Are the legal systems, government and organisations in Bangladesh taking disability cases seriously, especially for women who are disabled?

Tasfiah Rahman reflects upon how diasability cases in Bangladesh have been handled in the past, how this has changed over the years, and a discusses a way forward, focusing especially on disabled women’s rights.

Bangladesh has adopted the definitions of disability from WHO 2004 and the Convention on the Rights of Persons with Disabilities 2006, stating that disability is an umbrella term that covers impairments limiting human activities and participation restrictions.¹ There are people who are born disabled and there are some who become disabled due to natural disasters, road accidents, social and family violence, malnutrition, unavailability of vaccinations and congenital malformation.² 

Why should the topic of disability be taken seriously? 

Many communities shy away from the topic of disabilities such as discussing the inability to do certain tasks in our daily life will somehow be signified as weakness. This should strongly not be the case. Bangladesh, being a developing country for years, is still in the process of changing so many past norms and cultural beliefs that have discriminated against many of their own members of the community. People with disabilities have been hidden behind the curtains and this slowly has to change where they feel included and ready to be heard. Human Rights Watch has highlighted the psychosocial impact of the disabled being constantly anxious, depressed, suffering from post-traumatic stress, psychological distress, and enduring fear for how they’ve been treated for years.³ These psychosocial impacts are exacerbated by what is often a prolonged and expensive justice process, during which victims can face re-traumatization, recurring medical fees, economic hardship, stigma, lack of support, and sometimes threats to drop their case.⁴ 

Disability cases in the past 

It took many years for the courts and the government to take disability cases seriously as many courts wouldn’t even consider taking in a disability case. BLAST and another vs. Bangladesh and others (1998) was a case about  Muhammed Sarwar Hussain Khan, a person with visual impairment. He filed a writ petition challenging a circular issued by the Minister of Establishment.⁵ The writ petition stated that there was no reservation for physically disabled persons in the first and second class post of the services of Government.⁶ This case was unfortunately disposed as it was unsuccessful on calling upon the Ministry of Establishment and⁷ the Ministry of Social Welfare to show cause why the impugned circular amending the reservations for persons with disabilities for direct employment in government services.⁸ 

Women who have dealt with disabilities in the past 

More dilemmas are seen in communities with arranged marriages. A Bangladeshi client, Amina, had learning difficulties where she had difficulty grasping knowledge compared to others was in a complicated scenario with her family. F Hepper considers how Amina being trapped in the norms and cultural ritual of an arranged marriage with learning difficulties is brutal.⁹ Amina lacked the capacity to participate in school lessons with her siblings which led her to live in a more protected and sheltered existence at home with her mother.¹⁰ Her parents thought marriage would solve her issues. The obstacles which women and girls faced in the past legal system, especially with disability, still have a long way to go.¹¹ 

 Disability resulting from an acid attack can also severely impact a woman’s ability to perform physical work that she previously may have been able to do, thus cutting off an important component to financial independence. Acid Survivors Foundation has provided free and long-term medical care and socioeconomic rehabilitation to thousands of acid attack survivors in Bangladesh.¹² However these services have often been unavailable to victims of gender-based violence because of under-resourced groups and limited state facilities.¹³  As the number of acid attacks have decreased, attention to acid violence has waned and donors are losing interest, leaving ASF with fewer resources to fill these needs.¹⁴ 

Women and girls are almost invariably among the poorest, most oppressed and excluded members of society. Negative attitudes, and environmental and institutional barriers have made them a vulnerable and neglected section of society. Children and adults are frequently prevented by law and in practice from realising their social, political and economic rights. Women are particularly subject to becoming victims of family violence. Furthermore, both adults and children are often excluded from opportunities to address their own concerns because their problems are primarily discussed from a medical or welfare perspective. 

Recent disability cases in Bangladesh 

The most recent Act which was enacted by the government of Bangladesh is the Rights and Protection of Persons with Disability Act 2013 in line with the United Nations Convention on the Rights of Persons with Disabilities. However, there were questions under this Act in the case of BLAST, NGDO and NCDW v Bangladesh and Others  (2015) as this act was not properly applied here.¹⁵ Section 31 of the Act provides registration and issuance of identity cards to persons with disabilities, and further states that no persons with disabilities will be able to secure any protections under the Act without such a card.¹⁶ Section 36 prohibits discrimination based on disability and provides for remedies against such discrimination, including compensation.¹⁷ However one and a half years since the passage of this law, no gazette notifications  were published bringing into force Sections 31 and 36.¹⁸ There have been many other cases that have been disposed of or kept pending for years.¹⁹  In the mentioned case, the court could not  give it valuable time to come up with a decision especially for the people who are struggling with their disability here.²⁰  

The question now arises whether this is still the same situation in the modern era where the laws are more developed. In 2020 the government passed the National Building Construction Act.²¹ This act requires physical structures to be made accessible to those with disabilities.²² However, the government did not implement the law effectively as the government still did not them provide with accommodations or pay their rent.²³ The law calls for the establishment of local committees to expedite implementation of the law, but most committees had not been activated. ²⁴ The law requires persons with disabilities to register for identity cards to track their enrollment in educational institutions and access to jobs.²⁵ This registration allows them to be included in voter lists, to cast votes, and to participate in elections which is a big step.²⁶  

How Post Covid has affected the disabled and a way forward 

People with disabilities have also been affected by COVID-19 during 2020 to 2021, have faced multiple layers of deprivation during this period with shrinking economic activities and fear of hunger.²⁷ Support provided by the government and others is not easily accessible.²⁸ The International Labour Organisation  has reported that the risk in the response to the current crisis is that people with disabilities will be left behind once again.²⁹ A report on ‘Covid-19 Impact on Vulnerable Groups: People with Disabilities’ by Innovision, a research based non-governmental organisation, shows that 74 per cent of people with disabilities in Bangladesh have lost all of their income sources.³⁰  

