shariatpur and the
been carried out using the medical report and other thana nirbahi officer of Naria upazila – where the in-
documents. Unlike Hena’s case where High Court has cident took place –will have to report to the HC in
taken up the initiative, interest of the lower judiciary 15 days how it happened although the High Court
in Serafina’s case is not perceivable’. had eight months ago declared fatwa illegal and a
Apart from being members of the weaker sex, both punishable offence. In a suo moto rule, the High
these girls – Hena Akhter and Serafina Mardi – were Court directed them also to report what steps they
born to poor families. ‘As a result, the worth of their have taken in this regard.
life could easily be traded for the larger good of their A High Court bench comprising Justice AHM
respective communities – to the extent of protecting Shamsuddin Chowdhury Manik and Justice Sheikh
their rapists. As long as society’s attitude towards rape Md Zakir Hossain issued the rule following press re-
and the victims do not change, and the legal system ports on the killing of Hena. The bench headed by

9
 K hondker

Justice Syed Mahmud Hossain on July 8, 2010 deliv- from her relative’s house at around 8:00am on Sep-
ered the verdict declaring illegal all kinds of extra-ju- tember 11. As she cried for help, locals rescued her.
dicial punishment including those in the name of Iqbal and Taher managed to flee the scene.
fatwa at local arbitrations. Hearing the news, Alamgir Matabbar, 50, former
Following three writ petitions, the court directed chairman of Ghaura union, called a ‘salish’ (arbitra-
the authorities concerned to take punitive action tion) at his house at Ghaura village at around 8:00pm
against people involved in enforcing fatwa against on September 11. At the arbitration, Taher, one of the
women. It also observed that infliction of brutal pun- two youths and also an accused in the case, blamed
ishment including caning, whipping and beating at the girl for the incident, saying that she talked to Iqbal
local ‘salish’ (arbitration) by persons devoid of judicial over the cellphone and requested him to come to the
authority constitutes violation of the constitutional scene. On Taher’s statement, arbitrator Alamgir
rights. Matabbar and others accused the girl of sexually allur-
Barristers Rabia Bhuiyan, Sara Hossain and Mah- ing Iqbal and beat her unconscious. Later she was ad-
bub Shafique, and advocate KM Hafizul Alam, mitted to Bhanga Upazila Health Complex, police
lawyers for the writ petitioners, placed the judgement quoting locals said.
to the bench following the incident involving Hena. Hasina Mosharraf, a leader of Bangladesh Mohila
Ain O Salish Kendra (ASK), a human rights watch- Parishad Faridpur unit, demanded exemplary punish-
dog, expressed deep concern and shock at the killing ment to the accused and immediate arrest of the main
of teenage rape victim Hena. It demanded punitive arbitrator. She said, ‘Although the women of the coun-
action against those who enforced fatwa concerning try advanced a lot but outlook of the society has not
her. The ASK called upon the government to take ef- changed yet. Whenever women tried to stand on their
fective steps to stop recurrence of such incidents (Feb- own feet, a section of the society turned violent against
ruary 3, 2011, The Daily Star). them. Happy and Saheda Begum are the example of
Not that all such cases of abuse go unnoticed as such cruelty’ (The Daily Star, September 16, 2011).
the following case indicates:
When an 11-year-old girl was physically assaulted
by village arbitrators and hospitalised, a national out- Civil Society Activism
cry followed. Though the girl was a victim of harass- There are nearly 6,000 NGOs of various sizes and
ment by two local youths at Ghaura village on strengths operating in Bangladesh. Some of the lead-
September 11, 2011 the arbitrators accused her of sex- ing NGOs are like BRAC, Proshika, ASA, etc.
ually alluring one of the two and beat her severely fol- (Chowdhury, 1989). Ain-o-Salish Kendro is a rela-
lowing a ‘Salish’. tively small NGOS in Bangladesh. Since September
Following a case filed by her father with the local 20 of 1986, Ain Salish Kendro (ASK) has been pro-
Police Station, accusing 10 people on September 12, viding legal aid, when required, to the victims of
police arrested seven of them the same day. The ar- human rights violation and earned national and inter-
restees are stalkers Iqbal Matabbar, 35 and Taher national recognition. ASK remains vocal against re-
Matabbar, and arbitrators Rafiq Matabbar, 55, Yunus pression on women and children, fatwa (religious
Matabbar, 50, Sharif Munshi, 30, Jalal Matabbar, 30, edict), extra-judicial killing, custodial torture, minor-
and Ershad Sheikh, 25. Police quoted the victim’s fam- ity repression, deprivation of indigenous people of
ily as saying that Iqbal Matabbar had been stalking the their rights and repression on workers. Legal steps
girl, a class four student of a local primary school at taken by ASK resulted in high court directives on a
Ghaura village, on her way to and from the school for number of issues including ban on slum eviction with-
over a month. According to case statement, Iqbal and out rehabilitation, custodial torture and corporal pun-
his accomplice Taher Matabbar tried to take the girl ishment at educational institutions.
to a house beside a road while she was returning home Ain O Salish Kendra (ASK) has been fighting for

