Why we want our voice to be heard?


Saturday, August 13, 2011

Constitutional reform and adivasis by Devasish Roy Wangza

Constitutional reform and adivasis

by Devasish Roy Wangza



1.1.      Constitution amendments for adivasis: time for hope?
A SMALL flicker of light seemed to show with regard to the longstanding problem of non-recognition of the identity and rights of the adivasis or indigenous peoples of Bangladesh.1 Some provisions on adivasis issues have finally made their way into the national agenda on constitutional reform and included in the Constitution (15th Amendment) Bill, 2011.  But what are these provisions? The adivasis have made several demands. Only some have been accepted. Where the adivasis are asking for a nutritious, if not a sumptuous, meal, is the government only ‘nit-picking’, and offering titbits at best? And has it included some ‘rotten fruits’ along with some edible, and palatable, ones? 

1.2.      Constitution amendments: identity versus other rights
I AM well aware that there is controversy and plurality of opinion as to what should be the right term or terms to address the adivasis, and I will discuss that later (in section VI). For now, I wish to discuss the issue of the substance of constitutional rights of adivasis other than to do with their identity. This is because, although extremely important, the identity issue has at least received some attention in the press and media. Conversely, the issue of substantive constitutional rights of adivasis—other than on identity—has received very scant attention in the press and media, and generally.

    1. Proposals of the constitution drafting committee: missing the target
TO COME back to the question of that light around the corner that I thought I saw. On June 30, 2011, parliament passed the Constitution (Fifteenth Amendment) Bill, 2011, and included a few provisions that are directly relevant for adivasis. Parliament—and earlier, the cabinet and the Ministry of Law, Justice and Parliamentary Affairs—accepted the draft presented by the special committee on constitutional reforms chaired by Syeda Sajeda Chowdhury, MP, deputy leader of the House and co-chaired by Suranjit Sengupta, MP.2 Proposed amendments by opposition MPs, Rashed Khan Menon and Hasanul Haque Inu, on state religion, Bengali nationalism, rights of different peoples and communities (‘Bhinno Bhinno Jatishotta O Shomprodai’) and other proposals of other opposition MPs were outvoted. 

Even when the news of the committee’s report became public, it was met, not with enthusiasm, but with condemnation, or at least concern, from adivasis. On June 30, after the adoption of the bill concerned, it was rejected by several groups of citizens.3 Eleven left-leaning parties and the CHT-based party, JSS (under whose leadership the CHT Accord of 1997 was signed), held a protest demonstration in Dhaka city.

Now, what are these amendments? The amendments contain, among others, a new article on the protection of the culture and heritage of indigenous peoples, who are referred to as ‘upa-jati’ (similar to tribe), ‘khudro nrigoshthi’ (small ethnic group), ‘khudro-jatishotta’ (small nation/people) and ‘khudro-shomprodai’ (small community). The adivasis find these terms disparaging, disrespectful and hence, unacceptable. Several adivasis from the CHT and other parts of Bangladesh (hereafter ‘plains’) told me that the opportunity to bring forth adequate recognition is being lost for now, and for several decades to come. Conversely, a member of parliament told me, privately, that this was a milestone in the history of adivasi rights in Bangladesh. Who is right?

1.4.      Key questions
IN ORDER to understand the issue in depth, among the most crucial questions that we must ask are: (i) what is it that the adivasis seek? (ii) Why are constitutional reforms necessary to safeguard adivasi rights? (iii) What was the situation in earlier times? (iv) What provisions in the constitution do the adivasis seek to incorporate? (v) What is now on the agenda for reform on the side of the government? (vi) How large is the gap between the government and the adivasis? (vii) How justified are the adivasis’ demands?  (viii) What is the government’s stand on the current draft and how justified is it? (ix) Is there a way forward to produce a reasonable compromise formula? And, (x) What is the likely scenario in either case of adequate inclusion or denial of adivasi rights?

II.        Why are constitutional reforms necessary to safeguard adivasi rights?
    1. The constitution as an architectural plan
ONE way to appreciate why constitutional safeguards are necessary to safeguard adivasi rights is to imagine that Bangladesh is a house in which Bangalis and other ethnic groups live, but with a Bangali as the head of the family, and with other Bangalis being the senior and more numerous members of the family. Imagine further that the house has an architectural plan that determines the nature and the extent of the changes that might be made to the house. The architectural plan of that house is the constitution of Bangladesh and the house is Bangladesh—the home of Bengalis, adivasis and others. For long, the adivasis have lived at the periphery, excluded and without rights. In the context of the house of Bangladesh, we can imagine that they had to live in shacks adjacent to the main house or in the verandah. Now they have a room in the house, but it is inadequate for their needs. Therefore, unless changes are made to that plan, more rooms cannot be added to that house, and adivasi family members of different ages, sex, marital status and disability might have to continue to live in that small and overcrowded room—in misery, discomfort and familial strife.4 That does not bode well for the non-adivasi members of the family either. The neglected family members will surely come in the way of family integrity, peace and welfare. Do we really want to have such a discordant Bangladeshi family?
    1. Democratising the Bangladeshi polity: including the excluded

EVEN a few decades ago, indigenous peoples in most countries had little or no role in formulating the national constitutions of their countries. Thankfully, the situation has changed for the better, such as in neighbouring Nepal, the Philippines and in several countries of Latin America and Scandinavia.5 The exclusion of indigenous peoples in constitution-making is painfully true for Bangladesh as well. We may recall that a few members of the constituent assembly of Bangladesh refused to endorse the national constitution in 1972. Among them was Manobendra Narayan Larma, the sole member of adivasi origin then present in the legislature. Larma is known to have staged a walkout because his demands on a more pluralistic national identity than Bengali, and on special safeguards for the Chittagong Hill Tracts, were rejected.6 Adivasi MPs have also demanded constitutional safeguards since then, once during the BNP rule, in parliament, in 2006,7 and then in 2011, through the submission of demands to the constitution drafting committee and to the prime minister.8 We do not know what the adivasi MPs said, or if they did say anything at all, at the cabinet meeting on June 20, wherein the constitution reforms committee’s proposals were accepted without any change.
    1. Constitutional provisions as state policy as opposed to (easily changeable) government policy
INCLUSION of provisions on adivasis in the constitution is fundamentally different from inclusion in ordinary laws and policies. Constitutional provisions are policies of the state, while non-constitutional instruments belong more to the realm of governments. Ordinary laws and policies may be easily changed in accordance with the political beliefs, ideology and exigencies of different political parties and alliances from time to time. For example, if a future government wished to amend the current Women’s Development Policy or other policy, or law, it could easily do so, with a simple parliamentary majority of 51 per cent in the case of ordinary laws and executive notifications in the case of policies. Constitutional acknowledgment of indigenous peoples’ identity and rights, on the other hand, would make the concerned provisions an integral part of long-term state policy, irrespective of party and ideological affiliation of the political party/parties in power. Furthermore, constitutional measures may not be amended so easily. In other words,the welfare of indigenous peoples of the state, like other vulnerable and marginalised sections of citizens, would be a regular feature of state policy that would not be jeopardised by the changes in government through elections.Thereby, the Supreme Court of Bangladesh can also advise or direct the government of the day to carry out its constitutional mandates, including on adivasi issues.9 Conversely, the absence of constitutionally recognised law and policy can and often does translate into the lack of political commitment on the part of policymakers. This in turn, inevitably leads to wavering support from the state bureaucracy at best, and utter neglect and discriminatory practices, at worst.
    1. Invalidation by the Supreme Court of laws not constitutionally protected with specific mention
ABSENCE of constitutional protection can also lead to the erosion of legal safeguards of adivasis through judicial pronouncements by the Supreme Court of Bangladesh. The most recent example is the case of Mohammad Badiuzzaman v Bangladesh & Others,10 heard analogously with the case of Advocate Md. Tajul Islam v Bangladesh & Others.11 In its judgment on the aforesaid cases in April 2010, a bench of the High Court Division declared the provisions of the CHT Regional Council Act of 1998 in their entirety, and some provisions of the Hill District Councils Acts of 1998, ultra vires to the Constitution of Bangladesh, and hence illegal.12 The impugned District Council law provisions dealt, among others, with the reservation of class III and class IV jobs for tribals (as members of the ‘backward section of citizens’; sic!) and the prerogative of the traditional chiefs or rajas to issue residential certificates to candidates contesting in elections to the regional and district councils, the court questioned the applicability of the concept of ‘backward sections of citizens’ to the tribals (‘upajati’; sic!) of the CHT in the absence of ‘procedure, method or mechanism of identification of backward sections of citizens’.

