The Conflicting Legal Framework of Bangladesh. An Evidence of Women's Property Rights That Demands Unification Without Discriminating Race or Ethnic Groups


Doctoral Thesis / Dissertation, 2011

139 Pages, Grade: A +


Excerpt

Table of Contents

ABCTRACT

ACKNOWLEDGEMENT:

List of Figures:

List of Tables:

CHAPTER ONE: PROBLEM STATEMENT
1.1 Introduction:
1.2 Background of the Problem:
1.3 Rationale for the Research:
1.4 Research Question and Objectives
1.5 Scope and Limitations of the Study:

CHAPTER TWO: LITERATURE REVIEW
2.1 Constitutional Supremacy in Bangladesh:
2.1.1 Constitutional Supremacy: The Missing Norms of Practice:
2.1.1.1 Postponement of Constitution with Martial Law:
2.1.1.2 Legalising Martial Law by Amending Constitution:
2.1.2 Fundamental Principles of the Constitution:
2.1.3 Human rights and Social Justice:
2.1.4 Equality of Male and Female under Constitution:
2.2 Legal Framework for Women’s Property Rights and Inequalities:
2.2.1 Islamic Outlook towards Female:
2.2.1.1 Rigidity & Flexibility of Islamic Land Tenure:
2.2.1.2 Voice of Women in the Early Islam:
2.2.2 Male Dominating Muslim Property Law and Inequalities:
2.2.3 Sanaton Outlook towards Female:
2.2.4 Hindu Family Law and Depressing On Female:
2.2.5 Highly Patriarchal Polygamy and Women’s Rights:
2.2.6 Outlook towards Female of Other Small Ethnic Groups:
2.2.7 Property Rights of Small Ethnic Groups
2.3 Unified Women’s Property Rights In Bangladesh:
2.3.1 The Feminist Movement in Bangladesh for Equal Property Rights:
2.3.2 Present Government’s National Women Development Policy:
2.3.3 Protest from the Religious Radicalisms:

CHAPTER THREE: METHODOLOGY
3.1 Introduction:
3.2 Research design:
3.3 Quantitative research:
3.4 Qualitative research:
3.5 Primary Sources:
3.6 Secondary Data Source:
3.7 Types of Interview:
3.8 Questionnaire Surveys:
3.9 Questionnaire Design:
3.10 Advantages of questionnaire survey:
3.11 Analysis and Interpretation of Data:
3.12 Reliability, Validity, and Representativeness:

CHAPTER FOUR: FINDINGS AND RESULTS
Section A: (About respondents)
Section B:

CHAPTER FIVE: DISCUSSION
5.1 Discrimination and Torment on Female
5.2 Women’s Advancement in Education
5.3 Women’s Leadership in Bangladesh
5.4 Globalisation and Women in Bangladesh:
5.5 Women’s Empowerment in Bangladesh:
5.6 Without Equal Property Rights No Women’s Empowerment is Possible

CHAPTER SIX: CONCLUSION
6.1 Key Recommendations:
6.2 Conclusion:

Reference List

Appendix

Questionnaire

KEYWORDS

Article- 27; Article – 28; Bangladesh Constitution; Bangladeshi Women; Conflicting legal framework of Bangladesh; Constitution of Bangladesh; Constitution of the People’s Republic of Bangladesh; Discriminating Religion and Gender; Equal Property Rights for Women Equal Rights for all Citizens;; Equal Rights of Women; Equality and Justice; Ethnical groups in Bangladesh, Feminist Movement in Bangladesh; Fundamental Principles of the Constitution; Globalisation and Women in Bangladesh; Hindu Family Law; Human rights and Social Justice; Inheritance Law; Islamic Land Tenure; Land Rights of Female; Law and Inequalities; Legalising Martial Law; Legal Framework of Bangladesh; Legislation for Land; Muslim Property Law; Muslim Property Law and Inequalities; Muslim Women in Bangladesh, Land Rights of Women; National Women Development Policy; Property Rights of Women; Patriarchal Polygamy; Polygamy and Women’s Rights; Property Rights of Small Ethnic Groups; Property Rights In Bangladesh; Primary Sources; Quantitative research; Qualitative research; Questionnaire Design; Religion Based Inheritance Law; Research design; Rationale for the Research; Research Question and Objectives; Secondary Data Source; Supremacy of the Constitution; The Constitution of Bangladesh; Types of Interview; Uniform property law; Voice of Women; Women in the Early Islam; Women in Bangladesh; Women’s Advancement in Education; Women’s Property Rights and Inequalities; Women’s Advancement; Women’s Property Rights; women’s land property rights; Women’s Rights

ABCTRACT

The objective of this dissertation is to present a coordination of conflicting dynamics of the legal framework for women’s land rights in Bangladesh along with the consequential factors that generate discrimination among male and female. The constitution of Bangladesh has confirmed equal rights for all citizens without discriminating religion and gender, but the prevailing legislation for land and inheritance law has failed to ensure equality and justice. The ethnical groups in Bangladesh are Muslim, Hindu, Christian, Buddhist, and other minorities; all of them are individually religion biased inheritance law, which have deprived and discriminated women. Such religion based inheritance laws are not only conflicting with the constitutional principles, but also violated the constitutional supremacy.

This study identified that the introducers of the religions are the representative of patriarchy and they kept their gender interest on land by depriving and discriminating the females. The common consent of all the religions are the discrimination between male and female for land rights is a universal norms made by the God, they would like to validate their favouritism and inequity by keeping provision of getting equal heavenly glory in the eternity for females who obey religion orders. The women’s advancement in education and knowledge has given them sense, that life out of life does not carry any meaning, they demand equal rights in the earth- not to the heaven.

This study also acknowledged that no religion based inheritance law could ensure women’s equal property rights; thus, it is essential to introduce uniform property law for all citizens of Bangladesh based on gender equality that the original constitutional principal ensured regardless to the class, colour, race, and ethnic group.

