Mar 09, 2020
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 , 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 . 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 , 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 . 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.” 
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.  On the same note, ‘stereotyping’ has been considered a form of discrimination as well. In Turkey , 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. 
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  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  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 , 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.
In the Bangladeshi context, such a policy might only worsen what is already a big problem- reserved seats reserved by powerful men for their daughters, wives and sisters as proxies in political office. Even after all these criticisms, it would be unfair to argue that the reservation system is futile particularly in the context of the LDCs and the Developing Countries. The reserved seat for women in the Parliament needs to be reformed for better taking into consideration the best practice examples of the other countries with contextual background.
Endnotes1. 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
Saurov Dash Roni is a fourth year student at the Department of Law, University of Dhaka.