10
Moder n Law, Traditional ‘Salish’ and C ivil
S ociety Activism in B angladesh

the rights of the common people for the last 25 years. challenging the state.
In particular, they have worked for the betterment of Currently, the organisation operates 17 units with
women in Bangladesh, who are often victims of do- around 240 activists. ASK continues to provide legal
mestic violence and discriminatory laws that deprive support to the deprived masses. While working on
them of basic rights. Many of these women are not women’s rights issues, ASK discovered that children
even aware of what their rights are. ASK has worked were also a highly vulnerable group. ASK decided to
relentlessly to establish the basic rights of those who single out the rights of the working street children.
do not have the resources to fight for their own rights. ASK believes that poverty is the worst form of human
Initially, ASK was more involved in solving family rights’ violation. Thus, economic empowerment, es-
conflicts through ‘salish’ (informal interventions) and pecially for women deprived of their rights and liveli-
trying to reach an acceptable solution of problems; hoods under a patriarchal society, became the prime
however, the increasing number of people taking legal focus of ASK. ASK began to work on women’s prop-
aid from ASK compelled it to expand its activities. In erty rights. ASK has seven Legal Aid Clinics working
the mid-eighties as military rule came under heavy in the capital. In the case of human rights violation,
pressure from populist movements that demanded a ASK send its activists out of Dhaka as well to provide
return to a representative structure of governance, immediate help. In addition, ASK plays a major role
ASK was born in a climate of pro-democracy move- in monitoring the human rights situation in the coun-
ment. Gender justice was the main issue for ASK. It try, especially in the areas of civil and political rights,
was recognised that without the active citizens’ par- economic, social and cultural rights, women rights
ticipation, state institutions and authoritarian tradi- and labor rights. ASK publishes a quarterly bulletin,
tions of family and community will not change. human rights and annual report and special publica-
Five of the founding members came from a legal tions and articles. Its other programs include advocacy
background, while the rest of them had vast experi- initiatives, child rights, community activism, human
ence of development work. ASK, in addition to legal rights awareness, and legal aid.
issues, was able to take a more holistic support system Talking about the philosophy of the organisation,
on behalf of the disempowered women, workers, mi- Sultana Kamal says that ASK’s philosophy is to estab-
norities and others similarly deprived. ASK was lish connection among people. The communication
founded by Abdul Khaleque, Aminul Haq (Late), among citizens and the communication between the
Amirul Islam, Fazle Hasan Abed, Hameeda Hossain, government and citizens is a must for establishing so-
Khursheed Erfan Ahmed, K M Subhan (Late), Salma cial justice. ‘The whole effort often faces different
Sobhan (Late) and Taherunnessa Abdullah. Salma challenges. It is a very small organisation that cannot
Sobhan, a Cambridge-educated lawyer was the first reach every citizen. We can have a concern on a par-
executive director. She served ASK in that capacity ticular issue and recommend some probable solution
until her retirement in 2001. of the problem but we cannot always make people lis-
While legal aid was often limited to a band aid ap- ten to us,’ says Sultana Kamal.
proach, the experience they gained in addressing in- Since its inception in 1986, ASK, with its team of
dividual disputes led the members of ASK to make dedicated individuals, has been instrumental in help-
more strategic interventions to address the social and ing the marginalised people in society to raise their
political causes of conflict in Bangladesh. In the 1980s voice. ASK has brought different rights issues under
and 1990s, when there was a growing wave of Islamic the limelight and made the government rethink about
extremism, ASK became a pace setting catalyst, ad- many of its policies. In a recent interview the Execu-
dressing inequalities through legal intervention, build- tive Director of the organisation stated: ‘Social justice
ing solidarity amongst human rights defenders around and equality must be gained. We hope that more peo-
concepts of human rights, gender and social justice, ple will be involved with our struggle for gaining
campaigning in national and international forums – human rights. We hope to establish a healthy practice

