Barrister Rashna Imam on the factors preventing women from entering the legal profession in Bangladesh
Interviewed by Commonwealth Chamber Correspondent Arafat Reza.
Barrister Rashna Imam is an Oxford scholar, an advocate of the Supreme Court of Bangladesh (both Divisions), and the Managing Partner of Akhtar Imam & Associates.
Before joining Akhtar Imam & Associates, Rashna gained expertise as a corporate associate at Baker & McKenzie (London Office) through advising global giants like Arcelor Mittal and Schneider Electric on M&A and post-acquisition integration.
Her specialisations include corporate and finance, foreign investment and dispute resolution. Previously she has advised different entities of Visa Inc. on the establishment of a liaison office, payments systems and mobile financial services;British American Tobacco Bangladesh on the scope of trade promotional activities in view of anti-tobacco laws;The Department of International Development (DFID), Bangladesh on establishing a Credit Information Bureau for microfinance; Ernst & Young (E & Y) on foreign exchange control laws and closure of branch office and the Federation of Bangladesh Chambers of Commerce and Industry (FBCCI) on proposed reform of the Companies Act 1994 to create an enabling business environment in Bangladesh.
She regularly represents her clients before the Supreme Court in judicial review proceedings against decisions of public bodies, in company litigation and in commercial arbitrations under different rules of arbitration (ICC, UNCITRAL, FOSFA, GAFTA, Arbitration Act 2001 of Bangladesh, etc.). She is currently representing ABB India Limited (a leading engineering MNC), as junior counsel in international commercial arbitration proceedings against Power Grid Company of Bangladesh Limited (PGCB), electric power transmission organisation in Bangladesh, challenging imposition by PGCB of liquidated damages on ABB for alleged contractual violations. The contract was for the commissioning of power substations across Bangladesh. She is also representing the Exclusive General Sales Agent of Gulf Air in Bangladesh in enforcement proceedings by GF of ICC award against the GSA and in litigation arising out of arbitration before the Supreme Court.
She has made inroads in establishing and enforcing health rights in Bangladesh through public interest litigation (PIL) and advocacy. Her landmark cases in this regard include PIL for establishment of a legal framework for emergency medical services for road accident victims and protection of good Samaritans, and PIL for formulation of guidelines for prevention of medically unnecessary C-sections, both of which she filed on behalf of the leading NGO, Bangladesh Legal Aid and Services Trust (BLAST) and the case leading to the judgment directing reform of the Human Organ Donation and Transplantation Act 1999.Her stellar work through PIL earned her two international recognitions/fellowships: Asia 21 Young Leader (2018) and Global Programme for Women’s Leadership (2019). She is a member of the s Advisory Group of Bangladesh Health Watch (BHW), a citizens’ platform to bring about lasting improvements in the health sector of Bangladesh and a member of the high-level Advisory Committee to guide and steer the program on ‘Bangladeshi Labour Migrants in Maldives: Mitigating the Risks and Vulnerabilities to Trafficking and Irregular Migration’, a collaboration of the Refugee and Migratory Movements Research Unit (RMMRU) with the Asia Foundation, supported by the Department of State, USA. She was awarded “Women of Inspiration, 2021” by Junior Chambers International Bangladesh.
In this interview with our correspondent Arafat Reza, she delves into the issue of diversity in the legal profession in Bangladesh, discussing the barriers to greater female participation, what needs to be done to remove these barriers, and how the Commonwealth fits into this discussion.
Q1.To begin, I would like to share with you the following information provided by Bangladesh Legal Aid and Services Trust (BLAST) on their official website for a project titled ‘Women in Justice’ that ran from 2014 to 2016, which states that “30 percent of legal academics in Bangladesh are women, but only 10 percent of those in the legal profession are female. No woman has ever been appointed as Attorney General, Chief Justice, or Secretary of the Ministry of Law and Justice. Only one woman has been elected as a member of the Supreme Court Bar Council in its forty year history.”
Do you believe the situation described above has changed in the intervening years? If the situation hasn’t improved much, what obstacles do you think might have prevented this from happening?
Answer: I’m not sure how much has changed since 2016, but things have definitely improved. Having said that, none of the positions you mentioned to which no woman has ever been appointed, have yet been filled by a woman.
