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World Press On Legal Definition Of Rape, Muslims’ Rage At Macron And Bangladesh: New Age Islam's Selection, 3 November 2020


By New Age Islam Edit Desk

3 November 2020

• The Problematic Legal Definition Of Rape

By Taslima Yasmin

• Muslims’ Rage At Macron Threatens To Escalate Tensions Across Europe

By Simon Tisdall

• It's Not Just Trump – To Much Of The World, The US Is A Bully Whoever Is In Charge

By Mohammed Hanif

• Jail Killing Day, November 3, 1975: The Indelible Shame

By Muhammad Nurul Huda

• Bangladesh: How Free Are We?

By Faruq Faisel

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The Problematic Legal Definition Of Rape

By Taslima Yasmin

November 03, 2020

 

The brutal gang rape in Noakhali led to nationwide protests and started a debate on rape and violence against women. Photo: Star

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The video of a gruesome act of sexual violence on a woman in Begumganj, Noakhali that went viral in early October, and the subsequent reporting on the incident in various media outlets had led many to questions—was it rape or could it be called an attempt to rape, or was it a sexual assault? This confusion is natural since the idea of rape, or of other sexual offences with similar degree, are concepts that remain unexplained even in the key Bangladeshi laws that criminalise such violence.

In the Begumganj case, the details of the video showed that the offenders were sexually torturing the woman using a wooden rod. The violence was no doubt equally brutal as rape; however, traditionally, in seeking justice for such violence, the attack perhaps would not be considered as rape. Reportedly, the first FIR in the incident was filed under section 9(4) and section 10 of the Women and Children Repression Prevention Act 2000 (WCRPA) for attempt to rape and sexual assault; and not for the offence of committing rape. The reason simply is that the way the definition of "rape" stands now, it is difficult for law enforcement agencies to contemplate that such sexual violence can be considered as rape.

Previously, rape was punishable only under the Penal Code of 1860. With the hope of speedier and effective prosecution in cases of violence against women, the WCRPA was enacted in the year 2000. The WCRPA provided increased punishment for rape in varied contexts (punishment for gang rape, custodial rape, etc.). Nevertheless, when it came to defining the offence of rape, WCRPA clearly stated that the definition of rape would be same as the one given in section 375 of the 1860 Penal Code. Which means that although the WCRPA, which is a relatively modern law, had brought several changes in the degree and nature of punishment for rape; for defining the offence itself, the British colonial law is what we have to follow.

The definition of rape in the Penal Code says there has to be sexual intercourse initiated by a man with a woman, and to consider an act as sexual intercourse, "penetration" would be sufficient. The definition stops here without explaining what the term "penetration" means. Adding to this, section 9 of the WCRPA uses the Bengali term Jouno shnagam to refer to sexual intercourse, again without explaining what specific sexual acts such a term may entail. As such, the various arms of the legal system commonly consider penetration in its traditional understanding, leaving out several other ways of sexual penetration which could sometimes be even more violent. Forceful penetration by a sharp object, for instance, may fall outside the realm of "rape" and may be punished as a sexual assault under section 10, which of course is a lesser degree offence.

Rape under section 9 is punishable with mandatory sentences of life imprisonment or death as per the new amendment ordinance. However, for sexual assault, the punishment is maximum 10 years and minimum three years imprisonment. Additionally, unlike section 9, section 10 nowhere mentions the punishment for causing death resulting from sexual assault. As such, what appears is that, in addition to being a lesser degree of offence, if sexual assault causes death of the victim, the WCRPA won't be applicable for her and the case would have to be filed in the ordinary criminal courts for murder under section 302 of the Penal Code.

Because the term "penetration" does not include any further details, the question of proving rape may also depend on the degree of a particular penetration. Especially in cases of child victims of rape, the offender often cannot fully penetrate the victim and then proving that penetration did happen becomes cumbersome for the prosecution. This is precisely the reason that subsequent to the Delhi gang rape case, section 375 of the Indian Penal Code was amended, adding several clauses explaining what forms and extent of sexual intercourse or penetration would amount to rape.

