The 10th Amendment case: Women Members of Parliament
By Nayem H Ovi
Head of the www.lawtojustice.com
Introduction:
Women of all continents can look back that they were once marginalized from the mainstream of society and have come out a long way from that position on the basis of equality, justice, peace, and development. The two concepts of women’s rights and peace- have been interlinked because the promotion of women’s rights promotes peace. In other words, peace prevails in society when women’s rights are established and protected as those of men. The origin of women’s subordination lies in political theories, propounded by men. The concern for individual autonomy and freedom for men has later been extended to a concern for women’s equality, freedom, and autonomy. The eligible women voters in the country are more than those men. During the general election, women cast their votes more than men did. This demonstrates that women are conscious to exercise their rights if the environment is made safe and secure. Although the 1972 Constitution (Articles 10, 19, 27, 28, and 29) provides equality for men and women, traditional social norms and orthodox religious precepts have discriminated between men and women in society. By the 10th Amendment of our Constitution, there is a provision for reserved seats for women to ensure their rights. According to the existing provisions of the Constitution of Bangladesh, woman members may be of two types-general woman members and special women members. Those who according to Article 65(2) of the Constitution are elected from single territorial constituencies by direct election are called general women members of parliament.1And those who according to Article 65(3) of the Constitution as amended by the 14th Amendment Act are elected indirectly in reserved seats for women by the directly elected members of parliament may be called as special women members of parliament.
Tenth Amendment: Background of the Women Members Reserved seats
This Amendment was passed in the 4th parliament on 12th June 1990. It was mainly related to the reserved women’s seats in the parliament as provided for in Article 65. The original Constitution provided for 15 reserved seats for women members and this provision remained in force for 10 years. But in 1979 through the 5th Amendment, the number of reserved seats was increased from 15 to 30 and the period this provision was to remain in force was extended from 10 to 15 years. This period expired on 10th December 1987 and as such the 4th Parliament on 10th December 1987 and as the 4th Parliament did not have any reserved women seats. There were, therefore, debates and discussions within Ershad’s ruling party about whether such a reservation was necessary or desirable. The mode of election for women’s reserved seats and their role in the parliament had prompted a weekly to term these 30 ladies as “30 sets ornaments in parliament’. However, Ershad and his ruling party decided to keep such a reservation for another period of 10 years. To that end, the Constitution (Tenth Amendment) Bill was introduced on 10th June and passed on 12th June 1990. This Amendment reinserted clause (3) to Article 65 providing for 30 reserved women seats for a further period of 10 years beginning with the commencement of the next parliament. However, on 16 May 2004, the 8th Parliament passed the Constitution 14th Amendment Act whereby provisions have been made for 45 women members in reserved seats for another ten years starting from the 8th Parliament.
1 The Constitution of the People’s Republic of Bangladesh, 1972; Art.65.
2 Ibid.
The Constitution (10th Amendment) Case:
In Dr. Ahmed Hussain v.Bangladesh4, the petitioner having unsuccessfully challenged the vires of the aforesaid Tenth Amendment of the Constitution sought leave to appeal from the judgment of the High Court Division dated 28-11-91 in Writ Petition No.2306 of 1990. The leave petition was dismissed on 2-3-92,44DLR (AD) 109, decided on March 2, 1992. The petitioner Dr.Ahmed Hussain challenged the Tenth Amendment of the Constitution to be in violation of Article 121 and 122(1) of the Constitution. Article 121 provides that there shall be one electoral roll for each constituency for the purposes of elections to Parliament, and no special electoral roll shall be prepared so as to classify electors according to religion, race caste, or sex. Article 122(1) provides that the elections to Parliament shall be on the basis of adult franchise6. It was held by the Appellate Division that the principle of a single electoral roll for each constituency and the principle of the adult franchise is not violated in the case of election to reserved seats for 30 women members, because the Constitution on the date of its commencement provided for two different kinds of elections.300 members in general seats are to be elected directly on the basis of adult franchise. Additionally, some seats reserved for women members are to be filled up by a method of indirect election. There is thus no conflict between the Constitution (Tenth Amendment) Act and Article 121 and 122(1) of the Constitution. It was argued that the method of indirect election for the seats reserved exclusively for women has destroyed the principle of democracy as expressed in the Preamble, in clause (1) of Article 7, and in Article 8 and 11 of the Constitution.
The Appellate Division held (judgment by M.H.Rahman.J.) that a system of indirect election cannot be called undemocratic. It is provided in the Constitution itself. Article 28 clauses (4) of the Constitution provides that nothing in this article shall prevent the State from making special provisions in favor of, among others, women 7 and therefore the amendment is also not a violation of Article 28.
Justification for Women Members Reserved seats:
The Constitution of the country recognizes that all citizens are equal before law and undertakes to give them equal opportunities. However, it is also accepted that in reality all sections of society are not equal and therefore, the need for special provisions for any disadvantaged sections of the society is also recognized. In the question of reserved seats for women members in parliament, it is argued that compared with men women in our country are in a disadvantaged situation; their status is unequal and subordinate to that of men in the society. This is why the provisions of reserved seats for women were incorporated into the Constitution. The purpose was to ensure a minimum representation of women in parliament and to ensure wider participation by them in national politics.8
3 Jai Jai Din (29 July 1986), p.1.
4 44DLR(AD),109.
5 The Constitution of the People’s Republic of Bangladesh, 1972; Art.121.
6 The Constitution of the People’s Republic of Bangladesh, 1972; Art.122.
7 The Constitution of the People’s Republic of Bangladesh, 1972; Art.28.
Criticism of Women Members’ Reserved Seats:
The provision of reserved seats for women was made for a specific period of 10 years only but the method of election has made the whole pious purpose meaningless. It is for the method of election that these 45 women members are being used as a ready tool or ‘vote bank’ at the hand of the majority party rather than a true representation. Because they are elected or selected on the basis of proportional representation of the parties in the parliament.
Recommendation:
Among the various ways of electing representatives, direct elections are considered the most democratic. So, it would be better to recommend for direct election. If we were to follow a system of one person on two ballots, women candidates could be directly elected by the people to the women’s seats. Each political party would nominate candidates to the women’s seats as it does for general seats. Each voter would have two ballot papers; one for the candidates for the general seats, and the other for the women’s seat. He or she would cast one ballot for the general seat and one for the women’s seat resulting in 330 directly elected members of parliament. Administratively or logistically this would not be a major problem if different colored ballot papers are used.
Conclusion:
It cannot be denied that though women constitute half of our population, they continue to be an underprivileged section of our society. So reservation of seats for women members is nothing undemocratic; rather a good sign of social and political development. There needs to be a pledge that women are not to be discriminated against in society. The state institutions and mechanisms established to implement laws are to be strengthened. The rights of women under the Constitution and laws are not known to women in the countryside and there needs to be an awareness program of these rights so that they know their position in the society.
8 Md.Abdul Halim, Constitution, Constitutional Law, and Politics: Bangladesh Perspective (Dhaka: CCB Foundation, 2006), p.304.
9 Ibid., p.304.
The End