Sightsavers has identified a number of focus areas for influencing the government and donor agencies to take adequate measures, protecting people with disabilities from the short-term and long-term adverse impacts of COVID-19.³¹ To start off, developing a policy and budget allocation in consultation with people with disabilities and their representative organisations would really benefit their health.³² Using sign language and accessible web content in all campaign activities/press conferences on COVID-19 and making websites of the ministry of health and family welfare especially for deaf/blind people could very much help them in helping them gain knowledge about their situation.³³ 

Again, prioritising women and girls with disabilities in any specific initiatives for women, including sexual and reproductive health services, by ensuring them adequate water, soap and menstrual supplies is an important solution here.³⁴ There are other steps taking place, including a government directive to the Association of Private Employers to prevent people with disabilities from losing jobs due to COVID-19.³⁵ Furthermore, providing loans to people with disabilities with low interest rates to resume their businesses can also make a huge impact in their lives.³⁶ 

Photo credit:”FM speaking at the 8th session of the Conference of States Parties to the Convention on the Rights of Persons with Disabilities” by Estonian Foreign Ministry is licensed under CC BY 2.0.

‘DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’ 

Religion, Liberty and Pakistan-The Thorn to Their Freedom

 Irteza Ahmad reflects upon the current political climate of Pakistan, and how the restrictions imposed upon Ahmadi Muslims to practice their faith with liberty, are indicative of a wider issue in the country.

In April of this year Prime Minister of Pakistan Imran Khan was ousted after the Supreme Court ruled his proposal to dissolve parliament and call a snap election was unconstitutional.^[1] A short while after in light of this the former PM tweeted that the ‘freedom struggle begins again today against a foreign conspiracy of regime change’.^[2] Khan was elected on a mandate of anti-corruption and a promise to bring change and create a ‘new Pakistan’ 4 years prior to this. It was felt that Khan had a vision to establish freedom in his beloved country. 

Contemporary Politics in Pakistan 

Khan’s unsuccessful move to dissolve and call an election preceded a vote of no confidence against him which he was favoured to lose.^[3]  The deputy speaker of the house rejected the proposal for a no-confidence vote.^[4] Opposition MPs thus pressured the Supreme Court, who ultimately ruled Khan’s actions unconstitutional leading to a vote resulting in his ousting. Khan maintains that US involvement resulted in his removal.^[5]  Khan’s goals have seen Pakistan embrace relations with eastern partners in Russia and China, while moving away from the US. The opposition, now in power, condemns a failure to deliver on his mandate and poor control of the economy with the currency being a staple concern. 

Pakistan is a very interesting country in terms of its current politics. Since creation in 1947 Pakistan has been under military rule for half of its lifetime.^[6] The rest of its history has seen 29 Prime Ministers of which not a single one has ever completed a full 5 year term.^[7] It is a country well accustomed to turmoil. 

The Ahmadi Issue 

The initial events that followed Khan’s election are a perfect example of why attaining freedom in Pakistan is a task troubled with complexity. Post appointment as PM and tasked with selecting his cabinet, Khan immediately succumbed to weakness facing backlash to a jab he poked at the Achilles of the freedom issue in Pakistan. He appointed Mian Atif a Professor of Economics at Standard University as his Minster of Finance. Following widespread backlash Khan was forced to renounce Atif’s nomination. The reason being that Atif, belonging to a minority sect of Islam, is an Ahmadi Muslim.^[8]

Under Article 260(3) of the Constitution of Pakistan Ahmadis are considered ‘non-Muslim’.^[9] Ahmadis are persecuted across the Muslim world but in my view no place more so than Pakistan. Under Ordinance XX since 1984 Ahmadis have been disallowed to publicly practice the Islamic faith and the Ordinance prohibits them from identifying as Muslim.^[10] Consequently, an uttering of the word ‘salaam’, meaning peace, is a crime when spoken from the lips of an Ahmadi punishable by imprisonment. These laws have shaped societal sensibilities and mentalities in Pakistan to the point where a man deemed by some to be a future Nobel laureate in his field is judged not according to his merits but his faith. 

The restriction on freedom to practice one’s faith with liberty is not pertinent across the entire subcontinent. In the case of Shihabuddin Imbichi Koya Thangal vs K.P. Ahammed Koya the Indian Courts ruled contrary to their subcontinent counterpart declaring Ahmadis as Muslims.^[11] The Court cited that Ahmadis believe in what the Court considered the two fundamental principles of Islam, namely that there is no God but Allah and that Muhammad is his messenger.^[12] Man has long cultivated his relationship with the divine into his legal affairs, yet this instance marks a precedence where a Court has had to regulate ‘religion’ and the ’religious’. 

Islamization-The Shift to Theocracy

The Ahmadi issue is one which is and has been intrinsically politicised in the country. The justification largely used for the discrimination is a difference in ideology, which is not the concern of this article. What is important to understand is that Islamisaztion under President Zia-ul-Huq in the 1980s brought about stricter ‘sharia’ law breeding a generation of conservatist thought.^[13] The biproduct of these measures led to an increased stringent culture against anything that was not in Zia’s view ‘Islamic’. Ziad led Pakistan on a trajectory of a pointed theocracy. Ahmadis with their ‘conflicting beliefs’ are a ‘threat’ hence the constraints on their freedom to practice their religion. It is also important to highlight that the country was not always as such. Zia along with Zulfikar Ali Bhutto, PM from 1973 to 1977, radically shifted the nation. Zafarullah Khan, a now forgotten treasure, a successful jurist serving as head of the International Court of Justice served as the country’s first Foreign Minister.^[14] That was before Zia and Zulfikar. Mian Atif’s appointment by Khan a few years ago for that reason demonstrates the drastic shift from Ahmadi’s serving in government to a stern theocratic condition.

