Gender Justice in the Constitution of Bangladesh

Introduction

In the year of 2020, Bangladesh, the next Asian Tiger has ranked 50 out of 153 countries with a score of 72.6% in the Global Gender Gap Index. Bangladesh is ranked 1st among South Asian countries for the third consecutive year. From the index it might seem that Bangladesh has already achieved gender equality successfully. In reality, the situation is a bit different. The lightning rod question is ‘does gender disparity exist in Bangladesh?’ To get the answer of this question we need to understand what is gender justice.

What is Gender Justice?

Gender Justice connotes the organized redistribution of power, resources, knowledge, opportunities, and easy access for people of all gender identities by destroying the integrity of harmful structures including patriarchy, homophobia, transphobia. Gender Justice manifests an intersectional approach that focuses on the necessity, experiences, and leadership of people mostly affected by discrimination and repression in the society. In Bangladesh, gender disparity exists flagrantly.

Gender Justice Under the Constitution of Bangladesh

In the Preamble of the Constitution of the People’s Republic of Bangladesh, an outline of an egalitarian society is given. It is the fundamental aim of the State to construct a socialist country, where basic human rights, freedom, equality and justice, political, social and economic must be guarded for all citizens. Gender justice is one of the pillars on which the very construct of just and egalitarian society stands.

The Preamble of the Constitution of Bangladesh safeguards social and economic justice. The social and economic justice instinctively includes gender justice, liberty, security and equality of status. So, the concept of ‘gender justice’ is implicit in our constitution. The State is under the constitutional obligation to achieve gender justice. People of all gender identities are citizens of the country. So, all of them are equally entitled to this safeguard.

Under Article 28 (1) of the Constitution ‘right to non-discrimination’ is ensured as a fundamental right. Discrimination on the grounds of only religion, race, caste, sex or place of birth is expressly prohibited in the constitution. There is a lacuna in this provision as it mentions only ‘sex’ as one of the grounds of discrimination and nowhere the word ‘gender’ is used. The words ‘sex’ and ‘gender’ are not similar. The provisions of our constitution are not clear regarding this matter and there is a loophole regarding the rights of transgenders.

We can see a reflection of patriarchal society in the Article 28(2) of the constitution. Under this Article a boundary is set for the rights of the women as it is mentioned that women shall have equal rights with men. Whereas, it should be women and men both shall have equal rights in all fields of the State and the Republic.

Gender injustice grossly violates human rights of all gender identities specially women and children. Due to gender injustice people are not able to participate in and contribute to the social and economic development of the society. One of the impacts of gender injustice is the rising level of sexual offences such as rape, eve-teasing, sexual harassment and assault in the workplaces and educational institutions. The right to protection from sexual harassment is implicit in the right to life, which is incorporated under Article 32 of the constitution. Life within the meaning of Art. 31 and 32 connotes something more than mere animal existence. Right to life includes right to live with utmost human dignity and self-esteem. Sexual harassment, rape and other sexual offences are not only criminal offences but also gross infringement of fundamental right to life and liberty. All these gender-based violences are the cruel form of exploitation and violation of the constitution. It is mentioned in the preamble of the constitution that the State is under constitutional obligation to establish a society free from exploitation. Again, under Article 10 the attainment of a society free from exploitation is incorporated as a fundamental principles of state policy. Right to protection from sexual offences comes under the purview of right to equal protection of law which is inserted under Article 31 of the constitution. When a woman or a girl or people of other gender suffers sexual violence merely due to their gender it hurts her inherent human dignity and worth of a human person. The effects of gender-based violence is not only limited to violation of right to life but it expands to the violation of right to work, right to equal opportunity and participation, right to employment, right to education, right to movement, right to social security, right to free choice of profession etc. The root of all these violation of rights lies in the existence of gender injustice in the society.

