Many constitutional democracies in Asia, including India, Bangladesh, and Lebanon, are often trumpeted for secularist credentials. This is due to the enduring co-existence of various religious communities within their borders.
But these countries also segregate their population on the basis of religion. There are different sets of personal law for each religious community. In our sub-continent for example, colonial-era legislation like the Muslim Personal Law, Hindu Personal Law, and Christian Marriages Act serve as the basis of personal law, instead of a uniform civil code.
In Bangladesh, the lack of a uniform personal law undermines legal equality.
The country relies on colonial-era legislation to govern issues of marriage, divorce, alimony, and property inheritance. According to Human Rights Watch, Bangladeshi law gives a Muslim female spouse fewer rights to marital property than a male spouse; a Hindu female spouse does not have the right to divorce; and a Christian female spouse has limited freedom to divorce.
Buddhist families are governed under Hindu family laws despite being of a separate religion. Religious laws restrict the freedom of spouses to end abusive marriages and force many into poverty.
Discrimination and corruption are often seen during the process of inheritance. Despite calls for reform, the government has failed to provide adequate legislation to abolish the existing inequalities in personal law.
India chose to continue with religious family law even after proclaiming itself a secular republic following independence from British rule. Lebanon not only applies religious family law, but it reserves the highest positions of state for members of a particular religious sect: A Maronite Christian has to be president, a Sunni Muslim has to be prime minister, and a Shia Muslim has to be the speaker of parliament.
Many commonwealth countries like Bangladesh and India have been averse to adopting civil codes due the influence of English common law and the unwritten British constitution
Equality for all
Segregation is a detriment to national integration. In a democratic state, all citizens need to be equal before the eyes of the law. All citizens must enjoy equality of opportunity. Archaic, religious segregation impedes these fundamental requirements of a democracy. Orthodox religious groups may challenge these notions, but there should be no compromise on equality in the rule of law.
In hindsight of the post-colonial era, Asian countries with legal pluralism have not achieved the level of stability and prosperity as Asian countries with a civil code, including Japan and South Korea. National civil codes remain the bedrock of most continental legal systems in Europe.
Indeed, there has even been consideration for one civil code covering the entire European Union.
In addition to personal law, a civil code can also codify the law of contract. Adopting a uniform civil code can reform the existing contract law enacted during the British Raj in 1872. Such a reform is necessary in reflecting the conditions for business and enterprise in the 21st century.
Perhaps one of the reasons behind the lack of a civil code in Bangladesh is the legacy of the British rule. Many commonwealth countries like Bangladesh and India have been averse to adopting civil codes due the influence of English common law and the unwritten British constitution. But it is possible to adopt elements of civil law into an English-inspired legal system, as is the case in Mauritius.
A uniform civil code can be an enduring reform. Napoleon Bonaparte, whose Civil Code of 1804 influenced countries across Europe and Latin America, said: “My real glory is not to have won 40 battles -- Waterloo will erase the memory of all these victories. What nothing will erase, what will live eternally, is my Civil Code.”
Umran Chowdhury is a student of the Sorbonne-Assas International Law School.