Furthermore, we only have a handful of senior advocates (equivalent to the Queen’s Counsel in England) and managing partners of firms who are women. In the case of the judiciary, only three female justices have reached the Appellate Division (apex court of Bangladesh) to date. So, while there has been progress, it has been minimal.
When it comes to obstacles, there are so many that I don’t know where to begin. The first barrier is our society’s patriarchal mindset, and we won’t see much female participation, particularly in the legal fraternity, until we come out of it.
Upon entering professional life, the first barrier for a female lawyer is to get a client. Clients have a preconceived notion that women are not aggressive enough to win cases in court. Not only is that notion not always correct, but potential clients also fail to realize that aggression is not always the best strategy.
Aggression is not an indication of competence in litigation. However, one can understand the cause of that prejudice. Traditionally, women are taught to be more docile and accommodating, traits which negate effectiveness as a lawyer. Men, on the other hand, are taught to be aggressive and tenacious, traits which are considered virtues at the bar.
Also, childbirth, pregnancy, and childcare are some of the reasons I have lost many bright and talented female juniors. When it came to deciding who had to stay at home and care for the child between the husband and wife, it was always the women who felt that they had no option but to stay at home.
When a woman is a practicing lawyer and her husband has a job, which is more secure and pays better compared to what a lawyer makes in the initial years of her practice, the choice as to who should give up his or her career becomes much easier. So, for practicing female lawyers, in particular, income is a factor.
Women’s chances of being hired, retained and promoted are less as employers are concerned about whether a woman will return to the professional life after marriage and childbirth and even if she does, whether she will be able to put in the number of hours required. Most employers, unfortunately, do not offer flexible working hours or remote working arrangements, which has the potential to retain female talent.
On top of that, our courts lack the basic facilities that women require. There were no breastfeeding areas until recently, and this was also the result of a public interest litigation. A daycare center was also established, but only recently.
Chambers are also plagued by the same problems. For example, I don’t believe any of our chambers have a daycare center. So, if an associate wants to bring her children along as there is no one to look after him or her, during the time she herself cannot. I understand that many chambers will not be able to afford a daycare center; however, those that can afford one and have a significant number of female employees should take steps to establish daycare centers to retain their female talent and help them realise their full potential.
Q2. According to a research conducted by BLAST from 2017 to 2018 in Dhaka, Khulna and Kushtia, court environments are not women friendly as they face, among other issues, sexual harassment. In 2009, however, the case of Bangladesh National Women Lawyers’ Association (BNWLA) v Bangladesh 29 BLD 415 formulated a guideline to be strictly followed and observed in work places in both public and private sectors until adequate and appropriate legislation is made in the field. The guideline defined the term ‘sexual harassment’, provided for preventive steps and disciplinary action to be taken, and established a complaint mechanism by constructing a complaint committee.
Does the guideline apply in courts and law chambers? If so, to what extent has the guideline been implemented and utilised?
Answer: This judgment is not directory, but rather mandatory in nature. The guidelines in the Judgment were given the force of law until appropriate legislation was enacted. Unfortunately, no such legislation has been enacted to date, which means that the judgment is still binding law.
It is applicable to all workplaces and all educational institutions. As the courts and law firms are workplaces, they are subject to this judgment. However, very little has been done to implement it.
Recently, a committee was formed in the Supreme Court of Bangladesh, led by Madam Justice Krishna Debnath, the only female judge of the Appellate Division. This committee has directed all lower courts to form a committee in accordance with the guidelines outlined in the aforementioned case to deal with sexual harassment complaints. This was only done in March of this year, 13 years after the judgment was given. Nothing was done in the interim period.
We gather from some of our multinational clients that some of them have put in place committees to ensure compliance with this judgment. I am confident, if not certain, that the majority of our homegrown businesses are still non-compliant and do not have a system in place to handle sexual harassment complaints.
Q3.In what ways do you believe increased participation of women in the legal profession will benefit the profession and our country in the long run?
Answer: We all benefit when a woman is legally and economically empowered. The McKinsey Global Institute concluded in their report “The Power of Parity: How Advancing Women’s Equality Can Add $12 Trillion to Global Growth” that if women play an identical role in the labour force as men, this would add $28 trillion to the annual global GDP by 2025, which is nearly equivalent to the combined GDPs of the United States and China.