A similar fate befell a CHT law in 1965. This was rule 51 of the CHT Regulation, 1900, which empowered the deputy commissioner to expel non-natives from the CHT, when their presence in the CHT was ‘injurious to the peace or good administration of the [region]’. The law was held to be ultra vires of the freedom of movement clause of the constitution by the High Court of East Pakistan.13 It is not difficult to conceive that other laws, which seek to protect adivasis against exploitation, or provide affirmative action to address their marginality, might similarly be declared illegal in future by the Supreme Court, unless specifically safeguarded.

III.      What provisions do the adivasis seek to bring forth? What are the rationale and the justification behind such demands?
THE adivasis’ demands on constitutional safeguards include numerous formal memoranda and informally transmitted representations to the constitutional reforms committee from different sections of adivasi society, consisting of CHT political groups (including the JSS and UPDF), civil society groups (such as the Bangladesh Adivasi Forum, the CHT Citizens Committee, the Jatiyo Adivasi Parishad, the Movement for the Protection of Forest and Land Rights in the CHT), and the combined demands of the five Adivasi members of parliament and other adivasi leaders, including myself. There were also demands made on behalf of the Adivasi Parliamentary Caucus headed by Rashed Khan Menon, MP, and by other leading members of Bangladeshi civil society, and mixed Adivasi-Bengali groups.

The proposals of the group facilitated by the adivasi MPs, Promode Mankin (also state minister for culture) and Dipankar Talukdar (also state minister for CHT affairs) resulted from a series of meetings in Dhaka, convened by the aforesaid MPs, and later, myself, including in July and August of 2010. In this article, I may kindly be forgiven for discussing only the last-mentioned package of demands, because I am more familiar with them. Another cogent reason is that I was the chair of the small group of adivasi leaders and representatives from the CHT and other parts of the country (hereafter the ‘plains regions’), which was asked by the adivasi MPs and other leaders to prepare the draft of the proposed demands.14 A package was prepared by this group and presented before the adivasi MPs and other adivasi leaders, who accepted it, with some small changes. The package (hereafter ‘adivasi MPs et al package’) includes specific proposals with draft articles and justifications for the demands, citing the adivasis’ situation, and comparable provisions in other national constitutions and international human rights standards.

3.1.      Recognition as adivasi
THE proposals of the aforesaid adivasi MPs et al package relating to adivasi identity includes measures on (i) the recognition of adivasi languages (amending Article 3, (ii) on National Culture (amending Article 23), and (iii) on a more inclusive and pluricultural national identity than Bengali (amending Article 9), among others.

These demands are based on the premise that adivasis have felt uncomfortable at best, and insecure at worst, in the continual tug of war on the identity of Bangladeshi citizens. They have been caught in the ‘crossfire’ between a secularist, and yet decidedly Bengali identity—with chauvinistic underpinnings—and an identity that orients itself around adherence to one particular religion: Islam. Being neither Bengali, nor Muslim, the adivasis have added their voice to the more generic demand for a multicultural national identity, which is espoused by a large number of Bengalis, including members of the constitution reforms committee, Rashed Khan Menon, MP and Hasanul Huq Inu, MP.15 The provisions of the new Article 23A does go some way to address the fears of assimilation into, and discrimination by, the majority Bengali and Muslim communities, but not far enough.

Firstly, these provisions of Article 23A need to be judged against other proposals of the committee, which run counter to the spirit of this article, including on the maintenance of the phrase ‘Bismillah-ar-Rahman-ar Rahim…’ (amending the Preamble), Islam as the state religion (amending Article 2A) and on freedom of association (replacing Article 38), all of which were dissented against by MPs Rashed Khan Menon and Hasanul Haq Inu, who were members of the concerned committee.16 These have also been rejected by adivasis and even a section of religious minorities, including the Hindu-Buddhist-Christian Unity Council.17

In addition, the provision on Bengali as the national identity (but not the provision on Bangladeshi as citizenship) (new Article 6) is also problematic, at the least, for the non-Bengali citizens, including adivasis. The proposed qualification of the freedom of association clause will subject this right to the ‘disruption of communal harmony’ (‘shamprodayik shompriti’) and ‘creating inequality’ (‘boishommo srishti’) with regard to ‘religion, race, caste, sex or place of birth’. Although this provision may be invoked to prevent the formation of racist and communalist organisations and associations, it has a risk of being misused against indigenous peoples. Given the acute discrimination already faced by NGOs working on adivasi issues in the CHT (in obtaining governmental registration and clearance to do projects and programmes), this provision can easily be misused to stifle the voices of adivasi organisations and associations in speaking out for their rights. This provision seems to be uncannily similar to certain provisions of the NGO Affairs Bureau’s guidelines on NGOs working in the CHT that adivasis have condemned as discriminatory, as they run counter to the spirit of freedom of association, freedom of assembly and freedom of thought, conscience and speech. This negative scenario is contemplated because, despite the reference to the ‘culture and heritage’ of the adivasis (‘upa-jati, khudro nri-goshti’, etc., sic!) in Article 23A, there is no reference to their language rights and other vital rights. Similarly, the culture and heritage provisions have not linked to the existing constitutional clauses on ‘special measures’ for ‘backward sections’. This could have been done by either amending Articles 28(4) and 29(3) or by clarifying in the definitions clause (Article 152) that the adivasis (‘upa-jati, khudro nri-goshti’, sic!) are to be considered as part of the ‘backward sections’ (sic!) to enable affirmative action and special measures. In a discussion with MPs, Rashed Khan Menon and Hasanul Haque Inu at the Bangladesh parliament on June 28—in the presence of Fazle Hossain Badshah, MP, adivasi leader Sanjeeb Drong and Prof Mesbah Kamal—we were told that the aforesaid two MPs will table proposals on amending Articles 28(4) and 29(3), to include a reference to adivasis.18

Secondly, the spirit of ethnic, linguistic, cultural and religious neutrality, whose seeds are contained in Article 23, needs to be fertilised by re-orienting the remaining provisions of the constitution, including on representation, equality and non-discrimination, and safeguards against the erosion of adivasi rights under constitutional and general laws, as discussed in the following sections.  What the adivasis seek is a form of multiculturalism that is religion-neutral (‘dhormo-niropekkho’) and ethnicity/language/culture-neutral (‘jati-nirupekkho’, ‘bhasha-niropekkho’, ‘sonshkriti-niropekkho’). I will address the question of how justified the demand for adivasi identity is, separately, in sections 5.4, 6.2 and 7.1.
    1. Representation in governance and development
ADIVASIS have demanded that seats be reserved (i) in parliament (amending Articles 65, 80 and 121) and in elected local government bodies (amending Article 59). On account of their small numbers, and their political, social and economic marginality, adivasi representation in governance and development, is inadequate, and hence, largely peripheral. Hence, the grave concern over representation.

The opportunities of representation in parliament are decreasing day by day for adivasis on account of their minoritisation in their ancestral territories through unrestricted migration from other parts of the country. The population statistics in the official census of the CHT show that the indigenous-non-indigenous ratio of the population has drastically changed with a sharp increase in the non-indigenous population (the indigenous-non-indigenous population ratio was 98:2 per cent in 1872, 91:9 per cent in 1951; and 41:49 per cent in 2001). Therefore, following these trends, it is almost certain that the indigenous population in the CHT will shrink into an even smaller and insignificant minority in the very near future. Similarly, the indigenous population in greater Mymensingh shrank drastically with the rise of the Bengali population, especially in the 1960s, under the patronage of the Monem Khan regime.

