State Policy, the Constitution and Equal Rights for Disadvantaged Groups
The playing field is not level for groups who had no role in national constitution-making, argues DEVASISH ROY WANGZA.
Constitution as the Supreme State Policy
National constitutions contain the broad principles of the supreme policy of a state. Other policies, contained in documents other than in constitutions, are policies of governments. The latter policies constantly change, unlike the former. Therefore, disadvantaged sections of citizens, seek to protect their rights by having express safeguard provisions included in their national constitutions. This is no exception in Bangladesh.
National constitutions contain the broad principles of the supreme policy of a state. Other policies, contained in documents other than in constitutions, are policies of governments. The latter policies constantly change, unlike the former. Therefore, disadvantaged sections of citizens, seek to protect their rights by having express safeguard provisions included in their national constitutions. This is no exception in Bangladesh.
Minorities, adibashis and discontent with the 15th Amendment
Religious minorities and indigenous peoples, among other disadvantaged groups in Bangladesh, have been clamouring for acknowledgment of their rights in the constitution. We know that the aforesaid groups are unhappy over the recent constitutional reform. We know why; because their identity and rights have not been properly addressed therein. Even the few benevolent and benign matters that have been included therein have been compromised by the fact that (i) these are not directly enforceable in courts, being part of the fundamental principles section, rather than the one on fundamental rights, while (ii) negative stipulations on freedom of association, and (iii) a unilingual and uni-religious orientation of our national identity, undermine those matters.
Religious minorities and indigenous peoples, among other disadvantaged groups in Bangladesh, have been clamouring for acknowledgment of their rights in the constitution. We know that the aforesaid groups are unhappy over the recent constitutional reform. We know why; because their identity and rights have not been properly addressed therein. Even the few benevolent and benign matters that have been included therein have been compromised by the fact that (i) these are not directly enforceable in courts, being part of the fundamental principles section, rather than the one on fundamental rights, while (ii) negative stipulations on freedom of association, and (iii) a unilingual and uni-religious orientation of our national identity, undermine those matters.
Photo: PRITO REZA
Minorities adibashis and the 1972 and other pre-2011 constitutions
The original constitution of 1972 was secular and neutral with regard to religious identity, but not with regard to the ethnic and linguistic identity of non-Bengalis. The post-1975 constitution, on the other hand, got rid of Bangali nationalism, but imposed a Muslim orientation of national identity and state practices that made the adibashis and religious minorities feel equally insecure. And where are we now in 2011?
The original constitution of 1972 was secular and neutral with regard to religious identity, but not with regard to the ethnic and linguistic identity of non-Bengalis. The post-1975 constitution, on the other hand, got rid of Bangali nationalism, but imposed a Muslim orientation of national identity and state practices that made the adibashis and religious minorities feel equally insecure. And where are we now in 2011?
The Bangali national identity has been revived, while the provisions on state religion albeit with “equal status” to minority religions have been retained. So much for cultural pluralism and secularism in a country that produced great multicultural giants like Nazrul and Lalon!
Implementing constitutional measures
However, what I wish to discuss here is not what went wrong with our constitution, but despite these shortcomings, what can be done to further the rights of adibashis, minorities and other disadvantaged groups, including Tea Estate workers, Dalits and differently-abled people (disabled; sic!), based upon existing constitutional dispensations. I do not, however, suggest, that the demands of adibashis and secularist Bangalis for further and appropriate constitutional reforms is to be forsaken. I discuss that elsewhere in a forthcoming publication in another Dhaka daily.
However, what I wish to discuss here is not what went wrong with our constitution, but despite these shortcomings, what can be done to further the rights of adibashis, minorities and other disadvantaged groups, including Tea Estate workers, Dalits and differently-abled people (disabled; sic!), based upon existing constitutional dispensations. I do not, however, suggest, that the demands of adibashis and secularist Bangalis for further and appropriate constitutional reforms is to be forsaken. I discuss that elsewhere in a forthcoming publication in another Dhaka daily.
Constitutional provisions, organic acts and other enabling measures
National constitutions vary in the way they include important state policy measures. Some are voluminous, with detailed provisions, like the Constitution of India. Others, like the Constitution of the Philippines, are relatively brief. In the Philippines, the legal system envisages the framing of 'organic acts', which spell out the details of the constitutional measures and provide “teeth” to constitutional provisions. The point is that, unless constitutional measures are supplemented by legislative, executive and other measures, they remain in name only. And let us remind ourselves of many worthy principles that were inserted in our constitution in 1972, and which have thankfully survived the various incisions, grafts and other additions that have been made to our constitution, but remain largely unimplemented. Let me cite one here: “It shall be a fundamental responsibility of the State to emancipate the toiling masses the peasants and workers and backward sections of the people from all forms and exploitation” (Article 14).
