Law Letter
Equality of what ?
The concept of equality is a brilliant invention of modern legal scholars which developed a new legal, social and economic order successfully replacing the institution of slavery and feudalism. Albeit, the term of equality is a normative aspect of law, very obscure one and difficult to define. In the modern world, political, social and economic order is based on the principle of equality. Apparently, such order is treated as a just one under legal discourse. However, I don't want to be concerned about the theoretical aspect of the term of equality. Here, I will try to focus from the practical point of view how the term equality itself breeds inequality, structural injustice in the society and develops modern form of slavery.
If we critically analyze, we will find that the norm of equality is being applied to unequal persons in unequal situation. In a society, the position and possession of everyone is not same. Poor people are usually marginalized as they are not well integrated in the society. So, their social position is inferior to the rich. So, the status of people in a society is heterogeneous and in this way relationship among such people become a vertical one. Now, my question is that under such situation, if the principle of EQUALITY is applied; what will happen?
Now, I want to portrait the picture of our society in this respect. Ours is a highly stratified society. People living under the poverty line in rural areas account for not less than 50 percent and rural people in extreme poverty i.e., those living under hardcore(absolute) poverty line comprise at least 25 percent. The corresponding figures for the urban areas must be more than these (slum and floating population). But the principle of equality is being applied to the people without due regard to the above mentioned situation. In the game of law, the judges and lawyers will argue that the matter is not within the purview of law. So, the principle of equality becomes worthless for the mass people, however it is very good piece to read, good slogan for the politicians, good topic for the researchers, good matter for the lawyers to argue for legal intricacy, good for the judges to pronounce a brilliant judgment.
Here, if we take into consideration a simple specific situation, the matter may be more clear. As for example when a person seeks for a job and if he is poor, it becomes quite impossible for him to negotiate for the conditions of the job. Salary is determined by the employer, the working hour and the job description is determined by the employer and every other provision relating to the job is also determined by the employer. If such situation becomes extremely vertical what will happen? Now, this is the situation of our GARMENTS WORKERS. As a means to distribute property in a peaceful way and to make a more horizontal society, to provide a more reasonable salary is one of the most important ways and this is a sine qua non for distributive justice. Surprisingly, everyone is silent here.
However, courts and judges claim to be responsible for dispensation of equality and justice, but our courts are silent still now. When an agency responsible for dispensation of equality and justice remains silent under such a crucial moment concerning public interest, what may be the reasonable conclusion? Probably the court will say that the matter is not within the purview of the court. The workers have the full liberty to accept or not to accept the conditions furnished by the employers. Here, the workers and the employers are equally treated as per law. The workers have free will to go to the contract or not to go for the job. So, the necessary condition of a lawful contract is also being upheld. But what is the reality? The workers become bound to do the job under such situation and work for about 10- 12 hours for Tk.1000. Ironically there is no legal problem.
Social-economic factors are the raw materials of legal factors and which also act as the underpinnings of legal factors. But when a matter is translated into legal language, the legal discourse usually contemplates that social factors are not within the purview of the law. In this way the concept of equality breeds inequality and causes structural injustice which reflects the interest of the people in power and develop modern form of slavery.
In almost all the cases, inequality is quite structural and it is hardly possible to tell such inequality as inequality. The plea of court and the legal discourse is that the matter is not within the purview of the court. The law and the court are blind here. Such inequality can lead to structural injustice and develop modern form of slavery.
Md. Shahidul Islam,
Advocate, Supreme Court of Bangladesh.
Step towards equality
The House of Lords has stood its ground in favour of a new set of anti-discrimination regulations last week. Amidst the fury of religious groups, the House has said a clear 'no' to any discrimination on the basis of sexual orientation. The calls from the Christian and Muslim groups to allow them to refuse goods, services etc. to homosexuals in the name of their faith has failed to convince the Lords to overturn the regulations, which have applied in Northern Ireland since 1 January and are due to be implemented across the UK by April 2007. Only 1 of every 3 members voted in favour of a motion to annul the anti-discrimination regulations.
The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 have outlawed the practice of some businesses and other bodies of refusing their premises or services to persons who are gay or lesbian. According to these regulations, it will be unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services by refusing or deliberately omitting to provide him with any of them, or to treat him less favourably than other members of the public, solely on the ground of his or her homosexuality. However, the Regulations seek to balance the rights of the religious groups in respect of services and provisions which are purely religious in nature. Regulation 16 provides that religious organisations will still be entitled to restrict membership, participation in activities undertaken by them, or to restrict the provision of goods, facilities and services in the course of activities undertaken by the them, or to restrict the use or disposal of premises owned or controlled by them in respect of a person on the ground of his sexual orientation.
The insistence of the House of Lords on the preservation of right of equality in its most comprehensive form has in fact reinforced the fabric of the British society as a tolerant and secular one. These new regulations and their confirmation by the House of Lords have followed up the recent introduction of civil partnership between same-sex couples in the UK. These legal developments go hand in hand with better understanding of the intricate complexities of the human race as a whole in the spirit of harmony and tolerance.
Tanim Hussain Shawon,
Northumbria University, Newcastle-upon-Tyne.