Intolerance 

The struggle of the balance in liberty and Islam is not novel issue. Rushdie’s publication of The Satanic Verses is one such infamous example. More recently, the murder of Mashal Khan at a University Campus in Pakistan, who was promoting Marxist propaganda and freedom of speech, is an example of discrimination not just against one’s religion but against many human rights- He was mobbed, kicked, beaten and murdered.^[15] This happened not all that long ago in 2017. In a country where education is a privilege, not a right, the unsettling actions of the intellectual elite, give an indication about the rest of the society. 

In the context of this article the key issue here is the intolerance to accept difference. Given that Pakistan was created as a nation for the subcontinent’s Muslims this is the principle that has been advocated by Islamists such as Zia Ul Huq. Days before its creation though the founder Jinnah said, ‘you may belong to any religion or caste or creed – that has nothing to do with the business of the State’.^[16] Pakistan was intended to provide not solely religious but equal human rights for all not just for Muslims. Politicisation, polarisation and Islamisization has prevented that. The theocratic position that has been forged has produced an intolerance to many rights such as the freedom of speech and religion. Anytime there is an event in the country concerning the restriction of liberty, such as those mentioned in this article, this upholds and hardens the theocratic position. Hence the suppression of a right pertaining any form of liberty is key to the issue of Ahmadis. The freedom to practice religion in Pakistan is plagued and affected by the sensibilities of society relating to theocracy and liberty. 

Conclusion

Ultimately, the above is what Khan was trying to rid of from his country. Credit must be given to him for embarking on his pursuit of freedom, but he ultimately attacked an issue that is extremely sensitive at an improper time. 

Islamisization and politicisation invoked changes that made Pakistan into the theocratic state that it is today. The effect of these changes was not felt instantly and they required a continual development. Equally the Ahmadi issue will not be solved overnight, it requires a similar continual development of marginal gains to produce any effective progress. Upholding liberty in its many forms is part of that process. 

This discussion has aimed to highlight the prevalence of theocracy that has come at the expense of, not only liberty in faith, but human rights generally. The issues against freedom of religion and the discrimination in opposition follow from a threat to the dogmatic approach. Though the purpose of this Article is to highlight the issues of freedom of religion and religious discrimination in Pakistan the use of Ahmadis in the context of religion is just one example. Irrespective of whether it is freedom of religion or speech and irrespective of the vessel against negative liberty, the fundamental issue is the deprivation of human rights with a view to ostracize thought to breed intolerance. That is what ultimately cost Mashal Khan and many others like him their lives, they did not conform to the dogma.

Malcolm X once said, ‘I believe in human rights for everyone, and none of us are qualified to judge each other and none of us should therefore have that authority’.^[17] In light of Jinnah’s ideology and the words of Malcolm an essential principle of Islam that is often forgotten is Chapter 2 verse 256 of the Quran. It is stated here that ‘there is no compulsion in religion’.^[18]  It is my view that Pakistan is holding itself back from realising new heights. If Pakistan needs to resolve its human rights crisis which consists in part of the treatment of Ahmadis, and the inability to tolerate-that is the thorn to their freedom.

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^[1] SUO MOTO CASE NO.1 OF [2022] SCP 

^[2] Khan Imran, ‘@ImranKhanPTI’ (Twitter, 10 April 2022)

^[3] Baynes Megan , ‘Pakistan’s PM Imran Khan tipped to lose no-confidence vote’ (Sky News , 9th April 2022)

^[4] Al Jazeera And News Agencies, ‘Pakistan Parliament dismisses no-confidence motion against Khan’ (Al Jazeera, 3rd April 2022)

^[5] IBID

^[6] Al Jazeera And News Agencies, ‘Pakistan: a political timeline’ (A lJazeera, 30th April 2013)

^[7] Al Jazeera And News Agencies, ‘No Pakistani prime minister has completed a full term in office’ (A lJazeera, 9th April 2022)

^[8] Sayeed Saad, ‘Pakistan removes economist from key role following Islamist backlash’ (Reuters, 7th September 2018)

^[9] National Assembly of Pakistan, The Constitution of the Islamic Republic of Pakistan [1974] art.260(3)(b).

^[10] Anti-Islamic Activities of the Quadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance [1984]

^[11] Mahmood Tahir, ‘Ahmadis and an unsung hero’ (The Indian Express, 17th August 2017)

^[12] Ibid

^[13] Ali Shan Shah and others, ‘Islamization in Pakistan: A Critical Analysis of Zia’s Regime’ [2016] 1(1) Global Regional Review

^[14] Mahmood Tahir, ‘Ahmadis and an unsung hero’ (The Indian Express, 17th August 2017)

^[15] BBC, ‘Mashal Khan case: Death sentence for Pakistan ‘blasphemy’ murder’ (BBC, 7th February 2018)

^[16] Secunder Kermani, ‘How Jinnah’s ideology shapes Pakistan’s identity’ (BBC, 18^th August 2017)

^[17] Zillah Eisenstein, Against Empire: Feminisms, Racism and the West (1st edn, Bloomsbury Publishing 2008) 132

^[18] The Holy Quran ch2:256

‘DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’ 

Photo Credit:”Imran Khan during his speech” by UJMi is licensed under CC BY-NC 2.0. 

Legally Challenging the Government on a Piece-meal Basis is not Enough; Long Term Protection of Human Rights Requires Democratic Change 

Anna Bielenberg discusses our current voting system’s role in the ‘Rights Removal Bill’ coming to fruition.

On the 14th of June, the European Court of Human Rights (ECtHR) granted an urgent interim measure to prevent the immediate removal of eight asylum-seekers from the UK to Rwanda.^[1] The ruling means that these individuals have the right to remain whilst the legality of the Secretary of State’s Rwanda Removal policy undergoes Judicial Review. Preventing the individuals from leaving that same night was a huge triumph, however any hope that this decision might offer a lasting protection for the rights of displaced people was soon crushed: less than a week later — as though in direct response to the ECtHR decision — the government announced its’ intention to replace the current Human Rights Act 1998 (HRA) with a Bill of Rights.

