Department of Law

The (in) compatibility of women’s human rights and culture is one of the contested areas where women’s rights have historically been mediated through cultural practices.205 Cultural norms are also being used to justify discrimination against women. The close examination of cultural practices in relation to women’s human rights reveals the divergences of opinions. While some authors argue that culture and tradition undermines women’s rights, some others favour the culture and tradition that protects women’s human rights. Before discussing the debate, this paper attempts to clarify the construction of the term ‘culture’. The term ‘culture’ refers to a society or group where many people live and think in the same ways.206 It includes inherited ideas, beliefs, values and knowledge that constitute the shared bases of social action. Regarding the impact of human rights norms based on cultural practices, there exists two rival models of culture: Static and Dynamic.207 In case of static model, culture is understood as the way of life of a discrete people and the spirit of people is reflected in an integrated system of ideas and practices.208 In this model, culture is found to be fragile and organic structure that can be destroyed through even small changes.209 On the other hand, the dynamic model of culture can be described as a shifting set of texts, images and practices that has no central core features and this notion of culture implies that change in cultural norms is inevitable.210 In addition, within the discourse of human rights activism culture refers to traditions and customs, ways of doing things which are justified by their roots in the past.

In order to retain the values of our country as well as ascertain development of human personality, certain provisions of the constitution should keep on a high pedestal. These provisions, rights vested in the people, values, ideas, etc. constitute the Basic Structure of the Constitution. As Thomas Paine says “A Constitution is not the act of government, but of a people constituting government”. The Constitution of Bangladesh is an elaborate written Constitution but it does not contain any specific provision regarding basic structure or does not say anything regarding unamendability of its basic structure. Apparently the amending power seems to be an absolute power so as to amend any provision of the Constitution since it says in art. 142 ‘Notwithstanding anything contained in this Constitution -- any provision thereof may be amended’. However, the application of basic structure has been established in 1989 in the landmark case of Anwar Hossain Chowdhury vs. Bangladesh popularly known as 8th amendment case. Thus, now the basic structure of our Constitution is set beyond the purview of the amending power of Parliament and a new interpretation of art. 142 has been given. The object of writing this article is to trace the desirability of application of doctrine of the basic structure in Bangladesh. In doing so, obviously, much more emphasis has been given on the Constitution by frequently referring and quoting the 5th ,7th, 8th, and 13th Amendment cases, especially on 8th amendment case as it is the only case in Bangladesh that deals with the concept of basic structure and the judgment is so elaborate including legal literatures and full with arguments. There are also given some Indian case references like Kesavananda case, Golak Nath’s case and Indira Nehru Gandhi .Vs. Raj Narayan known as election case as these cases have momentous contribution in establishing the concept of Basic Structure in this subcontinent. The importance of this study is examining the existence and desirability of application of the Concept of Basic Structure in the Constitution of Bangladesh.