ACKNOWLEDGEMENT:

This dissertation may not be completed devoid of the mutual aid, guidance and support of a few personalities and organisation where Professor Imran Parvez, Department of Law University, UITS is the central encouragement for such an opportunity. The University adopted Supervisor Shah Samuel Kaizer, Lecturer, Department of Law; University of Information Technology & Science was the foremost resource of inspiration and motivation for this dissertational effort. He has extended his vital backing through all the way of this study, his help and contribution in fact beyond measure.

The Department of Law; University of Information Technology, is one more resource to gaining this study, it has endowed with precious modulation, books, Journals, researches, and many efforts for this study; teacher and staffs of the department of Law are extremely helpful. Devoid of their practical support, this study could not get its conclusion.

The encouragement, love and caring of my family has ensured a favourable working environment for such a project without disturbing the standard family routine.

All the optimistic attributes and successful outcomes of this dissertation have driven from those mentioned above, the conclusions or any other errors, omissions and mistakes within this dissertation are attributable just to the author’s account.

List of Figures:

Figure 1: Classification of Research Data

Figure 2: Marketing research process

Figure 3: - Classification of published secondary sources

Figure 4: - Categorization of computerized databases

Figure 5: the classification of survey methods

Figure 6: - The questionnaire design process

Figure 7: Data preparation procedure

Figure 8: - The Age Group of the Interviewees

Figure 9: - Literacy Level of the Interviewees

Figure 10: - Profession of the Interviewees

Figure 11: - Religious Believers of the Interviewees

Figure 12: - Whether the Respondents religious activist or a moderate follower

Figure 13: - The decision-making authority or head of the Respondents family

Figure 14: -Whether the decision-maker is the owner of land property title

Figure 15: -Whether the property rights provide decision-making power or not

Figure 16: - The role of religion in respondents’ family

Figure 17: - Comparison of socioeconomic structure

Figure 18: - To what extent respondents agree that an ancient society has any appeal for the modern society

Figure 19: - To what extent females are progressed in education and scholarly role in relation to male

Figure 20: - To what extent females are remarkable productive-force in relation to male

Figure 21: - The contribution females to GDP in relation to male

Figure 22: - the contributions of females to Household and family firms

Figure 23: - Respondents’ view regarding discriminating property rights for

Figure 24: - Respondents’ view regarding importance of women’s empowerment for national development

Figure 25: - Respondents’ view regarding equal property rights to empower women

Figure 26: - Respondents’ view regarding the fifteenth constitutional amendment

Figure 27: - Respondents’ view regarding equal treatment for male and female under Constitution

Figure 28: - Respondents’ view regarding discriminatory Land law

Figure 29: - Respondents’ view on the Legal framework for property distribution based on religion is conflicting with the core essence of the constitution of Bangladesh

Figure 30: - Respondents’ view regarding unified property law in Bangladesh

Figure 31: - Respondents’ view regarding unified property law upholding the core principals of the constitution of Bangladesh

Figure 32: - Respondents’ view regarding impact of equal property rights on social and economic growth

Figure 33: Violence Incidence in Different Location

Figure 34: Traditional Norms Report

List of Tables:

Table 1: Comparative Frequency of Different Forms of Violence by Year

Table 2: Comparative Frequency of Different Forms of Violence by Year

Table 3: Socio Demographic Profile of Rural Women in Bangladesh

Table 4: Empowerment Distribution Report

Table 5: Comparative Circumstances of Women Empowerment in Bangladesh

CHAPTER ONE: PROBLEM STATEMENT

1.1 Introduction:

This thesis describes the perceptions and opinions to assess the impact of women’s land property rights with the indicator of social progress and competitiveness in Bangladesh where the women have deprived and discriminated due to absence of unified property law for all citizens; the empirical evidence demonstrates different motivation and exploration in different religions for land rights of female. This thesis has been organised with the six major sections illustrated as below-

I. Problem Statement: This chapter introduce the thesis’s arrangement with a study in wide-ranging, provides the fundamental principles with what is the underlying dilemmas in the topic area, and what is the importance of this research, and what will be the contribution of this research to the knowledge area of women’s rights for further research. It also raises the research questions and explains the limitations and scope for the study;
II. Literature Review: This episode starts with a chronological overview of women’s land property rights and inheritance law with the indicator of socioeconomic growth and competitiveness with theoretical explanation and then narrates excessively more up to date literature arguing with modern theories of women’s rights and their implementation for the success and advancement of Bangladeshi women. This section also elucidates what the present research would add to the structure of knowledge in the field of study by addressing the research questions.
III. Research Methodology: This part gives rationalisation on how the present research has been conducted and states population selection, data gathering, analysis, as well as treatment by explaining the process and states limitations. Kunz et al (2008) has demonstrated that the difference between quantitative and qualitative research to collect data and analysis them in different way, for example, qualitative research methods possibly will directly involve on focus group interviews and sometime indirect. Therefore, this thesis would explain the data collection processes such as direct interviews of the target group on their experiencing outcome at the topic area adopting the legal research framework of Mersky and Dunn (2002), Kunz et al (2008), and Sloan (2009) with significance the primary and secondary sources.
IV. Discussion: This part of this thesis would explain the areas of prevailing legal framework concerned with the topic area that would enhance to make sense for drawing the conclusion and recommendation;
V. Result/ Findings: This episode analysis the methodological hypothetic and enlighten the results in next of kin to analyse the questionnaire; denotes unanticipated results as well as concrete findings with legal aspect;
VI. Conclusions: This section constructs the ultimate outcomes of the thesis by providing key recommendations and gives an opinion on practical and hypothetical uses for the information raised from this study as well as offers idea calibration for the research and advocates conclusions as well as allusions of this study.