To understand why the new Bill of Rights Bill was quickly coined the ‘Rights Removal Bill’ it is necessary to briefly outline what protections the HRA previously afforded individuals in the UK.  The HRA incorporates the European Convention of Human Rights (ECHR) into domestic law, and thereby allows the ECtHR to safeguard these same rights. As it currently stands, the HRA allows any individual to seek justice in a British court if they feel that the courts, police, local authorities, hospitals, or publicly funded schools, have denied them any right outlined in the articles.^[2] It also obliges the courts to interpret all new legislation passed by Parliament in a way that is compatible with the ECHR. The caveat however, is that many of these rights — the right to liberty and security; the right to a fair trial; the right to respect for privacy and family life; the right to freedom of thought, conscience and religion; freedom of expression; and freedom of assembly and association – are conditional and may be withdrawn if the government considers it is necessary for national security, public safety, the economic wellbeing of the country, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others. Therefore, although the HRA has always been discretionary in this sense, the ECtHR has until now offered a last-resort protection for individuals who feel their rights have been denied by a domestic court. The effect of the new Bill of Rights will be to limit the influence of the ECtHR in the UK, and the ability of the UK Courts to uphold Convention Rights.^[3]

The Bill of Rights Bill should also be considered within the context of three recent Parliamentary Acts. The Police, Crime Sentencing and Courts Act lowers the threshold for the Police’s power to restrict any sort of protest that might ‘disturb, shock or offend others’, and thereby criminalises the very purpose of legitimate protest. ^[4]The Nationality and Borders Act criminalises most asylum-seekers based on their mode of arrival into the UK, or the timing of their asylum claim. This gives the British government the legal authority to deny them access to public funds, their right to stay in the UK, or have their family members join them, which UNCHR states is directly in contravention with obligations that the UK is under as part of the Refugee Convention ^[5]. Thirdly, the Election Bill undermines several democratic principles, through allowing for parliamentary oversight of the Electoral Commission.^[6]As the purpose of this commission is to protect free and fair elections through being entirely independent, it is believed that the overall effect of the Act will be to cement Conservative Power further.^[7] What we see today therefore is a government that takes away freedoms, whilst at the same time chipping away at the ways in which it can be held legally or politically accountable for its own failures. Gina Miller – well known for R(Miller) v Secretary of State for Leaving the European Union – believes that the current government strategy is to diminish the rights in the places that have previously offered a space to hold the government to account in different ways: the courts, the media, the streets, and the ballot box^[8].

Meanwhile, the current government has also demonstrated a dangerous lack of respect for the Rule of Law, having broken the law itself no less than five times. Lord Paddick insists that this sense that the law operates with favour to the powerful threatens to undermine public trust in the police and the wider criminal justice system^[9]. Whilst this less than adequate leadership could superficially be attributed to Pandemic – and subsequent alternative emergencies (the war in Ukraine, the cost-of-living crisis) — there could also be a more deep-rooted, long-term cause for the current political landscape. In an interview with LBC, Zach Polanski – London Assembly Member and Green Party MP – argues that the irreverence, corruption, and lobbying we see by politicians today is the result of a broken voting system. More specifically, he argues that the First Past the Post System (FPTP) is the reason that those who sit in the House of Commons are so out of touch with the general population. Indeed, a growing movement in the UK demands a reformation of the voting system towards a system of Proportional Representation. One leading voice is the cross-party pressure group, Make Moves Matter.

Historically, advocates of the FPTP system have argued that it excludes radical politics, provides a strong mandate to govern and preserves the MP-Constituency link. The flip side of these benefits is that FPTP is actively biased towards major parties with a concentrated following and arguably excludes millions of minor-party supporters from democracy: indeed, 68% of votes didn’t affect the outcome of the last general election.^[10] There is also a huge discrepancy between the public support for a party, and the amount of power they are able to wield in the commons. In the 2019 General Election, the Conservatives share of the vote was 43.6%, however their share of the seats is 56.2%.^[11] Conversely, the Liberal Democrats and the Green Party won 11.5% and 2.7% of the vote respectively, while only obtaining 1.7% and 0.2% of the seats. These statistics highlight how votes for the Conservative and Labour Parties have greater relative value than their competitors. 

The troubling consequence of this is highlighted by political activist and commentator Femi Oluwole: because women, ethnic minorities and working-class people are more likely to feel represented by, and therefore vote for, opposition parties, the votes of women, ethnic minorities and working-class people are more likely to count for less than those who are not members of these demographic groups^[12]. It therefore follows that the MPs who sit in Parliament are less likely to enact legislative change in the areas which are needed. Make Votes Matter insists that ‘Democracy Loves Diversity’^[13]: this reflects the belief that proportional representation will ultimately give a voice to those who have traditionally been excluded from politics, and more importantly allow for the creation of a political landscape that reflects the significant presence of these groups within UK society.

A product of the First Past the Post System, the current constitution of the House of Commons allows the Conservative government to pursue a conservative agenda which is not in the interests of these demographic groups. In a powerful article for The Guardian, Afua Hirsch reflects that ‘the most sinister, perverse consequences of [George] Floyd’s murder are the new laws that put both the actual bodies of black people and anti-racist activism at risk’^[14]. This powerful sentence highlights the pincer movement tactic, whereby the government is steaming ahead in its agenda, whilst simultaneously disarming the electorate of its tools to hold the government to account. The same stands true for progress for the rights of women, the LGBTQ+ community, the disabled, and those fleeing conflict and persecution.  

Whilst the FPTP system has indeed for many years prevented minor extremist parties to gain a foothold in the Commons, the Rwanda Removal Policy is one example of what can happen when extreme right-wing ideologies manage to permeate a party which benefits from this voting system. The consequences of Parliamentary Sovereignty are that if a party holding most seats in the Commons begins to adopt policies which are usually preserved for radical parties on the margins, there is little the general population can do. The fact that Belarus is the only other country in Europe which still uses the FPTP system reveals a lot about the democratic process in the UK.