The definition of rape has several other areas of ambiguities and legal inconsistencies that need to be comprehensively reviewed in light of the progressive developments in other domestic laws. The definition does not contemplate a boy child to be a victim of rape, it provides no indication as to what the term "consent" would entail and most importantly, it decriminalises rape by the husband against his child bride, who may be as young as 13 years of age.

Formulating a timely and appropriate definition of rape can be an effective first step in bringing a meaningful change in the rape justice system. Unless the inherent loopholes in the existing laws are seriously addressed, concentrating on the harshness of punishment alone will not yield any meaningful change in rape prosecution.

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Taslima Yasmin is a legal researcher and teaches in the Department of Law, University of Dhaka.

https://www.thedailystar.net/opinion/news/the-problematic-legal-definition-rape-1988293

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Muslims’ rage at Macron threatens to escalate tensions across Europe

By Simon Tisdall

1 Nov 2020

 

Protesters in Istanbul portray Emmanuel Macron as a devil on 30 October. Turkey’s president has questioned his mental health. Photograph: Emrah Gürel/AP

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Maybe he knew what he was doing. Maybe he didn’t. Either way, Emmanuel Macron set France and Europe on a new collision course with the Islamic world last month – all in the name of freedom. Last week’s spate of lethal terror attacks suggests the French president may have started something he cannot finish.

Macron’s impassioned speech on 2 October, vowing to fight “radical Islamism”, eradicate “separatism” and uphold secular values at all costs, foreshadowed this latest crisis. It was seen at the time as a mainly domestic political exercise, intended to spike the guns of France’s far right before his 2022 election campaign.

But Muslim leaders were enraged by Macron’s description of Islam as a faith “in crisis all over the world” that had, in effect, been hijacked by extremists. Then, two weeks later, after the murder of a Paris schoolteacher, Samuel Paty, by a foreign-born Islamist, an undaunted Macron doubled down. His defence of the notorious, recently republished Charlie Hebdo caricatures of the Prophet Muhammad, which Paty had shown to pupils, and a national crackdown on mosques, imams and Islamic groups added fuel to the fire. France itself was “under attack”, Macron dramatically declared, a phrase he repeated on Thursday.

Political and religious leaders from Bangladesh to Jordan and anti-French demonstrators publicly vented their fury, accusing him of doing “Satan’s work”. Much of what he said was misunderstood or purposefully distorted. Truth was a casualty, too.

Yet the fact remained: by loudly and uncompromisingly championing French values, Macron had managed simultaneously to outrage mainstream Muslim opinion and, apparently, to energise extremists.

The immediate, grim result, which fairly or unfairly will be laid at his door, was a string of attacks in Nice, Avignon and Saudi Arabia. France, struggling to contain a worsening Covid pandemic, is now on its highest terrorism alert, with schools and churches under armed guard.

Macron cannot be faulted for sticking up for the French post-Enlightenment ideal of an equal, integrated, secular and republican society. But he and other European leaders now face a possibly powerful Islamophobic, anti-Muslim backlash that could spawn yet more bloodshed.

This sudden explosion of violence and recrimination potentially affects everyone. All of Europe’s governments risk being drawn into a deepening polarisation, with evident implications for peace, security and social cohesion.

Like France’s National Rally (formerly the National Front), German, Italian and other far-right Islamophobic and anti-migrant populist parties whose public support has been falling of late must be licking their lips. Muslim leaders such as Pakistan’s Imran Khan have seized on the affair to deflect anger over their own failings.

Macron’s critics will say this is what comes of having an imperious president-in-a-hurry, pushing to seize the reins of European leadership. Macron wants to turn the EU into a more powerful, independent bloc that stands up for itself against the US, China – and Islam. But the price tag for his neo-Gaullist European vision keeps rising.

Europe’s most determined opponents have meanwhile spotted an opportunity. Chief among them is Recep Tayyip Erdoğan, Turkey’s president. He suggested Macron was mentally unbalanced. “Our history is one of a battle against tyranny and fanaticism,” Macron responded via Twitter. No prizes for which tyrant and fanatic he was talking about.

Erdoğan is a deeply unpleasant, authoritarian Islamic nationalist. But in one respect, he and Macron are alike. Erdoğan also casts himself as a pan-regional leader, as a tutor and defender of the Sunni Muslim world. This ambition was symbolised by his provocative re-designation of Istanbul’s former cathedral, Hagia Sophia, as a mosque.