National constitutions vary in the way they include important state policy measures. Some are voluminous, with detailed provisions, like the Constitution of India. Others, like the Constitution of the Philippines, are relatively brief. In the Philippines, the legal system envisages the framing of 'organic acts', which spell out the details of the constitutional measures and provide “teeth” to constitutional provisions. The point is that, unless constitutional measures are supplemented by legislative, executive and other measures, they remain in name only. And let us remind ourselves of many worthy principles that were inserted in our constitution in 1972, and which have thankfully survived the various incisions, grafts and other additions that have been made to our constitution, but remain largely unimplemented. Let me cite one here: “It shall be a fundamental responsibility of the State to emancipate the toiling masses the peasants and workers and backward sections of the people from all forms and exploitation” (Article 14).
Implementing non-discrimination through judicial remedies
The Constitution of Bangladesh provides, among others, for the implementation of our fundamental rights and freedoms, including on non-discrimination and special provision clauses (articles 27, 28 and 29; read “affirmative action”) through writ actions in the High Court Division of the Supreme Court of Bangladesh, under article 102. These provisions, however, have seldom been invoked in court. And this is hardly surprising.
The Constitution of Bangladesh provides, among others, for the implementation of our fundamental rights and freedoms, including on non-discrimination and special provision clauses (articles 27, 28 and 29; read “affirmative action”) through writ actions in the High Court Division of the Supreme Court of Bangladesh, under article 102. These provisions, however, have seldom been invoked in court. And this is hardly surprising.
Photo: PRITO REZA
One really cannot expect that citizens from disadvantaged backgrounds away from the capital will be able to come to Dhaka, hire a lawyer and conduct their cases in the High Court. Obviously, we need to make these remedies available, closer to home. There are several ways of doing this, such as: (i) through the establishment of new constitutional courts in locations outside of Dhaka, (ii) by empowering existing district-level courts to try certain classes of cases in a specific and prompt manner; (iii) by establishing administrative bodies to hear and provide remedies against discriminatory acts, (iv) have constitutional and other bodies provide necessary advise to the government, and (v) establish special bodies to include adibashis in governance and development, particularly in the plains, such as in the manner discussed below.
New constitutional courts
In accordance with article 44(2) of the constitution, parliament may legislate to empower a court other than the High Court, to exercise all or any of the powers vested upon the High Court Division, to hear writ applications under article 102 “within the local limits of its jurisdiction”, as long as this is done “without prejudice to the powers of the High Court Division”. Therefore, district-level courts could be so empowered to exercise authority to provide remedies that are now only exercisable by the High Court. However, in this regard, parliament needs to be careful that it does not step on the toes of the High Court Division, as happened in the case of Anwar Hossain Chowdhury versus Bangladesh (1989, CLC, AD), in which the Appellate Division struck down the Constitution (Eighth Amendment) Act, 1989 as violative of the constitution (ultra vires). Through this law, the Jaitiyo Party-led government under President Ershad sought to establish permanent benches of the High Court Division at Barisal, Chittagong, Comilla, Jessore, Rangpur and Sylhet.
In accordance with article 44(2) of the constitution, parliament may legislate to empower a court other than the High Court, to exercise all or any of the powers vested upon the High Court Division, to hear writ applications under article 102 “within the local limits of its jurisdiction”, as long as this is done “without prejudice to the powers of the High Court Division”. Therefore, district-level courts could be so empowered to exercise authority to provide remedies that are now only exercisable by the High Court. However, in this regard, parliament needs to be careful that it does not step on the toes of the High Court Division, as happened in the case of Anwar Hossain Chowdhury versus Bangladesh (1989, CLC, AD), in which the Appellate Division struck down the Constitution (Eighth Amendment) Act, 1989 as violative of the constitution (ultra vires). Through this law, the Jaitiyo Party-led government under President Ershad sought to establish permanent benches of the High Court Division at Barisal, Chittagong, Comilla, Jessore, Rangpur and Sylhet.