With rising inflation and commodity prices increasing by the day, it is becoming increasingly difficult for a single person to support a family. Thus, we all stand to benefit from women working outside the home.
Furthermore, studies show that women have a higher level of empathy than men. This automatically translates to better client relationships. Client management is 70% of the job in the legal profession. You may even lose the case but retain the client if you manage him/her well. However, even if you win the case, but you fail to manage the person well, you are likely to lose the client.
In view of the protracted nature of civil litigation in Bangladesh, Alternative Dispute Resolution is becoming an increasingly attractive tool for resolving disputes in Bangladesh. While I am not aware of any empirical studies in this regard, the increasing presence of women in the legal profession is likely to lead to a rise in arbitration and mediation. Carol Gilligan’s premise set forth in her book “In a Different Voice” is that women tend to take a relational, care-based approach, while men tend to take an individualist rights-based approach to conflict resolution.
Furthermore, you will notice that it is mostly women who work on issues that promote the legal and economic empowerment of other women. So, if you can attract more women to the legal profession, the lives of all women will improve, not just those in the legal fraternity.
Additionally, the people serving should be more representative of the people being served. Female clients will feel more comfortable discussing their legal issues with female lawyers. As the number of women in the legal profession grows, we will see more women seeking legal help.
Q4.What steps do you believe should be taken to make our legal fraternity more welcoming to women?
Answer: The Supreme Court committee, led by Madam Justice Krishna Debnath, provides an indication of one of the steps that must be taken. We need more women in positions of leadership.
We need more women in bar leadership positions. We need more women in judicial administration. We need them because they are more aware of the challenges women face and therefore better placed to sensitize the masses, and will be more motivated to advocate for change because they are the more affected by this as opposed to men.
Secondly, if we want more women to enter the legal profession, we must abandon archaic work practices in favor of more flexible options such as working from home, flexible working hours, as well as implementing the aforementioned infrastructural changes at courts and chambers.
Thirdly, we really need to intensify our efforts to ensure that women return to the profession after childbirth. What happens is that after having a child, their confidence takes a hit because they need to take a long break from work due to pregnancy.
Anecdotally speaking, I’ve had two extremely difficult pregnancies, both of which took me out of commission for 9 months, with a 5-year gap between them. 9 months out of commission for someone who had never been out of work or out of school in her life was a huge blow to my confidence, and I also missed out on a lot of opportunities. I had to work insane hours to get back on my feet professionally.
We have a lot of work to do in this regard. Maternity leave should be extended, and paternity leave should be made mandatory, so that men can contribute during these trying times for women.
Q5.What role do you think the Commonwealth can play in ensuring a safer legal fraternity for women in Bangladesh?
Answer: They have the potential to play a significant role in this situation. First and foremost, they can hold dialogues, round tables, and online webinars where they can bring in people from different countries in the Commonwealth and have knowledge sharing sessions on how they have improved participation of women in those countries in the legal profession.
As a Commonwealth country, we stand to benefit from that as well. We can adapt the models proposed in those sessions and test them in Bangladesh to see which works best for us.
Furthermore, they can publish annual reports in which they rank different countries based on their yearly progress in bringing more women into the legal profession, as well as other professions.
In those reports, they can also identify the barriers that exist in various Commonwealth countries regarding this and make recommendations for how to overcome them.
It is difficult to say how much pressure these initiatives may exert on the relevant authorities in those countries to propel them to action, but it is bound to have some positive effect undeniably.
For instance, the Ease of Doing Business rankings of the World Bank (although it has been discontinued) has always been effective in prompting a slew of initiatives in Bangladesh as well as in other countries.
Last but not least, the Commonwealth must create more opportunities for women to speak. In Bangladesh, women are hesitant to discuss the sexual harassment they face on a daily basis. The societal mindset and the culture of victim blaming makes it extremely difficult for a woman to muster the courage to speak out about it.
For example, I have been very vocal about sexual harassment in courts, but I have not seen many others do so. They believe that if I talk about it, people will think I’m a victim, and if they think I’m a victim, my reputation and authority will be compromised. While, unfortunately, that may be true to some extent, women must be encouraged to speak up if we are to even begin to address the challenges facing them.
The few who do speak or are willing to speak do not have enough platforms to have their voices heard. They will be able to reach more people if more platforms are created. This will encourage more women to speak up, resulting in more actions being taken to address these issues.