1.2 Background of the Problem:

The presented research on analysing the conflicting legal framework of Bangladesh and its impact on the land property rights of women with growth indicators regarding the women’s empowerment has involved a thorough discussion over a clear understanding of conflicting masculinity and femininity and its influence in different aspects of socio- economic, and political factors. Bangladesh is a south Asian county that get its independence in 1971 with a long arms struggle against Pakistan with the principal of democracy, socialism, secularism, and nationalism. Historically the common people of Bangladesh are secular though the majority of the citizens are Muslim. The democracy of Bangladesh is not enough strong, political institutions are aligned with corruption; gradual military interference in state power has criminalised the political system through different shifts. The criminalisation process has accelerated by military elites and drove to using the banner of Islamisation with the intention to hide their criminal and corrupt face from the people. Thus, they bought eighth constitutional amendment and added Islam as state religion although they do not uphold religion in real life practice. The process of using the religious sentiment of the people has been running in the country even after the 15th constitutional amendment that kept highest efforts to back to the original principal of the constitution. Religious radicalism always stands against empowerment of women and in Bangladesh, they already stand openly against women’s equal land property rights where state has long evidence of directly and indirectly patronising such conflicting situation.

Historically, the women of Bangladesh have a glorious role in the economic development social progression and political movements parallel to man. The women of Bangladesh have played their role as a development partner of muscularity against the British colonial system, liberation war, and in all concurrent democratic movement. Though the women have kept equal contribution for the national development, but the question of women’s equal land property right has always been ignored due to religious alignments. In recent era, due to expansion of women’s education they have gained enough consciousness to demand for equal land property rights. Huge numbers of feminist organisations are involved with movement for equal property rights. Legislators of Bangladesh has recognised the demand for equal rights for women in the recent Women Policy, but due to opposed by the religious leaders for different groups, the government do not make any effective law for women’s land property rights though the constitution of Bangladesh has approved the equal treatment for women. It has long been established that Bangladesh is a country with constitutional supremacy, as constitution urged for equal treatment for all citizens, why the law of inheritance is not unified for all citizens. Why the women would be deprived and discriminated due to their religious heritage The more conflicting situation has been raised through the eighth constitutional amendment that endorsed ‘state religion – Islam’ and provided scope of practicing other religions. The simultaneous endorsement of secularism and ‘state religion – Islam’, by any means, these two ideologies cannot run together. The fifteenth constitutional amendment has moved towards the original principal of the constitution, but to some extents, it botched to resolve the dilemma. Moreover, special favour to a particular religion would give new rise to the fundamentalism aggressively proactive to collapse of women’s land property rights. Meanwhile the misinterpretation to the meaning of fundamental principal ‘Socialism’ as social justice is totally conflicting with the meaning of ‘socialism’ – that was integrated in the constitution of 1972 indicating to the social ownership or state ownership of productive means. Such misinterpretation has also inspired the religion fundamentalism with new a way of suppressing women of Bangladesh while the females here are gaining greater freedom and independence with educational advancement. Both Hindu and Muslim radicals come in to the street to protest against the women’s equal property rights, while the present government announced National policy for Women with equal opportunity. Mysteriously, the government moved its alignment with the religion protest and ignored the issue of women’s equal property rights from the policy.

Under such a background problem, the women of Bangladesh are struggling to safeguard its existence from deprived and discriminated property rights and its consequential unemployment, discriminated public sector job domestic violence and workplace harassment. With this reality, this study has conducted with the aim to identify and exploring the conflicting legal framework of Bangladesh those are the source of suppressing the women and this will create public consciousness and draw the attention of the legislators for amending the legal framework in favour of the women through unification. This research also provides a depth of insight and new dimension for further research.

1.3 Rationale for the Research:

Many scholars have tried to find out the solution of the question how the empowerment of the women in Bangladesh is possible through their rights and practice for last few decades and to integrate them in the national development process. Some of them engaged to preserve enhanced number of parliamentary seats for women in the National Parliament; some of them involved their efforts to engaging women in business and investment, while others tried to identifying the impact of globalisation on the women of Bangladesh involving with social confidence and stability. Most of the contemporary researchers have concentrated on the women’s property rights, but most of them are conducted by the NGOs, and reflected their sectarian views without addressing the necessity of governance and regulatory reform but no overarching research agenda has yet been proposed on conflicting legal framework for women’s land property rights where religion is the opponent.

Marx (1970) explored that the religious distress is at the same time the expression of real distress and the protest against real distress. Religion is the sigh of the oppressed creature, the heart of a heartless world, just as it is the spirit of a spiritless situation. It is the opium of the people. The abolition of religion as the illusory happiness of the people is required for their real happiness. The demand to give up the illusion about its condition is the demand to give up a condition, which needs illusions. The religion people make their empirical world into an entity that is only conceived and imagined that confronts them with something foreign. This is again by no means to be explained from other concepts, from "self-consciousness" and similar nonsense, but from the entire hitherto existing mode of production and intercourse may be interpreted as ‘free-will’ just as independent of the pure concept as the invention of the self-acting rule of the metaphysical articulation of Hegelian philosophy. If he wants to speak of an "essence" of religion, i.e., of a material basis of this inessentiality, then he should look for it neither in the "essence of man", nor in the predicate of God, but in the material world, which each stage of religious development finds in existence (Marx, 1968).

CAPWIP (2001) pointed out that Khushi Kabir; the women's rights activist has supported the Marxist views and added that traditionally the sate machine of Bangladesh has continued economic exploitation upon women by recognising the religion as tools to suppress women. From the ancient days, the religion has a strong alliance with the state power, the religion has supported the state to continue exploitation by arguing that the god has predefined suppression to the fate of mass people and they will get peace and happiness after death going to heaven. Religion has also its role to mitigate the people’s protest and revolutionary movement against state exploitation with the fear of god; in exchange, they receive financial and logistic support from the state. Consequently, the religion has been used in Bangladesh to reduce the importance women ideologically and economically with the aim to suppress them by the masculine domination without any resistance from the state. More surprisingly, the legislation of Bangladesh has integrated the religion based property distribution provision violating the Article- 27 of the constitution of Bangladesh, along with section -1 and section -2 under article 28.