Bengali individuals were elected four times to the constituency of Khagrachari district, although the present MP is a Pahari (Jatindra Lal Tripura) from the ruling Awami League.19 This can happen again in future, both in Khagrachari and in Rangamati and Bandarban. As for Haluaghat, after the term of the present MP (also the state minister for culture), Advocate Promode Mankin, ends, the likelihood of a Garo or other Adivasi being elected from the constituency is extremely slim. A Rakahin from Patuakhali-Barguna was elected to the legislature in the 1960s, but none other since then. Similarly, particularly in the plains, very few adivasis get elected to union, upazilla and/or municipal councils. Prior to joining the caretaker cabinet, Dr MM Shoukat Ali presented a report on local government as head of a government-appointed committee, and recommended, among others, that seats be reserved in union councils for adivasis in the areas in the plains inhabited by them. The interim caretaker government, of which I was a member, deliberated on this law, but eventually, the provision was not included, despite my best efforts. Unless reservation is made for the plains adivasis in all tiers of local government, they will continue to be marginalised. Unlike in the CHT, the traditional system of administration of adivasis in the plains is not formally recognised. The result is that, adivasis go un-represented, even in local government bodies. A similar fate may well befall the CHT, where, on account of the rise of the Bengali population, all the municipal mayors are Bengali, as are about a third of the upazila chairpersons and a growing number of union council chairpersons and members.  
There are numerous examples in other countries, including in Nepal and India, where there are extensive provisions for representation of indigenous peoples in parliament, local government bodies, constitutional bodies and in government service. Nepal’s draft constitution includes provisions, among others, onidentity, self-rule and autonomy for indigenous peoples,20 on self-determination,21 on representation in the federal legislature,22 on autonomous regions, protected areas and special zones,23 and on an Adivasi/Janajati Commission.24 India’s constitution reserves seats for ‘scheduled tribes’ in the national legislature,25 the state legislative bodies,26 in panchayats,27 and municipalities,28 and in services of the republic.29  

    1. Equal rights, freedom from exploitation and affirmative action
THE adivasi MPs et al package includes demands to add the phrase ‘adivasi’ in all the provisions of the present constitution that refer to ‘backward sections [of citizens]’ (amending Articles 14, 28 and 29) and in the clause on freedom of movement (amending Article 36). The former clauses deal with freedom from exploitation, non-discrimination and special measures. There is both a proactive and a protective aspect to this demand. The protective aspect seeks to prevent the invalidation by the Supreme Court of legal provisions that deal with adivasi rights, which might otherwise be deemed to be unconstitutional, as happened in the Badiuzzaman & Tajul Islam cases in 2010 and in the Mustafa Ansari case in 1965 (see section 2.4 above). The proactive aspect holds that, once it is clarified that the concerned clauses apply to the adivasis, this helps facilitate and expedite the adoption of enabling legislative, policy and programmatic measures by the state to address the marginality of the adivasis and the under-development of the areas in which they live.

In the Badiuzzaman & Tajul Islam cases, as one of the counsel for the CHT Regional Council, I put forward reliable data and statistics, and explained the concept of ‘backwardness’ (‘onogroshorota’; sic!) as used by the Ministry of CHT Affairs, to demonstrate the low socio-economic status of the hillpeople of the CHT in comparison to the rest of the CHT and Bangladeshi populations. I cited figures on access to education, healthcare, drinking water, electricity, markets, road communications and livelihood security, among others. The idea was to demonstrate that the CHT indigenous peoples are decidedly disadvantaged and marginalised, and hence fall within the ambit of ‘backward sections’ as contemplated by the constitution. Another counsel, Barrister Sara Hossain, cited international law. Eminent jurist and former chair of the constitution drafting committee in 1972, Dr Kamal Hossain, argued that the framers of the constitution obviously had the adivasis in mind when they drafted the provisions on backward sections. The attorney general, Mahbub-e-Alam, additional attorney-general Murad Reza and a number of experts engaged by the court (including Barrister Rokanuddin Mahmud) added their voice, but to no avail. The argument was not accepted on the ground that the relevant clause was not sufficiently clarified by supportive legal and policy measures. Given that the proposals of the constitution drafting committee fail to clarify that adivasis are within the ambit of ‘backward sections’ (sic!) by amending Articles 28(4) and 29(3) and/or by amending the definitions clause (Article 152), true non-discrimination against adivasis is now under severe threat of erosion.

In principle, rights of indigenous peoples are not separate rights that are different from the rights of other citizens of a country. This is also the case in Bangladesh. However, the history of colonisation, exclusion, discrimination and deprivation of the adivasis (see section 2.2. above) calls for special measures to address their marginality.30 Special measures are not special rights. Such measures—which are sanctioned by our constitution—may be necessary to ensure that citizens of adivasi background (and other marginalised groups like our Tea Estate workers) are able to actually enjoy state facilities without discrimination, by ensuring that the state providessubstantive, rather than procedural, equality.31 If the state takes some special measures, such as to install a high-powered antenna in a remote area of the country (so that its inhabitants can easily tune in to cyclone warnings aired byBangladesh Betar) or to sink deep tube wells in the highland of the CHT (to provide drinking water) or to construct and maintain primary schools in remote areas (where the literacy rate is occasionally lower than even 15 per cent), this would be in conformity with the clauses on freedom from exploitation, non-discrimination and special measures for equal rights. The lesson to us was clear. The concerned clauses should be amended to clarify that they apply to adivasis and to the inhabitants of our tea estates. 

An equally vexing problem in this regard concerns the procedural difficulties in ensuring effective remedies against discrimination. One way to address the problem is to introduce more detailed constitutional provisions, such as those demanded by adivasis. Another way is to supplement constitutional provisions with enabling legislative and other measures. At the moment, remedies on non-discrimination are largely restricted to prerogative writ petitions in the High Court Division of the Supreme Court (under Article 102). There are no civil and criminal remedies against discrimination that can be addressed by lower level courts, the police or administration officials (and our ombudsman is yet to be born, despite constitutional provisions on it). Thankfully this may change somewhat now with the proposed reforms. In several western countries, race discrimination is handled by quasi-administrative bodies. The concerned processes do not involve formal litigation or the services of legal practitioners. In India, there is a commission on schedule tribes that acts like an ombudsperson. In Bangladesh, such bodies would be even more pertinent.   

In Nepal, the draft constitution provides several clauses on non-discrimination against, and special measures for, adivasis, madhesis, dalits, women, minorities of different sexual orientations, the disabled and Muslims.32 Similarly, the constitution of India provides several clauses for the protection of the ‘scheduled tribes’, including on representation in legislative bodies,33 special provisions on affirmative action,34 government jobs,35 special dispensations for states in Northeast India,36 and a qualification of the clause on freedom of movement.37

3.4.      Recognition of the special status of the CHT & its laws
DEMANDS have been made, both in the adivasi MPs et al package (by amending Articles 59, 80 and 121), and in the memoranda of the CHT political groups and civil society groups, to revive the special constitutional status of the CHT. Since 1965, with the removal of its ‘tribal area’ status through the passage of the Constitution (First Amendment) Act of 1964, the CHT and its laws have been deprived of, and made to be devoid of, constitutional protection.38 The direct consequences of the absence of constitutional safeguards have already been discussed, when CHT laws were declared invalid in 1965 and in 2010.

The CHT was recognised as a ‘tribal area’ in the 1962 Constitution of Pakistan, along with other areas in the then West Pakistan. The legislative bodies were not allowed jurisdiction over these areas, and the Supreme Court could not question the validity of the laws applying to the areas (all laws of general application were not applied to these regions), unless specifically allowed by legislation.39 The aforesaid areas in Pakistan are still recognised as ‘tribal areas’ and their inhabitants continue to enjoy these safeguards. Earlier, in the 1956 Constitution of Pakistan, the CHT was recognised as an ‘excluded area’, and several areas within greater Mymensingh were recognised as ‘partially excluded areas’.40 The idea behind such a scheme was to selectively apply general laws to these regions, while allowing the indigenous peoples to govern themselves, including through customary regimes, under light supervision from the central government. These formulations were a continuation of the system introduced in the Government of India Act of 1935, which resulted from the reforms suggested by the Simon Commission, while earlier, they were known as ‘backward tracts’.41 Similar safeguards still continue in the sixth schedule areas in Northeast India and in the fifth schedule areas in peninsular India, with the addition of further safeguards after the departure of the British. The CHT shared the status of ‘excluded area’ and ‘backward tract’ with several other areas in Northeast India, including Mizoram (then Lushai Hills) and Meghalaya (former Garo Hills, Khasi Hills and Jaintia Hills). The latter areas now enjoy the status of a state, and in some of them, there are autonomous district councils for the minority tribes, which are partially autonomous from both the state, and the federal, governments.42 Various aspects of the Indian dispensations may not be directly comparable to the case of the CHT, but they do demonstrate that substantive devolution can be workable models for areas that share a similar history of annexation, exclusion and discrimination. The demands of the CHT people are not for separatism, but for inclusion, while maintaining their identity and integrity.