Forget Trump v Biden – Erdoğan v Macron is the heavyweight bout of the year. The two have already gone several punishing rounds over disputed gas reserves in the eastern Mediterranean, Libya, Syria and Nagorno-Karabakh. At Macron’s urging, December’s EU summit will discuss sanctions on Turkey.

Yet two men’s clashing ideas and geopolitical rivalries do not explain the depth and breadth of Muslim-world fury. That stems from dismay felt by the overwhelmingly nonviolent Muslim majority about entrenched European Islamophobia, racial discrimination, cultural insensitivity, and heartless migrant policies.

Further afield, perceived French neocolonialism in the Sahel and apparent western indifference to the endless horrors in Syria, Yemen, Afghanistan, Myanmar and Xinjiang feed tensions. For many Muslims, the projection of the Prophet Muhammad caricatures on to the walls of several French cities after Paty’s death was intolerable. Yet so, too, was the attack on a Nice church. On both sides, lack of respect is a big part of the problem.

The destructive impact of Covid-19 has frayed tempers further, putting governments and citizens everywhere under pressure. Into this giant mantrap Macron has jumped feet-first, increasing, not reducing, misunderstanding at a time of extreme stress.

A Pew Research survey last year found that solid majorities of people in the UK, France, the Netherlands, Germany and Sweden hold positive opinions of Muslims in their country. In Italy and southern and eastern Europe, there is greater negativity. Although far-right populist parties continue to exploit fears about identity and immigration, especially among less-educated and older people, and although recorded incidents of Islamophobia are up, overall tensions have fallen compared with five years ago.

On the other hand, the French policy mandating assimilation into a prescriptively “lay” society – unlike British-style laissez-faire multiculturalism – appears too rigid. Macron should think again about how it is applied.

It’s plain the relationship between Muslims and non-Muslims in Europe remains fragile. The danger is obvious. Will the bitter furore over Macron’s justified but clumsy defence of French values, the perception Islam is under assault, and the ensuing terror, tip Europe into a new, confrontational downward spiral? Let’s hope not.

https://www.theguardian.com/commentisfree/2020/nov/01/macron-europe-new-clash-islamic-world

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It's Not Just Trump – To Much Of The World, The US Is A Bully Whoever Is In Charge

By Mohammed Hanif

3 Nov 2020

Our American friends are worried about their president. They are telling us – even in what may be his final months in office – that Donald Trump is sick, that he is a fascist, that he is a grotesque parody of a proper US president.

As a long-suffering citizen of a world run by US presidents, may I remind them that he is not very different from the other presidents that I and the rest of the non-American world have suffered for the past half century. Americans say they are better people than Trump. In solidarity, one might be tempted to say that, yes, sure, we are also better people than Trump. But one is compelled to add that although those former presidents might have had better syntax than Trump, worn better-fitted suits, had finer dance moves, weren’t proud “pussy grabbers”, or cunning tax dodgers, being a world-class bully has always been a part of the job.

The US has always elected a bully, nurtured him and asked him to go out in the world and do the presidential thing: fight the evil that is the rest of us. At the same time they have expected their president to be nice at home, have mercy on their Thanksgiving turkey and keep talking about the American dream and affordable healthcare.

Abroad, US presidents have wrought havoc, invaded and destroyed places whose names they could never pronounce, hosted murderous dictators from around the world at Camp David and found even more bloodthirsty ones to replace them.

Trump has just brought all that bullying home.

The first US president that I heard of as a child was Nixon, who was kicked out after Watergate. But during his presidency, he watched over the massacre of Bangladeshi people, kept promising to intervene but in the end couldn’t be bothered. Jimmy Carter seemed like a nice man, a reluctant bully, perhaps. One might have first heard that blasted term “human rights” during his time, but in Pakistan, where I live, a military dictator hanged an elected prime minister, Zulfikar Ali Bhutto, during his presidency. In return, Carter offered General Zia ul-Haq millions of dollars in aid to win him over, which the dictator rejected, calling it peanuts – the joke being that Carter was a peanut farmer.

