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Thursday, August 1, 2013

The constitution has been amended that goes against such indigenous people, because they are losing their recognition internationally-illustrate and explain.


1.0 Introduction:
Bangladesh is a country with 15 crores people, among them 98% are Bengalis, and they do speak Bangla Language. The minorities include Chakmas[1], Khasi, Santhal and other tribes numbering more than a million (about 1.2% of total population) who mostly live in the various hilly regions in the Chittagong Hill tracks. According to history, they are originally from Arakan (present Rakhine State of Burma) who hundreds of years ago wandered and settled in different parts of India and Bangladesh.
Bangladesh has used different term to refer to its indigenous[2] peoples. Legal and policy documents of the Government of Bangladesh (GOB) use the terms ‘indigenous’, ‘aboriginal’, ‘adivasi’, ‘ethnic minority’, ‘hillmen/hillpeople’ and/or ‘upajati’ (subnation/tribe/tribal). A vocal group of indigenous peoples mostly prefer the term ‘indigenous’ in English and ‘Adibashi’ in Bengali. They reject the terms ‘upajati’ (subnation) and ‘tribe’ because of connotations of ‘backwardness’ and ‘primitiveness’. Other terms acceptable to a large section of the indigenous population include ‘Jumma’ (from the common heritage of ‘jum[3]’ or swidden cultivation) and ‘Pahari’ (hill people).
The constitution has been amended 14 times, and it has both the pitfalls and the benefits to the overall society. Such changes were included, that goes against such indigenous people, because they are losing their recognition internationally.
2.0 Indigenous People in Bangladesh
Estimates on the number of indigenous peoples in Bangladesh, and their population, tend to vary a great deal. Without accounting for differences in the way the names of some peoples are spelt, the number of the different peoples has been estimated as twelve[4], twenty[5], twenty-eight[6], thirty[7], forty-five[8] and forty-six[9]. The reasons for the different numbers includes the multiple names by which the same group is known by different peoples, the different ways of spelling the names of the groups, the categorization of a sub-group as a separate group itself, and so on[10].

The differences are particularly sharp for the peoples of the plains, with the number clearly rising in recent years, indicating a conscious decision of some peoples to increasingly identify them as indigenous. In recent years, members of tea estate workers – largely descendants of migrant workers of indigenous descent from neighboring areas of India, who remain among the most socially, economically and politically marginalized sections of Bangladeshi citizens – have also chosen to participate in forums of indigenous peoples.
One writer sees this rising tendency towards self-identification as indigenous or Adivasi as a result, among others, of “international ethnic politics”, and “efforts of some Hinduized groups to disassociate themselves from the caste system”, particularly in the plains districts. While this may be partly true at best, acute discrimination against plains Adivasis is surely also a major factor behind the denial of Adivasi identity up to the 1990s. The problem in Bangladesh is not so much one of pretenders seeking indigenous status, but more one of denial of identity and rights of genuine indigenous people. Sometimes inter-faith conflicts within the same ethnic group coupled with discriminatory attitudes of district and sub-district government officials has even led to the denial of certificates of Adivasi origin – required for admission into Adivasi/tribal quota seats of certain educational institutions – on account of religious affiliation[11].
2.1 The status of Indigenous People
In recent months many Bangladeshi indigenous people have taken the streets holding meetings, human chains and rallies, demanding constitutional recognition of their population. The ‘indigenous’ debate arose after some remarks of a special parliamentary committee working to amend the present constitution reverting back to the 1972 constitution[12]. There was no reference of tribal or indigenous people in Bangladesh’s first constitution of 1972 where it was mentioned that Bangladesh would be the land of Bengalis.
The issue of constitutional recognition[13] of indigenous peoples in Bangladesh, raised by indigenous people themselves and civil society has attracted considerable attention and generated debate in recent times. The main objective of such argument tends to whether indigenous people should be recognized in the constitution by virtue of their being indigenous. However, many argue that this demand is contentious, largely because it is incompatible with the concept of equality of rights.
