legal empowerment, public interest law, women's rights

New case study on ADR in Bangladesh

I just came across a really interesting new article, Domestic violence made public: a case study of the use of alternative dispute resolution among underprivileged women in Bangladesh, which reveals many of the same lessons and learnings I encountered while in Bangladesh. Some excerpts include (note; most of these are direct quotes):

  • “ADR as practiced in Sylhet, Bangladesh provides poor women a chance to be publicly heard in mediations of their domestic crises. However, ADR often fails to deliver lasting, just, and socially progressive solutions. The adoption of ADR practices should not be considered as an alternative to the development of the formal judicial system, because it lacks the power to enforce agreements and supports the hegemonic status quo, leaving the battered woman and her natal family with very limited options.”
  • The gendered income distribution among labourers was one of the contextual factors that reduced women’s options in cases of domestic violence. Because women earn less than men, it was very difficult for women to leave the home and take children or family members with them.
  • “Apart from the economic hardship, the social condemnation of a woman living without a male guardian makes such a choice undesirable for women. The women themselves consider a house without a man as vulnerable to break-in, sexual abuse, and loss of honour.” […] “Although divorce is an option according to Islamic laws, in practice it is also simultaneously considered unacceptable in Bangladeshi society for both Hindus and Muslims.”
  • The practice of early marriage and dowry, women’s limited property and inheritance rights, obstacles to women working outside the home due to norms of propriety, and social stigma related to marital separation or divorce all contribute to a structural situation in which uneducated, poor women’s options are limited when they encounter domestic violence.
  • The general criminal law has no specific laws on domestic violence against women although some specific acts address issues such as dowry violence, trafficking, and acid throwing. Dealing with ‘ordinary’ domestic violence against women requires going through criminal law or in case of divorce, through family law. One of the shortcomings is that criminal law does not protect a woman by guaranteeing a right to a ‘matrimonial home’, nor does it offer her shelter during the proceedings.
  • Although some legal avenues are available to battered women, economic and cultural constraints can impede women’s access to them. First, the economic resources needed for a legal process are way beyond most socio-economically underprivileged women. Second, women rarely have the social and cultural capital to engage in litigation. And third, the burden on the courts and routine corruption translate to a very slow process and an unpredictable outcome, even if the women should receive monetary and practical support from an organization. Moreover, women are reluctant to proceed through the criminal court because evidence is hard to gain as witnesses do not corroborate in domestic violence.
  • Some organizations do not have sufficiently trained staff to counsel victims of domestic violence and can only provide help by providing legal advice in the mediations. Some advocates have not been sensitivity-trained to reflect on gender asymmetries or to question their own values and conceptions of a woman’s position in the family. They were rarely conscious of the need to find out how the female victims themselves saw their situation and instead concentrated on finding a way to convince the woman to return to her family and on creating goodwill so that they would stop maltreating the young wife.
  • ADR’s impact depends on the structure of power relations within which it operates. Accommodating culture in the process has the effect of privileging existing social relations and thus privileging and strengthening existing forms of domination. The gendered power imbalance in Bangladesh leads to a situation in which divorced women face grave difficulties in arranging their safety and livelihood. Due to this imbalance, the advocates rarely consider divorce an option for a battered woman, leaving her to cope in a domestic situation that may be dangerous for her health and survival.
  • The author proposes the following solution: A better functioning ADR process would require that the local community be more actively engaged in the proceedings. For example, a women’s local collective could act as a pressure group towards the perpetrators of domestic violence to prevent the violation of agreements….The use of ADR should not be an alternative to creating a functioning and just legal system: negotiating without the back-up force of law will not work. The force of a just law has to be available as a last resort. Particularly in cases of domestic violence, there must be a viable option of starting a criminal process at any point of the mediation process.

Everything noted is very much spot-on, and points to my growing discomfort with the way domestic violence is dealt with often through mediations or dispute resolution. Without the real threat of the law, and the criminal justice system, things will not change nor will abuse decrease. I also concur with the suggestion of improving the involvement of the community and urging other local leaders to place pressure on the perpetrators — although this too very much depends on social norms and the willingness of community members to condemn violence.

issues, legal empowerment, public interest law

TEDx Talk on Access to Justice

I wanted to share a fantastic TEDx talk I just encountered focused on why you should care about access to justice. I think he articulates, pretty well, why I think access to justice is simply so important and why governments should prioritize and fund legal services for the poor. I also loved his idea of a universal legal services/access to justice fund; though I don’t think we’re there politically, it sounds like a fantastic suggestion.

legal empowerment, women's rights

New World Bank Working Paper on Paralegals in Philippines

A great new World Bank Justice & Development Working Paper has been published by Jennifer Franco, Hector Soliman, and Maria Roda Cisnero, focusing on community based paralegalism in the Philippines. The abstract is as follows:

Community-based paralegalism has been active in the Philippines for the past 30 years, and yet its contribution to access to justice and the advancement of the rights and entitlements of the poor has been largely undocumented. This paper attempts to provide a framework study on the history, nature, and scope of paralegal work in the Philippines, based on the experience of 12 organizations that are active in the training and development of community-oriented paralegals. The study first provides a working definition of a community-based paralegal, and then examines the work of paralegals, their systems of accountability or lack thereof, and issues regarding recognition by the state and civil society actors. It also explores facilitating and hindering factors that aid or impinge upon the paralegals’ effectiveness. A major contributor to the work of paralegals was the democratization process after the overthrow of the dictatorship of Ferdinand Marcos and the continuing evolution of legal rights spurred by the relatively progressive constitution ratified in 1987. Three dimensions of paralegal’s work are identified and explored, namely, building rights awareness, settling private disputes, and increasing state and corporate accountability. The study ends with conclusions and recommendations with regard to sustainability, monitoring and evaluation, funding, and the prospects for paralegal work over the long term.

There is some excellent analysis here of the long-term paralegal movement in the Philippines, as well as recognition of paralegals by the state and some thorny issues that arise when working in the context of violence against women — my specific interest.