The Article 27 clearly mentioned that all citizens are equal before law and are entitled to equal protection of law. While the Article – 28 of the constitution of Bangladesh keeps a stopple upon discrimination on grounds of religion. The section -1 under Article – 28 strongly proclaimed that Bangladesh should not discriminate against any citizen on grounds only of religion, race, caste, sex, or place of birth and section – 2 confirmed equal rights of women in every spheres of the State. While section – four ensured that nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward segment of citizens. However, the religion based property distribution law and inheritance law are seriously conflicting with the core values of these two sections, gravely discriminated, and deprived the women’s equal property rights. The author of this thesis has identified serious gap among the constitutional principal and legislative practice and urged for further research to overcome the conflicting situation.

Bangladesh is a very patriarchal society, where the male plays the dominant role within the family, the community, and the society as a whole including policymakers, economic and trade institutions are as well male-dominated. Particularly in the villages, the strong, hierarchical order is prevailing, for instance, a body of males called the Shalish makes all decisions in the rural area, and even they provide judgement and punishment gravely violating the human rights backed by religion touts. Religion has also been used traditionally to limit the economic, political, and social role of women. Very a few NGOs are keeping less effort to building consciousness of women’s rights; most of the NGOs are taking about women’s rights just to making money and organising business capturing Khas land in the name of women’s rights. As a result, women are suffering from increasing in poverty, forcing into hard work out of their traditional roles along with the route by which the fundamentalists want to suppress. Thus, it is a common threat to the economic growth of Bangladesh and its social progression; otherwise, the fundamentalists would provide back gear to the woman’s advancement.

There are enough research conducted with narrow vision of women’s rights, but no widespread research agenda has been raised with the conflicting legal framework of Bangladesh that put into practice discriminating inheritance law based on race or ethnic groups avoiding the demand for unification land law. Because of the tremendous development in education, intellectual capabilities, contribution to the GDP growth, interpersonal skills and leadership capabilities of women in Bangladesh, they demand for equal inheritance rights on land property in relation to the male, thus it is rational to conduct a research with such a burning issue.

The rational of this research is to analysis the reality of women’s equal property rights by experiencing and observing the real scenario of prevailing legal framework to evaluate to what the extent unified property rights is effective to retain women’s confidence and social equilibrium in the family, society and state power. In addition, the demand for equal property right has escalated the awareness of legislators to take control over the situation to introduce unified land law for all citizens that will bring back the women’s confidence. This dissertation will assist the academia, policymakers, and legislators with better understanding about the rationality of equal rights including the role of its opposing force such as unholy alliance of military elites with the religion radicalism. Through this investigation, the women of Bangladesh will get a potential strength to create more pressure on the government and political institutes for implementing equal property rights.

1.4 Research Question and Objectives

This thesis has been designed to respond to the following research questions. What are the conflicting factors of prevailing legal framework those most influence for not providing equal property rights for women to establish economic growth and competitiveness in developing countries like Bangladesh, acceptable, and to comprehend the potential barriers to implementing equal and unified law for women by the state government? The answer to this question would enable the state government and legislators to organise the policy and towards a greater motivation to increased productive output of the nations providing equal rights for women. Three research objectives are listed below:

- To what extend the constitution supremacy has been preserved and practiced in Bangladesh?
- How does the existing Legal framework for Women’s Property Rights are Conflicting with the core principals of the constitution?
- What are the realities for Unified Women’s Property Rights in Bangladesh?

1.5 Scope and Limitations of the Study:

Preparation of this research work has been accompanied and revealed a lot of opportunities and restrictive factors, such as-

- Projected scopes-

- The subject matter of various assessments regarding the impact of globalisation is being one of the most popular issues in recent time.
- The study is being converged with many relevant political and social issues including culture, technology, politics, and mostly economics, which make a sense of previewing the basic growth factor of any country.
- Discussion on Constitutional aspect is also prospective in judging the core problems of the regions along with some fruitful solutions.

- Projected limitations:

- Lack of adequate information;
- Ambiguous and clutter of irrelevant data;
- Constraint of time;
- Limited scope for proper expression;

CHAPTER TWO: LITERATURE REVIEW

2.1 Constitutional Supremacy in Bangladesh:

2.1.1 Constitutional Supremacy: The Missing Norms of Practice:

The Constitution of the People’s Republic of Bangladesh was written in 1972. Bangladesh, as a member of United Nation’s (UN), has adopted the ideals of international laws as well as Geneva Convention of 1949 and the Vienna Declaration on Human Rights (1993) and its constitution as well ensured human rights in the country. The compilation of the Bangladesh Constitution was based partly on the social and cultural norms. Four principle concepts: Nationalism, Socialism, Democracy, and Secularism, as mentioned earlier, were proclaimed in the preamble as the foundation of the constitution, it has undergone several amendments, some of which were empower women as well as minorities. However, Article 7 deals with Supremacy of the Constitution and according to this article it means-

(1) All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution.
(2) This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other, law is inconsistent with this Constitution and other law shall to the extent of the inconsistency, be void.

Article-7 is a unique one and is not found in any other Constitution. It emphatically without any ambiguity, declares the supremacy of the Constitution in most certain terms. In the judgement of Fifth Amendment, it was mentioned that Bangladesh is a Sovereign Democratic Republic, governed by the Government of laws and not of men. The Constitution of Bangladesh being the embodiment of the will of the Sovereign People of the Republic of Bangladesh is the supreme law, and all other laws, actions, and proceedings must conform to it and any law, or action or proceeding, in whatever form and manner, if made in violation of the Constitution, is void and devoid.