Then came that sage Ronald Reagan, who started dishing out serious money to play out his cowboy fantasies across the globe. “Leader of the free world” he called himself. And to make the world freer, he bankrolled dictators like Augusto Pinochet in Chile and Zia in Pakistan.

When Reagan started funding the mujahideen in Afghanistan, I was 11; now my son has graduated from university, and a third generation of poor US kids is still fighting and negotiating in the same country. And a fourth generation of Afghans is growing up in refugee camps and women are wondering if, when the US finally succeed in their peace talks, they will have a country to live in.

George Bush Sr lit up the Baghdad skyline with his fireworks. He took money from one despot to liberate another and in between tried to fund Iraqi rebels before leaving them at the mercy of a third despot, Saddam Hussein. Didn’t we love Bill Clinton? Wasn’t he the antithesis of Trump, suave, a charmer, the kind of person you could have a beer with? When Clinton faced impeachment for his relations with Monica Lewinsky, he launched some cruise missiles over Afghanistan and Sudan as a distraction.

Americans must have loved George W Bush because they elected him twice. He believed that instigating a war with Afghanistan was something a US president was required to do. But then he realised that his predecessors hadn’t left much to destroy. In search of target-rich areas he lighted on Iraq, manufactured a pretext for war, set up prisons in Guantánamo and Abu Ghraib, then declared victory and went home leaving behind millions to die. Even mild-mannered US presidents have been mass murderers on the world stage. Because that’s what the job entails.

Barack Obama was one of the most loved president of recent times, the kind of man who you could actually imagine have a beer with. He left the killings to algorithms and drones, while his foreign policy left Libya annihilated. By the end of his tenure, the US was dropping the equivalent of nearly three bombs an hour every single day. (In 2009, he won the Nobel peace prize for his good intentions.)

Americans are the world’s biggest entertainers, but seem to get bored easily and in their fabled innocence go around the world destroying places in order to save them. At home they keep telling themselves that it’s time to make a choice but, in reality, what choices do they have?

Trump makes the US look bad, makes the US look too white, makes the US speak bad English, makes the US look ill-mannered, greedy, overweight. But as far as many of us around the world are concerned, even if he loses, it’s not a sign that the US is about to change; it really just heralds a bit of a makeover.

The US needs a lean mascot, someone who wears better suits, who is not as overtly racist. US presidents are like the boss who goes to work terrorising his employees but comes home to spread sunshine and love. Deal with Trump by all means, lock the door and throw away the key. Elect the person you believe will save the US soul – but don’t send him out into the world to save us.

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 Mohammed Hanif is a novelist based in Karachi, Pakistan

https://www.theguardian.com/commentisfree/2020/nov/03/donald-trump-us-presidents-joe-biden

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Jail Killing Day, November 3, 1975: The Indelible Shame

By Muhammad Nurul Huda

November 03, 2020

The brutal killings of four national leaders by misguided soldiers inside Dhaka Central Jail in the early hours of November 3, 1975, remain an indelible shame on the national psyche. The compounding tragedy in the whole transaction is that the brutality and shame did not stir the national conscience until a favourable political scenario emerged in 1996.

The four slain leaders—Syed Nazrul Islam, Tajuddin Ahmad, AHM Qamaruzzaman and Captain Mansur Ali—were no ordinary men because for them, public service was more important than life itself. They had immense concern for public welfare and demonstrated their will to fight valiantly for justice.

When it was a question of displaying unflinching devotion to Bangabandhu and his ideals, Syed Nazrul Islam, Tajuddin Ahmad, AHM Qamaruzzaman and Captain Mansur Ali were second to none. They did not compromise with the murderous cabal to earn freedom or a cozy position in the establishment, while others capitulated in the most shameful manner. Records show that they could have bargained with the assassins and their patrons but they did not wilt. This was a rare instance of displaying inner strength; a necessity for establishing truth under adversity.

The tragedy in Bangladesh is that we, as a nation, have not been able to come out of our self-absorption and it was, thus, no surprise that it took 21 years to officially recognise the culpability of a heinous offence committed in the most blatant manner. Cynics say that we have in our midst far too many "boneless wonders." With such men, expediency is all. The four slain leaders, however, were men who had the courage not to submit or yield and were like rocks in the wilderness of shifting sands.

