Gender in relation to Bangladesh Constitution
Gender is a very common term but when we dissect it to understand the underlying meaning that is bit different than what we think it is in day to day activities, to be more clear, we use Gender to determine the biological difference of living things, such as Male or Female but when we dig a little dip we found it actually means “How society liable an individual to various categories (such as Male, Female, Lesbian, Gay, Third Gender etc.) based on culturally socially constructed mores, politics and affairs.”
Though the issues relating to Gender is a quite primitive but it has always been suppressed by the fear certain unrest in the society which in modern study handles and sees in very different way and looking from a very different perspective. This new way of thinking challenged the traditional thought around the world and gender rights and equality issues are burning question to the legislature, no exception our country (BD) has to sustain the same wave too.
Bangladesh Constitution is the root of every law to interpret and apply consistently. Though the LGBT right is not mentioned but some open-ended article can be interpreted for the benefit of those communities. Albeit the rights of male and female are more specific in character. Let’s try to crack surface level of Gender Rights as mentioned in our constitution and answer some very common questions that often confuse us.
In our constitution Article 2A, clearly articulated state religion is Islam but at the same time ensured that equal practice of Hindu, Buddhist, Christian and other religion; by this article, a sort of equality the towards the common people of Bangladesh though is not so clear how a country can have a religion despite much ambitious and conflicting interpretation a straightforward view can be taken that every person has his right to choose his belief, even if some on is non-believer he also gets his rights secured by the law, however de facto and de jure situation is generally different unlike any other country of the world but at least we have a basis of argument. Article 2A is brought forward because often religious views tend to be conflicting with the secular approach of modern society, thus it is made clear in the first instance.
In our constitution Article, 8 to 25 is labelled as Fundamental Principles of State Policy which are not mandatory to be enforced by the government but the principle is that the government shall try their best to implement them, hence the judiciary cannot make the government bound to follow them rather used in case of interpretation in a persuasive argument before the court. Therefore Article 19, which titled as “Equality Before Law” said to provide
1) Equal opportunity
2) Effective measures to remove social and economic inequality
3) Shall also put an obligation on the state to endeavour and ensure equality of opportunity and in all spheres of national life.
It is important to note by this phrase “National Life” another silent parallel alternative is created known as “Personal or Private Life”; we will understand it soon in our further discussion.
Let’s come to the enforceable right now, though all the Articles of the constitution are enforceable in nature, these are binding on government moreover any inconsistency of any law shall be automatically become void, on the other hand, on any violation of such rule any person can challenge the government via the court (Article 26, 44, 102) thus making them very important and sensitive as well; known as “Fundamental Rights” as listed from Article 26 to Article 47A of the constitution.
In Article 27, its ensured “Equality Before Law”; Equality before the law with equal protection of the law, that means no discrimination on the basis of Gender, this article can be marked as the successor of Article 6 & 7 of UDHR and Article 16 of ICCPR.
Article 28 said, ” (1) The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth” here “sex” is used as an interchangeable word with “gender”. Now as we can see from our above discussion all gender have equal rights and protected from illegal discrimination. For example, women cannot be discriminated in her payment of salary only because is a woman but some if we see things from another perspective it may seem like discrimination but actually, it is not, let me draw another example for further clarification, suppose two individual took the same job that requires hard work and full dedication but one of them failed to complete, now what do you think about their payment? What if they work on basis of contract? Now it does not matter if that person is a male or female there is nothing to connect with their individuality it’s all about the job that actually matters. Interestingly often some obnoxious arguments are made by some people so this is a clear explanation for them.
A question may arise, “Why there is so many discrimination despite of such strict laws? ” and of course this is a valid one to argue, but sadly our society did not prosper with the same footing with each other, so laws are made with the harmony with the society. so does our constitution. Can you remember the classification of public and private life? Now it’s time to relate. Private life or personal issues are maintained by personal laws (such as Marriage, divorce, maintenance, inheritance, etc. ), to be straightforward by religious laws or customary laws; these laws are indemnified by the constitution itself under Article 28(2) it said ” .. In all spares of the state and public life”. So, no violation of the law.
Another obvious question is what is some non-personal laws are discriminating on be the basis of sex/gender? Yes, obviously that would be a violation of law but not always as we may think, this exception of law is imposed by the Article 28(4) of Bangladesh Constitution, where it said “Nothing in this article shall prevent the state from making special provision in favour of women or children or for the advancement of backwards section of the society”, it is another clear example how law works considering the social situation to overcome real challenges of the state. Generally, the backward section of society needs special care to adjust with others, they need special care and treatment to get their confidence back, this approach is more equitable and just rather than the principle of equality.
The same philosophy is also applied behind the formation of Article 29(3)(a), where Article 29 made it mandatory for the equal opportunity for public employment that 3rd clause provides an exception, saying ” .. Making special provision in favour of a backwards section — for the purpose of securing their adequate representation in the service of the Republic”.
It must be realised the interpretation of the law is more dynamic then we think and that interpretation can be used for various means, nonetheless, acceptance of the interpretation is also a key factor which is often decided following the expectation and the reflection of society. We have to convey
the message of equality to make people understand so that they can stand for Human Right with their realisation by hurt not to satisfy the certain group, of course, there are rooms for argument and challenge but that must be done with a friendly approach, not always to prove something but often to learn something.