Bangladesh has acceded to CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) in the year of 1984. As a state party Bangladesh is under international obligation to abide by this convention. CEDAW is now a part of constitutional law of Bangladesh through judicial interpretation. In the case of H.M. Ershad v Bangladesh 2001 BLD (AD) 69 Justice Bimalendu Bikash Roy Chowdhury remarked that if international conventions, treaties and laws are consistent with municipal law and there is a lacuna in the domestic law then international law can be applied in respect of interpretation of domestic laws. CEDAW as it is a fruit of global women’s movement, its one of the major goals is to ensure gender justice in the countries. Bangladesh as a state party is under customary international obligation to adhere by this convention and to ensure gender justice.

What are the negative impacts of gender injustice?

The negative impacts of gender injustice are –

  1. Forced child marriage
  2. Violence based on gender
  3. Female genital mutilation
  4. Unequal pay scale in workplaces
  5. Female foeticide and infanticide
  6. Discrimination based on gender in all spheres of life
  7. Barriers to women’s full freedom
  8. Unequal rights to property

How to achieve gender justice?

To achieve gender justice in the society the following steps can be done –

Every educational and other institutes in our country should have separate and hygienic washrooms for male, female and others. In every school, college and universities there must be sanitary napkin vending machine for girls. Every such institutes should be obliged to break the taboo around menstruation. For females there should be separate prayer rooms and rest rooms.

  • Giving proper value and equal wage to women workers

In many workplaces although man and woman work equally but there remains huge discrimination in their wages. Also, in some places transgenders and other gender identities are not even allowed to work. This is highly discriminatory. To ensure gender justice, every company, institutes and other places must ensure equal wages for equal work for everyone without any disparity.

  • Empowering mothers to be highly educated and independent

In a third world country mostly, girls are married earlier due to poverty, climate disasters, unsafety of women etc. Girls are not getting opportunity to be highly educated. Due to this many girls are dependent on their husbands completely and they are not financially independent. Mothers play the most significant role in a child’s life. Child’s mental and psychological development is highly affected by maternal authority. For proper parenting man and woman both must be conscious and educated.

  • Prohibiting child marriage and sexual harassment

The state government should eradicate child marriage from the society. Child marriage is a curse on any girl’s life. It robs them off their childhood, education, creativity and career. If the government wants to achieve gender justice child marriage should be removed from the society first.

Every school, college, universities and other work places must have Anti Sexual Harassment Cell, where the victims can complaint about the perpetrator without exposing victim’s identity. Every such places should have a committee which exclusively deals which such complaints with strict scrutiny.

  • Destroying the rape culture and victim blaming in the society

It is not possible to achieve gender justice in a culture where the victim receives more shame than the perpetrator. Victim blaming has many adverse effects such as mental health issues, psychological disorders, low self-esteem, suicidal attacks etc. There must be Victim Support Centre and One-Stop-Crisis Centre in every area to ensure fast services to the victim or survivor.

  • Confronting gender stereotypes and traditional gender roles

Sexual objectification of women is very common in the patriarchal society. This objectification is mostly committed by media and entertainment world. In a patriarchal society some roles are often fixed for different genders. The society portrays that only men play the heroic roles in life and women are supposed to play the role of raising children, working in the kitchen, cleaning house, etc. To ensure gender justice everyone should confront these gender stereotypes and traditional gender roles by raising awareness at the grassroot levels.

  • Making pro-woman legislations

According to Bangladesh’s Penal Code of 1860, induced abortion is illegal unless the woman is in danger. Abortion is a health right of women as it is associated with woman’s health. Right to health is a fundamental right of a woman under the right to life. It is a woman’s body so it must be her choice.

Bangladesh’s Penal Code of 1860 under section 497 criminalize the offence of adultery. The main problem of this provision is that it treats women as the assets of their husbands, which is highly offensive. A woman cannot file a case under this section if her husband engages in adulterous intercourse. This provision is highly discriminatory.

Such anti-woman legislations are the products of colonial legacy. To achieve gender justice in our society we must get rid ourselves of this colonial mindsets and laws and our legislators must make  pro-women laws.

Conclusion

Attainment of gender justice is a long-cherished goal that Bangladesh is yet to achieve. The prevalent gender injustice in the society is not only failing women and girls but also men. To establish an egalitarian society, where no discrimination on the ground of gender will be committed, the government must fulfill its constitutional and international obligations.

You can read about Feminist Jurisprudence here.

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