3.5.      Safeguards against erosion of protective provisions
AMONG the demands in the adivasi MPs et al package is a proposal to provide consultative prerogatives to representatives of the adivasis prior to any amendments to the constitution that might have the effect of repealing or weakening existing safeguards (amending Article 80). The rationale behind this is clear: to avoid a situation of the nature of the Mustafa Ansari case in 1965, when the tribal area status of the CHT was arbitrarily and illegally removed (see sections 2.4, 3.3 and 3.4 above). We are no doubt aware of other painful consequences that followed the erosion of constitutional safeguards in greater Mymensingh and the CHT, including the marginalisation and minoritisation of the Garos, Hajong and Koch, the Kaptai Dam, and the unrest in the CHT prior to the signing of the CHT Accord of 1997.

In the constitution of Pakistan, as it stood in 1964, before a tribal area was removed from the list of tribal areas, the president was obliged to ascertain the wishes of the people of the area concerned.43 However, the people of the CHT, including their traditional chiefs or rajas and the member of the Provincial Assembly from the CHT, were not consulted on the matter. Several representations were made to revoke the amendment or to otherwise revive the special status of the CHT, but to no effect.44 However, although the CHT did not get justice in this case, the inhabitants of the tribal areas of the then West Pakistan learnt a lesson from this debacle. They lobbied to protect their rights, and later, when the provisions on tribal areas were amended, their safeguards were strengthened. Now, prior to the removal of a tribal area from the concerned list in the constitution, the President while ascertaining the wishes of the people of the area concerned must also consult the concerned tribal jirga.45 

IV.      What is now on the agenda for reform? How large is the gap between the government and the adivasis?
THE special constitutional reforms committee headed by Begum Sajeda Chowdhury, deputy leader of the house, recently concluded its report, on 8 June, presented it, firstly to parliament on 20 June, and then to the cabinet on 25 June, and finally, as a bill, to parliament on 30 June, which was passed. These proposals deal with citizenship and nationality, state religion, freedom of association and the culture and heritage of adivasis (although names otherwise than as adivasi), among others. I wish to discuss here, the likely positive and negative impact of some of these proposals on adivasi identity and rights. In the process, I shall also highlight what I regard as major omissions. The implications of the proposals must be judged in their totality, and not in a reductionist manner.

It is a matter of regret, that the aforesaid committee did not see fit to consult a single adivasi person as an ‘expert’, or right-holder or affected group, or otherwise, while it consulted, among others, with media leaders and ‘civil society’. Therefore, the excluded have remained excluded yet again. Although all the five adivasi MPs in the current parliament have an opportunity to speak in parliament, and some of them have a similar opportunity in the cabinet, but on account of party discipline, it is not reasonable to expect that they will have a free hand in this.
    1. The proposals of the constitution reforms committee on culture and heritage of adivasis (‘upa-jati, khudro nri-goshti’, etc., sic!)
AMONG the most important proposals of the constitution reforms committee that impinge upon adivasi rights are the proposed new Article 23A (proposal no. 15) and proposed amendments to Article 2A. Looking at the proposals of the adivasi MPs et al committee on a proposed Article 23A, it seems that, in substance, Article 23A that was passed on June 30 has been influenced by the former, to an extent. Therefore, the issue of adivasi rights has made some progress. These provisions, in rough English translation (my own), would read as follows: ‘The State shall adopt measures to protect, develop and promote the unique characteristics, regional culture and heritage of various upa-jati (tribe?), khudro jatishotta (small nations/peoples), khudro nrigoshthi (small ethnic groups) and khudro shomprodai (communities)’. However, as I said earlier, these proposals have to be looked at in their totality to see whether seemingly positive measures have been compromised by the inclusion or omission of other related but vital matters.

4.2.      State religion
THE new Article 2A refers to Islam as the state religionand provides further that ‘the State shall ensure that the practice of other religions, including Christianity, Hinduism and Buddhism, will enjoy equal status and equal rights’. Therefore, with religion, there are some safeguards on minority and adivasi religions. This is decidedly preferable to the former constitutional provisions on religion, which provide that ‘other [non-Islamic] religions may be practiced in peace and harmony’. Thereby, other religions were tolerated, but they are not guaranteed equal treatment by the state.

4.3 Missing language rights
DESPITE the above provisions on adivasi culture and heritage, and on equal rights for non-Islamic religions, the constitution reforms committee’s proposals do not deal with other vital and related issues, such as language. Language is an integral part of the ‘culture’ and ‘heritage’ of the peoples concerned. In India, through Article 30(1), the constitution recognises the right of religious (and linguistic) minorities to ‘establish and administer educational institutions of their choice’.  The existing article of the Bangladesh constitution on state language (Article 3) only mentions Bangla. Therefore, while non-Islamic religions (Hinduism, Christianity, Buddhism and other religions) will have a level of protection, there is no corresponding protection for languages other than Bangla.

4.4.      Proposed protective provisions are not judicially enforceable
THE new Article 23A on adivasi culture and heritage is included within the section on Fundamental Principles of State Policy (Part II) of our constitution. And, fundamental principles, according to Article 8(2), ‘shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh, and shall form the basis of the work of the State and of its citizens, but shall not be judicially enforceable [emphasis added]’. These are, therefore, provisions ‘without teeth’. This means that, among others, adivasis may not seek remedies in the Supreme Court of Bangladesh for violation of their rights to religion, heritage and culture, unless they are also included in the Fundamental Rights section (Part III).

Our fundamental principles of state policy, including on the ‘[emancipation] of the toiling masses, the peasants and workers and backward sections of the people from all forms of discrimination’ (Article 14), have remained substantively under-addressed, if not totally un-addressed, in the last thirty-nine years. Similar is the case with the provision of basic necessities (Article 15), free and compulsory education (Article 17) (numerous communities in the CHT, including members of the numerically small hill peoples, still have no access to primary education), and on public health (Article 18) (numerous CHT communities go without any state healthcare facilities).
    1. Dysfunctionalities in implementing fundamental rights provisions
LET alone provisions on fundamental principles, even many of those rights that are acknowledged as fundamental rights in the constitution, and hence directly enforceable in the Supreme Court, have remained without substantive implementation. The existing clause in the constitution on non-discriminating against any citizen on ‘grounds only of religion, race, caste, sex or place of birth’ (Article 28) has remained as mere hollow words for countless Bangladeshi women, Bangladeshi members of minorities groups and adivasis. Conversely, the new Article 38 on freedom of association will have more teeth. While this provision is ostensibly or avowedly meant to promote non-discrimination (‘oshamprodayikota’), it may also be invoked against adivasis when they seek to protect their civil, political, economic, social and cultural rights (see section 3.1 above) on the plea that these activities are disruptive of communal harmony and create inequality. This clause is therefore double-edged, and therefore, it is no wonder that the opposition members of the committee registered their dissenting opinion on it (along with on other provisions). 

We ought to take a lesson on implementing constitutional mandates from the USA, which claims to be the greatest democracy on earth. This democracy took about two centuries, and personalities like President Abraham Lincoln, Justice Earl Warren, Black rights activist, Dr Martin Luther King, and President John F Kennedy, along with countless other civil rights activists, to give effectiveness to its constitutional stipulations on equality (but without any formal changes in the constitution!).  Therefore, so that adivasis do not have to wait for another century, or another forty years, for implementation of positive assertions in the new Article 23A (and to an extent, the new Article 2A), some suggestions are provided below.  

4.6.      Supplementary reforms on enforceable parts of the constitution
FOR the reasons stated in section 4.4 and 4.5 above, the provisions of the new Article 23A need to be supplemented by corresponding provisions in the Fundamental Rights section (Part III) of our constitution to make them enforceable. In particular, the provisions on non-discrimination on (i) ‘grounds only of religion, race caste, sex or place of birth’ at Article 28(1), on (ii) ‘special provision … for the advancement of any backward section of citizens’ at Article 28(4) and on (iii) ‘special provision in favour of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic’ at Article 29(3) will need to be clarified. Providing a definition of ‘adivasi’ or whatever other – and hopefully acceptable – term can in future be used to describe or identify adivasis will also need to be included in the interpretation clause in Article 152 so that we can avoid situations of the nature of the Badiuzzaman and Tajul Islam cases in the High Court.

