Constitutional Reform & Indigenous Peoples’ Rights In Bangladesh – I:
Terminology on Identity: ‘Indigenous’ versus Other Terms
Devasish Roy, Chakma Chief
CONTEXT OF CONSTITUTIONAL RECOGNITION & THE ADIVASI MPS INITIATIVES -------1
THE ADIVASI MPs’ INITIATIVES -----------------------------------------------------------------1
INCLUSION OF INDIGENOUS PEOPLES’ RIGHTS ------------------------------------------------------ 3
UPAJATI --------------------------------------------------------------------------------------------------------------- 3
SMALL ETHNIC GROUPS ----------------------------------------------------------------------------------------4
MINORITIES -----------------------------------------------------------------------------------------------------------4
INDIGENOUS PEOPLES UNDER INTERNATIONAL LAW ----------------------------------------------5
INDIGENOUS, ABORIGINAL, ADIBASHI IN BANGLADESHI INSTRUMENTS --------------------6
WHY ADIBASHI ---------------------------------------------------------------------------------------- 7
CONTEXT OF CONSTITUTIONAL RECOGNITION The recent judgment of the Bangladesh Supreme Court in what has come to be called the 5th amendment case, declared the Constitution (Fifth Amendment) Act, 1979 (Act 1 of 1979) ultra vires and illegal and instructed the Government of Bangladesh to take legislative measures to revert to the original Constitution of 1972. This in turn has re-ignited demands from indigenous peoples from different parts of Bangladesh for specific and direct recognition of their identity and rights in the forthcoming amendment process, as previous demands on the issue had not been met by successive governments since 1972 to the present time. The ongoing demands are being articulated and promoted by different groups, in different forums and in different ways. I wish to solely discuss in this article the process initiated by the indigenous members of parliament in August, 2010 and which is still ongoing, and present my views on the appropriate terminology to be used in the context of reforms.
THE ADIVASI MPs’ INITIATIVESThe indigenous members of parliament, including ministers-of-state, Promode Mankin and Dipankar Talukdar, are known to have recently met Prime Minister Sheikh Hasina, who had reportedly agreed to consider the inclusion of Adivasi issues in the future constitution of Bangladesh. On 7 August, 2010, Minister Talukdar hosted a meeting at his Dhaka residence, which was participated in by all the indigenous MPs and a number of indigenous leaders from different parts of Bangladesh. At this meeting, a Constitutional Reform Drafting Committee on Adivasi Issues was formed with this writer as the chair. This committee met on 11 August, 2010, among themselves, and along with three indigenous MPs, on 13 August, both at the Dhaka residence of this writer wherein some draft proposals were deliberated and unanimously agreed upon. The proposals – contained in a columned matrix referring to existing constitutional provisions, desired amendment proposals and justification for the same - were refined further and presented to a larger gathering in Dhaka on 23 August, 2010, presided over by State Minister Promode Mankin. This writer presented the amended proposals, which drew considerable support, along with some friendly criticisms and suggestions, among the participants. This draft – which is being further refined and strengthened - will be annexed to the sequel to this article (as mentioned in footnote no 1, supra). It is hoped that the draft will help stimulate healthy debate so that strong proposals are ultimately presented to the constitution drafting committee and to the Government of Bangladesh by political groups, citizens’ groups, organizations and institutions of indigenous peoples and others.
INCLUSION OF INDIGENOUS PEOPLES’ RIGHTSThe ongoing debate and discussions on the appropriate terminology to be used to refer to the non-Bangali ethnic groups of the Chittagong Hill Tracts (CHT) and those of the “plains” regions of Bangladesh show varied opinions. Whilst variety and pluralism is desirable in many contexts, in the context of possible and imminent constitutional reform in Bangladesh and for the sake of clarity, unity and strategy, the most desirable way forward would be to promote consensus on the use of one set of terms. The use of correct terminology is also important because the term necessarily sets the context of, and defines the parameters of, the rights that attach to the concerned group of citizens it refers to, especially under national (Bangladeshi) law and also to an extent under international human rights law. In English, my humble opinion is that the most appropriate term is ‘indigenous peoples’. In Bengali, the equivalent is ‘adibashi jaatigoshthhi’. At the very least, even if the term ‘peoples’ is not used, we should insist on ‘indigenous’ in English and ‘adibashi’ in Bengali.