The framers Constitution of Bangladesh felt it necessary to make such declarations in Article 7 of the Constitution, which brilliantly comprehends the entire jurisprudence of the constitutional law, and constitutionalism in Bangladesh including the supremacy of the Constitution. The decision of Pakistan Supreme Court in Zafar Ali Shah V. General Parvez Mosharaf, PLD 2000 SC 869, is an example, which demonstrates the foresight of the framers of the Constitution of Bangladesh has made it explicit by incorporating Article 7 what has always been implicit in any written constitution. If the Article 7 is read together with the preamble and the fundamental principles of State Policy of Chapter II of the Constitution and if the different provisions of the Constitution are interpreted following the mandate of Article 8(2), there remains no doubt that –

(i) the supremacy of the Constitution and through its operation the establishment of a representative democratic polity and Rule of Law securing for all the citizens fundamental human rights and freedom are the basic features of the Constitution and together with these;
(ii) The independence of the judiciary and the power of judiciary to conduct judicial review for any executive and legislative actions are also basic features of the Constitution. Without the above, the aims and objectives as formulated would be a dream and it is now well- established that the basic features and structures of the Constitution are beyond the amending power of the Parliament under Article 142 of the Constitution.

2.1.1.1 Postponement of Constitution with Martial Law:

The judgement of Fifth Amendment it stated that Halima Khatun’s case, Nasiruddin’s case, Ehteshamuddin case, (supra), judgment passed in Civil Appeal No. 15 and in other decisions wherein it was held that when Martial Law if imposed, the Constitution loses its supremacy. As a result, it amended that - There is no such law in Bangladesh as Martial Law, and there is no such authority as Martial Law Authority as such if any person declares Martial Law, he will be liable for high treason against the Republic, and the obedience to superior orders is itself no defence. The taking over of the powers of the Government of the Bangladesh with effect from the morning of 15th August, 1975, by Khandaker Mushtaque Ahmed, an usurper, placing Bangladesh under Martial Law and his assumption of the office of the President of Bangladesh, were in clear violation of the Constitution, as such, illegal, without lawful authority and without jurisdiction.

The nomination of Mr. Justice Abusadat Mohammad Sayem as the President of Bangladesh on 6/11/1975, his ascending over of the Office of President of Bangladesh, his assumption of powers as the Chief Martial Law Administrator, and his appointment as the Deputy Chief Martial Law Administrators through the Proclamation issued on 8/11/1975 all these were in violation of the Constitution. The handing over of the Office of Martial Law Administrator to Major General Ziaur Rahman, by the aforesaid Justice Abusadat Mohammad Sayem, by the Third Proclamation issued on November 29,1976, enabling the said Major General Ziaur Rahman, to exercise all the powers of the Chief Martial Law Administrator, was beyond the ambit of the Constitution.

The nomination of Major General Ziaur Rahman, to become the President of Bangladesh by Justice Abusadat Mohammad Sayem, and the assumption of office of the President of Bangladesh by Major General Ziaur Rahman, were without lawful authority and without jurisdiction.

The Referendum Order, 1977 (Martial Law Order No. 1 of 1977), published in Bangladesh Gazette On 1st May, 1977, is unknown to the Constitution, being made only to ascertain the confidence of the people of Bangladesh in one person, namely, Major General Ziaur Rahman.

2.1.1.2 Legalising Martial Law by Amending Constitution:

Fifth Amendment: the National Parliament passed the Fifth Amendment Act on 6 April 1979. This Act amended the Fourth Schedule to the Constitution by inserting a new paragraph 18. The effect of the amendment was that all amendments or repeals made in the Constitution from 15 August 1975 to 9 April 1979 (inclusive) by any proclamation or Proclamation Order of the Martial Law Authorities were deemed to have been validly made, and could not be called into question before any court or tribunal or other authority. (See also the Seventh Amendment.)

Seventh Amendment: The Seventh Amendment Act has passed on 11 November 1986. It was amended Article 96 of the Constitution and amended the Fourth Schedule by inserting a new paragraph-19, which amongst other things provided that all proclamations, Chief Martial Law Administrator's Orders, Regulations, Orders & Instructions, ordinances and other laws made from 24/03/1982 to 11/11/1986 (inclusive) had been validly made, and could not be called into question before any court or tribunal or other authority.

The Constitution (Eighth Amendment) Act, 1988 passed on 9thn June 1988 that granted Islam as state religion. However, Fifth Amendment has almost repealed by the Fifteenth amendment of the constitution. In 1977, when Bangladesh was under martial law, President and Chief Martial Law Administrator Major General Ziaur Rahman passed a presidential decree that removed the principle of secularism from the permeable of the constitution and instead of it, placed "absolute trust and faith in the Almighty Allah". The decree was later legitimized by the second parliament of Bangladesh.

In January 2010, the Bangladesh Supreme Court observed that parliament does not possess any authority to suspend the constitution and proclaim martial law and hence, it cannot legitimize actions of martial law regimes. The judgment paved way for restoring the original four fundamental principles declared in the permeable of the constitution, including secularity. The Supreme Court followed with a July 2010 ruling scrapping provisions, which allowed religious parties to flourish after 1979. The ruling is expected to pave the way for a return to complete secularism in Bangladeshi law.

2.1.2 Fundamental Principles of the Constitution:

There are eleven parts of the Constitution and among them parts II, III, and V deal especially with women. Part II focuses on the fundamental principles of the state policy while part III concerns fundamental rights guaranteed by the Constitution. Part V contains the legislature where women’s participation in the National Parliament was encouraged and favoured through the reservation of parliamentary seats. However, Part II of the Constitution concerns the principal ideology, morality and opportunities as well as responsibilities of its citizens. As Bangladesh one of the most largest Muslim countries in the world in terms of population size, it has considered Islamic value but it ensures equal rights for all people. In Article 18 (2) affirmed, “The State shall adopt effective measures to prevent prostitution and gambling”. Women were given the status of mothers, sisters, wives, and daughters in Islam. They are more respected when, according to Indian scholar Asghar Ali Engineer, they are in the position of motherhood. According to such an opinion, allowing prostitution would have thus degraded women’s highest position to the lowest scale (Miaji, 2010).

