Progressive interpretation of personal laws
BANGLADESH being part of the Indian subcontinent has been traditionally following the pluralistic legal system. Under this system there is no unified body of family law that is uniformly applied to every citizen of the land irrespective of his or her ethno-religious background. Rather, there exists a legal order organised as a plural system in which different religious communities follow different laws based on their respective religions. This Plural system of personal status have been historically employed by imperial powers to categorise their colonial subjects according to their racial, religious, sectarian, ethnic and parochial differences.
It may be suggested that States like Bangladesh still continue to compartmentalise their societies into ethnic, religious and racial groupings and oblige the citizens to follow religious laws in family affairs. It is apparent that the laws of the country including personal laws based on religious scriptures carry the colonial legacy even if they, I argue, do not suit to our context. The utmost reliance on religious teachings without considering particular context on the one hand and the extreme imitation of colonial laws on the other hand create a sense of inequality and discrimination in Bangladesh. In most of the cases women carry this sense of inequality and discrimination who are in general victims of inequality.
In the absence of rational interpretation of personal laws, women remain the ultimate victims of inequality and discrimination which are often justified with the help of orthodox religious teachings. It is difficult to comprehend that while Bangladesh is committed to uphold universal human rights standards and treat their citizens equally before the law, will ignore its constitutional obligations and discriminate among their citizens on the basis of gender, ethnicity and religion by continuing to recognise archaic personal status laws.
Hence to create symmetry between the laws, reformation of personal laws is frequently suggested. However the issue involves lot of challenges. It is undeniable truth that amidst of the socio-political reality, any reformative attempt to the personal laws might cause profound ideological divisions and unprecedented resistance from religious clerics and their followers. The incumbent government with a view to maintaining their regimes is likely to abstain to face the upheaval. In the same wavelength it may be cited that the constitutional incorporation of state religion and secularism in a single document is the glaring example.
The government felt compelling pressure to insert the provision with a harmonious combination of religiosity and secularity considering the dwindling political culture. This insertion of state religion, according to few, can accommodate religious pluralism for achieving new common goals. It is also argued that it should be a caravan of modernisation of state and reform of social and legal culture. In this situation unification of personal laws by way of normative reform not being substantive reform for a common code that will be applicable for all citizens is practically impossible since it will upsurge social opposition.
On the one hand orthodox religious teachings without being reformed completely disregards the human rights norms particularity equality and non-discrimination and on the other hand though the government is committed for protecting human rights values, but refrain itself from the interference in the personal laws even if those are discriminatory. Here we find a complete paradox. The government apprehends the fierce resistance of ethno-religious communities whose norms and institutions have been targeted by reforms.
The intensity and severity of that resistance seem to be directly correlated with the type of reform in question. For example, a close scrutiny of the experiences of postcolonial nations shows that normative reform has instigated the greatest amount of resistance from social forces while opposition mounted against substantive reforms has been less and relatively easier for governments to overcome.
Amidst of the social, political and practical problems, it is submitted that to ensure the harmonious application of personal laws ensuring equality and non-discrimination, following recommendations can be taken into account. Firstly, judicial activism by the arm of progressive interpretation can guarantee harmonious application of personal laws ensuring equality and non-discrimination. In this regard it is essential to mobilise the tools of judiciary with a view to changing the orthodox mindset of judges and lawyers.
Secondly, while people at large in Bangladesh are very much prone to religious teachings and unwilling to comply with progressive interpretation, it may be submitted that human rights education can make a qualitative shift to comply with the progressive application of religious teachings.
Thirdly, while the perception of inequality and discrimination often borne by women who are in general victims of inequality derived from the application of orthodox religious teachings and reservations, it is indeed necessary to ensure humanistic interpretation of Islamic law to eliminate discrimination.
The writer is Lecturer, Faculty of Law, Eastern University.