Vesting district-level judgers with special authority
With regard to certain matters, such as disputes over rural agricultural land of small areas, it is ridiculous that the entire spectrum of our court system needs be exhausted! In many cases, the litigation costs exceed the value of the land concerned and it may take several years to do that. Many cases linger beyond the generations! In many cases indigent litigants lost all their possessions to bear the litigation costs. A poster that was once popular among would-be barristers studying at the Inns of Court School of Law in London epitomises the situation. The poster shows two litigants pulling a cow, respectively, by its horns and its tail, while the lawyer milks the cow! I think that a future land tribunal at the district-level might be an efficacious remedy for adibashis of the plains, in addition to a Land Commission modeled along the lines of the CHT Land Disputes Resolution Commission. In fact, the same judicial officer could hear such land-related matters separately for adibashi-related matters and other land-related matters, on separate days.
With regard to certain matters, such as disputes over rural agricultural land of small areas, it is ridiculous that the entire spectrum of our court system needs be exhausted! In many cases, the litigation costs exceed the value of the land concerned and it may take several years to do that. Many cases linger beyond the generations! In many cases indigent litigants lost all their possessions to bear the litigation costs. A poster that was once popular among would-be barristers studying at the Inns of Court School of Law in London epitomises the situation. The poster shows two litigants pulling a cow, respectively, by its horns and its tail, while the lawyer milks the cow! I think that a future land tribunal at the district-level might be an efficacious remedy for adibashis of the plains, in addition to a Land Commission modeled along the lines of the CHT Land Disputes Resolution Commission. In fact, the same judicial officer could hear such land-related matters separately for adibashi-related matters and other land-related matters, on separate days.
Bearing in example the case of the milch cow in the London poster, it is also important that the Code of Civil Procedure does not apply in its entirety, for such cases. This will enable litigants to conduct their cases by themselves. Examples of such a system include the Chittagong Hill Tracts. In place of the Civil Procedure Code a simple system of civil litigation is provided in the CHT governmental courts. In the chiefs' and headmen's courts, legal representation is not allowed at all.
The proposed reforms, particularly in the plains, can be brought about through a law that specifically mentions that the concerned code will not apply to certain cases, or apply in a limited manner or with modification, as required. The paramount consideration being fairness and simplicity of procedure and the manner of providing evidence, saving of time, effort and costs. Appeals from such cases should only be allowed where the matter involves (a) complex constitutional issues; (b) other complexities of law; (c) patent error of law; (d) bias; and so forth.
Anti-discrimination boards
In various countries, such as the United Kingdom, in case of racial discrimination suffered in public employment, specially-authorized administrative bodies may compel public authorities to act in a non-discriminatory manner without requiring litigation in courts of law. Such boards, if established in Bangladesh, could take on matters of non-application of the adibashi/tribal quota in government jobs, for example, among other matters.
In various countries, such as the United Kingdom, in case of racial discrimination suffered in public employment, specially-authorized administrative bodies may compel public authorities to act in a non-discriminatory manner without requiring litigation in courts of law. Such boards, if established in Bangladesh, could take on matters of non-application of the adibashi/tribal quota in government jobs, for example, among other matters.
Appointment of ombudsperson and Adibashi Commission and strengthening of the Human Rights Commission
The 1972 Constitution provided for the appointment of an Ombudsperson, and an ordinary law too was passed to facilitate this. But we still don't have an ombudsperson. Our National Human Rights Commission which is severely under-staffed, under-funded and otherwise marginalised needs to be strengthened.
The 1972 Constitution provided for the appointment of an Ombudsperson, and an ordinary law too was passed to facilitate this. But we still don't have an ombudsperson. Our National Human Rights Commission which is severely under-staffed, under-funded and otherwise marginalised needs to be strengthened.
We have a neutral, efficient, and reasonably independent Election Commission and a Public Service Commission. We can take lessons from home and don't need to go elsewhere. India has a Scheduled Tribes Commission and a Scheduled Castes Commission. Nepal, similarly, is to have an Adibasi-Janajati Commission, a Dali Commission, a Women's Rights Commission, and a Muslim Commission. We can also establish similar commissions, staff them with appropriate people, provide a clear mandate, and above all, political support from the very top.