I shall attempt to justify my opinion through the “process of elimination”, by trying to demonstrate why and how the other terms under discussion or serious consideration are less desirable than ‘indigenous’. These include “upajati” (similar to, but not exactly, ‘tribal’), “khudro nrigoshthhi” (small ethnic groups) and “shongkhya loghu” (minorities).
UPAJATIAlthough ‘upajati’ (literally ‘sub-nation’ or ‘sub-ethnic group’) is probably a direct, and yet etymologically flawed, translation of the English term ‘tribe’/’tribal’, many feel that the former has more racist, derogatory and disparaging connotations than the latter. I am painfully aware of the fact that the term occurs 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 on the basis of the free, prior and informed consent (FPIC) of the peoples of the CHT. And in any case, the world, along with Bangladesh, has moved on from 1989 and 1997-98 to today. There may have been some justification for the use of the term “backward” in 1949 (when the Constitution of India was adopted) and, to a lesser extent, in 1972 (when the Constitution of Bangladesh was adopted), as philanthropic practices at the time had not learned to rid themselves of paternalism. At least that is the view of some, although I would not agree with such a view. Be that as it may, in today’s times of democratic norms when non-discrimination is regarded as a peremptory norm (or jus cogens) of international human rights law, I see no justification to continue to use such terms. Such an epithet may be used with some logic to describe an area’s economic status, or a state of technology (with which too I would have a quarrel, but I forgo that for the moment), in the case of a section of humanity, this is surely disrespectful, and more importantly, grossly inaccurate, and hence worthy of being permanently exiled into oblivion.
For the same reasons, there is every reason that we shun the term ‘upajati’ as well. Although the Khudro Nrigoshthhi Sanskritik Protisthhan Act of 2010 fails to satisfy the aspirations of those peoples in Bangladesh who regard themselves as indigenous or adibashi, it, however, provides, and quite rightly too, a clear rejection of the term ‘upajati’, which was hitherto attached to the name of the institutes concerned. This term should be condemned to the gutters for its colonialist and racist connotations. May I be permitted to congratulate the Government of Bangladesh on this, however much I (and other citizens) totally disagree with the use of the term ‘nrigoshthhi’ in this context (small, medium or large!). The respected academics who were engaged as experts by the Ministry of Culture to advise it on the terminology to be used in the law had unanimously urged the government to use the term “adivasi/adibashi” and to refrain from using other terms such as “upajati” or “nrigoshthhi” or “nritattik jonogohsthhi”. The use of the term “upajati” is also dying out in West Bengal and in Tripura State, India. And Hindi and Nepali never, thankfully, translated ‘tribe/tribal’ in this way. The latter two languages use the term ‘janajati’, which some accept and some find disparaging too. But surely it is less objectionable than ‘upajati’.
SMALL ETHNIC GROUPS While the term “small ethnic groups” may be preferable to ‘upajati’ or ‘tribe/tribal’, it too is problematic. In the first place, the indigenous peoples and the Bengali people are both ethnic groups and the ‘smallness’ of the indigenous peoples (in population?) should not be the basis to distinguish between the different ethnic groups because the difference in the numbers would lead to discrimination against those with small numbers and promote discriminatory attitudes among those with large populations. It is also inaccurate, because Urdu-speaking Bangladeshis would also then qualify as a “small ethnic group”. This would therefore be confusing and imprecise.
