Hana Shams Ahmed
[The Forum, The Daily Star, September 2010]
The Constitution of Bangladesh has been brought under the microscope for the 15th time since 1972. With the annulment of the fifth amendment of the Constitution through a judgment by the Supreme Court this year, the Constitution is to revert to some of the core values behind the formation of the original 1972 version, whose four main pillars were democracy, socialism, nationalism and secularism.
The latest judgment by the Supreme Court gives us a chance to look closely at the Constitution, which was adopted soon after the liberation war ended in 1971, in the aftermath of the emotions and ideology that led the nation in the struggle for identity and existence. While the 1972 document had an equal vie towards citizens of all religions, ethnic, cultural and linguistic pluralism were patently absent from the document. Thus, while the 1972 constitution was even-handed to all religions, it did not recognise the fifty or more indigenous peoples and their distinct identities, who still remain as second class citizens of Bangladesh.
When the draft of the Constitution of Bangladesh was presented to the Constituent Assembly in 1972, Manabendra Narayan Larma (founder general secretary of PCJSS) refused to endorse a Constitution that did not recognise the existence of people of other ethnic origins than Bangali . He had protested: “Under no definition or logic can a Chakma be a Bangali or a Bangali be a Chakma… As citizens of Bangladesh we are all Bangladeshis, but we also have a separate ethnic identity…”
Thirty-eight years after MN Larma’s protest, the time has finally come to correct a basic flaw in our national constitutional framework. The formation of the current special parliamentary committee to review and recommend constitutional amendments is a welcome move by the government. Its recommendations must include remedies to a Constitution that is still ethnically communal in nature, putting people from non-Bangali groups outside our definition of nation.
The 1997 CHT Accord and the 2008 AL election manifesto
One of the objectives of the Constitution review and amendment committee is “implementation of ruling Awami League-led grand alliance’s electoral pledges”. One commitment that the Awami League government has so far not fulfilled is implementation of the CHT Accord. The 2008 election manifesto promised: “The 1997 Chittagong Hill Tracts Peace Accord will be fully implemented. More efforts will be directed towards the development of underdeveloped areas, and special programs on priority basis will be taken to secure rights of the ethnic minorities, indigenous peoples and other communities, and to preserve their language, literature, culture, and unique lifestyles.”
However, by the second year of the Awami League government, the Pahari people are still waiting for positive steps towards implementation of the Accord. In fact, instead of implementation, in April of this year the CHT Accord received a setback when a bench of the High Court Division of the Supreme Court declared the CHT Regional Council (RC), set up under the Accord, as unconstitutional. The RC was formed, among others, to coordinate and supervise the activities of the three Hill District Councils, and to oversee general administration, local council and NGO activities. The court decision is currently being appealed against by the government and the RC, pending which the Appellate Division of the Supreme Court has stayed the High Court Divisions’ s judgment.
The Bangali hegemony
Article 3 (The state language) of the Bangladesh Constitution states, “The State language of the Republic is Bangla.” In November 1999, UNESCO declared February 21 as the International Mother Language Day, paying respect to the fight to preserve the mother tongue of the millions of Bengali-speaking people in Bangladesh. Unfortunately the Bengali people have failed in the post-1971 period to acknowledge the existence of other mother tongues, such as those of the fifty or more indigenous peoples of Bangladesh. In fact, the only acknowledgment of an “other” is through the problematic and derogatory phrase “backward section of society.” It is important therefore, for the Constitution review committee to confront this exclusionary idea of nationhood, and expand the mandate of Article 3.
Although the Constitution talks about equal rights and freedom from discrimination, because of the discrimination historically faced by indigenous people, which remains largely unacknowledged by the majority, true equal right is yet to be enjoyed by indigenous people. Unless special measures through affirmative action are taken, indigenous people will not be able to freely exercise their fundamental rights as citizens in a non-discriminatory manner. Providing procedurally identical treatment to all citizens, including those that are disadvantaged with regard to representation in decision-making processes, in access to education, healthcare, livelihood, drinking water, electricity, market access and communications is itself an act of discrimination by the state.
Historically, indigenous people have not been given the opportunity of being involved in the process of decision-making at national, or even local level. Even now their roles in these processes are marginal. Unless firm affirmative actions are taken, the discrimination against marginalised people will still remain.
Unfortunately a section of the population benefits from the continuing marginalisation of indigenous people and so oppose all efforts to provide affirmative action, such as through the adoption of an indigenous policy by the government. Even the very word “adibashi” (indigenous) has made several quarters uncomfortable. There have even been instructions to officially use the word “upojati” (literal meaning “sub-nation,” but when writing in English, the term ‘tribal’ is used) instead of “adibashi.” This is so in spite of the fact that the word “upojati” is rejected by indigenous groups in Bangladesh. There is an attempt to limit the word “indigenous” to “original inhabitants”, and not the internationally accepted meaning referring to a peoples’ distinctiveness from the dominant majority in terms of custom, religion and culture, and their exclusion from the mainstream political processes, which have historically resulted in marginalisation and a deprivation from state-led development.
This year the parliament also passed the Small Ethnic Groups Cultural Institutes Act, 2010, but the indigenous peoples were not consulted regarding the terminology to be used and only 27 “small ethnic groups” were recognised across the country. Interestingly, the law states that “small ethnic groups” in the Act referred to the “adibashi” (indigenous people) of the country!