Overall therefore, it is important to remember despite the fact that the government may declare itself globally to be a flagship of ‘justice’ and ‘democracy’, this not mean that either of those things have been delivered in reality. On the contrary, we need to remain critically aware and look to the likely consequences of the legislation which has been passed: namely, a more unjust society. When I read that protests by Home Office staff were met by assurances from Patel that the Rwanda Removal Policy is entirely ‘legal’, I was reminded of the Martin Luther King quote that we should “never forget that everything that Hitler did in Nazi Germany was legal.”^[15] The authoritarian tendencies which the government is displaying is inconsistent with the ‘enduring commitment to liberty under the rule of law’  evoked in the Bill of Rights Bill.^[16] The reality is that our rights are at risk and changing the voting system is the first step in protecting them. 

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^[1]  “European Court of Human Rights grants interim measures preventing removal of asylum seeker to Rwanda pending judicial review of Rwanda Policy”, Blackstone Chambers, 15th July 2022. Accessed 3 July 2022.

^[2] [2]  “The UK’s (New) Bill of Rights.” Public Law For Everyone, June 22 2022. Accessed 3 July 2022.

^[3]  Ibid

^[4] UNHCR Observations on the Nationality and Borders Bill, Bill 141, 2021-2022. October 2021

^[5] Ibid

^[6]  The Elections Bill is about undermining democracy, not shoring it up. Alina Rocha Menocal, 18 April 2022, Open Democracy.

^[7]  The Government Poisonous Elections Bill is designed to cement Tory rule. David Howarth, 6 September 2021, Open Democracy. Accessed 8 June 2022.

^[8] “The Rules on MPs’ standards are hopeless. Here’s how to clean up Parliament”. Gina Miller, The Guardian, 11 November 2021. Accessed 26 May 2022.

^[9] “The Law Must Apply Fairly to All”. The Good Law Project, 25 May 2022.

^[10] Make Votes Matter Factsheet. Accessed 3 July 2022.

^[11]  House of Commons Library, 10 January 2020. Accessed 12 June 2022.

^[12] How Britain Voted in the 2019 Election, Ipsos. Accessed 13 July 2022.

^[13] Democracy Loves Diversity, Make Votes Matter. Accessed 24^th May 2022.

^[14] George Floyd’s murder should have been a watershed, but Britain has learned nothing. Afua Hirsch, The Guardian, 25 May 2022. Accessed 1 July 2022.

^[15] Home Office staff worry they may be asked to act illegally in a culture of fear. Diane Taylor and Amelia Gentleman, The Guardian, 25 May 2022. Accessed 26 May 2022. 

^[16]  Human Rights Act Reform: A Modern Bill of Rights – consultation. gov.uk. Accessed 4 June 2022.

Photo Credit:”Brexit” by Ungry Young Man is licensed under CC BY 2.0.

‘DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’ 

Online Harassment in the Digital Age: A Conundrum For Women

Duaa Aijaz reflects upon how the online harassment of women has become synonymous with the Digital age, and what can be done to combat this.

In an era of globalization, the internet and digital media offer great potential as spaces for positive engagement and activism. However, as violence against women, persists as a global issue,  the advent of emerging social media platforms is somewhat of a new frontier of abuse towards women with cyber bullying and online harassment becoming increasingly prevalent. to a survey undertaken by Amnesty International, 41% of women who experienced online harassment felt that their physical safety was threatened.^[1],  It is also true that the majority of cases remain unreported so the figure in reality, is likely much higher. 

Online harassment includes online stalking, bullying, making sexist remarks, blackmailing, doxing, identity theft, rape, sexual assault, and murder threats. As a result, not only are victim’s emotional well-being compromised, it often leads to victims self-esteem being impacted. The reality is that this harassment is rooted in societies existing gender inequality. This is exemplified by  a recent UN report, which states that 73% of women worldwide experience cyber violence and that women are  27 times more vulnerable than to this than men.^[2] Hence, it is clear that we are in need of a global wakeup call to address the issue of cyber violence against women

Legal Framework Governing Online Harassment 

Generally, what is deemed illegal offline is also illegal online^[3].A set of broad guidelines has been published by the Crown Prosecution services regarding prosecution in cases where social media is involved ^[4]. Another legal instrument, the Budapest convention, is one of the most important legal instruments in combatting cybercrime. ^[5]Countries that have ratified it ensure that their laws are harmonized leading to increased cooperation among other states. In the UK, specifically, The Protection from Harassment Act (1997) and the Protection of Freedoms Act (2012) can be used to prosecute the wrongdoers. However, it is important to note how Protection from Harassment Act (1997)fails to define cyber-harassment resulting in vagueness.^[6] Therefore, the Protection of Freedoms Act (2012) can be used to ascertain behaviors equating to cyber-harassment. While these acts do protect the victim against perpetrators in the UK, they fail to provide protection against those who reside outside the UK.^[7] Despite the existence of certain loopholes, the law has been quite effective in dealing with those who cause harm to women in this way. For example, in April 2015 the sharing of private sexual photographs and videos without the subject’s consent was made a criminal offense, this lead to over 200 individuals being held accountable for this form of online abuse.^[8]More recently the UK government in April 2019 published its Online Harms White Paper (OHWP) concerning the online safety of UK citizens. ^[9]A statutory duty of care is imposed in its 2020 proposals intended to place greater responsibility on companies to ensure the safety of the users. Hence it is a positive step in guarding the safety of women while interacting online. 