MINORITIESWhile the term minorities – whether ethnic, linguistic or religious – could accurately describe the indigenous groups of Bangladesh, it is still not as appropriate as indigenous as a human rights construct. In some respects, the discrimination that members of indigenous groups suffer may be similar to that of non-indigenous members of religious minority groups (e.g., Christians and Hindus) and ethnic and linguistic minority groups (e.g., urdu-speaking Bangladeshis), but in other respects the nature of discrimination against indigenous people is far deeper (on account of racist attitudes towards indigenous groups) and grounded in more structural and historic circumstances unlike in the case of other minorities groups (indigenous minorities were totally excluded from modern state formation and development, while non-indigenous minorities were not so excluded). Thus if we look at the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities (1992), we will see that while this brief instrument contains several provisions that address discrimination, such as of the nature that are suffered by members of indigenous and non-indigenous minorities groups alike, these are rights of individuals, and not that of a collectivity that pertains to the group as a group. It therefore fails to address several aspects of collective rights – e.g., with regard to customary law and traditional justice systems, customary land and territorial rights, right to self-determination and self-government - which, conversely, are adequately addressed in the UN Declaration on the Rights of Indigenous Peoples (2007), and to a lesser extent, in the ILO Conventions No. 169 and 107. The Vienna Declaration and Programme of Action adopted at the World Conference on Human Rights in Vienna in 1993 addresses the rights of ‘persons belonging to minorities’ and the rights of ‘indigenous people’ in separate paragraphs.
INDIGENOUS PEOPLES UNDER INTERNATIONAL LAW‘Indigenous Peoples’, and to a lesser extent, ‘indigenous people’, are established beyond doubt as the preferred globally accepted terminology – as invoked in several United Nations instruments - to refer to groups that are, or were, referred to as ‘aboriginal’, ‘tribal’, ‘hill tribes’, ‘scheduled tribe’, ‘ethnic minorities’, etc.. The World Bank and regional development banks too adopt the same language. As in the case of minorities, there is no formal definition of indigenous peoples in any international human rights instrument. The ILO Convention No. 107 (ratified by Bangladesh) provides some criteria to identify ‘indigenous’ and ‘tribal’ populations. The former are those that are (i) descended from historical population groups that inhabited the country at the time of conquest or colonization; and (ii) who live more in conformity with the social, economic and cultural institutions of these historic groups than with the ‘institutions of the nation to which they belong’. The CHT indigenous peoples fulfill both criteria on the nature of the institutions to which they belong and with regard to their presence in the concerned territory at the time of conquest (1787 by the British East India Company) and colonization (1860: annexation of CHT to Bengal by the British Indian government).
Perhaps one the most widely accepted ‘working definitions’ of indigenous peoples is the one provided by UN Special Rapporteur Jose Martinez Cobo, who includes the following criteria to identify indigenous peoples: (i) continuity with pre-invasion and pre-colonial societies; (ii) comprising non-dominant sectors of society; and (iii) determination to preserve, develop and transmit to future generations their ancestral territories and ethnic identity “in accordance with their cultural patterns, social institutions and legal systems”. If we summarize the above criteria, the following may emerge as the most crucial ones: (a) exclusion from (or only marginal inclusion in) the modern state-building and formal development processes; (b) continuing non-dominance (or marginalization) in major decision-making processes; (c) presence of customary law and traditional governance institutions; (d) close attachment to an ancestral or historical territory; and (e) geographic concentration in those territories. All of these criteria are applicable to the indigenous groups in the CHT, and in the plains of Bangladesh. Moreover, when it ratified the ILO Convention No. 107 in June, 1972, the Government of Bangladesh did not raise any objections to the use of the word ‘indigenous’. It would be mala fide, discriminatory and unacceptable for the government to now say that it accepts the ‘tribal’ epithet but not ‘indigenous’. Moreover, there are several Bangladeshi, including CHT-specific, laws that refers to the indigenous peoples as ‘indigenous’, ‘aboriginal’ and ‘adibashi’, as mentioned hereafter.