3.0 Relation between indigenous people with constitution
The ILO Convention on Indigenous and Tribal Populations of 1957 (Convention No. 107), and its accompanying Recommendation No. 104, were adopted in 1957[14]. Described as a ‘seminal instrument’, the convention is regarded as having “remained unique in international law as the only comprehensive international statement of the rights of indigenous and tribal populations and of the duties of states toward them from 1957 until 1989”. Convention No. 107 covers a wide range of issues, including land, recruitment and conditions of employment, vocational training, handicrafts and rural industries, social security and health, administration, education and means of communication. Reflecting the ‘mainstream’ ideas of the time, the Convention sought to provide basic safeguard measures for indigenous and tribal population groups.
In 1989, ILO Convention No. 107 was revised and the more progressive ILO Convention on Indigenous and Tribal Peoples of 1989 (Convention No. 169) was adopted. The latter was adopted in order to incorporate current perspectives on the protection of the rights of indigenous peoples. It dismissed the ‘integrationist approach’ of Convention 107, recognizing instead the right of indigenous and tribal people to exist as a distinct “peoples”, should they wish to do so. This paradigm shift was the result of several developments, especially since the 1980s[15]. Since 1989, further ratifications of Convention No. 107 are no longer open, but it continues to be valid for those countries that have ratified it, and have chosen not to ratify the later convention of 1989. By 1989, nineteen countries had ratified ILO Convention No. 107, while twenty countries have ratified Convention No. 169, including only two countries in the Asia-Pacific region, Fiji and Nepal[16].
3.1 Background to Ratification of Convention No.107
The ILO Convention No. 107 was ratified by Bangladesh in 1972, a year after it gained independence from Pakistan[17]. However, as a part of former Pakistan, the convention had applied to Bangladesh even prior to independence. Pakistan – a signatory to the Convention – had ratified the instrument in 1960[18]. However, apart from the periodical observations of the ILO’s Committee of Experts – upon which body is vested the responsibility of monitoring the implementation of the ILO conventions – and a number of ILO mission visits to Bangladesh, direct dialogues and contact between the ILO and the Government and indigenous people of Bangladesh have been quite limited, including at the country level[19].
The ILO Conventions:
4.0 Provisions in the constitution of Bangladesh
After the development of the constitution in 1972, Bangladesh does not have proper guidelines for these indigenous people, and hence failed to support them during the hard times. However, there are some provisions and acts that have been used for such peoples.
A)    The East Bengal State Acquisition and Tenancy Act, 1950
The East Bengal State Acquisition and Tenancy Act, 1950 (Act XXVIII of 1950) is the major law regulating land administration in the plains.[20] A small part of this statute – at Section 97(1)(2) – deals with restrictions on the transfer of lands of “aboriginal castes and tribes” to any other than “[aboriginals] domiciled or permanently residing in Bangladesh”.
B)    The Drugs and Alcoholic Substances Control Act, 1990
The Drugs and Alcoholic Substances Control Act, 1990 (Act XX of 1990) exempts “tribals” – both in the plains and in the CHT – along with tea estate labourers and the castes of “Muchi” (cobbler), ‘Methor’ (sweeper) and ‘Dom’ (fisher-people or cremation ground cleaners) from criminal prosecution for consuming traditionally brewed or distilled alcoholic beverages[21].
C)    The Vested Property Act, 1974
In the plains, another tool used by influential and unscrupulous land-grabbers has been the Vested and Nonresident Property (Administration) Act, 1974 (Act XLVI of 1974), generally known as the Vested Property Act[22]. This Act is based upon a number of laws framed in 1965 and thereafter, to deal with properties of people who went over to India, with which country Pakistan (Bangladesh was then the eastern wing of Pakistan) was at war with in 1965.
D)   The Forest Act of 1927
In addition, there are a number of other laws, which do not specifically mention the plains indigenous people, but are of direct relevance to their land and resource rights. One such law is the Forest Act of 1927 (Act XVI of 1927), which regulates the manner of the administration of forest areas and forest produce.