It’s very unfortunate that despite both Prime Minister Sheikh Hasina (2009) and Former Prime Minister Khaleda Zia (2003) having used the word “adibashi” in their commemorative statements on World Indigenous Day (as did Caretaker Chief Adviser Fakhruddin Ahmed), representatives of the Government of Bangladesh declared at the United Nations this year that Bangladesh did not have any indigenous population but rather had several ethnic minorities and tribal groups. The Ministry for CHT Affairs (MoCHTA) also issued a memo instructing district-level officials to not use the terms “Adivasi” or “indigenous” in any government documents, and instead to use the word “upajati.” At the World Indigenous People’s Day on August 9 this year many senior government officials including the Food and Disaster Management Minister Abdur Razzaq and Information Minister Abul Kalam Azad acknowledged the importance of using the term “adibashi.”
Only six months before the 1972 Constitution was framed, Bangladesh had ratified ILO Convention No. 107 on Indigenous and Tribal Populations, 1957. Unfortunately there was no reflection of this ratification on the Constitution. Since 1972 the government has endorsed many more international treaties like the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on the Elimination of all Forms of Racial Discrimination against Women (CEDAW), and the Convention on the Rights of the Child (CRC). About the indigenous people, Poverty Reduction Strategy Paper (PRSP)-II says:
Ensure their social, political and economic rights; ensure security and their fundamental rights; and preserve their social and cultural identity. It envisages that indigenous communities will not be subject to any discrimination in social, political and economic activities. They will be ensured of access to education, health care, food and nutrition, employment and protection of rights to land and other resources (p.143).
Two very significant treaties related to this debate are ILO Convention No. 107 and 169. Convention 107 covers a range of subjects, including land, recruitment and conditions of employment, rural industries, social security and health, and education and means of communication. Particularly it has specific wide coverage definitions regarding land, territories and resources, and are similar to those of Convention No.169
Convention No.169 has been ratified by 22 countries, including Nepal. But Bangladesh has so far not ratified it. It is functioning as a global reference point for basic standards on indigenous peoples’ rights. The fundamental concepts in Conventions No. 107 and 169, are consultation and participation. This implies that indigenous peoples have the right to par-ticipate in policy, legislative, administrative and development processes, and to decide their own priorities for development. The key principle of ILO Convention No. 169 (an updated version of Convention No. 107), which relates to the current debate about the Bangladesh Constitution are self-identification; non-discrimination; special measures; recognition of the cultural and other specificities of indigenous and tribal peoples; right to decide priorities for development.
Constitutions in other countries
Recently the Kenyan Constitution underwent a reform to incorporate rights of indigenous peoples and marginalised communities. They have used the term “marginalised community” rather than backward (used in Bangladesh, which is a derogatory term and gives supremacy to Bengaliness over other ethnic origins). Samburu Women for Education & Environment Development Organization (SWEEDO) reports that the new Constitution defines a “marginalised community” as one that “out of need or desire to preserve its unique culture and identity from assimilation, has remained outside the integrated social economic life of Kenya as a whole…”
The indigenous people of Nepal have made the following demands for the new Constitution of their country, after a new interim constitution was put in place in 2007 — “realisation of a secular, federal state system; recognition of indigenous peoples’ right to self-determination, ethnic and linguistic autonomy; affirmative action: and guarantees for proportionate representation for indigenous peoples.” Unlike Nepal though, Bangladesh has not ratified ILO Convention 169 but it has been reported that its ratification is under consideration at high policy levels.
However, although Bangladesh abstained from voting when it was adopted by the General Assembly, Prime Minister Hasina, Law Minister Shafique Ahmed and other senior leaders have pledged their support towards the implementation of the provisions of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration on the Rights of Indigenous Peoples). UNDRIP recognises the right of indigenous peoples right to self determination (while respecting the territorial integrity of states), autonomy, land rights (including restitution and fair dispute resolution), treaty rights, customary law, language rights, education (in mother tongue and in culturally-appropriate ways) and so forth.
Although the Indian Constitution does not specifically mention the word ‘indigenous’; it does recognise Scheduled Castes and Scheduled Tribes and has provision for preservation of their distinct culture and even subjects the freedom of movement of citizens to regulation in the interest of protection of the concerned tribes. Seats in the state and federal legislatures are reserved for tribals as are special autonomous councils with legislative, judicial and land administration autonomy.
In the case of Mizoram and Nagaland states, even the federal parliament cannot legislate on land rights, and on social and religious customs of the tribes concerned, without the concurrence of the state legislative assemblies of Mizoram and Nagaland states. In the section on “Cultural and Educational Rights” (Protection of interests of minorities), the Constitution states, “Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.”
Indigenous people make up a small fraction of the population of Bangladesh, but they are equal citizens of this country, and it is the responsibility of the majority to now create an atmosphere where all citizens have equal opportunities to practice their religion, maintain their distinct ethnic and cultural identities, get equal opportunities to health and education, and participate in the country’s decision-making process at all levels. And that has to begin with framing the document that underlies everything – the constitution of the country.
1. Mong Sa Nu, ‘A Glowing Tribute to a Leader’, Manabendra Narayan Larma’s Life and Struggle, M N Larma Memorial Foundation.
2. Staff Correspondent, “Special body sits today to review constitution”, The Daily Star, 29 July 2010.
3. Rakib Ahammed, ‘Most indigenous communities unrecognised’, The Daily Star, 31 July 2010.
4. Naeem Mohaiemen, “Connecting the visible dots: A post-Accord history”, 16 April 2010.
5. Raja Devasish Roy and John B. Henriksen, ‘Inclusion of Indigenous Peoples’ Rights in the New Constitution of Nepal’, a publication of ILO, February 2010.