Esam Sohail June 15, 2000

Tags: Discrimination , Law , Islam , God , Family , Women , Society

href="/tag/Pakistan">Pakistan since the same law holds force there too. And India's family legal codes are applied in a manner very similar to that of Pakistan and Bangladesh.

A modern society dedicated to the rule of law cannot but make sure that those laws are uniform and equally applicable to all citizens. At least a theoretical commitment ought to be there. Otherwise that society cannot rightly be termed a proper democratic polity.



The Constitution of this Republic is crystal clear when it says: “...the state shall not discriminate against any citizen on grounds of religion, caste, sex, or place of birth.” Unfortunately, that is only a part of the legal fabric of Bangladesh. Since the time of our colonial masters, the British and the Punjabi variety, we have had different sets of family laws for different religious groups. Marriage, divorce, inheritance, guardianship of children, and property rights are regulated by these codes. There is a prima facie case of these codes being repugnant to the letter and spirit of our Constitution.


These family law codes are inconsistent with the Constituion on three counts. Firstly, because by their very nature they are applicable only to certain segments of the citizenry. For example, the Muslim Family Laws ordinance of 1961 is enforceable only in Muslim the community (even that is debatable since Shia scholars have debated the validity of certain provisions in that code since its inception). Secondly, these codes sanction different treatment of men and women in matters of the law: under certain guidelines, a Muslim man may marry up to four women at the same time but Muslim women cannot marry more than one man at the same time. Thridly, the existence and application of these laws, because of their inherent sanction of discrimination, is contrary to the obligations of the Peoples Republic of Bangladesh under the Universal Declaration of Human Rights and the United Nations Convention on the Elimination of Discrimination Against Women.


Our society does discriminate against women. That discrimination does not happen simply because the laws are discriminatory. Far from it. The political leadership, generally more enlightened and educated than the average citizen, has a duty, however, to make a philosophical commitment to equality. In 1972, the Framers of the Constitution did not create a document designed to do away with all injustices at the whiff of a pen. They were under no such illusion. Nonetheless, they did know that the organic and statutory laws of the country must reflect the basic norms of civilised governance. A pluralistic, democratic, just society was something that we were supposed to aspire to and our Constitution constantly reminded us of that. Those noble motives of the Constitution held a beacon of hope in the darkest hours of our political history just as they do today. Are we a more pluralistic and democratic society today than in 1972? Is the press freer today than in 1975? Are the courts more independent and aggressive in checking executive abuses than in 1989? The answer to all those questions is pretty clear. While we have not lived up to the full promise of our 1972 Constitution, we have made some progress in the direction of that ideal. We had a philosophical, if not always practical, commitment to that ideal. Such similar commitment is needed to ensure equality in and before the law of the land.


Laws inconsistent with the organic charter of the country and basic norms of civilsed society need to go. The argument against doing away with the personal law codes is grounded on religion. Of course, one wonders the religious qualifications of a Westernized man like the British educated Ayub Khan to formulate a set of “Muslim” family laws. Indeed those in favour of the keeping the status quo are old denizens of the “religion in danger” school of politics. But the question arises: “Does the government have any business in the relationship between man and God?” Successive governments of Pakistan have answered in the affirmative and, as a result, lost half their country and become hostages to the brokers of sectarianism. In the sanctified communion between man and God there is place enough only for two entities, namely, man and God. The government, the priest, the buraeucracy have no business therein. The role of the government in a pluralistic, democratic polity is neither to help nor hinder the religious life of people. Its role is to ensure, to the highest extent possible, that all citizens are treated equally by one, uniform set of laws. A government cannot discharge that responsibility when there is neither a uniform law nor the concept of equality within those disparate laws.


That said, it is upto our politicians or, perhaps, judges to make our laws consistent with our constitution. The road to consistency is fraught with dangers. Any government, member of parliament, or judge who moves in that direction will be termed a “kafir” at the very least. No matter what party moves to ensure the integrity of our laws, the opposition will sure call it a bunch of apostates(the otherwise secular Awami League’s recent treatment of Dr. Badruddoza Chowdhury is a case in point). Changing the status quo, specially one that has existed for over a hundred years, requires political will and the courage to sacrifice it all. Qualities not exactly too evident in recent years.


In fact, at a recent synposium, the law minister carefully avoided comment on the issue by saying that his government did not want to hurt the religious sentiments of the people. Yet, the law minister forgets that Field Marshal Ayub Khan did not exectly ordain the religious sentiments of the people in Bangladesh. They have been practising a deeply personal, mild, non-militant Islam for hundreds of years before the Jamaat, the Wahabis, and the Taleban “discovered” Islam for all of us. Perhaps the law minister and his colleagues, adherents of a supposedly secular party, will take the tough steps to re-examine our myriad of family laws. After all, leaders must lead, sometimes a bit ahead of their followers. In a republic, unlike a pure democracy, elected officials are entrusted to analyse options, make decisions, and educate the public about those decisions. With some political will and a lot more courage, the Honourable Mr. Abdul Matin Khasru can initiate a serious dialogue on this issue. At this juncture in time, we can ask no more. But we must demand no less.


Note: This article was previously published in the Daily Star in Dhaka.