Constitutional Provisions on Gender -BANGLADESH

• Dr. Shahnaz Huda

• (Do not use/quote except for examination purposes)

GENDER

Gender is the socially, religiously and culturally constructed roles of men

and women in society

• The Constitution of Bangladesh, passed on the 4th of November, 1972 (roughly a year after the declaration of independence), declared four principles of State—nationalism, democracy, socialism and secularism.

• In 1977, by virtue of a Proclamation Order, secularism, one of the ideals in the original Constitution, was substituted by the phrase ‘absolute trust and faith in Almighty Allah’.

• In 1988, as a further step to the Islamization process, Article 2A was inserted by virtue of the Constitution (Eighth Amendment) Act 1988 which states that the ‘State religion is Islam, but other religions may be practiced in peace and harmony in the Republic’.

• By the 15th Amendment of the Constitution we are now back to the original Constitution in the sense that secularism is again a principle of State policy.

Constitution of the People’s Republic of Bangladesh

• Article 7 of the Constitution declares that any existing law of the state which is inconsistent with any provision of the Constitution shall be void.

• Articles 27, 28 and 29 of the Constitution declares the principles of non-discrimination.

Part II---Fundamental Principles of State Policy---non-justiciable

• Like most constitutions, formal equality is explicitly enshrined in the Bangladeshi Constitution also and Article 10 of the Constitution of Bangladesh, 1972 deals with the participation of women in national life.

Article 19---Equality of Opportunity

• 19(3) states that The State shall endeavor to ensure equality of opportunity and participation of women in all spheres of national life.

Part III---Fundamental Rights---Justiciable---enforceable in Court• Article 27.- EQUALITY BEFORE LAW“All citizens are equal before law and are

entitled to equal protection of law”.

Article 28

• Article 28.- DISCRIMINATION ON GROUNDS OF RELIGION ETC.

(1) “The State shall not discriminate against any citizen on the grounds only of religion, race caste, sex or place of birth.”

(2) “Women shall have equal rights with men in all spheres of the State and of public life”

Article 28 goes on to add:

• Article 28 (3) deals with non-discrimination on gender and other grounds not being grounds to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution

ARTICLE 28(4)

• NOTHING IN THIS ARTICLE SHALL PREVENT THE STATE FROM MAKING SPECIAL PROVISION IN FAVOUR OF WOMEN OR CHILDREN OR FOR THE ADVANCEMENT OF ANY BACKWARD SECTION OF SOCIETY

ARTICLE 29• Article 29 ensures: ‘Equality of opportunity in public

employment’ and states,• (1) There shall be equality of opportunity for all

citizens in respect of employment or office in the service of the Republic.

• (2) No citizen shall on grounds only of religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect of any employment or office in the service of the Republic.

•

• (3) Nothing in this article shall prevent the State from --• (a) making special provision in favour of any backward section

of citizens for the purpose of securing their adequate representation in the service of the Republic;

• (b) giving effect to any law which makes provisions for reserving appointment relating to any religious or denominational institution to persons of that religion or denomination;

• (c) reserving for members of one sex any class of employment or office on the ground that it is considered by its nature to be unsuited to members of the opposite sex.

•

• Article 65(3): There shall be 50 reserved seats for women and they shall be elected by the MP’s on the basis of ‘ ‘proportionate representation in the Parliament’

Enforcement of Fundamental Rights

• Article 44 confers the right to move to the High Court for enforcement---under Article 102 a WRIT may be filed.

The Citizenship Act, 1951

• Citizenship could only be transmitted through the father (Sayeeda Rahman Malkani vs. Bangladesh)

• The Citizenship (Amendment) Act, 2009 was passed on the 3rd of March, 2009—now foreign children having Bangladeshi mothers will automatically get Bangladeshi citizenship.

• A Bangladeshi woman married to a foreigner cannot still transmit citizenship to her foreign husband

• A Bangladeshi man can transmit Bangladeshi citizenship to his foreign wife.....

Gender discrimination inconsistent with the Constitution

• The Appellate Division and the High Court Division in the cases of

• Dalia Perveen vs Bangladesh Biman 48 DLR 132

Rabia Basri Irene vs. Bangladesh Biman 52 DLR 308

• Discrimination in the matter of fixing the age of retirement of the Stewards and Stewardesses.

• Gender based discrimination • Held by the Courts to be Discriminatory and

violative of Article 28 of the Constitution and therefore not legal.

Pro-active Judiciary---PIL• Public Interest Litigation may be defined as

legal action through the Courts that is intended to promote the interests of the public or a large portion of the public...and a person, on behalf of such group, may approach the Court.

• Bangladeshi Courts have played a pro-active role and in several cases upheld the gender based anti-discriminatory clauses of the Constitution…..

• Jatiyo Mahila Ainjibi Samity v Bangladesh and other (Criminal), 59 DLR, (2007) 447, judgment dated 23 May, 2006:

High Court laid down guidelines which must be followed in educational institutions and work places to combat ‘sexual harassment’

Mrs.Salma Ali vs. Secretary, Ministry of Home Affairs and others WRIT PETITION NO. 212 OF 2000

• The Government Respondents were ordered by the Court to take several steps to improve the situation of the campus ‘for improvement of the law and order situation and protection of the life and liberty of ordinary citizens and women in particular (italics mine) in the Dhaka City area, particularly, within the campus of the University of Dhaka and its adjoining areas’.

Shamima Sultana vs. Bangladesh, 57 DLR (2005) 201

• The petitioners in that case, 10 in number, were elected as Ward Commissioners of Khulna City Corporation to seats reserved for women. They sued the Government on the grounds that by certain administrative actions which had restricted and curtailed their powers, they had been discriminated against.

The Court held:

•  ”In our day-to-day life, in order to forsake discrimination towards women in real and practical sense, a mere equal treatment would not do. The handicaps and drawbacks inherent in the life of a woman in our social context must be appreciated.

……As such, a mere equal treatment , in the juristic sense, would not eradicate the difficulties and the consequent evils of inequality faced continuously by a woman at home and in her daily life, be she a working lady in an office or a professional , her career is always hedged with immense hurdles

and in order to bring her on equal footing with man, a further leeway of leverage, in her favour, in order to balance these hindrances, is required otherwise, the constitutional commitments to bring in the fundamental rights of gender equality, as enshrined in the Constitution, would be a mockery”

Religious law and secularism

• Despite the fact that secularism was considered to be one of the basic pillars of the identity of Bangladeshi nationalism at the time of independence, there was no attempt even at that stage to introduce uniformity as regards family and personal matters. Each religious community therefore continued to be governed by their own personal laws as regards family matters.

Conclusion:

• The Constitution in Article 28 (4) states that the State shall not be prevented “from making special provision in favour of women or children or for the advancement of any backward section of citizens”.

• Many special laws exist to protect women or to give them additional rights

• Quota systems have been introduced to ensure women’s participation in various professions as well as at various stages of Government service---judiciary, civil service etc

• Constitution provides for reserved seats for women.....

Question : DO you consider these actions as Affirmative action/positive

discrimination???????