Moreover, even if it were to be said that the hill peoples of the CHT or other adivasis, such as in the plains, were not disadvantaged or marginalised (‘backward’; sic!), can’t they still get the support of the state to protect their language, culture, heritage and rights? The constitution of India mentions the ‘scheduled tribes’ and ‘scheduled castes’ in addition to ‘backward’ citizens. It also has special protective measures on religious and linguistic minorities. The draft constitution of Nepal mentions ‘backward’ groups but also specifically refers to adivasi-janajatis, madhesis and Muslims, among others. Why can’t we do likewise?

In addition to the problematic of who is ‘backward’, the provisions of the new Article 23A, by themselves, also do not address the issues on participation (in parliament and in local government institutions), constitutional entrenchment of the CHT Accord of 1997 and resultant and previously enacted CHT laws, and safeguards against arbitrary repeal or dilution of the safeguards of adivasis mentioned above (see section III above). In sum, the gap between what the adivasis have demanded and what the government has included in the constitution (through Articles 23A and 2A) is still too large to safeguard adivasi rights and interests in an adequate manner.

V.        The debate over terminology: indigenous/adivasi versus upajati/khudro nrigoshthi?
LET US now discuss the issue of terminology. And here too, the gap between the new Article 23A (and the new Article 2A) and what the adivasis demand is quite wide. Let us first examine the rationale and justification for the use of the terms contained in the new Article 23A, and then discuss the justification of the terms suggested by the adivasis.

5.1.      ‘Upa-Jati’ (sub-nation or sub-ethnic group)
‘UPAJATI’ (literally ‘sub-nation’ or ‘sub-ethnic group’) is a direct, and yet etymologically flawed, translation in Bengali of the English term ‘tribe’/’tribal’. ‘Upajati’ connotes a sub-group of a larger ethnic group. The term ‘upajati’ has more racist, derogatory and disparaging connotations than ‘tribal’. ‘Upajati’ was probably a term coined in Bengal during colonial rule, perhaps the 19th century, following colonialist perspectives of a hierarchical categorisation of nations and peoples with the Europeans at the top of the hierarchy and the indigenous peoples (tribes/upajati) at the bottom of the heap!  Prior to that, the word ‘upajati’ did not exist in Bengali. In the adivasi languages the same words are used to refer to both adivasi groups (like Mro, Khumi and Koch) and non-adivasi groups (like Bengali, Punjabi, and German). In fact, in Hindi and Nepali, there is until now no equivalent of upajati. In Hindi and Nepali, ‘tribal’ is translated as janajati.  An Afridi may be an upajati of the Pathan nation or people. Similarly, a Wangza or Larma may be an upajati of the Chakma nation or people. A Bedouin may be an upajati of the Arab nation or people. But what nation or people are Chakmas, Santals or Garos upajatis (sub-nations) of?

The ‘upajati’ (similar to tribal) term does occur in the CHT Accord of 1997 and in the district and regional council laws of 1989 and 1998. However, we also know that the term was not included in these instruments on the basis of the free, prior and informed consent (FPIC) of the peoples of the CHT. In any case, the Khudro Nrigoshthi Sanshkritik Protisthan Act of 2010, passed by the incumbent government just a year ago, replaced the word ‘upajati’ with ‘khudro nrigoshthi’ and ‘adivasi’ (although the adivasis did not accept the term ‘khudro nrigoshthi’ as discussed below). At a public meeting in the presence of the Law Minister in Dhaka on June 30, I questioned why, when the present grand alliance government could condemn the term ‘upajati’ to the dustbin in 2010, did it have to scrounge in the bin and pick that discarded and condemned word and place it in the national constitution? The law minister kept silent.

In United Nations and international human rights processes, the concept of indigenous has, since the 1970s or so, evolved to include groups who were earlier regarded, by Americans and Europeans, as tribals, and distinct from the indigenous peoples of the Americas. Nowadays, in UN and international human rights instruments and processes, and even the safeguard policies of international financial institutions (the World Bank, the International Finance Corporation and the Asian Development Bank) the term ‘tribal’ has all but disappeared in favour of ‘indigenous’. 

5.2.      ‘Khudro Nri-Gohsthi’ (small ethnic groups) and ‘Khudro-Shomprodai’ (small communities)
WHILE the terms ‘khudro nri-goshthi’ (small ethnic groups) and ‘khudro-shomprodai’ (small communities) may be preferable to ‘upajati’ or ‘tribe/tribal’, they too are problematic. In the first place, the indigenous peoples and the Bengali people are both ethnic groups or ethnic communities, and the ‘smallness’ of the indigenous peoples (in population?) should not be the basis to distinguish between the different ethnic groups or communities. Highlighting the difference in the numbers may itself promote discriminatory attitudes among those with large populations against those with small populations. Responding to the khudro nrigoshthi epithet, one adivasi MP jokingly, but with serious intent and with some irony and cynicism, referred to his Bengali colleagues as ‘brihottor nriogoshthi-r bhai’ (‘larger ethnic group brother’). The phrase has the problem of reinforcing the false and immoral dichotomy of greater and lesser peoples (‘khudrayon’ in Bengali).

Several academics of leading universities of Bangladesh, who were engaged as experts by the Ministry of Culture to advise it on the terminology to be used in the law on the cultural institutes, had unanimously urged the government to use the term ‘adivasi’ and to refrain from using other terms such as ‘upajati’ or ‘khudro nrigoshthi’ or ‘nritattik jonogoshthi’.46 This was reiterated to the law minister at a meeting with him on June 28—in the presence of the author—by Professor Dr HK Arefin, one of the aforesaid experts consulted by the Ministry of Culture. The government listened, but only very partially. The 2010 law on the cultural institutes does refer to ‘adivasi’ in the definitions section, and replaces the term ‘upajati’ with ‘khudro nrigoshthi’, and by implication, ‘adivasi’.

5.3.      ‘Khudro Jatishotta’ (small nations/peoples)
THE terms ‘khudro jati-shotta’ is more respectable towards the separate cultural entity of the non-Bengali peoples, but is nevertheless compromised by the problematics of the greater and lesser hierarchical division of peoples (‘khudrota o brihottorotar boishommomulok sreni-binyash’). 

5.4.      Adivasi and indigenous
THE demand for constitutional recognition of adivasi or indigenous identity is based upon a number of premises, justifications and contexts. Firstly, adivasi is the word that was and is used by Bengalis to refer to the indigenous peoples of northwestern Bangladesh, including Santal, Munda and Oraon, among others. Since 1993, when the International Year of the World’s Indigenous People was observed, globally, and in Bangladesh (but not by the government), the term has been increasingly used to refer to other indigenous peoples as well, including in the CHT. One rationale behind the use of this term is the historical fact that the indigenous peoples of Bangladesh settled in the territories or areas they now live in prior to the arrival of the Bengali citizens. People who now identify themselves as Bengali then lived in other parts of Bangladesh, or elsewhere, but not in the places where the adivasis had settled. There is no historical evidence of indigenous peoples having forcibly occupied any territories within Bangladesh by ejecting Bengali people (as Bengalis were not there then!). For example, the Khumi and Chak peoples claim indigenousness to Bandarban district, not to elsewhere in the country. Likewise, the Munda and Oraon claim indigenousness to Northwest Bangladesh in the Barind tract (‘Borendro Bhumi’) within Rajshahi division. In these areas the aforesaid peoples were the ‘first inhabitants’ or ‘first settlers’ (prior to the arrival of Bengali people).

Secondly, the term, ‘adivasi’, and its English equivalent, ‘indigenous’ and ‘aboriginal’, have been used in several Bangladeshi laws, policies, judicial decisions and statements of Bangladeshi heads of governments.47

Thirdly, ‘adivasi’ and ‘indigenous’ are used in the context of international law. Under international human rights law, indigenous peoples is a construct that recognises their exclusion from the process of modern state formation and development and espouses special measures to include them in governance and development through substantive roles, and to end discrimination against them.

A major problem in the discourse on indigenous peoples is the remnants of an Amero-centric and Australasia-centric understanding of the term, thereby clouding the current debate, including in Bangladesh. Perhaps the government of Bangladesh feels that by using the terms ‘upajati’ and/or ‘tribal’, while rejecting the indigenous or adivasi identity, it will have a lower standard of responsibilities towards the peoples concerned. If that is indeed the case, the government is quite misinformed, and totally wrong. The fact is that, in United Nations and international human rights processes today, the concept of indigenous has, since the 1970s or so, evolved to include groups who were earlier regarded, by Americans and Europeans (among others), as tribals, and hence distinct from indigenous peoples, such as in the Americas, Scandinavia, Australia and New Zealand. Nowadays, in UN and human rights instruments and processes, the term ‘tribal’ has all but disappeared in favour of ‘indigenous’. Otherwise, the United Nations would today have separate declarations on indigenous and tribal peoples and separate forums for indigenous and tribal peoples, which it certainly does not! 