The historical significance of the sacrifice of the four national leaders cannot be lost sight of. We have to admit that by lingering for a painfully long time in taking legal action, we have made ourselves small. Must we not admit that vigorous societies have to harbour a certain extravagance of objectives, so that men wander beyond the safe provision of personal gratifications?

As mentioned, the state sprang into action to investigate the ghastly misdeeds only when a favourable scenario emerged. However, the task was not easy by any account. The First Information Report (FIR) had mentioned the name of only one person as accused and four accomplices were mentioned as unknown.

Significantly, the original FIR could not be located despite the best efforts given in tracing them from the concerned court, police station and CID office. Finally, a hand-written copy of the original FIR was located at Police Headquarters.

The investigator of the gruesome crime thus had to commence his work with a handicap. Curiously, although the FIR was lodged on November 4, 1975 at Lalbagh police station, the investigation officer, the then Deputy Superintendent of Police (DSP) Saifuddin, was not allowed to visit the place of the incident despite repeated efforts, thus failing to take initial steps towards the investigation.

Between 1975 and 1996, the investigation could not get started due to the indifference of the establishment, and consequently many relevant supporting papers and direct evidence disappeared, much to the consternation of the prosecution. Some of the jail employees of the relevant period had been located from different places around the country after prolonged efforts and the complainant of the incident, the very old former DIG Prison, was traced from Sandwip Island to prove the FIR. Some old files had been retrieved from the prison records but copies of the inquest and post mortem reports of the slain leaders could not be traced.

The then establishment instituted a Judicial Commission after the incident, but the said Commission could not complete their inquiry. The relevant files regarding this Commission could not be traced at the ministry as some interested quarters were suspected to have caused its disappearance.

Admittedly, the investigator's job was made very difficult.

The misguided soldiers who committed the atrocities were rewarded with diplomatic postings. The job of tracing them and bringing them under the law was a challenging task. These accused persons were staying in Bangabhaban, the seat of power, and from there they proceeded to Dhaka Central Jail to commit the massacre.

After a lapse of so many years, it was extremely difficult to trace the relevant files in these sensitive places. Equally difficult was locating important exhibits from Radio Bangladesh.

Despite all the odds, encumbrances and limiting factors, the case ended in charge sheets against 21 accused persons, including 14 absconders. The trial court awarded death sentence to three accused persons and sentenced 12 to life imprisonment, thanks to the exacting and gritty investigation of Abdul Kahhar Akand, the then Senior Assistant Superintendent of Police. The trial was held in the ordinary court of law, where the defence enjoyed all statutory privileges.

Of significant consequence is the fact that our socio-political situation turned for the worse with the tragic murder of the Father of the Nation and the four national leaders in 1975.

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Muhammad Nurul Huda is a former IGP.

https://www.thedailystar.net/opinion/straight-line/news/jail-killing-day-the-indelible-shame-1988305

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Bangladesh: How Free Are We?

By Faruq Faisel

 November 03, 2020

In the last decade, freedom of expression has been in the decline globally, from authoritarian to traditionally liberal states. There are trends of oppression, repression of dissent, and delegitimising peaceful protests and opinions. More than half of the world's population is now living in a country in which freedom of expression is categorised as "in crisis."

This was highlighted in the Global Expression Report (GxR) 2019/2020 released by ARTICLE 19, a British human rights organisation mandated in the defence and promotion of freedom of expression and information. The protection of the right to freedom of expression and information is now at its lowest point than it was ever before. The right to speak and be heard are tools for effective public engagement and participation, which provide checks and balances for those who govern our societies. This has become more apparent with Covid-19, where the free-flow of information becomes crucial to address public health needs and access to life-saving information. Tackling these issues and addressing public needs become difficult due to the worsening environment of global expression. Free speech and information are fundamental components to the functioning of democracy, which provides credibility to any government. Thus, democracy and freedom of expression are inextricably linked and are important for ensuring equality, development and non-discrimination.

