The lecture looks at the gender dimension of the Bangladesh Constitution.

1. Gender and the
Constitution: Where is
“She”?
S M Masum Billah
billah002@gmail.com

2. 3/30/2024
JULS Public Lecture 2

3. Basic premise
• Two criticisms:
• Bangla version of the Constitution Prevails.
• There has been no visible concern for using male-specific terms.
• But:
• The BD Constitution was drafted in English at first, and then it
was translated into Bangla.
• Courts usually refer to the English text.
• Both are authentic texts.
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4. James White
• “Law is in full sense language, for it is a way of
reading and writing and speaking, and in doing these
things, it is a way of maintaining a culture, largely a
culture of argument, which has a character of its
own.”
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JULS Public Lecture 4

5. Martha Morgan (1992)
• “Does law imitate life or does life imitate law?'
Constitution-making is a time for asking the larger
questions about law and life, about what a society is
and what it wants to become. As women and other
marginalized groups demand to have their voices
heard in contemporary constitution-making, new
questions are being asked, and views about the very
nature of constitutionalism are changing.”
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6. Introduction
• ‘He includes She’.
• Shirin Sarmin’s election as the Speaker of the Jatiyo
Sangsad.
• Eviction of patita palli.
• ‘Fathers of the Constitution’.
• The oxymoron of ‘positive discrimination’.
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7. He Syndrome in the Constitution
• One day, I had “nei kaj to khoi vaaj”: him (24), himself (4),
his (88), man (4), woman (8), she/ her (0).
• Other and Heritage.
• Constitutional drafting process.
• 1 out of 34 members of the Drafting Committee.
• 7 out 404 MCA were women, 4 took part in the
discussion.
• Less scholarship, Constitutional community.
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8. More
• Article 10: Socialist society, man v man.
• Article 19: i) Inequality between man and man; ii)
Women in all spheres.
• Exclusio Alterious principle?
• Inclusive, “person” (art 7).
• But see, person case (1927) of Canada.
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9. So what?
• Fatwa Case (2001): AD says fatwa okay but only to be given by
‘properly educated person’.
• Hefzur Rehman (1999): Divorced wife gets maintenance for the iddat
period.
• Article 15: ‘prostitution’ (erotic justice ?).
• Jordan case (South Africa): O’Regan and Sachs JJ’s dissenting
opinion: Unfair discrimination by making a prostitute primary
offender but treating the patron merely as an accomplice,
perpetuated gender stereotype, in a manner impermissible in a
society committed to gender equality.
• Honra (pure) in Columbian Constitution (Kumari case in
Bangladesh).
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10. Politics of reservation
• Women reserved seats: Ahmed Hossein (1990),
Shamima Sultana Seema (2005), Farida Akter (2006).
• Constitutionalism conditioned by religious dogma,
patriarchy and the parliamentary and judicial life we
breathe in.
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11. Does it Really Matter?
• Inclusivity.
• Every word invites interpretation.
• Frederick (1982): Words are like salad, and high theory
is the main course.
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12. Contd.
• Fight ‘real’ injustices, do not worry about the ‘trivial’
things.
• Deborah Cameron (1992): “It’s not a choice: we can demand
equal pay and non-sexist language too”.
• Consider art 48 and 57 by applying Helen Irving’s
reversal test.
• 45 years v 45 years rule.
• Repeated use of male pronouns with gender-neutral
nouns suggests that public and masculine are co-extensive.
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13. Contd.
• Language as a form of representation.
• Use or even order of words may convey privilege or
priority.
• Its absence widens the historical invisibility of
women.
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14. Other Excuses
• Linguistic and grammatical.
• Dickerson: “Male terms are not necessarily sexist”.
• Masculine rule: subject to context.
• Byles J: interpreted that in almost every connection, the word ‘man’ is used in contradistinction to
‘woman’. Certainly, this restricted sense is its ordinary and popular sense.
• The lawyers of the 19th century have decided for us that the word “man” always includes ‘woman’
when there is a penalty to be incurred, and never includes ‘woman’ when there is a privilege to be
conferred”.
• It is a reminder of the way the culture sees women. Many consider that sexist language is a
symptom of a larger problem.
• Chorlton v Lings (1868) LR 4 CP 374 at 392.
• Charlotte Stopes, The Sphere of ‘Man’ in Relation to that of ‘Woman’ in the Constitution (T Fisher Unwin 1907) 5.
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15. • Driedger: The pronoun representing these words
must also be masculine, and all we have available is
he, his and him. When used in this way, these
pronouns indicate the gender of the words they
represent, and have nothing to do with sex.
• A good example: sangsad neta.
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16. Problem with Driedger’s approach
• Be satisfied by assuming the male terms.
• Is it then a victory of feminism or a surrender of
womenness to the male dominated linguistic vista?
• Metaphor: Son desiring parents take pride by
making their daughter wear male attires.
• Society to be prepared for using the female terms.
• Should women then wait for a change of language
regime which may take ages?
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17. ‘Trivial’?
• Defensive tactic used to belittle the other.
• Pledge of equality is violated by the state through repressive and discriminatory laws,
then the women are discouraged by the male dominated society to approach the court
for a remedy.
• Within the established language and reasoning system, alternative objective voices are
suspect to be biased.
• As women’s experience has not shaped the standard it remains forever outside the
standard.
• The pretending neutrality of the male terms is thus doubly dangerous.
• Firstly it creates a sham sense of inclusion and
• Secondly, it perpetuates a discriminatory male standard of language.
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18. How Others do it?
• Repeating nouns, avoid pronouns.
• Passive narration, where impossible– he/she,
men/women.
• Petersson: i) Separate-gender rule ii) Two-way rule
iii) All-gender rule.
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19. How Others do it?
• South Africa: revised from gender perspective.
• In place of ‘he’ ceases to be eligible, ‘that person’ ceases to be eligible and
so on were used.
• Where it was not possible, plural number was used to mean singular which
is comparatively a less vice.
• Art 10:“Everyone has inherent dignity and the right to have their dignity
respected and protected.”
• Murray: SA expressly refers to men and women whenever it deals
with appointments to office, thereby emphasising that either a man
or a woman could hold the office.
• Australia: Employed passive voice to address the evil of gender
biasness.
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20. Conclusion
• Who “We, the People” are?
• “Eloquence and emotive force” of such a document.
• This reinforces the idea that constitutional language
deserves extra care.
• So this should not be left at the mercy of a colonial
law like the GCA 1897.
• Living tree—should accommodate the goals,
interests and values of modern society.
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21. Conclusion
• Success of this depends on to what extent people believe
that it belongs to them.
• Not only a matter of right language, but also a matter of
getting the language right.
• The Constitution we have depends on what Constitution
we make.
• Not a matter of being, but also a matter of becoming.
• When and how to ensure that women own, feel, recognise
and promotes the ideals of the Constitution.
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22. 3/30/2024
JULS Public Lecture 22
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