Anti-Discrimination Bill 2022: Can it fit the purpose?
The draft Anti-Discrimination Bill 2022 was placed in parliament on April 5, 2022. Long years of civil society engagement and advocacy with the government have catalysed this initiative.
The stated objective of the bill is to prevent discrimination in order to ensure respect for human entity, equal rights and dignity. It is also stated to be inspired by the need to establish equality and social justice towards an exploitation-free society in Bangladesh established through a historic Liberation War. Reference is made rightfully to the need to make legal provisions to prevent discrimination consistent with articles 27, 28 and 29 of the Constitution. Therefore, it should be commended as a concrete step towards fulfilling the dream of generations for a discrimination-free society.
Whether and to what extent the expectations raised by the bill will be met remain to be seen, however. A key concern is that it can even be counterproductive as the draft fails to criminalise discrimination. In terms of redress for discrimination, the series of provisions made in the draft are short of any concrete and effective punitive action, and instead bank on "resolution through consultation" or at best "due redress" by the district, divisional and national committees to be created for the purpose. Even an appropriate court, which may be resorted to, will issue an order to "duly redress", with the only provision of an unspecified amount of pecuniary sanction.
These are far from deterrent enough to fit the purpose of the proposed law. Credible research shows that by seeking redress, the victims of discrimination often become further targets of harassment and discrimination. They are threatened, deprived, or at best advised to "survive with the reality". Take, for instance, parents of Dalit students being told that they should not touch educational materials in school because mainstream children don't like it; or that complaint against delivery of less-than-allocated amount results in elimination from the list of social safety net beneficiaries; or official order being issued to restaurants to arrange separate seating arrangements including crockeries and cutleries for customers of a particular marginalised community, and so on. In a context where mutuality of interest is quite common between the perpetrators of discrimination and those who are mandated to address complaints, the provision for resolution through consultation without any deterrent punishment for the perpetrators can yield hardly anything other than legalisation of discrimination.
The three sets of institutional arrangements proposed in the draft (paras 5, 6, 7) for monitoring, overall implementation, and fulfilment of the objectives of the law are fraught with absence or lack of clarity of terms of reference. There are risks of mutual overlap and duplication as well as lack of coordination between the three which can create a crippling effect on the purpose of the law.
More importantly, the three bodies are overwhelmingly bureaucracy-dominated in formation, composition and functioning, whereas as per international good practices, implementation, monitoring and grievance redress including deterrent actions are reposed in independent authorities such as commissions created by law. Although the experience of commissions in Bangladesh leaves little scope of optimism for independent and effective functioning, provision should nevertheless be made to entrust the tasks to a thoroughly revamped, truly independent and appropriately resourced National Human Rights Commission, reconstituted as the National Human Rights and Anti-Discrimination Commission.
The draft rightly provides (para 12) that owners or senior officials of a company will be liable for acts of discrimination. But it remains silent about other entities, especially the whole range of state and non-state institutions, who are often involved in discriminations on the basis of various markers of identity, in terms of access to services, rights and entitlements, recruitment, promotions, transfers, etc. Thus, the draft is itself discriminatory.
Provision has been made for awareness programmes, almost as an exclusive domain of the government. It misses the opportunity to create the legal mandate to involve non-governmental and civil society actors and media. The National Curriculum and Textbook Board has been mandated to convey, through textbooks, ideas on acts of discriminations, but not to ensure that contents of the textbooks shall not be discriminatory.
The definition of public place (para 2) does not include roads and bridges, rivers and canals, sea beaches and other tourist attractions, parks and entertainment facilities. The draft (para 3) misses some commonly discriminated sections of the society like persons living with HIV/AIDS or victims of acid violence. It includes third gender but leaves out other sexual minorities. Similarly, unmarried, separated and divorced persons and widows who are often subjected to discrimination have been excluded. Skin tone must be included in the list as persons with dark skin tone are discriminated in many different ways motivated by a culture of glorifying fair skin tone, especially by aggressive marketing of skincare products. Specific provision must be made to prevent discrimination based on skin tone through any means including advertisements and other means of communication.
Para 3 of the draft makes a provision that depriving anyone of legally mandated right to land shall be treated as discrimination. However, no scope has been created to prevent discrimination in terms of customary land rights of indigenous communities.
Discrimination in any society is an outcome of power imbalance. The discriminator is powerful in many different ways—socially, economically, religiously, culturally, ethnically, etc., and not least politically. The discriminated are the powerless by the same indicators. To that extent the proposed law, in whatever form it is enacted, will be at best an attempt to handle the syndromes rather than the underlying causes of the disease. Power imbalance exists in all societies. The key factor is the extent to which laws and institutions are effective enough to ensure accountability of the exploitative use of this power imbalance. The challenge of the anti-discrimination initiative is not only a good law that truly serves its purpose, but also the independence and effectiveness of institutions of accountability, free from the grips of politically designed dysfunctionality.
Iftekharuzzaman, Executive Director, Transparency International Bangladesh.