The Constitution of Bangladesh ensures equal opportunity of all citizens and it is a fundamental state policy. Therefore, Article 19 (1) includes that “the State shall endeavour to ensure equality of opportunity to all citizens”. In the modern world, world-citizens believe in equality and equal opportunities for all, regardless of caste, colour, religion, and gender. Women in Bangladesh were rarely engaged in any economic affairs as the labour market was under men's control and women are discriminated in terms of salary. On the other hand, participation of women in governmental and semi- governmental institutions is still very low. However, Constitutional guarantees and advocacy for the empowerment of women in every sphere of human life by different organisations, along with government policies in recent years have helped women gain visible success and be recognised by institutions such as the World Bank.

Article 19 (2) affirmed “The State shall adopt effective measures to remove social and economic inequality between man and man and to ensure the equitable distribution of wealth among citizens, and of opportunities in order to attain a uniform level of economic development throughout the Republic”.

2.1.3 Human rights and Social Justice:

Part III of our constitution deals with fundamental rights of the citizens to provide equal rights for all people. However, Article 27 of the constitution includes equality before law by stating all citizens are equal before law and are entitled to equal protection of law. Moreover, the constitution ensures in Article 28 that –

- The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, or place of birth.
- Women shall have equal rights with men in all spheres of the State and of public life.
- No citizen shall, on grounds only of religion, race, caste, sex, or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution.

The meaning of this article is “no citizen shall, on grounds of religion, race, caste, sex, or place of birth be subjected to any disability, liability, restriction, or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution. In this regard, it is significant that the quota-system of the state policy in almost all government jobs has contradicted that statement of the constitution. However, article 28 (4) of the constitution includes Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens. The purpose of this section is the achievements of women in all societies lag far behind those of men; they need more assistance and privileges in order to be equal to their male counterparts in all spheres of life. At the same time, this provision includes other sections of society besides women, such as thirteen different non-Bengali tribes living predominately in the hill-tracts. However, the concept of equality under Article 28 (2) conflicts with Muslim Property Law.

2.1.4 Equality of Male and Female under Constitution:

The Constitution affirms gender equality, but state legislation and institutions frequently disregard women’s rights; therefore, Bangladesh is a highly patriarchal society and gender discrimination is evident across all levels. Women face several restrictions in relation to civil liberties though constitution ensure equal rights, such as freedom of movement is usually restrained to the vicinity of their homes and local neighbourhoods due to the Islamic practice of prudish limits their participation like education, employment and social engagements, which creates barrier to implement the equality concept under part-3 of the constitution. The Constitution of Bangladesh guarantees the equal opportunities for all citizens beyond cast, gender, religion, and ethnicity. The Constitution further ensures the adoption of effective measures to remove any social and economic inequality between men and women and asserts the equitable distribution of wealth among citizens in order to attain a uniform level of economic development. Chapter Four of the Constitution further emphasises that all citizens are equal before the law and entitled to get equal protection of the law. The article 27 and 28 favours women through special provisions. Chapter five of the constitution even guarantees some outstanding opportunities for women by means of 45 reserved seats in parliament and one fourth of the positions in local government representation.

It is noteworthy that the above provision of the Constitution prompted the government to adopt quota system for women in various institutions, allotting 60% of teaching posts for women at primary level, free education for girls up to class eight, and scholarships to encourage female students to study to higher secondary level (Shehabuddin, 2008). Article 28 (1) includes ‘the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, or place of birth’, but until today, equality has not ensured in all job place. For instance, there are only a few high-ranking women officials in comparison to their male colleagues in the Secretariat. However, Shehabuddin (2008) stated that status women would be lowest in those societies where there is a firm differentiation between domestic and public spheres of activity and where women are isolated from one another and placed a single man authority at home.

2.2 Legal Framework for Women’s Property Rights and Inequalities: -

2.2.1 Islamic Outlook towards Female:

The core essence of the unscrupulous discriminatory practices between genders in the societies of today’s Bangladesh was profoundly adopted from the prehistoric radical Hinduism; later the Islamic approaches were put forward by the Islamic conquerors and re-established by males considering their comparative physical abilities than women that provided unfair advantages out of socially dominative position and property rights. Although, literally, Islam has maxims about showing proper respect to women, in practice, the “Muslim societies” has very little to do with showing respect in a true sense – both at home or workplace, the necessary regards and decency are seriously scarce. However, this does not mean that the other Islamic maxims are not properly practiced (Agarwal, 1994). Hasan (1988) argued that when it comes to distribution of property, or teaching girls about the “true responsibilities of Muslim women” (which mainly focuses on various ways to gratify husbands based on an idea that women’s heaven is under their feet), the compliance of Muslim societies to the Islamic maxims becomes highly noticeable. Thanvi (1930), in his book Bahishti Zewar, has come up with several ignominious fatwa on women, which were not included in the Holy Qu’ran.

However, according to Surah An-Nisa of Al Qur’an, Lord created women and men from a single soul, and in the name of Allah, they should demand their rights from one another (Malik, 2007). Doi (2002) states that whilst for centuries, countless professed priests made misrepresentations about the fact that the rights of men and women are not equal, The Holy Qur’an described women as “highly respectful” and emphasized on their equal rights:

“And for women are rights over men similar to those of men over women. (Al-Qur'an 2:226)”

The holy Qur'an, in addressing the believers, often uses the expression,’ believing men and women' to emphasize the equality of men and women in regard to their respective duties, rights, virtues and merits (Awde, 2000). It says:

“For Muslim men and women, for believing men and women, for devout men and women, for true men and women, for men and women who are patient and constant, for men and women who humble themselves, for men and women who give in charity, for men and women who fast, for men and women who guard their chastity, and for men and women who engage much in Allah's praise, for them has Allah prepared forgiveness and great reward (Al-Qur'an 33:35)”

The Qur'an says that women have souls in exactly the same way as men and will enter Paradise if they do good works (Barlas, 2002):

“Enter into Paradise, you and your wives, with delight. (Al-Qur'an 43:70)”

“Who so does that which is right, and Believers, whether male or female, he or she will we quicken to happy life. (Al-Qur'an 16:97)”

Mohammed (2002) argued that this indicates that for entering into Paradise both women and men will have to contribute equally to the society by working together.

