Fables of the constitutions

the point of constitutions is to give judges more noble objects to pursue 
Niaz Alam, Dhaka Tribune op-ed

A dream scenario — you have an open shot on goal and there is no one blocking your shot.

Not, however, if you are Mike Pence. A whole week after being invited to invoke the 25th amendment to evict President Trump for inciting sedition, he still will not kick the ball.

Predictable, but nonetheless pathetic.

With Senate Republicans planning to reject the impeachment of the disgraced president, it seems party loyalties are taking precedence over oaths to uphold the US constitution.

Their loyalties may backfire and splinter upon themselves once the new administration is in place and the fascist fringe groups have taken their fantasies back home. The US has always had groups like the KKK at large, but their terrorist cohorts tend to back down once their persecution complexes come true and the federal government really does go after them.

Donald Trump is more of an unprecedented phenomenon, and will be relying on his enablers’ success in manipulating the media to keep him in the limelight.

I do hope more people in America recall how Al Capone was in the end sent to prison for tax evasion; someone in the new administration should send a copy of The Untouchables to the IRS.

In Bangladesh, meanwhile, the Supreme Court is due to get its own opportunity to shoot at an open goal.

Ayesha Siddiqua, the marriage registrar candidate from Dinajpur whose job application was rejected after interview only because she was a woman, has announced she will appeal against a High Court ruling upholding that decision.

The Supreme Court has ample justification for overturning the lower court’s decision on the grounds of stopping gender discrimination. This would be true even if the appointment itself was a purely private job inside a religious institution. But the job in question was a post akin to that of land registrars and the decision was made by the Ministry of Law, which is clearly beholden to the constitution, not religious bodies.

It is barely tenable to even argue that religious views have any relevance here. There is little justification for the court referring in its ruling to an assumption that this appointment needed to conform with “the terms and dictates of Islam.” And if one accepts that it should, there is plenty of precedent in practice and ample opposing opinions in religious scholarship to argue that religious beliefs do not allow gender discrimination for this post. Yet these views do not even seem to have been considered.

It is simple to see what the ultimate ruling should be. I do hope though the Supreme Court talks through the case in more detail. In setting out its decision to uphold a blatant example of gender discrimination, the High Court referred to factors that do not even relate to the clerical nature of the job in question.

What relevance does an observation that someone may “be excused from prayers” have to the task of registering a marriage? Precisely none, yet the judgment stated: “It has to be borne in mind that due to certain physical conditions a woman cannot enter the mosque during a certain time of the month [menstruation]. She is even excused from performing the mandatory daily prayers during this particular time.”

The mind boggles at how senior judges in a country with national government policies committed to and to a great extent dependent on improving women’s empowerment, can contemplate such excuses.

The Bangladeshi media occasionally debates the (overwhelming) arguments for improving sex education in schools, but seemingly it is long overdue for some in older age groups. I do hope the daughters, nieces, and grandchildren of those still agreeing with the decision to exclude a woman from this job get to give them the mockery their misogyny deserves.

Some of the commentary on this case quotes the views of the Bangladesh Muslim Marriage Registrar Association, which will presumably want its views considered at the Supreme Court hearing. If they are represented, I would suggest that after hearing the case, the judges call the association back to answer one last question before they go:

“It is reported that over half of marriages in Bangladesh involve girls below the legal age of 18, are any of your members involved in such cases and if yes, what will the association do to stop them?”

That will do for now. But yes, potentially it would be in the public interest for the court to also opine on whether the credence and privilege conferred on a religious organization’s opinion contravened constitutional duties to uphold secularism.

Of course, it is often the people, not the constitutions, that count. The US has always separated church from state, while the UK Parliament automatically gives voting powers to 26 Church of England bishops in the House of Lords. Yet, (apart from Northern Ireland) religion carries a far bigger weight in US politics.

India’s 1950 constitution clearly prohibits caste discrimination, but the practice and its legacy still reverberate, not unlike the way slavery and the Civil War still do in the US. The US has always had a stringent separation of powers, while the UK only got round to formally committing to them in 2005. But it is the former that has legislators quizzing judges on their political views.

You can go a long way listing the ways in which constitutions have their limits in practice.

This explains why politicians everywhere often pander to populist prejudice than rule of law. But the point of constitutions over and above laws in general, is to give judges more noble objects to pursue and protect.

All the pursuit of equality sought by the case at hand needs, is for the judiciary to keep its eyes on the ball and support this fundamental right. By upholding the constitution.