Patriarchal notion of society as well as the traditional Indian
conception of women stereotyped women as a feeble and irrational being.
Beginning from the ‘manusmriti’ to the Muslim rule, innumerable instances can
be found that beef up sexism both literally and figuratively. The colonial era
has prized us with the enactments of women-friendly laws, nevertheless the
Victorian perception of gender and sex that promotes conservatism, has left
over permanent mark in our thoughts about equality of men and women. However,
the Constitution of Bangladesh has entrenched the concept of equality before
law and equal protection of law[1],
incorporates the principle of non-discrimination amongst citizens on grounds of
sex, leaves policy space for the executive government to undertake affirmative
action measure to promote and uplift women, children.[2] In
this article, the constitutional journey of Bangladesh in reducing
discrimination against women shall be analyzed.
Bangladesh has international obligations against discrimination towards
women devolving upon itself from being a signatory to Universal Declaration of
Human Rights and International Covenant on Civil and Political Rights. The
Supreme Court of Bangladesh has, in several cases including in the case of
Hussain Mohammad Ershad v Bangladesh[3],
held that if the domestic laws are not clear enough or when there is no
inconsistency between them, municipal law shall be interpreted in conformity
with International law and conventions. Such view of justice B.B. Roy Chowdhury
has been reaffirmed in the case of BNWLA v Bangladesh[4].
Moreover, Bangladesh is also a signatory to the Convention on the Elimination
of all forms of Discrimination Against Women (CEDAW) which in Article 1 of this
convention defines discrimination as:
“any distinction, exclusion or restriction made on the basis of sex
which has the effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women, irrespective of their marital status, on a
basis of equality of men and women, of human rights and fundamental freedoms in
the political, economic, social, cultural, civil or any other field.”[5]
As a result, when Da Silva from Brazil received inadequate medical
treatment in private medical clinic after she suffered miscarriage and died, the
state was held responsible for the failure to meet distinctive maternal health
needs of women.[6]
On the same note, ‘stereotyping’ has been considered a form of discrimination
as well. In Turkey[7],
RKB accused a female employee of having an affair with a male colleague and
dismissed her from the position while retaining the male colleague, and
threatened to “spread rumors about her relationships with other men” to
pressure her in signing a document, attesting that she had been paid all her
benefits upon termination. The Turkish Court was unwilling to consider it
discriminatory maintaining a stereotype. However, the CEDAW committee held this
incident is a sheer violation of CEDAW.
Unlike many other countries in the world, the Supreme Court of
Bangladesh has maintained an enthusiastic gender friendly narrative while
interpreting. Probably this comes from the existence of several equality
clauses in the Constitution even before the adoption of CEDAW. Bangladesh Biman
Corporation was asked by the High Court Division of the Supreme Court when
regulation no. 11 of the Biman Corporation Employees (Service) Regulation, 1979
was substituted to discriminatorily fix the age of retirement of stewards and
stewardess to the disadvantage of stewardesses. The age of retirement for
stewardess was fixed at 35 years whereas, that of the steward was fixed at 45
years. The High Court Division held that the reduction of age limit from 57
years to 35 years on the strength of the amended Regulation No. 11 does not
stand on any sanction of any law rather the same in violative of Article 28 of
the constitution.[8]
Back in 2008, when there was an increase in the number of incidents of
sexual harassment in Bangladesh in day to day affairs, the Bangladesh National
Women Lawyers Association (BNWLA) brought before the Supreme Court a writ
petition[9]
against the Government of Bangladesh. The Court held that sexual harassment is
one form of discrimination against women and issued a series of 11 Rules to
serve as guidelines. In drafting these Rules, it relied on the Convention on
the Elimination of All Forms of Discrimination against Women and its Optional
Protocol. It also drew on the General Recommendation No. 19 on violence against
women issued by the United Nations Committee on the Elimination of Discrimination
against Women which postulates that Equality in employment can be seriously
impaired when women are subjected to gender-specific violence such as sexual
harassment in the workplace.