E)    The CHT Regulation, 1900
The CHT Regulation of 1900 (Act I of 1900), is undoubtedly one of the most important laws of the CHT. It “lays down a detailed policy for the general, judicial, land, and revenue administration of the region and defines the powers, functions and responsibilities of various officials and institutions. It stipulates the manner and extent of the application of other laws to the region, many of which apply only to the extent that they are not inconsistent with the Regulation[23].” Thus it functions in the nature of a constitutional legal instrument, which vets the application of other laws to the region, although it no longer enjoys any formal constitutional status.
F)    The Hill District Councils Acts of 1989
The Hill District Council Acts of 1989 (Acts XIX, XX & XX of 1989) established three identically-empowered councils at the district level, reserving two-thirds of their seats and the office of the chairperson, for ‘tribals’. According to this Act, the number of seats for the members is to be allocated according to ethnicity and, ostensibly, the relative population of the different ethnic groups. The councils were provided limited authority over a number of district-level government departments.
G)   The Social Forestry Rules
Another law that affects the land rights of indigenous peoples is a delegated law, namely, the Social Forestry Rules of 2004, passed in accordance with the aforesaid Forest Act of 1927 [sections 28A(4) and 28A(5)]. These rules contain detailed provisions for social forestry projects, and “ethnic minorities” (a phrase that would include most groups legally classified as indigenous, tribal or aboriginal) are among those that are to be given priority in selection as beneficiaries of the project (along with landless people and “destitute women”).
H)   Customary Personal Laws
Bangladesh, as in Pakistan, India and Malaysia, has no uniform civil code of general application to govern the family laws of all its citizens. Instead, rules concerning marriage, divorce, separation, maintenance, advancement, child custody and inheritance, and other related matters, are regulated in accordance with the ethnic or religious affiliations of the citizens concerned. Thus, while Muslim Law governs the family laws of Muslim Bangladeshis, and Hindu law governs the family law of the Hindu Bangladeshis, the rules of family matters of the indigenous peoples are governed by their customary laws, which are largely unwritten, generally irrespective of their religious affiliation or spiritual beliefs. This is also the case with the hill peoples of the CHT.
I)      Personal Laws of Adivasis and Justice Administration in the Plains
The personal laws of indigenous peoples of Bangladesh, both in the plains and in the CHT, are regulated by their own customs, traditions and practices. In addition, the CHT also has its own justice system, including traditional indigenous chiefs (rajas) and headmen, whose justice administration and other functions are formally recognised by law.
5.0 Main concerns that affect Indigenous peoples due to changes in provisions are:
(1) Retaining of “BISMILLAH-AR-RAHMAN-AR-RAHIM” (In the name of Allah) In the preamble of the constitution.
(2) Retaining of ISLAM as state religion: Islam alone cannot be the state religion as there are people who practice and follow other religions such as Hindu, Christian, Buddha and Indigenous Practices.
(3) Non recognition of Indigenous Peoples as Indigenous (Adibasi). Upajati(tribes)/Khudra Jatisatta(minor races)/Nrigosthi-sampradai(ethnic sects and communities) are the terms inserted. These terminologies are not acceptable to the indigenous peoples.
(4) The Nationality and Citizenship: The People of Bangladesh shall be known as Bengali as a nation and the citizens of Bangladesh shall be known as Bangladeshis. Indigenous peoples of Bangladesh do not want to be known as Bengali. In this way Indigenous peoples own national identity will get lost.
(5) Freedom of Association: There is every possibility for the political parties/organizations/associations of the Indigenous Peoples to be stopped terming them communal.
6.0 Conclusion
Parbatya Chattagram Jana Sanghati Samiti (PCJSS) protested against terming indigenous peoples as ‘Bengali’ and non-recognition of indigenous peoples and Chittagong Hill Tracts (CHT) Accord of 1997 in the Constitution. PCJSS rejected the Fifteen Constitution (Amendment) Bill 2011 and asked the government for its revision.
PCJSS leaders expressed their agitation in a large public meeting held on 8 July 2011 in Rangamati district headquarters in the CHT reiterating their demands for full implementation of the CHT Accord. It is mentionable that as per verdict of Supreme Court, Awami League-led present grand alliance government amended constitution of Bangladesh. For this purpose, Jatiya Sangsad (National Parliament) passed Fifteen Constitution (Amendment) Bill 2011 on 30 June 2011.