The Grim Reality 

Whilst the government has tried to create prevention-based mechanisms, a number of high-profile incidents demonstrate how women continue to suffer from online abuse in the United Kingdom. For instance, female politicians are subject to a huge amount of abuse online. In 2017, British MP Diane Abbott received a number of death threats in the run up to the election. In fact, a study which tracked abuse of female MPs on twitter found that around 45.14% of these abusive tweets were aimed at her.^[10]Such forms of online harassment have a serious effect on the lives of women and have been known to impact their family ties, dignity and reputation. Dianne has displayed great resilience in dealing with such online abuse and said she coped with it by “putting one foot in front of the other”. ^[11]As a result, she urged the social media companies to hold such perpetrators accountable by keeping track of account holder details in order to prevent abuse from anonymous individuals. ^[12]Online abuse is unquestionably a gross violation of human rights too.^[13]

In order to empower women, the #METOO movement led by Tarana Burke emerged on social media, to spread awareness about the harm and violence that women experience around the globe. It was a way of elevating women’s unheard voices. They needed a platform to come forward with their side of the story and fight against injustice. However, that too received backlash and a spike in online harassment of women, leading to greater uncertainty.^[14]

Challenges for Social Media Companies

The dynamic nature of online activity makes it more difficult to deal with. One may question that social media companies often come under pressure for promoting misleading content however fail to take action when dealing with misogynistic content on platforms like Instagram and Facebook. However, a step in the right direction was taken by Facebook when it announced that “protecting” its community is “more important than maximizing profits”.^[15]New measures have been introduced by social media giants to counter online abuse, especially targeting celebrities, journalists, and politicians. As an example, Twitter introduced features to hide offensive content recently and  Instagram enables users to restrict their visibility along with a warning when harmful content is uploaded.^[16]

However, digital media platforms have further work to do, they need to acknowledge how their spaces are being used as a tool of  abuse. They need to accept greater responsibility for the content that is shared and that breaches individual privacy. A balance must be struck between the need for freedom of expression and harmful content being addressed immediately to prevent online harm from escalating into real-life harm. Such issues can only be addressed with appropriate qualitative and quantitative research that takes into account the victims narrative.^[17]

Conclusion

The issue of online violence against women is undoubtedly a complex issue and while there is no silver bullet for resolving this, a multifaceted response is needed in order to bring about real change. In light of the pertinent issues discussed above, The United Nation’s 2030 Agenda on Sustainable Development takes into account the use of technology to tackle violence against women. This is addressed specifically through Goal 5 on gender equality and goal 16 on peaceful and inclusive societies.^[18]

The internet, if used in the right manner, can undoubtedly play a significantly positive role in achieving gender equality and combating cyber violence, as has been highlighted through global development agendas over the years, for example the Orange Day initiative.^[19].Therefore, the international community needs to address this issue by taking measures to reduce the power of ‘internet giants’ through greater regulations. In order to achieve workable solutions to address online abuse, individuals in the power of position must accept their responsibility and play their part in ensuring the safety of women. 

Enacting women-friendly laws is not a difficult task but establishing a women-friendly online environment in a patriarchal society is a tough call. Hence the idea of an inclusive space whereby women can interact safely without being harassed will remain a pipedream if those responsible aren’t held accountable for their actions. 

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^[1] Amnesty International survey on women’s experiences of abuse and harassment on social media (2017) Accessed 4 July 2022

^[2] United Nations (UN) report “Cyber Violence Against Women and Girls: A Worldwide Wake-Up Call” Accessed 4 July 2022

^[3] HC Deb 29 October 2013 c236-7WA; Culture Media and Sport Committee, Online Safety: Responses to Committee’s Sixth Report of Session 2013-14, 3 July 2014, HC 517 2014-15, page 11; PQ 224106 and PQ 224105, both answered 23 February 2015 Accessed 4 July 2022

^[4] https://www.cps.gov.uk/legal-guidance/social-media-guidelines-prosecuting-cases-involving-communications-sent-social-media Accessed 4 July 2022

^[5] Council of Europe Convention on Cybercrime Accessed 1 July 2022

^[6] Bocij, Griffiths & McFarlane, 2002 Accessed 6 July 2022

^[7] Salter & Bryden, 2009 Accessed 5 July 2022

^[8] Crown Prosecution Service (2016) Violence against women and girls: Crime report 2015-16, p. 11. Available at: http://www.cps.gov.uk/publications/docs/cps_vawg_re- port_2016.pdf. Accessed 6 July 2022

^[9] Department for Digital, Culture, Media and Sport, and the Home Office, ‘Online Harms White Paper’ (2019) CP 57 Accessed 4 July 2022

^[10] Azmina, Unsocial Media: Tracking Twitter Abuse against Women MPs, Sept 2017,Medium.com Accessed 4 July 2022

^[11] : Simon Murphy, ‘Diane Abbott Speaks Out On Online Abuse As Female Mps Step Down’ (the Guardian, 2022) <https://www.theguardian.com/politics/2019/oct/31/diane-abbott-speaks-out-on-online-abuse-as-female-mps-step-down&gt; accessed 17 July 2022.

^[12] Ibid

^[13] Article 5, Human Rights Act 1998 Accessed 4 July 2022

^[14] https://www.vox.com/2019/8/27/20833421/me-too-sexual-misconduct-al-franken-kaiman Accessed 5 July 2022

^[15] https://economictimes.indiatimes.com/tech/technology/us-senator-calls-for-probe-into-facebook-whistleblowers-allegations/articleshow/86785878.cms?from=mdr Accessed 4 July 2022

^[16] https://link.springer.com/article/10.1007/s10676-019-09516-z Accessed 4 July 2022

^[17] European institute for Gender Equality Accessed 4 July 2022

^[18] https://sdgs.un.org/goals Accessed 4 July 2022

^[19] https://www.un.org/en/observances/ending-violence-against-women-day Accessed 4 July 2022

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Photo Credit:”Conférence : ‘Standing up against online harassement of women journalist’” by UNESCO Headquarters Paris is licensed under CC BY-NC-ND 2.0.ND 2.0.

‘DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’ 

Should we Remove Juries from Rape Trials?

Amelia Marshall discusses a range of recent developments to arguments for, and arguments against removing juries from rape trials.

In November 2018, the Labour MP for Stockport, Ann Coffey, stood up in Parliament to call for the end of juried rape trials.^[1] In so doing, she helped sustain a debate which has been raging for several years – can juries be trusted to give a fair judgment in cases of sexual violence?