From the discussion above it is clear to understand that the God has provided similar virtues for men and women, but the male dominated Muslim jurists have historically emphasised to undermine the women and to prove inferiority of females both in physical strength and in intellectual capabilities aimed to greater exploitation and suppression.

2.2.1.1 Rigidity & Flexibility of Islamic Land Tenure:

Lapidus (2002) pointed out that Islam from its very beginning executed many of agricultural land reform as well as land ownership law reformation in order to ensure social progress by eradicating the brutal, repressive and abusive pre-Islamic structure of land tenure in the Arabian Peninsula by introducing the reasonable, impartial, unbiased and humanist allocation of land. The core objectives of time to time such reformation has been rooted to the ideological alignment of wellbeing of the mankind deeply linked with philosophical, sociological, and legislative balance between the existing tradition and progressive one that people of that time easily motivated and accepted both for private and public interest and to guarantee the right use of land.

Hoyland (2001) pointed out that the land tenure of Arabian Peninsula was very frustrating, exploitive, and unfair where the policy was might is right, the tribal leaders occupied certain area of land for their cultivation in accordance with their capabilities of conquer and absorb by applying force. The dominating groups engaged in conflict to establish their supremacy and they established huge land property reserve protected from mass entry and totally out of any state interference and became dominant economic force of that time. Such land tenure system acknowledged as ‘Hima’ and the tribal chiefs utilised the Hima system for their personal economic welfare as well as a tool of exploiting the mass people.

Gari (2006) added that in the post Islamic era, some of the Himas acquired by the state and used for the public interest, but still the system continued who are self-governing and out of governmental control and prevailed unfair oppression. He also explored that Prophet (may peace be upon him) stood against the inhuman practice and declared that Himas should be under state management, but applied the traditional Land ownership norms of pagans to distributing the wealth acquired from the war looting of Khaybar among the soldiers and allocated land for participants who were farmers in their independent ownership. Although the prophet taught that hima would exclusively belongs to God and the Prophet, still the hima system prolonged in Saudi Arabia, Sudan Egypt and other Middle Eastern Arab countries. Thus, the Islamic land tenure and inheritance law has gained its present form not by any rigid order, but gradually developed time to time for the betterment of humanity.

In the case of Khaybar, the land property of the Jewish were allocated among the participants while some of the cultivating lands kept in account of the state and given to the natives as sharecropper or profit sharing basis, similar land management was corresponded in the case of Fadak and prolonged up to the rule of Khulafa-al-Rasyidun. The legal maxim of Islamic bannered the renting out the conquered land as a process of Ijara that kept significance contribution to the Islamic political economy, although its humanitarian and moral consolations relay different indication away from public benefit. The allocation of conquered land to the soldiers and commanders was a denial to the abolition of feudalism rather the conquered lands of Egypt and Iraq were divided into small estates and enhanced the development of new landlords that leads to new damages in this region. Thus, Islamic land tenure contained some rigidity inherited from pre-Islamic society, and flexibility to accommodate the major customs of the conquered regions and there is no space for radicalism.

2.2.1.2 Voice of Women in the Early Islam:

In the seventh century, the Arab pagans were nomadic race, gipsy tribe and bedouin who were ramblers and camel herder moves around the semi-desert looking for oasis town with wells to bartering animal, tools, and weapons just like a system of oasis town stateless society with strong internal bonding. The quantity of animals, camels, and wives as well as polygamy and warfare were the endemic manifestation of resourceful and aristocratic person of that society. Prophet Muhammad (PBUH) introduced Islamic teaching and ideology to motivate and progress that a backward society in all aspect including emancipation of women, although polygamy still exists, but limited to four (4) wives and provided land property right half of a man.

Baden (1992) pointed out that some female oppressive norms such as of pre-Islamic Arab society inherited in the post-Islamic era such as bride price, dowry, and isolation of women from the society, genital mutilation of women, veiling and polygamy of husbands. Mernissi (1991) added that most prominent female contributors of Islam such as Hazrat Khadija RA, Hazrat Aisha RA, and Hazrat Sukanya RA, at the very early stage of Islam rose debate against the suppressive customs that Islam legalised and provided highly intellectual interpretations, which could identified as first feminist protest in Islam. Khadija (RA), the most successful businessperson of that time and the first wife of Prophet (PBUH) and fifteen years older than Prophet (PBUH) and during her lifetime he was away from multi-marriage. Aisha (RA) youngest wife of Prophet (PBUH) directly took part in politics and militarily struggles of Islam even after the death of the prophet and she always challenged every anti female hadith. Sukanya (RA) was the prominent great-granddaughters of Prophet (PBUH) (by means of Fatima and Ali) who directly challenged every postulations of Muslim marriage system and never vowed obedience to any of the husbands out of five. She condemned all the Islamic legislation that supports polygamy of man although she has bright contribution to the socio-economic, political and cultural area of Islam, Mernissi (1991) & Baden (1992).

In the modern era, the women have progressed in education, research, and different intellectual engagement and there is no scope to prove the inferiority of women in the political economy of Islam. The Islamic jurists’ and scholars have the opportunity to place an authentic’ Islamic proposals in order to stand in favour of equal property rights of women and to amending concerned legislation and there is no reason to privilege radical viewpoint to bring back the women to the 1400 years.