The government did not provide constitutional recognition of indigenous peoples as indigenous peoples (Adibasi); rather, termed tribals, small nationalities, ethnic group and communities. These terminologies are not accepted by the indigenous peoples.
BIBLIOGRAPHY
Anaya, S. James, 2009. “The UN Rapporteur on the Rights of Indigenous Peoples”, paper submitted to the International Expert Seminar on the implementation of indigenous peoples’ rights: The Role of the UN mechanisms with a Specific Mandate regarding the Rights of Indigenous Peoples, held in Madrid on 4-6 February, 2009, and co-organized by the NGOs, Almáciga from Spain and the International Work Group for Indigenous Affairs (IWGIA) from Denmark, and supported by the Spanish Cooperation Agency for International Development Cooperation (AECID), under the Spanish Foreign Ministry.
Asian Development Bank, 2001. Chittagong Hill Tracts Region Development Plan, (ADB TA # 3328 – BAN), Final Report No. 9, “Indigenous People of CHT”, KIT, in association with SODEV Consult, CDP, ARCADIS EUROCONSULT, DPC, Rangamati, February 2001.
Chakraborty, Ratan Lal, 1977. “Chakma Resistance to Early British Rule in `Bangladesh Historical Studies”, Journal of the Bangladesh Itihaas Samiti, Vol. II, pp. 133-156;
Cobo, Jose Martinez, 1986. Study of the Problem of Discrimination Against Indigenous Populations, UN Document: E/CN.4/Sub.2/1986/7/Add.4.
General Economic Division, Planning Commission, Government of People’s Republic of Bangladesh, 2005. Unlocking the Potential: National Strategy for Accelerated Poverty Reduction, Dhaka, 30 October, 2005 (“PRSP-I”).
General Economic Division, Planning Commission, Government of People’s Republic of Bangladesh, October, 2008. Moving Ahead: National Strategy for Accelerated Poverty Reduction II (FY 2009-11) (”PRSP-II”)
Gray, Andrew, 1996. “Indigenous Peoples at the United Nations: The Declaration reaches the Commission on Human Rights”, IWGIA, The Indigenous World: 1995-96, pp. 249-255.
Indigenous Affairs (IWGIA), (undated). Indigenous Peoples, Forest and Biodiversity, Copenhagen.
International Labour Office (prepared by Manuela Tomei & Lee Swepston), 1995. A Guide to ILO Convention No. 169 on
Indigenous and Tribal Peoples, Equality and Human Rights Coordination Branch, Geneva.
International Labour Office, 2003. ILO Convention on Indigenous and Tribal Peoples, 1989 (No.169): A Manual, Geneva.
International Work Group for Indigenous Affairs (IWGIA), 1999. Indigenous Affairs, No. 1, January-February-March, 1999, Copenhagen.
Lewin, Capt. T. H., 1869. The Hill Tracts of Chittagong and the Dwellers Therein; with Comparative vocabularies of the Hill Dialects, Bengal Printing Company Ltd., Calcutta.
Majumdar R. C., H. C. Raychaudhuri & Kalinkar Datta, 1967. An Advanced History of India, Macmillan, London, 3rd ed.
Maloney, C, 1984. “Tribes of Bangladesh and Synthesis of Bengali Culture”, in Qureshi (1984: 5-52).
Mey, Wolfgang, 1984. Implications of National Development Planning for Tribal Concepts of Economy and Politics: A Contribution to a Critique of Concepts of Development in Mahmud Shah Qureshi (ed.), “Tribal Cultures in Bangladesh”, Institute of Bangladesh Studies, Rajshahi University, Rajshahi.
Quader, G. M. (2008, 08 17). thedailystar. Retrieved 10 04, 2011, from www.thedailystar.net: www.thedailystar.net
Qureshi, M. S. (Ed), 1984. Tribal Cultures of Bangladesh, Rajshahi University, Rajshahi.
Rahman, Prof Dr. Mizanur (ed), 2006. The Garos: Struggling to Survive in the Valley of Death, ELCOP, Dhaka.