The role of juries in cases of violence against women has been under increased scrutiny in the last year. Most recently, the jarringly different outcomes between Johnny Depp’s UK and US libel claims have been claimed by some as a result of the differing forms the trials took, as the UK trial was judge-only while in the US a jury had the final say. Mark Stephens, an international media lawyer, told the BBC that the common defence tactic ‘Darvo’ (short for, ‘Deny, Attack and Reverse Victim and Offender’) is ‘very, very effective against juries’, while ‘[l]awyers and judges tend not to fall for it’, making it harder for juries to recognise cases of domestic abuse.^[2] The scrutiny is being seen further up the legal establishment too. In November 2021, Dorothy Bain, the Scottish Lord Advocate, argued that juries should be scrapped in rape trials to help ease the covid backlog.^[3] According to Bain, up to 70% of the Scottish High Court’s backlog are cases of serious sexual violence, meaning that the impacts are felt most sha0rply by vulnerable women and girls. 

Much like Coffey’s appeal to Parliament, Bain’s suggestion was not met without criticism. Fears of a ‘two-tier justice system’ ^[4] or of removing an important barrier to unfair trials,^[5] continue to follow any new call for juryless trials. This article is not an attempt to solve the debate. Instead, I will lay out the most common arguments on either side so that the reader can form their own judgment. 

The Case For

The case for juryless rape trials can be compelling. In her speech to Parliament, Coffey quoted the research of Dr Dominic Wilmott, a researcher at Manchester Metropolitan University, who explored the relationship between rape myths and jury outcomes through a series of simulated trials. According to the study, ‘rape attitudes’ (whether or not the juror believed rape myths, such as most rapes are committed by a stranger) ‘were the strongest and most consistent predictor of the verdict decisions that juries made across the nine mock trials’.^[6] Dr Willmott went on to say that ‘the views held by the juror when they enter the courtroom explain their verdicts – regardless of the evidence and deliberation jurors undertake’, and perhaps most damningly that ‘the judge’s direction had no effect whatsoever’.^[7] It seems then, following this study, that the independence and unbiased nature of juries must be brought into question. 

This is far from the only evidence that appears to undermine the impartiality of juries. After Coffey issued a freedom of information request in 2018, the CPS revealed that in the preceding five years in England and Wales young men were significantly more likely to be acquitted for rape than older men. Two thirds of men aged 18-24 were acquitted, compared to 54% of men aged 25-59.^[8] According to the Guardian, senior CPS staff believe this disparity is due to juries being ‘particularly reluctant to punish young men at the start of their adult life for serious sexual assaults’.^[9] If this is the case, it seems an obvious undermining of women and girls’ ability to access justice. 

Similar issues have been seen in Scotland. Professor Fiona Leverick, a legal academic whose research influenced Dorothy Bain’s review into the prosecution of rape cases, also found that ‘prejudicial views are preventing convictions in rape cases’. ^[10]  Like Dr Willmott, she found a link between a juror’s belief in rape myths and their likelihood to acquit, declaring that ‘a lot of people hold views about how a rape victim will behave which are simply wrong’. ^[11] Moreover, she found a desire in jurors to be ‘absolutely 100% confident’ before convicting for rape, which is ‘very difficult, if not impossible, level to achieve in any case’. ^[12] Professor Leverick’s conclusion from the study was that ‘juries were failing rape victims’.^[13]

The Case Against

While this might be painting a bleak picture of our jury system, there is obviously another side to be heard. Ailsa McKeon, a barrister at 6KBW College Hill, points out that because of ‘mandatory secrecy’, we can never know why juries come to their particular decision, making it very difficult to determine that ‘jurors acquit rape defendants because of anti-victim bias’ in a real-world setting.^[14] Cheryl Thomas reached a similar conclusion in her wide-ranging study into jury outcomes in the 2010 Ministry of Justice Research ‘Are juries fair?’. Comparing the conviction rates of rape for complainants of different ages and genders, Thomas concluded that ‘a jury’s propensity to convict or acquit in rape cases is not necessarily due to juror attitudes to female complainants’.^[15] While her data shows that juries will only convict a defendant 47% of the time if the complainant is a woman over the age of 16, compared with 77% of the time if the complainant is a man, Thomas believes this does not show an anti-female bias because the rates for female children are higher (62% for under 16 and 58% for under 13).^[16] Whether this precludes a bias against adult women, I am personally unconvinced.

McKeon also argues that replacing a jury with a judge is not more likely to result in an unbiased outcome, as ‘judges are still human and susceptible to societal influences’.^[17] Benefits to the jury system, in her mind, are that ‘among 12 jurors, subconscious biases may be voiced and debated’ and that a jury will never know potentially prejudicial information, like a complainant’s sexual history, which a judge would have to exclude from the trial but would still be aware of.^[18] This is, of course, subject to debate. Professor Leverick, for example, argues that ‘[e]ven if judges held prejudices, they have to set out reasons for a decision, which juries do not have to do. Judges would not be able to base their decision on prejudice’.^[19]

Perhaps less controversial is Thomas’ belief that juries ‘are not primarily responsible for the low conviction rate on rape allegations’.^[20] While Professor Leverick has argued that ‘[j]udge-only trials would be one way of addressing the problem’, the significantly lower conviction in Scotland (under 50% conviction rate for rape or attempted rape compared to an almost 90% overall conviction rate) could be due to a unique feature of the Scottish courts. The Scottish Courts have the availability of a ‘not proven’ verdict, in addition to ‘not guilty’ and ‘guilty’. This allows, in Professor Leverick’s view, ‘jurors the chance to sit on the fence’.^[21] Removing the ‘not proven’ verdict for rape, which has the same effect as a ’not guilty’ verdict, might have a greater impact on rape conviction rates than replacing juries in Scotland.