At the recent session of the UN Permanent Forum on Indigenous Issues—of which I am a member—in New York, in May 2011, when the issue of implementation of the CHT Accord of 2997 was being discussed, a representative of the government stated that there are no indigenous people in Bangladesh, but merely tribals, and hence the forum had no standing (‘locus standi’) to discuss the issue. Not surprisingly, this position was severely criticised and condemned.48 Bangladesh’s international standing on human rights certainly suffered a setback as a result. However unpalatable it might be to some, the fact is that, in today’s inter-connected world of the internet age, political stands opposed to international human rights norms and standards are difficult to defend and sustain. Whatever human rights violations occur in Bangladesh, or elsewhere in the world, must be deemed to be happening on a stage that the whole world is watching.

‘Indigenous’ is a human rights construct. It is a relational and not an absolute term. Sure, ‘Native Americans’ lived in the Americas for thousands of years, as did Aborigines in Australia. But the white settlers that came later to these lands had roots too. They didn’t come from Mars or some other planet!49 Therefore, nowadays you don’t have to prove a few thousand years’ history of indigenousness or autochthonous-ness to have the term apply to you. And in any case, when the Adivasis settled in the places they live in now, they did not eject the Bengalis. There were no Bengalis there then. There were no Bengalis living permanently in the hill tracts before the 1800s, but Chakmas and others were there. Chakmas are claiming indigenousness to the CHT, as Santals are claiming indigenousness to the Barind tract. Colonisation is colonisation. To the colonised peoples, it hurts the same whether the coloniser came from across the seas or from the same land mass.

And as far as international human rights law is concerned, there is no distinction between indigenous and tribal. The ILO Convention No. 107, which Bangladesh ratified in 1972, states that all the provisions in the convention will apply equally to indigenous and tribal populations. In any case, for example, the CHT adivasis’ ancestors have ‘inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization’, as stated in the convention, and thereby fulfil the criteria of indigenous populations. The adivasis were in their areas at the time of conquest (by Mughals and British, for example), and colonisation (by the British in the 1760s in the plains and 1860s in the CHT). According to United Nations and international human rights treaty body experts, indigenousness has more to do with exclusion from state formation, presence of customary institutions and close attachment to ancestral territories than a long history of inhabitance that has to stretch into thousands of years! 

The World Bank’s current policy on indigenous peoples recognises that ‘Indigenous  Peoples’ may be referred to in different countries by such terms as ‘indigenous ethnic minorities,’ ‘aboriginals,’ ‘hill tribes,’ ‘minority nationalities,’ ‘scheduled tribes,’ or ‘tribal groups.’ The policy focuses on ‘self-identification’, ‘collective attachment to geographically distinct habitats or ancestral territories and [their] natural resources’, ‘customary cultural, economic, social or political institutions that are separate from those of the dominant society and culture’ and ‘an indigenous language, often different from the official language of the country or region’ as the major characteristics of indigenous peoples.50

VI       Overall justifications favouring adivasi rights in the constitution
    1. Including the excluded
THE overall justification for inclusion of adivasi rights in the constitution is the crying need to address their exclusion from constitution-building, state formation, development and integration into the mainstream without assimilation of their distinctive identity, culture and heritage. This opportunity for the inclusion of their identity and rights may never arise again in the near future. The next time that an opportunity for constitutional reform arises in the foreseeable future, the voices of adivasis will in all likelihood become even more peripheral, and they may have even fewer MPs in parliament (if they do at all), on account of further minoritisation and marginalisation. So of course, adivasis do not want to ‘miss the bus’ again. They missed the bus in 1972, and before, and are at risk of being excluded again. The co-chairperson of the constitutional reforms committee, Suranjit Sengupta, is on record as having said the following: ‘We want to give the constitutional recognition to the indigenous people. The adivasi people and their well-wishers should place this demand to the special committee. I will take the matter seriously to the committee’.51 It is to be hoped that Sengupta realises that their committee’s proposals do not amount to the kind of recognition that the adivasis sought.

6.2.      Multiculturising Bangladesh
THE cultural identity of Bangladeshis needs to be redefined, both to accommodate the adivasis and to accurately reflect the rich multicultural heritage of this nation.52 One Bangladeshi writer put it with eloquence: ‘We still have not been able to establish an ethnically neutral state. The concept of multicultural pluralism does not exist in our dictionary. Yet when international cricket matches take place, our international airport lobbies proudly boast pictures of colourful indigenous women happily working in the field, with convenient labels by the Bangladesh Tourism Board gallantly proclaiming “Smiling Indigenous Women of Bangladesh”.’53

Official versions of the history of Bangladesh, alas, still forget the adivasi subalterns. The adivasis’ role in the resistance movements against British colonisation (by Santals, Chakmas and others, for example), in the freedom struggle of 1971, and in the democratic struggles of the 1990s against autocracy and military rule, is seldom acknowledged. But let us reach back to earlier times, about which I had the pleasure of a brief discussion, recently, with the most prominent fashion designer of Bangladesh, Bibi Russell. I asked her, ‘Do you know what the major source of cotton, the raw material for the world famous Bengal muslin was?’ She promptly replied, without hesitation, ‘Of course. The Chittagong Hill Tracts!’ The owners of garments factories in Dhaka and Chittagong will probably tell you, if asked, how adivasis do hard, honest and efficient work, and help earn foreign currency for the country. At least in this instance, the market shows less discrimination against adivasis than the state.

A few Bengalis and other Bangladeshis like Bibi Russell are aware of the contributions of adivasi society to national development, past and present. In an article I published recently, I wrote about the adivasis’ contributions to the national cause. I reproduce a few lines here:

‘[Adivasis] fought alongside Bengalis in the war of liberation. They protected, and still protect, much of the forest resources of the country. They sacrificed their lands to give electricity to the nation through the Kaptai Dam. They work in factories in Chittagong and Dhaka and have proved their contribution to the national economy. They have produced soldiers, policemen, diplomats and bureaucrats to protect the national interest. It is time that the historical wrongs are righted, at least in part, through constitutional amendments. This would help protect adivasi identity and rights, which are additionally threatened by globalised market capitalism. It would also promote national unity, integrity and stability, and enhance Bangladesh's international image in the comity of nations.”54

6.3.      Constitutional entrenchment of the CHT Accord
PEACE processes in different parts of the world show both successes and failures. One peace accord that stands out as successful is the Mizoram Accord of 1986. This ended the insurgency in the Northeast Indian state of Mizoram to the east of the CHT (formerly known as Lushai Hills). This accord is distinguishable from many others in that its major provisions were entrenched in the constitution of India.55 Conversely, bereft of constitutional recognition, several laws resulting from the CHT Accord of 1997 were declared ultra vires by a High Court Division bench in the Badiuzzaman and Tajul Islam cases in 2010. However, this bench also stressed on the need to provide constitutional entrenchment of laws that might otherwise concern ‘[exigencies] not strictly envisaged in the constitution’ by allowing for ‘constitutional entrenchment of the same’.

6.4.      Constitutional incorporation of international law provisions
HAPPILY enough, Bangladesh has ratified several multilateral human rights treaties that have a direct bearing on adivasi rights, including the ILO Convention No. 107. Upon ratification of any such treaty, a state is obliged to convert the provisions of those treaties into national law. Without such domestic entrenchment, the provisions of the treaties remain valueless with regard to their enforcement in the country. In its judgment in the Badiuzzaman and Tajul Islam cases, the High Court advised the government to achieve ‘a better concordance of Bangladesh’s municipal law with its obligations under international law in general and the ILO Convention No. 107 in particular…’ And what better place for the inclusion of such rights than in the national constitution?

VII.    Future reforms
IT IS unfortunate that the government’s present rejection of adivasi rights is based upon incorrect interpretations of international law and Bangladeshi history; the real, including subaltern history, and not the history that we read in school text-books! But is it not justified for the government to state how it is going to address the legitimate fears of the adivasis? Is that not what a state is supposed to do, to look after its citizens and rid them of insecurity and confusion, especially when they are among the most marginalised sections of society?