Review Team on Danish Strategy for Indigenous Peoples, 2001 (Tove Søvndahl Petersen, Alfredo Vitery, Naomi Kipuri, Raja Devasish Roy, with facilitation by Birgitte Feiring and Lisbeth Sivertsen). Review Report on Strategy for Danish Support to Indigenous Peoples, Copenhagen, September, 2001.
Roy, Chandra and Mike Kaye, 2002. The International Labour Organization: A Handbook for Minorities and Indigenous Peoples, Anti-Slavery International and Minority Rights Group International, London.
Roy, Raja Bhuvan Mohan, 1909. “History of the Chakma Raj Family”, in Muhammed Ishaq (ed), Ishaq, Muhammed, 1975. Bangladesh District Gazetteers: Chittagong Hill Tracts, Ministry of Cabinet Affairs, Dhaka, 1975, pp. 33-36.
Roy, Raja Devasish, 1994. “Land Rights of the Indigenous Peoples of the Chittagong Hill Tracts” in Shamsul Huda (ed), Land: A Journal of the Practitioners, Development & Research Activists, Association for Land Reform and Development (ALRD), Dhaka, February, 1994, Vol 1, No. 1, Dhaka.
[1] Chakmas are ethnically Tibeto-Burman, and are closely related to the Himalayan tribes.
[2] “Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.”
[3] The local name for swidden cultivation and used in Northeast India. Also referring to as “shifting”, “rotational” or “slash-and-burn” agriculture. Rainfed cultivation that involves burning of vegetation and planting of mixed seeds without hoeing or ploughing.
[4] Bertocci (1984) in Qureshi (1984: 346, 358).
[5] Timm (1991: 14).
[6] The 1991 Census recognizes twenty-eight ‘tribes, see table 1, supra.
[7] Bleie (2005:13).
[8] This is the estimate of the Bangladesh Adivasi Forum in Drong (2005:58); See also, Bleie (2005:13).
[9] Maloney, 1984 in Qureshi (1984: 5-52).
[10]  For a fuller discussion on the conflicting numbers and names, see Khaleque, 1998 in Gain (1998: 7-10). See also, Bleie (2005: 11-15).
[11] On a number of occasions, including in 2008, Christian Adivasis, including among the Santal, were denied certificates of Adivasi origin by district and sub-district officials on the ground that they were “Christian” and hence not “Adivasi”; Interview of Dr. Sourav Sikder, Associate Professor and Chairperson, Department of Linguistics, University of Dhaka, 23 March, 2009.
[12] Bangladesh has developed the constitution in 1972, after the year of independence.
[13] Bertocci (1984) in Qureshi (1984: 346, 358).
[14] International Labour Conference, Record of Proceedings, 39th Session (Geneva 1956) and International Labour Conference, Record of Proceedings, 40th Session (Geneva 1957), cited in Swepston (1990: 680). Another potential ILO Convention of relevance for indigenous peoples is Convention No. 111 concerning discrimination in employment. Many of the convention’s provisions are compatible with Article 29 of the Constitution of Bangladesh.
[15] Roy & Kaye (2002: 21). The Declaration on the Rights of Indigenous Peoples was finally adopted in 2007, nearly twenty-five years after the process of drafting started.
[16] The countries that have ratified ILO Convention No. 107 are: Angola, Bangladesh, Belgium, Brazil, Cuba, Dominican Republic, Egypt, El Salvador, Ghana, Guinea-Bissau, Haiti, India, Iraq, Malawi, Pakistan, Panama, Portugal, Syria and Tunisia. The countries that have ratified ILO Convention No. 169 are: Argentina, Bolivia, Brazil, Colombia, Costa Rica, Denmark, Dominican Republic, Ecuador, Fiji, Guatemala, Honduras, Mexico, Nepal, Netherlands, Norway, Paraguay, Peru and Venezuela.
[17] Ratified on 22 June, 1972, about six months before the adoption of the Constitution of Bangladesh.
[18] Ratified on 15 February, 1960.