Again when eve-teasing was on the rise in Bangladesh in around 2011, the
High court Division was moved[10] seeking
some guidelines to address the issue of sexual abuse, sexual harassment,
eve-teasing in order to protect and safeguard the rights of the women and girls
particularly in the educational institutions. The Court observed that the right
to equality and freedom of movement is meaningless if women and girls of this
country are kept away from school and colleges on account of sexual harassment
and eve-teasing in the streets. At the same time, the court doubted over the
competency of existing domestic laws to address the issue and filled up the
lacunae in the domestic corpus juris with the signed and ratified International
Conventions. The Court reached the conclusion that protections given under
section 509 of the Penal code 1860 was insufficient. The court stated:
“Intention to outrage or insult the modesty of any women used in several
sections…, particularly in section 509 of the penal code, is very vague and
almost impossible to prove.”
The Supreme Court of Bangladesh has been a defender of its gender
sensitive stance even in disputes related to the stereotypical power structure
of the society. In 2005 circular was issued under the signature of the joint
secretary, Ministry of Local Government, Rural Development and co-operative
specifying certain functions and duties of the commissioners, allowing certain
functions only to those elected in the general seats but not to the
commissioners elected in the female reserved seats. As the court was moved by
Shamima Sultana, the female commissioner from the reserved seat[11],
the Court found the said circular to be discriminatory and violative of the
‘equality clause’ of the constitution of Bangladesh. The Court narrated that
fundamental rights glorified in article 27 and 28 of the constitution of
Bangladesh were not mere empty words, rather, the base of the concept of a
welfare state. In this case the court bolstered the constitutional provision
that Government can make special provision in favor of women under article 28(4)
of the constitution. It was found to be intra vires and valid to make provision
for reserve seats for ward commissioners exclusively for women.
Moreover in this case, the relevance of Article 65(3), provision of
reserved seat for women in the parliament, with the upholding of the dignity of
women was questioned. The court was of the view that the existing reserved seat
system in the parliament, instead of either helping the democratic process or
upholding the dignity of women, rather helps the party which is the majority in
parliament, to increase its edge over the other parties. However, on 8 July
2018 the Parliament of Bangladesh unanimously passed the 17th amendment to the
constitution which increases the existence of the current reserved seat
mechanism for women for another 25 years. It is submitted that process of
election in the reserved seats which is observed by the judges in the Shamima
Sultana case as undemocratic, and questionable in upholding the dignity of
women should be re-considered by the legislatures and policy makers.
Such a problem has been addressed in the United Kingdom by building up
soft law practices through All Women Shortlists (AWS) allowing political
parties to permit only women to stand in particular constituencies for a
particular political party, albeit due to its directory nature it is only used
by the parties like Labor party and Liberal Democrats party. On the other hand
in India, Rajya Sabha of India in 2008 proposed for 33% reserved seats in
parliament for women in Lok Sabha and all state legislative assemblies. The
Bill proposed that a seat would be reserved only once in three consecutive
general elections. However, the Lok Sabha never voted in its favor. Many
regional and minority parties were against the amendment as they were predicted
to be – reservation for women in parliament would result in their mandate be
lost in respective region as a decisive percent of seats would then be reserved
in a given state or region.
[1] The Constitution of Bangladesh, Art. 27
[2] Ibid, Art. 28(4)
[3] Hussain Mohammad Ershad v Bangladesh (2001) 21
BLD(AD) 69
[4] BNWLA v Bangladesh (2009) 14 BLC 694
[5] Convention on the Elimination of All Forms of Discrimination Against
Women, Art.(2)(a)
[6] Maria de Lourdes da Silva Pimentel Case (2008) CEDAW Communication No.
17/2008
[7] R.K.B. v Turkey (2010) CEDAW Communication No. 28/2010
[8] Dalia Parveen v Bangladesh Biman Corporation & another (1996) 48 DLR
132; Bangladesh Biman v Rabia Basri Ilene (2003) 55 DLR (AD) 132
[9] BNWLA v Bangladesh (2008) Petition No. 5916 of 2008
[10] BNWLA v Bangladesh (2011) 31 BLD 31
[11] Shahmima Sultana v Bangladesh (2005) 57 DLR 201
0 Comments