A matter of equality

Published on Tuesday, February 13, 2018

Equal rights for women are guaranteed by our constitution, no matter what some may say

Humanity has progressed to a stage where equality is a barometer of civilization.

Considering the barriers they have had to overcome, the response to this new worldview by Bangladeshi women has been grand. Our women, like the rest of the world, are at a point where they can be truly seen as equally productive members of our society, challenging and competing with their male counterparts in every aspect of life.
And it's a relief that the greater part of Bangladeshi society is finally starting to learn that a girl child is not a financial burden, that women are indeed capable of doing the same jobs as men and hence are entitled to the same rights.

In recent years, we have witnessed the government advocate this mindset at both the policy level and in terms of attitude. But, surprisingly, a woman's equal rights to inheritance seems to remain a glaring hole in our policy table.

It's been nearly 50 years since our constitution was written, and we're still adhering to antiquated laws regarding inheritance under the Muslim Personal Law (Sharia) Act 1937, a colonial creation that sought to satisfy Muslim elites with the subtext that women are not equal to men.

An antiquated law

The religious root of this law goes back to a period of time and to a society where women were considered inferior to men, when they were treated as spoils of war, even sold in the market as slaves, and such practices were considered approved norms.

The constitution of Bangladesh proclaims equal status and opportunity for all, regardless of race, gender, religion, but the discriminatory provisions of the Muslim Personal Law (Sharia) Act 1937 go against the very principles of equality as propagated by the constitution.

And it is common knowledge that, in any constitutional democracy, a law that contravenes the constitution should be held void to the extent of that contravention.

At the very beginning of Part III, Article 26 of the constitution of Bangladesh clearly stipulates that, if there is any law which is found to be contra to Part III of the constitution, such law has to be struck down.

Article 27 of the constitution stipulates that all citizens are equal before the law and are entitled to equal protection by the law.

Article 28 proclaims that the state shall not discriminate against any citizen on the grounds of religion, race, caste, sex, or place of birth — that women shall have equal rights with men in all spheres of the state and public life, and that nothing in this article shall prevent the state from making special provisions in favour of women.

Article 26 is the absolute guideline for any law to be introduced or to be implemented in the Bangladeshi legal system. On the basis of this principle alone, the Muslim Personal Law (Sharia) Act 1937 clearly contravenes Part III, namely Articles 27 and 28 of the constitution, making further case for the law to be struck down.

The constitution above all else

There is a presumption that because of the inclusion of freedom of religion clause in the constitution, laws such as personal law even when it contravenes some fundamental values is consistent with the constitution and must be protected by the state, an assertion which by all means is erroneous.

Because, a secular state is under no obligation to implement religious customs or laws, in fact, it is the contrary, if seen from the separation of church and state principle.

It must not be forgotten that freedom of religion, same as all other freedoms, demands responsibility and rationality. No freedom should come by depriving others of services and rights of the state they are meant to have access to.

And this clause has to be interpreted in a manner that does not conflict with the spirit and values of the constitution, as religious freedom is not a preferred freedom that can always trump the other values of the constitution.

No welfare state can tolerate religiously required behavior if it contradicts the core principles of the society and rule of law, even if it is practiced voluntarily. For example, we cannot permit child marriage, just because some religions approve of it.

The question is which constitutionally approved right demands superior weight.

Sacrificing civil values to religious demand is not an obligation. The obligation is to uphold the core values of humanity- values such as human dignity, as well as principles of equality.

Since these discriminatory personal laws were introduced, our society has gone through a barrage of changes, including the creation of a state of our own supported by a constitution that stipulates principles of equality and propagates values of humanity.

Equal rights for women in Bangladesh is the demand of the hour, which implies, the Muslim Personal Law (Sharia) Act 1937, as well as the discriminatory Hindu Succession Acts, have no place in the civilized country that Bangladesh is today.

comments powered by Disqus