[19] The CEACR’s Observation of 1991 (61st session) mentions the visit to Bangladesh of representatives of the Director-General of the ILO and their discussions with Bangladesh government officials, and discussions between Government representatives with the Conference Committee. Dissatisfaction had been expressed at a number of meetings at what was considered to be inadequate participation of the ILO’s country office in collaborative developmental efforts and dialogues concerning the indigenous people, including at a National Consultation on ILO Convention No. 107 and Indigenous Peoples’ Issues, organized by the Bangladesh Indigenous Peoples Forum in association with the ILO Office, Bangladesh, in Dhaka, on 20 June, 2006 and at a Regional Training for Professional Staff on Indigenous and Tribal People in Asia, organized by the Asia Indigenous Peoples Pact (AIPP), the International Labour Organization (ILO) and the International Work Group for Indigenous Affairs (IWGIA) in Chiangmai, Thailand, on 26-30 June, 2006. In June 2006, a mission from the ILO office, including from the Project to Promote ILO Policy on Indigenous and Tribal Peoples based in Geneva and New Delhi, visited various parts of Bangladesh and met indigenous leaders and government officials. The team included Birgitte Feiring, Coen Compier and Sarah Webster. This was followed by training workshops on the  LO Convention No. 107 and Indigenous Peoples in Sylhet on 26 October, 2008 (attended by Coen Compier and Sarah Webster) , and in Mymensingh on 28 October, 2008.
[20] The East Bengal State Acquisition and Tenancy Act, 1950 is based upon the Bengal Tenancy Act, 1938, which itself is rooted in the Chota Nagpur Tenancy Act, 1908, the Indian Tenancy Act, 1878 and the Permanent Settlement Act, 1793. See, Timm (1991: 20).
[21] These laws include the Defence of Pakistan Ordinance, 1965 (Ordinance No. XXIII of 1965), the Defence of Pakistan Rules, 1965, the Enemy Property (Custody and Registration) Order, 1965 and the Enemy Property (Continuance of Emergency Provisions) Ordinance, 1969 (Ordinance I of 1969). For a detailed discussion of the genesis of this law, and for case studies on its misapplication against religious minorities, Barkat et al (1997: 17-54, 95-114).
[22] This committee was also formed at the aforesaid meeting mentioned in footnote 81 above. Parallel to the dialogues on the above-mentioned matters, a number of consultations were also held to amend the law regulating extraction and transit of forest produce in the CHT, namely, the CHT Forest Transit Rules of 1973, to enable CHT farmers to sell the produce of their plantations without harassment and bureaucratic red tape. The draft of the amended Forest Transit Rules were sent by the A. K. Shamsuddin, Chief Conservator of Forests to the Secretary, Ministry of Environment & Forests vide his Memo No. Pra Ba Sha (Sha)/ -7 R-8 (Part-4)/2008/1532 dated 24/12/2008. A proviso to section 3 of the existing Rules exempts “members of hill tribes” using firewood and “minor forest produce” for home consumption in areas outside the reserved forests from the requirements of obtaining licences and permits from the Forest Department. If the amendments are accepted, it is expected that the customary forest rights of the CHT indigenous peoples would be strengthened and local tree farmers would be able to make a living without discrimination.
[23] Roy (1994:16). While explaining the background of the Regulation, the Secretary of State for India was advised that the “regulation has been framed on the principle that it should contain only a few substantive provisions, the details of the administration being regulated by rules to be issues under powers conferred by the Regulation… The officer in charge of the Hill Tracts will continue to exercise the powers of a District Magistrate, and the Commissioner those of a Sessions Judge and also of a High Court….”; Extract from Memo No. 316, dated, Simla, 7 September, 1899 from the Government of India, Finance and Commerce Department to the Secretary of State for India, Chakma Raja’s Archives, Rangamati.
Source:http://www.lawyersnjurists.com/articles-reports-journals/law-and-ethics/constitution-amended-indigenous-people-losing-recognition-internationally-illustrate-explain/
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1 comments:

  1. I worked in E. Pakistan/Bangladesh from 1970-81 beginning the construction of LAMB Hospital in Parbabtipur, Dinajpur District. One of main individuals who was so welcoming was a Santal, Pastor Joseph Soren. I have been going through some slides of that time period and have some of him baptizing some Santals. Your posts are interesting. Thanks! Rev. Art Bliese

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