‘INDIGENOUS’, ‘ABORIGINAL’, ‘ADIBASHI’ IN BANGLADESHI INSTRUMENTS
The most important law for the CHT, the CHT Regulation, 1900 (Regulation I of 1900), uses the term “indigenous” to refer to the peoples living in the CHT other than the Bengali inhabitants. Most CHT laws of 1989 to 2009 use the term ‘upajati’ (Hill District Council Acts of 1989 and CHT Regional Council Act of 1998) or “tribal” {CHT Regulation (Amendment) Act, 2003}. In contrast, the Khudro Nrigoshthhi Sanskritik Protishthhan Act, 2010 (the Small Ethnic Groups Cultural Institutes Act, 2010) – which applies to the CHT and other parts of Bangladesh – uses the term “khudro nrigoshthhi” (small ethnic groups) to refer to the indigenous peoples. However, in the definitions section, when explaining the meaning of the term “khudro nrigoshthhi”, it uses the term “adibashi”, the Bengali equivalent of indigenous or aboriginal. Similarly, the Finance Acts of 1995 and 2010 use the terms “indigenous”. A yet earlier law, which applies to the “plains” regions but not to the CHT, the East Bengal State Acquisition and Tenancy Act of 1950 uses the terms “aboriginal castes and tribes”. The Poverty Reduction Strategy (PRSP) of 2008 and of 2009 use the term “indigenous people”, while the PRSP of 2005 used the term “ethnic minority/adivasi”. Also worthy of note is that three succeeding heads of government in Bangladesh, namely current prime minister, Sheikh Hasina (both as prime minister and as Leader of the Opposition), former prime minister and current opposition leader, Khaleda Zia, and then Caretaker Chief Adviser, Dr. Fakhruddin Ahmed, all used the term ‘adibashi’ in their goodwill messages during the celebrations of International Indigenous Peoples Day in Bangladesh.
WHY ADIBASHIAmong all the terms referred to above, the term ‘adibashi’ would be the most accurate and acceptable. Firstly, this is a word that is being increasingly used in the Bengali language, the official national language, in writing and orally, by indigenous people themselves and by progressive Bangali citizens, including a growing and large section of the private press and media. Secondly, it is also etymologically correct, as indigenous peoples of Bangladesh settled in the territories they now live in prior to the Bengali citizens (there is no evidence of indigenous peoples having forcibly occupied these territories by ejecting Bengali people). Thirdly, it is an accepted transliteration of ‘indigenous’. Fourthly, this would truly integrate the indigenous peoples into the mainstream body politic of the country without artificially and coercively assimilating them into the mainstream. And this can be done without disrupting national unity and integrity. Bangalis and Adibashis would both be Bangladeshi citizens. Fifthly, many laws and other governmental instruments already use the term (e.g., Cultural Institutes Act of 2010) or its English equivalents of ‘indigenous’ (CHT Regulation and Finance Acts) or ‘aboriginal’ (East Bengal State Acquisition & Tenancy Act of 1950).
The Constitution of Bangladesh needs to catch up with the times, and demonstrate to the world, and to the country’s citizens, that it truly reflects the pluricultural composition of its citizenry and their rich heritage of ethnic, linguistic, cultural, religious and spiritual diversity. I firmly believe that this would be in tune with the ‘spirit of 1972’. We just have to remind ourselves one important thing. In 1972, we were dealing with the ghosts of religious intolerance and the stifling of secular (at the time, largely, Bangali) cultural and linguistic identity, heritage, practices and expressions. In the last thirty-eight years, Bangalis and Muslims have been at the helm of state affairs and the national economy in Bangladesh. Of course, the cultural and religious identity and integrity of Bangalis and Muslims in Bangladesh may yet be threatened on occasions in today’s times of globalized uniformism and international market-worshipping trends. But it is unfair that this should be at the expense of further marginalizing the indigenous peoples of the country, who are even far smaller players, in both the national and global contexts. It is therefore the identity and culture if the non-Bangali and non-Muslim peoples that requires the equal protection of the state, with a spirit of affirmative action. This can only be done by redefining nationalism, socialism, democracy and socialism – the pillars of the 1972 Constitution – by drawing upon the principles and provisions of the international human rights treaties that Bangladesh has ratified from 1972 to 2010. Bangladesh has been a member of the new Human Rights Council for two succeeding terms. It will benefit us all to learn from this experience and give the country a real chance to maintain a respectable reputation in the comity of nations and at home.
