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Constitutional Standards on Equality

Echoed in International Standards

by Naima Haider
FIFTY TWO years of the Universal Declaration of Human Rights (1948) and sixty seven years of the Declaration of Vienna (1933) has been a long tale of trauma, toil and tears for millions of people who have been denied human rights and justice, even they were de-prived the very right of being human by the national and global authorities and the Forces with vested Interests. Till today, the struggle for human rights and justice continues. The history of struggle for rights and llliertv is the history ot resistance within the process of law if possible and without the process of law if needed.
The constitutions of South Asian countries are written documents that guarantee basic or fundamental rights. Equality before the law and gender equality are basic values respected and incorporated in these constitutions. They also provide specifically for affirmative and administrative action to redress discrimination and ineuuaffties that are products of the country's history, or social and economic relations. Affirmative legislative and administrative action is therefore a strategy that can be used to introduce creative reform in the area of family law. Nevertheless these provisions have not been used to remove the inequalities in the law on nation-alley and domicile which impact significantly on the status of individuals in the family and their legal rights under municipal law.
Constitutional standards on equality are echoed in international treaties, which deal with nauonality and domicile. The international standards on na-tkMiality and domicile are contained in several basic United Nations Conventions. The United Nations Convention on the Nationality of Women (1937) is an important multilateral treaty that clarifies that a married woman's nationality shall not be prejudicial bv the voluntary acquisition of na-uouality’by her husband. The Convention concedes that marriage should not result in acquisition or loss of nationality by operation of law. though rt recognizes that a married woman may be able to acquire the nationality of her husband through administrative discretion by naturalization, as of right.' Tiie same are incorporated in Article 9 of the UN Convention on the Elimination of All Forms of Discrimination against Women (1979). This Convention in addition declares that States Parties
should grant women equal rights with respect to the nationality of their children. The general articles of the convention. including the important article on equality before the law and legal capacity in civil matters, undermine traditional legal concepts on a married woman's dependent domicile, even though this aspect is not covered by a specific article.
The UN Convention on the Rights of the Child (1989) now strengthens these same standards through its articles on non-discrimination. and recognition that the child's best interests should be primary consideration in determining any matter that affects his/her life. Provisions of preservation of nationality, family reunification and separation from parents can be interpreted so as to accommodate the concept of the childs domicile under national laws. However a specific article recognizes a child’s right to protection from abduction or illicit transfer across national Iwrders and a state party's duty to bilateral and multilateral treaties for this purpose. This recognizes a clear mandate to address the problem of kidnapping across borders and introduce regulatory measures to protect a child from such a situation.
These international standards are more specific than the national standards in constitutions. but they reflect a similar value system on the fundamental rights of individuals in the family, and the duty of states to respect them. Several countries have accepted die international obligations created by these multi-lateral treaties. For instance all countries have ratified the convention on Ail Forms of Discrimination against Women and others have accepted the treaty obligations of the UN Convention on the Nationality' of Married Women by accession. Nevertheless the international standards that states have agreed to respect have not stimulated law reform tn the area of nationality and domicile. The standards’have not been used in general in interpreting national laws, nor as an inspiration for legislative and administrative interven-
One reason for this is that these countries like many others do not recognize a theory of automatic reception of international treaty obligations in the municipal legal system. Provisions in international treaties become part of municipal or local law only by legislative in-
tervention inducting those standards Into local law Besides these conventions do not give individuals direct access to international bodies set up under these conventions through a complaint procedure. Ratification is usually an executive act done through the foreign office, arid these treaties are not perceived as impacting on the state's obligation within the country. The obligation of state party involves the submission of a report, and this attended to through the foreign office. Con sequently conventions are not used as a lobbying tool witlfin the country to motivate a government to introduce or enact internationally accepted standards Into the local legal system.
There are occasional efforts to incorporate standards set up by multilateral treaties. The amendment to legislation on enforcement of foreign judgements on maintenance tn Sri Lanka and Pakistan Is one such example. The Children's Act 1974 of Bangladesh. The Children's Charter 1992 and The Women's Charter 1993 of Sri Lanka also represent such ef- ] forts.
National Charters based on multilateral treaties and UN Conventions are useful lobbying tools or machineries in the community. However, unless they are used in this way. ratification of international conventions will continue to concern only the foreign office, as a purely diplomatic initiative. These conventions and local charters will not be a catalyst for reform or change of official policy. On the other hand innovative judicial efforts to introduce international standards can attract the attention of respective governments to the need for reform. In the Sepala Ekanayake case (1986) (1987) 1 Sri L R 107. domestic criminal legislation introduced to cover the offence of hijacking, the violation of a constitutional provision, was nevertheless upheld by the Supreme Court of Sri Lanka on the ground that the offence had been recognized in "the general principles- of the law recognized by trie community of nations”. However in an earlier case a Sri Lankan court had held that the Universal Declaration of Human Rights had high moral authority but that has no binding force, as it is not a legal instrument and forms no part of law of the country. It remains to be seen whether Sri Lankan superior courts will develop on the approach in the Ekanayake case
to recognize the Universal Declaration of Human Rights or standard such as the "best interest of the child", now incorporated in the UN Convention on the Rights of Child ratified by 191 countries (till July 1998) as "customary" or general principles of international law applicable in the country.
On the other hanef Supreme Court of Bangladesh amongst other dealt with two famous cases in respect of illegal detention of two minor boys namely State vs. Deputy Commissioner. Satkhira and others (Nazrul Islam’s case) reported in 45 DLR at page 643 and BLAST vs. Bangladesh (Javed's case) reported in 4 BLC at page 600. In those two cases the Supreme Court. High Court Division exhaustively discussed the child’s rights. Universal Declaration ot Human Rights. UN Convention on the Rights of Child and having accepted those declared the detention of the minor boy illegal and without lawful authority. In the Nazrul Islam’s case his illegal detention for about twelve years was declared illegal and all the criminal proceedings against him were Quashed as if he was never in detention nor was there any criminal proceedings against him. In the Javed's case the High Court amongst other dealt with the abuse or misuse of power by the law enforcement agency and directed the Government to frame code of conduct' for the law enforcement agency on the basts of United Nations resolutions (Resolution No. 34/169 of 17th December. 1979).
Where international standards accepted by ratification of conventions such as those in the UN Convention on the Nationality of Married Women (1957) link with constitutional standards on equality and gender equality, it should be possible to strengthen the arguments on fundamental rights by reference to the international standards.
In fine, it can be said that the secular state is thus a guarantee chat constitutional and international standards will not be undermined because of conflict with ethnic or religious standards. Once this commitment to the secular state is accepted, governments and peoples will have a right and duty to ensure that constitutional standards link with international standards and thus become a catalyst for law reform.
The writer is an advocate of the Supreme Court and an Assistant Attorney General far Bangladesh.