In Bangladesh, civic spaces have been under threat for some time. In the GxR report, Bangladesh ranked 132 out of 162 countries around the world, coming at the bottom five in the Asia Pacific region. In the past decade, Bangladesh has made significant strides in human development indicators and is on its way to graduate from its status as a Least Developed Country (LDC) to a Developing Country. While income per capita, life expectancy, education and access to healthcare progressed, human rights regressed. According to the report, Bangladesh scored 15 out of a total of 100 in Freedom of Expression, putting it in the "crisis" group along with China, Turkey, Russia and Iran. This means 163 million Bangladeshis are living in a state where human rights standards, both in legislation and practice, are violated. With rising attacks on media, journalists and peaceful protests, and rampant enforced disappearances, it paints a worrisome picture of Bangladesh's future.

One of the main reasons for this regression in freedom of expression is The Digital Security Act (DSA), passed in October 2018, replacing the Information and Communication Technology Act (ICT). Instead of reforming the problematic aspects of the ICT Act, DSA criminalises a wide range of speech and gives the authorities power to interpret and use the law according to how they see fit. In 2019 alone, at least 1,325 people were arrested in 732 cases filed under the draconian DSA—more than three detentions per day. In 2020, the number of detained people under DSA crossed the 500 mark in the first half of the year. Additionally, according to the Paris-based International Federation for Human Rights (FIDH), between 2009 and 2018, at least 507 people were subjected to enforced disappearances. Of them, 62 people were found dead, 286 returned alive, and the fate and whereabouts of 159 are still unknown. Police brutality and use of force are the other issues the country has seen in the past year, where peaceful protests turned violent or activists and young students participating in the protests were harassed and beaten by authorities or by members of the student wing of political parties.

This begs the question of why this is happening in Bangladesh. Article 11 of the Constitution states that Bangladesh is a democracy that guarantees fundamental human rights and freedom to its people, while Article 37 allows freedom of assembly for its people. Free speech, thought and conscience are enshrined under Article 39. Yet civil liberties are highly restricted, with an alarming trend of shrinking civic spaces. Loopholes and vague interpretations of the law along with the culture of impunity leave room for exploitation, leading to an opaque judicial system. Most of these laws bear the legacy left behind by the British colonial rulers, and for Bangladesh to move forward towards a brighter future, there is a strong need for legal reforms in the country to reinforce fundamental rights and reflect the democratic values of the 21st century.

For the country to grow and progress sustainably, it needs to reflect the current times and the wants of its people. Systemic failures such as corruption, lack of accountability and weak human rights principles are holding Bangladesh back from achieving its full potential.

Media, as the fourth estate, is an integral part of society, as it directs the press to uphold democracy and creates checks and balances in governance by facilitating the free flow of information and ensuring accountability. Yet, with an increase in clampdown on dissent and free speech, journalists feel pressured to practice self-censorship, affecting the free flow of information.

Bangladesh has long been focused on economic growth. The protection and promotion of human rights, especially freedom of expression and the free flow of information, which are central to a democracy, is not only the right thing to do but the smart thing to do in economic terms. Research has found that freedom and participation rights have a positive long-term effect on economic growth. The rights to freedom of assembly, association and electoral self-determination are especially essential for a democratic society. This was affirmed in the World Summit for Social Development in 1995, where states made a declaration stating sustainable and equitable development must incorporate democracy, social justice, economic development, environmental protection, transparent and accountable governance, and universal respect for, and observance of, all human rights. Thus, human rights and development are intertwined and the fundamentals of these are safe civic spaces and strong civil liberties.

Without having freedom of expression and information, we are left in the darkness and are prevented from holding those in power accountable, which puts our basic rights in danger. States and authorities are obligated to its people to ensure the protection of their rights and uphold the commitments it made, nationally and internationally. Progress cannot be made by leaving people behind. Bangladesh needs to reaffirm its commitment to ensuring better protection of freedom of expression and civic spaces. Having its people's voices heard and engaging in public spaces will help to better understand the needs of the people and result in better governance. It is in the state's interest to use a holistic approach, with human rights principles at the core of social and economic development. The people of Bangladesh deserve better. It is high time that these systemic failures are addressed for an effective democratic system, which includes the right of the citizens to raise questions.

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Faruq Faisel is the Regional Director of ARTICLE 19 Bangladesh and South Asia. GxR report is available at: https://www.article19.org/gxr2020/

https://www.thedailystar.net/opinion/news/how-free-are-we-1988297

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