2.2.2 Male Dominating Muslim Property Law and Inequalities:

Sait and Lim (2005) states that Muslim women's lesser rights in inheritance, under the Islamic compulsory succession rules, have long regarded as a marker of the inferior status of women under Islamic law. A number of groups are present that support the view that man spend out of their property for the support of woman. The argument continues to the effect that women have no concomitant financial obligations. Doumani (1998) pointed that Muslims often argue there are other ways for obtaining property, such as gifts, dower, and maintenance in marriage and as beneficiaries under a trust/endowment (waqf) which could be part of a gender property rights compensatory scheme (Bhatnagar, 1992).

Ali (2010) argues that Muslim woman’s access to property could be better understand through the dynamics of custom, family, kinship and the construction of property itself. Conservative interpretations of Islamic law and customary/traditional structures/practices often combine to diminish or altogether extinguish women’s rights to property. Carroll (2001) stated that a prime example is the recourse to or the customary practice of renunciation (tanazul) of even the reduced female inheritance share in favour of a male member of the family, such as a brother or son.

According to the Muslim Law, there are three kinds of heirs (Professor, 2011). Firstly, ‘sharer’ who is entitled to a prescribed share of the inheritance, secondly, ‘residuary’, who succeed to the residue left after satisfying the claims of the sharers, and thirdly, ‘distant kindred’, who are blood relations and succeed generally in the absence of sharers and residuary (Esposito, 1982). In the classification of the heirs, it is important to note that though the son's son and son's daughter have been made residuary and sharer respectively, daughter's children have been made distant kindred (Ahmed, 1992). Sarwar (2007) argues that the principles of succession among the sharers and residuary are two-fold, firstly, the nearest in blood relationship excluding the remote one and secondly, whoever is related to the deceased as any person shall not inherit while the person is living. Under the Muslim Law, the wife (or wives) get one-eighth if there is a child, and one fourth if there is no child, though the husband gets exactly double (Ali, 1999).

Others get from the estate of her sons one-sixth when there is child of her son or when there are two or more brothers or sisters or one brother and one sister of her son, and one third when there is no child and not more than one brother or sister of her son. On the other hand, the father gets from the estate of his son’s one-sixth if there is child of his son and in case of no child; he gets the entire residue after satisfying other sharers’ claim. The Islamic law also states that daughter, mother and wife would be under all circumstances entitled to some share in the inheritance and are not liable to exclusion from inheritance, but they are not treated at par with their male counterparts, i.e. son, father, and husband - and to this extent, rules of inheritance are discriminatory. Women in fact were not given parity in the matter of their shares and generally, the female is given one-half the share of the male (An-Na'im, 2002). Steinzor (2003) suggests that the case of sister's inheritance is equally discriminatory.

According to the rule of nearer relationship, children of a pre-deceased son or daughter would not inherit if a person died leaving another son. The child is often rendered as destitute. Kamal (1986) stated that this inequity, however, has been removed by Muslim Family Laws ordinance, 1961, which provides that the children of the predeceased child would inherit the share, which the pre-deceased children would have inherited had he or she been alive. However, Al-Hibri (1997) argued that the widow of a predeceased son remains as helpless as before as she does not inherit anything of this ordinance.

2.2.3 Sanaton Outlook towards Female:

Agarwal (2004) stated that Hinduism teaches that men and women are of equal worth, but have different roles and responsibilities because they have different dharma to follow. This roles and responsibilities, in fact, form the basis upon which discrimination starts in Hinduism. The Ramayana tells the story of Lord Rama and his wife, Sita. Women are encouraged to be “good wives” and “mothers” and to follow the example of Sita. The role of the mother has always been given a very high status in Hinduism. The mother goddess is associated with everything that is good and protective. Mothers are respected because the mother is the first teacher of the child, and she has a special role to play with regard to worship in the home. This indicates that Hinduism also tries to force women in doing household works, and the liberal approach in terms of working outside to earn living is not much emphasized. However, throughout the history of Hinduism religious teachers of Hinduism have been both male (Rishis) and female (rishikas).

2.2.4 Hindu Family Law and Depressing On Female:

Aktar and Abdullah (2007) suggests that while radical changes in the Hindu laws have been brought by ensuring equal property rights of women in India in response to the changing trends of society, in Bangladesh, these laws are not reformed because of the politicisation of religion. Codification of Hindu law applicable to Bengali Hindus was done during the British period. This includes the “Racial Inability Remission Act, 1850”, the “Hindu Widow’s Remarriage Act, 1856", the “Sati Regulation, 1829”, the “Child Marriage Restraint Act, 1929”, the “Earned Property Affairs Act, 1930” , the “Inheritance Act, 1925”, the “Hindu Women’s Right to Property Act, 1937", the “Hindu Women’s Right to Separate Residence and Maintenance Act, 1946".

[...]

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Details

Title
The Conflicting Legal Framework of Bangladesh. An Evidence of Women's Property Rights That Demands Unification Without Discriminating Race or Ethnic Groups
College
University of Information Technology & Sciences
Course
LLM
Grade
A +
Author
Year
2011
Pages
139
Catalog Number
V924694
ISBN (eBook)
9783346249388
ISBN (Book)
9783346249395
Language
English
Notes
This dissertation submitted in partial satisfaction of the needs for the Master Degree in Law in the UITS and graded A+, but not published ever before.
Tags
Conflicting legal framework; Equal Rights of Women; Feminist Movement; Inheritance Law; Islamic Land Tenure; Land Rights of Women; Inheritance Law; Voice of Women; Women’s Property Rights; Women’s Right
Quote paper
Nasima Talukder Monmoon (Author), 2011, The Conflicting Legal Framework of Bangladesh. An Evidence of Women's Property Rights That Demands Unification Without Discriminating Race or Ethnic Groups, Munich, GRIN Verlag, https://www.grin.com/document/924694

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