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CONSTITUTIONAL ANALYSIS

Engendering the Constitution

S M Masum Billah
STUDENTS of law are taught to interpret masculine words as feminine and vice-versa in a given context. This is said to be one of the accepted principles of interpretation of statutes. It appears that constitutions are also not beyond the purview of this principle. Most of the world's constitutions are written in masculine words. It is widely believed that, in practice, no catastrophic consequences necessarily follow from such pattern of wording. For example, in Bangladesh we have got lady Premiers successively, though our constitution uses the word 'he' in introducing the Post of the Prime Minister. The General Clauses Act 1897 encourages the inclusive interpretation of using the gender pronouns interchangeably. Luckily, the framers of our constitution tend to glorify the status of the General Clauses Act by recognising it as an external aid to interpretation of the constitution (Article 152). It is yet to be researched whether this recognition was consciously accorded or simply inserted by way of abundant caution. It is not unlikely that they were aware about using the word 'him' 27 times, 'his' 18 times, 'man' 4 times as opposed to 'her' for not a single time and 'woman' 8 times though. Constitution has got, learned judges say, not only a physique but also a psyche. This psyche is manifested through different actors of a state. A classic example of this psyche was exposed when Dr. Shirin Sharmin Chaudhury got elected as the Speaker of the Jatiyo Shangshad. Many people and media failed to greet her selection drawing a bottomline between the 'reserved seat MPs' and 'elected MPs'. The intonation was that a reserved seat MP should not be equated with an elected MP. Admittedly, reserved seat system is bridled with some shortcomings, but its jurisprudential rationality is well settled in democracies. Though Dr. Shirin has successfully surpassed the criticisms by her work, yet oppose to her assumption of the office of the Speaker was the impression of paternalistic dimension of constitutional psyche.
Evidently, this gender 'vice-versa' paradox carries some vices with it. The historical evolution of gender role suggests that the masculine words are not intended to be neutral. Granting of voting rights to women subsequent to the men in many countries is an impression of this proposition. At the basic level of vocabulary, legal language may lack the neutrality attributed to it and it may make sometimes the women and women's experiences invisible. So, when you tend to cover it by an in-depth jurisprudential doctrine of 'positive discrimination', you face a demonstration against women's participation 'in all spheres of national life'. Removal of 'quota system' movement of recent past had an aspect of this manifestation. Interestingly, that came through the enlightened portion of the citizenry—the students!
Again, it is very unlikely that the feminine pronoun is ever intended to embrace the masculine. Your effort will prove in vain to trace out such precedent. To illustrate further, using the word 'fathers of the constitution' may have an implied significance in our legal understanding to symbolically exclude women from the membership of our constitutional community (let us keep in mind that in the 34 members Bangladesh Constitution Draft Committee, there was a sole female member whose name as of now has gone into oblivion). Helen Irving of Harvard Law School terms this tendency as 'analytical perversion', where the word 'father' is coupled with the idea of 'giving birth' to a constitution. Even use of non-gendered expressions may be symbolically gendered. The 1991 Columbian Constitution was opposed when the word 'honour' was used to denote 'pure',
because it engulfed the tendency to harass the dignity of women. Take the example of recent sex-workers' palli eviction incident in Madaripur. Who knows this has not occurred as a long term consequence of constitutional backed social psyche of 'preventing prostitution' (Article 18)? How, then, is this constitutionally labelled 'prostitute' prevention better than the old patriarchal debate ofshoti-oshoti?
The issue becomes more complicated when you will feel the presence of masculinity in the generic terms like 'per'son', hu'man', 'man'kind and even in the Bangla connotation of 'son'tan (child). So deeply embedded the paternalistic thought is! The word 'judge' is also commonly assumed to be male. I am not pleading to be hostile even to these innocent expressions. My point is: they can be used in a more participatory manner. Such as, the word 'person' is taken to be accepted as representing both man and woman. There were some unsuccessful attempts in Canadian and Australian jurisdiction to include female within the word 'person'. Finally, it is now forcefully settled by the Canadian court that 'To those who ask why the word should include females, the obvious answer is why should it not' (Edwards v. Canada, 1928). But Bangladesh constitution unwittingly uses the word 'person' coupled with a 'he' pronoun in presenting the state officials. This reinforces its gender biasness. "A person shall not be qualified as President if he' (Article 48(4) and 'The office of the PM shall vacate if he resigns' (Article 5 7)-are two glaring instances as such.
Examples are not rare where gender sensitivity of the constitutional language has been given serious consideration. Some constitution avoids gender specificity by repeating nouns and avoiding pronouns. Passive narration has also been resorted to escape such jargon. Where avoidance becomes impossible, use of both gender 'he/she' and 'men/women' are not rare to be discovered. Arguably, this gender-inclusivity appears not redundant. Firstly, it recognises language as a form of representation and secondly, it brings to light the fact that the use or even the order of words may convey privilege or priority. Absence of it widens the historical invisibility of women in different strata of the society. In the long run it fuels some stereotyped thoughts in the social psychology^ where political and constitutional actors are presumed to be male. For example, had it been written in the original constitution of 1972 that "there shall be a President of Bangladesh and she " Would the people of today accept it with generosity to understand it in a gender neutral sense as the General Clauses Act suggests? The answer is perhaps a 'No'. Likewise, the gendered dimension of citizenship is open to question when the constitution says, 'the citizenship shall be regulated and determined by law', but state do possess a citizenship law based on discrimination.
The constitution is somewhat like a living
tree which should have learned to accommodate the goals, interests and values of a modern society. So, how can we deal with the complexity of choosing constitutional language? Instances may be picked up from other jurisdictions. The whole South African Constitution was revised from gender perspective after drafting. 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 (comparatively a less vice). For example, Article 10 of South African Constitution reads as thus: "Everyone has inherent dignity and the right to have their dignity respected and protected." Some constitutions (for example, Australia) employed passive voice to address the evil. Such illustrations may become food for thought for our jurisdiction.
Success of a constitution depends on to what extent people believe that it belongs to them. It is not only a matter of getting the right language but also a matter of getting the language right, as Helen Irving puts it in her seminal work on Gender and the Constitution (2005). There was a time when it had been sarcastically asked, "Can constitutions be for women too?" This may sound to be overgeneralisation of women experiences at present. But given the un or under-represented polity, it has been settled that the constitution we have, depends on what constitutions we make. So the question is not whether the constitutions are meant for the women, rather the issue is when and how to ensure that they recognise and promote women's rights? The best answer of the first question is: now or never. The second one is a matter of challenge. Existing constitutional judicial process and law making process can be used to achieve the participatory^ gender equality.
THE WRITER IS A PHD CANDIDATE AT THE SCHOOL OF LAW, VICTORIA UNIVERSITY WELLINGTON.