Reserved
Seat
Local
government circular discriminatory & unconstitutional
Shamima
Sultana Sheema and Others v Bangladesh and others
WP
No. 3304/2003
Background
In every City Corporation, in addition to the general seats, to which
both men and women may be elected, one third of the commissioners' posts
are 'reserved' by law for women.
In
elections to the Khulna City Corporation held on 25.4.2002, 31 commissioners
(all male) were elected, and another 10 commissioners (all women) were
elected from the reserved seats. These ten women include affiliates
of the two main political parties, BNP and Awami League, as well as
independents.
The
LGRD Ministry passed a circular on 23.9.2002 purporting to provide women
Pourshava Commissioners elected from reserved seats with reduced
powers and functions as compared to the Commissioners elected from General
Seats. So for example, Commissioners elected from reserved seats were
not permitted to take part in the census or to issue nationality certificates.
In addition, commissioners elected from reserved seats in Khulna City
Corporation have also been receiving a lesser amount as honorarium for
their attendance of meetings etc than general seat commissioners.
Court
Challenge
The petitioners filed a writ petition before the High Court and challenged
the circular.
The
High Court (Mr. Justice Md. Hamidul Haque and Ms. Justice Zinat Ara)
passed an order on 3 May 2003 directing the Government to 'show cause'
on that issue.
However,
despite this interim order, these ten commissioners continued to receive
discriminatory treatment, including receiving a lesser honorarium for
carrying out official duties than the general seat commissioners.
Two
non-governmental organisations, Ain o Salish Kendra, and the Bangladesh
Mahila Parishad intervened in the case. In addition, Dr. Kamal Hossain,
Senior Advocate, was requested by the Court to make submissions on certain
constitutional questions.
Arguments
in support of challenge
The petitioners and the intervenors argued that:
1. Under the Khulna City Corporation, the Corporation is a body corporate
and entitled to take its own decisions, and exercise its powers and
functions independently of Government, and the Government cannot interfere
in its powers and functions except as provided by law.
2. The Khulna City Corporation Ordinance does not discriminate in any
way between Commissioners elected from general seats and reserved seats.
3. Any such discrimination would be in violation of constitutional guarantees
of equality before the law and equal protection of law.
4. Further, such discrimination, which amounts to discrimination against
women, would be in violation of the state's legal obligations to ensure
women's fundamental rights to equality and non-discrimination under
national and international law (in particular the provisions of the
Convention on the Elimination of All Forms of Discrimination against
Women), as well as its policy commitments as contained in the National
Women's Development Policy and the Beijing Declaration and Platform
for Action.
In
sum, they argued that the Circular by discriminating between Commissioners
depending on the manner of their election negates the very purpose of
providing for such reservations, that is to ensure women's effective
political participation in local government. In order to discharge the
government's obligation to guarantee equality between women and men,
and women's right to participate fully and equally in government, it
is essential that all commissioners, once elected (whether from general
or reserved seats) be treated at par in respect of their powers and
functions.
ASK
argued that the provision for direct elections to reserved seats had
been made as a 'temporary special measure' to ensure women's effective
political participation, in conformity with Art. 28(4) of the Constitution
and of Bangladesh's obligations under CEDAW. It further argued that
the Circular effectively negated the intent and purpose of these provisions.
Government
Response
The Attorney General argued that the circular is not discriminatory
as commissioners elected from general seats and reserved seats represent
"two separate classes" and therefore there can be no question
of different treatment between them constituting discrimination.
The
Government's affidavit stated
'the Commissioners of the reserve seats have been elected in a privileged
manner' (para 5) and that 'if the commissioners of reserve seats are
given equal power then that will not eradicate discrimination rather
create a peculiar type of discrimination by multiplying their capacity
four times higher than that of the commissioners of general seats though
the petitioners have been elected in a privileged manner' (para 8).
[emphasis added]
Judgement
After hearing all the parties, a Division Bench of the High Court, comprising
Mr. Justice ABM Khairul Haque and Mr. Justice Miftahuddin Chowdhury,
delivered judgement in favour of the petitioners.
The
Court traced the historical development of the principle of equality,
and its foundation in both landmark religious and constitutional texts.
It emphasised the supremacy of the Constitution, and elaborated on the
constitutional entrenchment of equality in Articles 27 (equality before
law) and 28 (prohibition of gender discrimination) of the Constitution
and considered these in the context of Articles 10 (regarding women's
participation in national life) and Article 59 (local government).
It
stated that the Khulna City Corporation did not envisage any discrimination
between Commissioners depending on the manner of their election.
The
Court noted that the Corporation being a body corporate, the Government
could not interfere with its powers and functions except to the extent
permitted by law. Further it observed that any directions given by the
Government or the Corporation regarding the powers and functions of
Commissioners must be in conformity with the letter and spirit of both
the KCC Ordinance and the Constitution.
