Constitutionality of the Law of Pre-Emption on the Ground of Vicinage: Reviving a Lost Debate in Bangladesh

Abstract

In Bangladesh, the issue of constitutionality of different rules of religious personal law has received little or no judicial attention, despite some rules being in direct conflict with the Constitution. The High Court Division of the Supreme Court of Bangladesh (hereinafter, the HCD) started a conversation in this regard and held the law of pre-emption on the ground of vicinage (a rule of Muslim personal law) as unconstitutional. However, the observation was subsequently toppled by the Appellate Division of the Supreme Court (hereinafter, the AD). This article examines the stances of both the Courts and underscores their frailties. It criticizes HCD for trying to bring in a legislative-style reform, among others, and peruses the stances taken by AD, particularly focusing on a classic instance of constitutional bricolage permeating its observations (in selecting a constitutional jurisprudence from a different constitutional tradition and appropriating the same in the domestic context without due rationalization). This article draws a fine line between religious belief and religious practice, and argues that religious practices (for example, pre-emption on the ground of vicinage in the present case), as soon as they transgress the private domain and encroach upon someone else's right, lose the protection under freedom of religion. Further, it argues that the combined application of the relevant statute and the rules of Muslim personal law relating to pre-emption on the ground of vicinage in Bangladesh disproportionately impacts non-Muslims and is discriminatory. Despite its focus on Muslim rules of pre-emption, this article is relevant to the more general problem of testing the constitutionality of personal laws and makes a modest attempt in filling the knowledge gap in this regard in the context of Bangladesh.