11
 K hondker

of democracy where citizens and the rulers never go there was a sharp reaction from the conservative sec-
for confrontation rather co-exist with mutual respect tions of the society. The reactions led the administra-
and cooperation. We are fighting against all the tion to retract. In order for the legal reforms to be
process of disempowerment of people and the fight sustainable, there has to be a movement from the
will continue’ (Urmee, 2011). ASK has been a brave below to make the public conscious of their responsi-
and relentless champion of human rights in bilities and duties to build a truly democratic and eq-
Bangladesh. uitable society.
‘Salish’, a village-level traditional justice mecha-
nism mainly conducted in informal manner, which is
able to resolve a good number of disputes at grassroots References
levels, can be turned into a formal nature which Alamgir, Susan (1977). Profile of Bangladeshi
would protect human rights, they added. The speak- Women: Selected Aspects of Women’s Roles and Sta-
ers said this at the roundtable on ‘The role of “Salish” tus in Bangladesh. Dhaka: USAID
in resolving local argument: The problems and possi- Alim, Syed Fattahul (2011). ‘Let Shariatpur Tragedy
bilities’ by Nagorik Udyog, an NGO, at Cirdap au- be Enough’, The Daily Star, February 7, 2011.
ditorium in the city (February 24, 2010) The Daily Bar Council of India (n.d) Internet source.
star. Chaudhury, Rafiqul Huda and Nilufer Raihan
‘Positivist legal theory’, according to Nobles and Ahmed (1980). Female Status in Bangladesh,
Schiff, ‘operates on the assumption that the legal sys- Dhaka: Bangladesh Institute of Development
tem can insulate itself from other kinds of communi- Studies.
cation and thereby maintain its autonomy, provided Chen, Martha (1986). A Quiet Revolution, Dhaka:
that it can take communications from other systems BRAC Publishers.
into itself only at those points where it runs out of Chowdhury, Aditee Nag (1989). Let Grassroots
good reasons for deciding issues using materials al- Speak, Dhaka: The University Press Ltd.
ready identified by authoritative sources’ (Nobles and The Daily Star (2011). ‘Culprit at large as girl
Schiff, 2006:82). Such ambitions notwithstanding, groans in pain’, September 16, 2011.
legal systems in most societies are characterised by Government of Bangladesh (1973). The Constitu-
plurality of perspectives and traditions. Carol Smart tion of the People’s Republic of Bangladesh.
points out that ‘…law constitutes a plurality of prin- Kabeer, Naila (2001). The Power to Choose:
ciples, knowledges, and events, yet it claims a unity Bangladeshi Women and Labour Market Decisions
through the common usage of the term “law”’ (Smart, in London and Dhaka, London: Verso Press.
1989: 4). Khan, Tamanna (2011). ‘When Justice Kills’, The
Bangladesh follows some degree of legal pluralism Daily Star, March 4, 2011
which was introduced by the British who applied a Nobles, Richard and David Schiff (2006). A Sociol-
combination of civil law and religion specific personal ogy of Jurisprudence, Oxford and Portland, Ore-
law for the Muslims and the Hindus respectively. In gon: Hart Publishing.
addition to the inheritance of the British law and the Saleheen, Nazmus (2012). ‘An Evaluation of Laws
Common Law traditions, Muslims Personal laws gov- for Protecting the Women’, The Daily Star 10
ern property rights, marriage, divorce, alimony and February 2012
custody of children (Chaudhury and Ahmed, Shehabuddin, Elora (1999). ‘Contesting the Illicit:
1980:18). These laws are, by and large, discriminatory Gender and the Politics of Fatwas in
against women. A reform of the legal system to correct Bangladesh’, Signs: Journal of Women and Culture
these gender-biases is desirable but politically not fea- and Society, 24 (4).
sible. In 2008, when a Caretaker government wanted Sheldrick, Byron (2004). Perils and Possibilities: So-
to implement a set of rules removing such inequities, cial Activism and the Law, Halifax, Nova Scotia:

12
Moder n Law, Traditional ‘Salish’ and C ivil
S ociety Activism in B angladesh

Fernwood Publishing. White, Sarah (1992). Arguing with the Crocodile:

Smart, Carol (1989). Feminism and the Power of Gender and Class in Bangladesh, Dhaka: The
Law, New York: Routledge. University Press.
Sobhan, Salma (1978). The Legal Status of Women in WLUML (1996). Fatwas Against Women in
Bangladesh, Dhaka: The Bangladesh Institute of Bangladesh.
Law and International Affairs. Zaman, Habiba (1999). ‘Violence Against Women
Stone, Julius (1966). Law and the Social Sciences in in Bangladesh: Issues and Responses’, Women’s
the Second Half Century, Minneapolis: University Studies International Forum, 22 (1).
of Minnesota Press.
Urmee, Farhana (2011). ‘A Champion of the Dis-
empowered’, The Daily Star, The Star Report Oc-
tober 14, 2011.

Habibul Haque Khondker has been a professor at the Department of Humanities and Social Sci-
ences of Zayed University, Abu Dhabi since 2006. Previously, he was an Associate Professor of
Sociology at the National University of Singapore and a Research Associate at the Asia Research
Institute. He studied in University of Pittsburgh, Carleton University, Ottawa and University of
Dhaka, Bangladesh. Dr. Khondker held a visiting professorship at the United Nations University,
Tokyo and was a visiting scholar at Cornell University, Columbia University, Institute of Social
Studies, the Hague and University of Pittsburgh. He is conducting research on governance of
labour migration in the UAE and expatriates. Dr. Khondker has co-authored Globalization: East
and West (Sage, 2010) with Bryan Turner; and co-edited Asia and Europe in Globalization (Brill,
2006) with Goran Therborn.

13