The ‘hard-of-hearing’ wall that we are up against, might yet one day bear the marks of what we the adivasis, and countless other secularist, non-communal and progressive-minded Bengalis have said, and are continuing to say through shouts and screams: to see ‘the writing on the wall’. If adivasis lose, the state also loses, at least if it claims to be a democracy.

The most contested, if not the most important, issue, is terminology. The first thing that the government and parliament should do is to exclude the ‘upa-jati’ phrase. In 2010, through the enactment of the Khudro Nrigoshthi Sanshkritik Protisthan law, the government rightly condemned ‘upajati’ to the gutters by replacing the phrase with ‘khudro nrigoshthi’ and ‘adivasi’. It can’t do avolte-facenow and not only pick up what it itself discarded, but also raise its status into constitutional law! That’s not cricket! That’s not statesmanship. This is equivalent to the United States government forgetting the civil rights movement for the rights of Blacks or African Americans and inserting the phrase ‘nigger’ (sic!) into its constitution. But parliament did this on June 30! This does not augur well for Adivasis or for others. It does not augur well for democracy, as it is clear, to me, and several others, that the government has been influenced in this regard by undemocratic, reactionary, communalist and xenophobic interests that hide behind the government!

The ‘jatishotta’ epithet is the most respectful among the constitution committee’s recommendations, and that should remain. However, instead of concentrating on the smallness (‘khudrota’) of the peoples concerned, the constitution can say ‘bhinno-bhinno-shonskritir jatishotta’ (peoples of different cultures) or ‘bhinno-bhasha-bhashi jatishotta’ (different linguistic peoples) or ‘bhinno bhinno jati-shotta’ etc (as suggested, for example, by MPs Rashed Khan Menon and Hasanul Haque Inu on 30 Jun). This can then be complemented by amending the definitions clause (Article 152) and inserting the phrase adivasi along with the compromise term, ‘bhinno-bhasha-bhasi’, etc. In the Khudro Nrigoshthi law of 2010, the government used the ‘khudro nri-goshthi’ phrase in the body of the law, while adding a definitions term that states that ‘adivasis’ will be among those regarded as ‘khudro nri-goshthi’. This should be a sufficient cue, and precedent, for the government in regards to adivasi identity. The new Article 23A uses the phrase ‘khudro nri-goshthi’, among others, and since the the Khudro Nrigoshthi law of 2010 uses the phrase ‘adivasi’ in the definitions section, can we then say that the term ‘adivasi’ has received indirect recognition in the constitution?

I have already mentioned that the total impact of the adivasi-relevant clauses of the new constitutional provisions are likely to be positive only very marginally, while negatively impinging upon their rights on account of the implications of the amendedfreedom of association clause and the status of the positive clauses being rendered toothless on account of their not being judicially enforceable. Therefore, the government ought to give more serious attention to the adivasi demands on representation, equal rights, non-discrimination and special measures (affirmative action), constitutional entrenchment of the CHT laws and the accord of 1997, and safeguards against erosion of positive constitutional and other provisions (including consultative prerogatives). And I need hardly add, that existing constitutional provisions need to be supplemented further by non-constitutional measures, including the establishment of an Adivasi Commission (like India’s Scheduled Tribes Commission, and Nepal’s expected Adivasi-Janajati Commission), the adoption of an Adivasi Development Policy, and appointment of an ombudsperson, with adequate windows for dealing with adivasi issues as well.

VIII.   Present rejection and likely future scenarios
NOW that the major demands of the adivasis have been rejected or only marginally included, the consequences will be extremely negative. The adivasis’ marginalised situation will not only continue, but will worsen, and their sense of heartfelt belonging to the state, as full citizens, is bound to be weakened, or even destroyed. This will have negative implications for the total development of the country. Peace and stability in the CHT may be threatened further. Discontent would rise in the plains as well. That would have severe negative consequences for democracy, stability, growth and progress of the entire country. In the process, adivasis would have few other avenues left but to air their grievances in international human rights forums, including the UN Permanent Forum on Indigenous issues. Bangladesh has occupied, and still occupies, several prominent positions in UN human rights and other bodies. This role too may be compromised and undermined.   

Conversely, if the legitimate and reasonable demands of the adivasis had been accepted, or are accepted in the near future, adivasi would feel more ‘ownership’ over the constitution and feel a more integral part of the citizenry. This would not by itself translate into the total removal of discrimination against them, but at least a firm basis to address their marginality would have been established. The major challenge would then be for the government and the adivasis to continue a respectful dialogue to undertake other commensurate legal, policy, administrative and programmatic measures. This would enhance Bangladesh’s image within and outside the country and promote communal harmony, peace and stability, including in the troubled frontier region of the CHT. Peace and conflict studies in several conflict-ridden societies show that constitutional entrenchment of indigenous peoples’ rights promotes peace-building, development and democracy and discourages separatism, discord and disunity. But will the government listen? In any case, democratic, secularist, non-communal and multiculturalist sections of our citizens will never give up their just struggle.
Devasish Roy Wangza is the Chakma raja and Chakma circle chief, advocate, Supreme Court of Bangladesh, and member, UN Permanent Forum on Indigenous Issues.

1. The peoples concerned prefer the term ‘adivasi’ in Bengali and ‘indigenous’ in English. The government, on the other hand, appears to prefer the terms ‘upajati’ (similar to tribe) or ‘khudro nrigoshthi’ (small ethnic group), ‘khudro jatishotta’ (small nations/peoples), ‘khudro shomprodai’ (small communities).

2. This 15-member committee, including two members of the opposition, was formed at a parliamentary meeting on July 21, 2010 in accordance with Rule 266 of the Rules of Procedure of the national parliament. The chair of the committee presented its report to parliament on June 15, 2011, endorsed by all its members, with dissenting opinions of the two opposition members (Rashed Khan, MP and Hasanul Haq Inu, MP) on proposals numbered 1 (on inclusion of the phrase, ‘Bismillah-ar-Rahman-ar Rahim…’), 3 (on state religion) and 17 (freedom of association). This was presented to cabinet on June 25, which accepted it without any changes. The Parliamentary Standing Committee on Law, Justice and Parliamentary Affairs and the Ministry of Law, Justice and Parliamentary Affairs did likewise. 

3. The major opposition party, BNP, also rejected the amendments, but that primarily concerned the absence of provisions on an interim caretaker government and on removal of the phrase ‘absolute trust and faith in the Almighty Allah’, and did not include adivasi issues, and hence will not be discussed in this article.