Lending a ear to the plains adibashis
Although the CHT has had its unfair share of violence and dislocation (including by the Kaptai Dam), its rugged and inhospitable terrain protected it from unrestricted migration over the centuries. Somewhat like in the case of our Bengal tigers in the Sunderbans, it is not the vigilance of our Forest Department that we must thank for the survival of these beautiful cats against surmounting odds but risks of coastal tides, attacks by felines and crocodiles, and robbers! The plains did not have that advantage, and now, the plains adibashis' settlements are small islands, minorities and marginalised. Unlike the CHT, where the offices of the chiefs, headmen and karbaries, and its district and regional-level councils, are formally recognised, the plains adibashis' traditional self-government systems are not recognised by the state. The plains Adibashis'numbers do not enable them to elect their fellow adibashis to local government bodies except at the lowest levels. The Special Affairs Division under the Prime Minister's Office, that once dealt with development matters of the plains adibashis, has ceased to function. It is therefore imperative to revive this Division and make it inclusive, democratic, transparent, and otherwise functional. It could be upgraded into a full ministry or a division within another ministry, for example. In addition, seats need to be reserved for the plains adibashis (and perhaps even the CHT paharis) in local government institutions. The commission chaired by former Adviser Dr. M M M Shoukat Ali so recommended, but to deaf ears so far. We could also take some ideas as appropriate - from India's Panchayati Raj system that combines elected, bureaucratic and traditional forms of governance and development in local governance.
Although the CHT has had its unfair share of violence and dislocation (including by the Kaptai Dam), its rugged and inhospitable terrain protected it from unrestricted migration over the centuries. Somewhat like in the case of our Bengal tigers in the Sunderbans, it is not the vigilance of our Forest Department that we must thank for the survival of these beautiful cats against surmounting odds but risks of coastal tides, attacks by felines and crocodiles, and robbers! The plains did not have that advantage, and now, the plains adibashis' settlements are small islands, minorities and marginalised. Unlike the CHT, where the offices of the chiefs, headmen and karbaries, and its district and regional-level councils, are formally recognised, the plains adibashis' traditional self-government systems are not recognised by the state. The plains Adibashis'numbers do not enable them to elect their fellow adibashis to local government bodies except at the lowest levels. The Special Affairs Division under the Prime Minister's Office, that once dealt with development matters of the plains adibashis, has ceased to function. It is therefore imperative to revive this Division and make it inclusive, democratic, transparent, and otherwise functional. It could be upgraded into a full ministry or a division within another ministry, for example. In addition, seats need to be reserved for the plains adibashis (and perhaps even the CHT paharis) in local government institutions. The commission chaired by former Adviser Dr. M M M Shoukat Ali so recommended, but to deaf ears so far. We could also take some ideas as appropriate - from India's Panchayati Raj system that combines elected, bureaucratic and traditional forms of governance and development in local governance.
In conclusion
Modern states, in order to be truly non-discriminatory, must abide by the supreme principle of international human rights law on non-discrimination, which in English-speaking lawyers' jargon is known as jus cogens, or peremptory norms of international law and hence, non-derogable. Peremptory means something that cannot be questioned and must be obeyed, immediately. In order to adhere to that principle, the state must account for the history of discrimination suffered by indigenous peoples and other disadvantaged groups. These are the people who had no role in national constitution-making. They didn't frame the 'rules of the game', and therefore, the playing field is not 'level' for them. True fairness and non-discriminatory conduct can only be brought about by taking contextually-appropriate measures, which are within the ambit of our constitution, and regarded as special provisions. Otherwise, discrimination will continue by acts and omissions, by design or default. We also need to supplement such measures by adopting an Adibashi Development Policy, if we are to ensure that our constitutional provisions on non-discrimination do not remain as hollow words only, for adibashis, minorities and other disadvantaged groups.
Modern states, in order to be truly non-discriminatory, must abide by the supreme principle of international human rights law on non-discrimination, which in English-speaking lawyers' jargon is known as jus cogens, or peremptory norms of international law and hence, non-derogable. Peremptory means something that cannot be questioned and must be obeyed, immediately. In order to adhere to that principle, the state must account for the history of discrimination suffered by indigenous peoples and other disadvantaged groups. These are the people who had no role in national constitution-making. They didn't frame the 'rules of the game', and therefore, the playing field is not 'level' for them. True fairness and non-discriminatory conduct can only be brought about by taking contextually-appropriate measures, which are within the ambit of our constitution, and regarded as special provisions. Otherwise, discrimination will continue by acts and omissions, by design or default. We also need to supplement such measures by adopting an Adibashi Development Policy, if we are to ensure that our constitutional provisions on non-discrimination do not remain as hollow words only, for adibashis, minorities and other disadvantaged groups.
Devasish Roy Wangza is the Chief of the Chakma in the Chittagong Hill Tracts, an advocate at the Supreme Court of Bangladesh (High Court Division) and an Expert Member of the United Nations Permanent Forum on Indigenous Issues.
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article courtesy: The daily star FORUM
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