It is worth noting that few regard making rape trials juryless as a silver bullet. Though Dorothy Bain was tried to justify the introduction of judge-only trials in Scotland by claiming it would help with the backlog of rape cases, this is not supported by Professor Leverick, whose research influenced Bain’s call for a review. With only a limited pool of judges, Professor Leverick believes any impact on the backlog would be minimal.^[22] Any attempt to reduce the case backlog must address the source – a lack of defence lawyers.^[23] Another major proponent of juryless trials, Julie Bindel, only advocates the move amongst other legal reforms, including a ‘panel of assessors’ to help the judge, a more rigorous approach to prosecuting from the CPS and better education on rape myths across society.^[24] Though it open to debate whether removing juries from rape trials would be a solution to low conviction rates, it seems certain that juries are not the only aspect of our criminal justice system that may be in need of reform.

Conclusion

Whatever your view on juries may be, it seems unlikely they will be removed from rape trials any time soon. Drastically reshaping our criminal courts after 800 years of trial by jury would require widespread support throughout our legal and political worlds which is evidently lacking.  That such monumental change is even being proposed, however, is surely a sign of how badly our courts are failing victims of sexual violence.  

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^[1] See House of Commons Debates, 21 November 2018, Column 344-350WH http://bit.ly/2QfA9q7, cited in Ailsa McKeon, ‘Without Rhyme or Reason: The Removal of Juries from Rape Trials’, 2019, 6KBW College Hill Blog < https://blog.6kbw.com/posts/without-rhyme-or-reason-the-removal-of-juries-from-rape-trials#> accessed 29^th June 2022

^[2] Robin Levinson-King, ‘Depp-Heard trial: Why Johnny Depp lost in the UK but won in the US’, 2022, BBC News < https://www.bbc.com/news/world-us-canada-61673676>  accessed 24^th June 2022

^[3] Constance Kampfner, ‘Removing rape trial juries would create two-tier justice, lawyers warn’, 2021, The Times, accessed 25^thJune 2022

^[4] Ronnie Renucci QC, quoted by Constance Kampfner, ‘Removing rape trial juries would create two-tier justice, lawyers warn’, 2021, The Times, accessed 25^th June 2022

^[5] Felicity Gerry, ‘Juries are essential to fair rape trials’, 2018, The Times, accessed 1^st July 2022

^[6] Ella Rhodes, ‘There is a problem with juries acting on myths rather than evidence’, 2018, The Psychologist,<https://thepsychologist.bps.org.uk/volume-31/december-2018/there-problem-juries-acting-myths-rather-evidence> accessed 3^rd July 2022

^[7] University of Huddlesfield, ‘Are the preconceptions that jurors hold about rape affecting the outcomes of trials?’, 2018, Autumn issue,  <https://discover.hud.ac.uk/2018/autumn/jury-bias-affecting-rape-trials/> accessed 2^nd July 2022

^[8] Alexandra Topping and Caelainn Barr, ‘Revealed: less than a third of young men prosecuted for rape are convicted’, 2018, The Guardian, https://www.theguardian.com/society/2018/sep/23/revealed-less-than-a-third-of-young-men-prosecuted-for-are-convictedaccessed 27^th June 2022

^[9] Ibid

^[10] Craig McDonald, ‘Influential academic warns Scotland’s juries are failing rape victims and judge-only trials must be considered’, 2021, The Sunday Post, https://www.sundaypost.com/fp/judge-only-trials/ accessed 1^st July 2022

^[11] Ibid

^[12] Ibid

^[13] Ibid

^[14] Ailsa McKeon, ‘Without Rhyme or Reason: The Removal of Juries from Rape Trials’, 2019, 6KBW College Hill Blog < https://blog.6kbw.com/posts/without-rhyme-or-reason-the-removal-of-juries-from-rape-trials#&gt; accessed 29th June 2022

^[15] Cheryl Thomas, ‘Are Juries Fair?’, 2010, Ministry of Justice Research Series 1/10 February 2010, P.31 < https://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/are-juries-fair-research.pdf> accessed 2^ndJuly 2022

^[16] Ibid, p.32

^[17] Ailsa McKeon, ‘Without Rhyme or Reason: The Removal of Juries from Rape Trials’, 2019, 6KBW College Hill Blog < https://blog.6kbw.com/posts/without-rhyme-or-reason-the-removal-of-juries-from-rape-trials#&gt; accessed 29th June 2022

^[18] Ailsa McKeon, ‘Without Rhyme or Reason: The Removal of Juries from Rape Trials’, 2019, 6KBW College Hill Blog < https://blog.6kbw.com/posts/without-rhyme-or-reason-the-removal-of-juries-from-rape-trials#&gt; accessed 29th June 2022.    

^[19] Craig McDonald, ‘Influential academic warns Scotland’s juries are failing rape victims and judge-only trials must be considered’, 2021, The Sunday Post, https://www.sundaypost.com/fp/judge-only-trials/ accessed 1^st July 2022

^[20] Cheryl Thomas, ‘Are Juries Fair?’, 2010, Ministry of Justice Research Series 1/10 February 2010, P.v < https://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/are-juries-fair-research.pdf> accessed 2^ndJuly 2022

^[21] Craig McDonald, ‘Influential academic warns Scotland’s juries are failing rape victims and judge-only trials must be considered’, 2021, The Sunday Post, https://www.sundaypost.com/fp/judge-only-trials/ accessed 1^st July 2022

^[22] Ibid

^[23] Vic Rodrick, ‘Shortage of Defence Lawyers Add to Backlog in Scottish Courts’, 2021, The Times, accessed 1^st July 2021

^[24] Julie Bindel, ‘Juries have no place in rape trials. They simply can’t be trusted’, 2018, The Guaradian < https://www.theguardian.com/commentisfree/2018/nov/21/juries-rape-trials-myths-justice> accessed 21^st June 2022

Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.

Photo Credit:”jury summons” by Robert Couse-Baker licensed CC BY 2.0.