4. ‘If the modern nation state is compared to a house, then the concerned national constitution could be regarded as the architectural plan. Now if we are to add new rooms to such a house, to accommodate [indigenous peoples], we can only do that if the existing plan can accommodate the new rooms. Otherwise, we will be only moving the furniture around or have to sleep in the verandah’; Statement by Raja Devasish Roy, Chakma Chief, on behalf of the Asia Indigenous Peoples’ Caucus at the 3rd session of the UN Expert Mechanism on the Rights of Indigenous Peoples, Human Rights Council, United Nations Office, Geneva (July12-16, 2010) on Agenda Item No. 3: ‘Study on Indigenous Peoples and the Right to Participate in Decision-Making’.
5. These include, Bolivia, Mexico, Nicaragua, Panama, Peru and Venezuela in Latin America, and Denmark, Finland, Norway and Sweden in Scandinavia, among others.
6. Parliamentary debates (25.10.1972: 292-295; 31.10.1972: 452) of October 25 and 31, 1972 as cited in Amena Mohsin, The Politics of Nationalism: The Case of the Chittagong Hill Tracts, Bangladesh, University Press Limited, Dhaka, 2nd ed, 2002, p 62. Earlier, a CHT delegation led by Larma presented a set of demands to Bangabandhu Sheikh Mujibur Rahman, which included the following: (i) autonomy for the CHT with its own legislature; (ii) retention of the CHT [Regulation, 1900]; (iii) continuation of the tribal chiefs’ offices; and (iv) constitutional safeguards for the regulation and a ban on the influx of non-tribal people in the CHT; see: Amena Mohsin, ‘State Hegemony’ in Philip Gain (ed), The Chittagong Hill Tracts: Life and Nature at Risk, SEHD, p. 61.
7. Moni Swapan Dewan, MP, raised the issue, as reported in the daily Suprobhat Bangladesh, Dhaka, on June 29, 2006 (cover page and page 2). 
8. As stated privately to the author by Dipankar Talukdar, MP (state minister, Ministry of CHT Affairs) recently.
9. India has a National Commission for Scheduled Tribes (see, Article 388A, Constitution of India), whose ‘functions and powers [are] essentially those of an ombudsman’; C. R. Bijoy, Shankar Gopalakrishnan & Shomona Khanna in Luchie Maranan (ed), India and the Rights of Indigenous Peoples, Asia Indigenous Peoples Pact (AIPP), Chiangmai, 2010, p. 36. It also has a Ministry of Tribal Affairs (Bijoy et al, op. cit., p. 36).  
10. Writ Petition No. 2669 of 2000.
11. Writ Petition No. 6451 of 2007.
12. Per Justice Syed Refaat Ahmed and Justice Moinul Islam Chowdhury in judgment dated April 12 and 13, 2010. The effect of the judgment has been stayed by the Appellate Division pending the hearing of the appeal.
13. Mustafa Ansari v. DC, CHT & Another (7 DLR, 1965, 553), per Justice Salahuddin Ahmed and Justice AM Sayem.
14. The other members of this drafting group include Sanjeeb Drong, Albert Mankin, U Shit Mong and Goutam Kumar Chakma, and through co-option by consent, Mangal Kumar Chakma. They were assisted, among others, by Advocate Bidhayak Chakma, Ilira Dewan, Muktasree Chakma Shathi and Pradangshu Barman. 
15. See the dissenting opinions of members of the Constitutional Reforms Committee Rashed Khan Menon, MP and Hasanul Haq Inu, MP (mentioned in footnote no. 3 above).
16. It is interesting to note that the aforementioned members of the Constitutional Reforms Committee (Rashed Khan Menon, MP and Hasanul Haq Inu) did not express their dissent on the provisions of Article 23A, presumably appreciating the spirit of the article (with which I am not in disagreement at all), while overlooking or choosing to ignore the terminology (which is unacceptable to adivasis).
17. Statement of Advocate Rana Dasgupta, secretary general, Hindu-Buddhist-Christian Unity Council at the National Press Club on June 30, 2011.
18. These provisions were tabled in parliament, but rejected, on June 30: Source: Telephonic discussion with Rashed Khan Menon, MP and Hasanul Haque Inu, MP on June 30, 2011.
19. AKM Alim Ullah (Jatiya Party) was elected in 1986 and 1988 and Abdul Wadud Bhuiyan (BNP) was elected in 1996 and 2001.
20. Article 3(3), draft Constitution of Nepal.
21. Article 12(1), draft Constitution of Nepal.
22. Part I, Article 4(1)(b), 3(3), draft Constitution of Nepal.
23. Articles 8(1), 8(2) and 8(3), draft Constitution of Nepal.
24. Article 8(1), draft Constitution of Nepal. There are similar provisions on commissions on women, Madhesi, disabled, minorities and muslims.
25. Article 330, Constitution of India.
26. Article 332, Constitution of India.
27. Article 243D, Constitution of India
28. Article 243T, Constitution of India.
29. Articles 16(4), 16(4A) and 335, Constitution of India.
30. One of the preambular articles of the UN Declaration on the Rights of Indigenous reads thus: ‘Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonisation and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests’. Similarly, article 2 of the declaration reads: ‘Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.’
31. The writer is indebted to Sara Hossain, Barrister-at-Law, Advocate, Supreme Court, for the phrases on equality used here.
32. Preamble and articles 1(b), 3, 6(2), 8, 9, 11and 8(3), draft Constitution of Nepal.
33. Articles 330 and 332, Constitution of India.
34. Article 15(4), Constitution of India.
35. Articles 16(4) and 16(4A), Constitution of India.
36. Articles 15 (4), 16(4), 46, 243D, 243M, 243T, 243ZC, 275, 330, 332, 371 (A, B, C, F, G, H) and the 5th and 6th schedules, Constitution of India.
37. Article 19(5), Constitution of India.
38. It is widely believed that the de-constitutionalisation of the CHT’s special status was initiated by Fazlul Quader Chowdhury, who was elected from southern Chittagong and the CHT, as the small population of the CHT did not enable the region to get a separate seat in the national legislature. It is said that Chowdhury was annoyed with Kumar Kokonadaksha Roy, a Chakma, who did not agree to withdraw from the race (Roy later stood, with an Awami League ticket, in the 1970 Provincial Assembly elections, but lost to MN Larma).
39. Articles 246 and 247, Constitution of Pakistan.
40. These areas include Sribardi and Nalitabari upazillas in Sherpur district, Haluaghat and Phulpur upazilas in Mymensingh district and Durgapur and Kalmakanda upazillas in Netrokona district. See also, Nurul Islam Khan (ed), Bangladesh District Gazetteers: Mymensingh, Cabinet Secretariat, Establishment Division, Government of the People’s Republic of Bangladesh, Dhaka, 1978, p. 59.
41. Most of these areas were earlier known as ‘backward tracts’ in the Government of India Act of 1919 and as ‘scheduled districts’ in the Scheduled District Act of 1874.
42. Sixth Schedule, Constitution of India.
43. Article 223, Constitution of Pakistan.
44. Amena Mohsin, The Politics of Nationalism: The Case of the Chittagong Hill Tracts, Bangladesh, University Press Limited, Dhaka, 2nd ed, 2002, pp 108, 109.
45. Article 247 (6), Constitution of Pakistan.
46. Raja Devasish Roy, ‘Bangladesher Adivasider ‘Adivasi’ Porichoy Keno Shothhik O Jothharthho: Ekti Porjalochona’ (Why the Indigenous Identity of the Indigenous Peoples of Bangladesh is Correct and Appropriate: An Analysis) in Sanjeeb Drong (ed), Solidarity 2010: Right to Culture and Self-Identify of Indigenous Peoples, Bangladesh Indigenous Peoples Forum, Dhaka, 9 August, 2010, p. 12-22, at pp. 13, 14. See also, Mangal Kumar Chakma, ‘Adivasider Shaangbidhanik Shikriti: Prekkhapot O Prashongikota’, in Sanjeeb Drong (ed), Solidarity 2010: Right to Culture and Self-Identify of Indigenous Peoples, Bangladesh Indigenous Peoples Forum, Dhaka, 9 August, 2010, pp. 28-41 at p. 33.
47. The term ‘indigenous’ has been used in the CHT Regulation, 1900, Finance Acts (1995 and 2010), PRSP (2009), in goodwill messages on International Indigenous Peoples Day in different years, by Prime Minister Sheikh Hasina, then Chief Adviser Dr. Fakhruddin Ahmed, then Prime Minister Begum Khaleda Zia and in judicial decisions, including Sampriti Chakma v. Commissioner of Customs & Others (5 BLC, AD, 29). The term ‘aboriginal’ occurs in the East Bengal State Acquisition and Tenancy Act, 1950 (Act XXVIII, 1950; at section 97) and the term ‘adivasi’ has been used in PRSP (2005) and in the Small Ethnic Groups Cultural Institutes Act, 2010.
48. In my own statement on the issue, as an independent UN expert, I had to clarify the issue, and stated, as follows: ‘[The] current regime of international human rights law (including the ILO Conventions and the UN Declaration on the Rights of Indigenous Peoples) does not distinguish between tribal and indigenous peoples, with indigenous peoples being the currently accepted terminology. Therefore, the CHT Accord and issues of indigenous peoples in different countries (whether called ‘minorities’, ‘tribal’ or otherwise) are undeniably within the mandate of the Permanent Forum.’
49. The author is indebted to Prashanta Tripura of UNDP for this idea.
50. Operational Policy 4.10, paragraphs 3 and 4 (http://go.worldbank.org/POUBJJIRUDPO)
51. ‘Indigenous people to get constitutional recognition: says Suranjit’, Staff Correspondent, Daily Star, Dhaka, 20 October, 2010.
52. Wasfia Nazreen and Devasish Roy Wangza, ‘Seeking Full Membership’, published in Opinion, the Weekend Independent, Dhaka, 29 October, 2010, pages 13-15.
53. Wasfia Nazreen, ‘No god, no refuge, no New Year for the indigenous of Bangladesh’, http://opinion.bdnews24.com/2011/04/26/no-god-no-refuge-no-new-year-for-the-indigenous-of-bangladesh/
54. Devasish Roy Wangza, ‘Multiculturalising Secularism through Constitutional Recognition of Adivasis’, in Forum, a monthly publication of The Daily Star, Vol. 4, Issue 11, November, 2010, pages 14 – 19) (v)
55. Article 371G, Constitution of India.


courtesy: New Age

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