How far the Constitution of Bangladesh recognises the aboriginal citizens and their land rights of Bangladesh?
There is no special provision preserving the aboriginals minorities rights. Except State Acquisition & Tenancy Act 1950, there arent many laws in Bangladesh that directly or indirectly address aboriginal peoples. Very few Articles of Bangladesh constitution refer to the plains of aboriginal peoples. Let address their rights and socio-economic marginality in a direct manner. Some of the notable Articles are as follows:
1. Everybody is equal in the eye of law and is entitled to get equal protection of law. This is the prime right of the peoples of Bangladesh as it is mentioned in the constitution in Article-27.
In the case of “Nurul Islam Vs Bangladesh” Justice R.Islam said,
“The principle on which the doctrine of equal protection of laws is founded is that, persons in similar circumstances must be governed by same laws”
again in “Sheikh Abdus Sobur Vs Returning Officer and Others”, Justice ATM Afzal said,
“equal protection is the guarantee that similar people will be dealt within a similar way”.
2. The rule specified in Article-27 of the constitution of Bangladesh is broadly explained in Article-28, which outlaws discrimination on grounds of race,sex, religion or the place of birth specifically in Article-28(1) and Article-28(4) states that, nothing in this Article shall prevent state from making special provision in favour of woman or children or for the advancement of any backward section citizen.
Though the constitution of Bangladesh doesnt directly mentioned the aboriginal peoples, this forms a part of the citizens, which the constitution terms the “backward section of citizens”. As opined by the interviews, it is widely recognised that aboriginal peoples do not enjoy equal treatment before the law and administration.
3. Article-29 of the Bangladesh constitution gives safeguard for equal opportunity in public employment as it states:
(¡) There shall be equality of opportunity for all citizens in respect of employment of office in service of the Republic.
(¡¡) No citizen shall on grounds only of religion, race, sex, caste or the place of birth be ineligible for or discriminated against in respect of any employment of office in the service office of Republic.
The object of this Article is to create equality of opportunity in public enjoyment, it is apparently and theoretically good provision but minorities are little bit benefited. The constitution itself gives equality is not sufficient to give facility and to develop the minor group. It is emphatically true that several government discrimination policies make ineffective the constitutions guarantee.
4. Every citizen of Bangladesh is guaranteed the right to own property alone as well as in association with others under the provisions of Article-42.
5. Section-97 of the State Acquisition & Tenancy Act 1950, forbids the transfer of lands owned by aboriginals to non-aboriginal persons without the express consent of the governments district officer. This law along with the special provisions on restrictions of transfer of aboriginals land is specially protected in the constitution of Bangladesh under Article-47(2) and first schedule of complex land issues rather than on account of aboriginal people.
In contrast, the Chittagong Hill Tracts(CHT) has a far larger body of laws that refers directly to indigenous people. Some of these laws recognise indigenous peoples customs regarding the ownership and use of lands and other natural resources. The most important of such laws is the CHT regulation of 1900. Other laws include the Hill District Council Acts of 1989, the CHT Regional Council Acts 1998, the CHT Land Dispute Resolution Commission Act, 2001 and the CHT Regulation (amendment) Act 2003
There are also some Articles provided in constitution which seems are not favourable to the aboriginals. As for example Article-23, which states
“the state shall adopt measure to conserve the cultural traditions and heritage of the people. All the sections of the people are afforded the opportunity to contribute towards and to participate in the enrichment of the national culture”
But it is wrongly understood that national culture means the only Bengali Muslim culture and so why other ethnic or religious minorities so called Aboriginals never think that his provision is also applicable for their culture and religion. On step is taken to protect the culture of the minorities.
All the aforesaid provisions regarding equality will be ineffective if we overlook other Articles of constitution. According to Article-3 of the constitution of Bangladesh, the state language is Bangla, so it is the violation of the right of the aboriginals. Accordingly 25 and 11 language is accepted as the state language in India and South Africa. So Article-3 makes frightening aboriginal concerning survival and cultural existence.
To examine the laws of Bangladesh relating to aboriginals Limitation Act 1908recognises the right to land as customary right the that is acquired by prescription or by possession. According to this law if any body enjoys any personal property over 20 year or any public property over 60 years without any protest peacefully such possession shall be turned into legal right. The aboriginal is residing in Bangladesh from immemorial time. And they become gradually owner of the property on the concept of traditional collective ownership. But this right often denied. As a result they transferred from the traditionally acquired land and it is done in the name of so called public interest [this process is also mentioned in sub section 10, section 97 of State Acquisition and Tenancy Act 1950]
According to section 20 of the Forest Act 1927 if any forest is declared as “reserved” the right to enjoy traditional collective ownership shall not be observed. But the provision of this Act are being abused. As for example ‘Madhupur Forest’ is declared as the reserved forest that is why Garo aboriginal lost their land. The Forest Act 1927, was amended in 1989 by this amendment, all the forest are considered as “government trusted land” and that trusted property are controlled by forest office. Again forest officer declared this forest as national property.
The recent judgement of the Bangladesh Supreme Court in what has come to be called the 5th amendment case, declared the constitution (5th amendment) Act, 1979 (Act 1 of 1979) ultra vires and illegal and instructed the govt of Bangladesh to take legislative measures to revert to the original constitution 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 forums and different ways.
The government should ensure constitutional recognition of the rights of aboriginals in plains and in the CHT. They should also effectively implement existing constitutional provisions on affirmative action and equal opportunities for all without discrimination on ground of race, religion and language. The constitution of Bangladesh is basically a one nation centric document. It doesnt observe the existence of the aboriginal people. The reality is that this silence hinders the development of a multicultural society. Moreover this approach made us thinking that the aboriginals are foreigners in this country. These aboriginals definitely needs recognition.
However recent government of Bangladesh has taken some positive steps to reconcile the problem, some of those are as follows:-
1. Setting up of a social affairs division under the prime ministers office particularly for plains land aboriginals peoples.
2. Shining of the CHT(Chittagong Hill Tracts) peace accord with PCJSS(Parbatya Chattagram Jana Sanghati Samiti) as a solution of the CHT problems through political and peaceful means and established of CHTRC(Chittagong Hill Tracts Regional Council) and HDC’s (Human Development Corporation) as special administrative arrangement for the CHT.
3. Enactment of the CHT Land Dispute Resolution Commission Act of 2011
4. Amendment of CHT Regulation 2003 for establishment of a separate district judge court in CHT
5. Inclusion of the terme “Adivasi” and indigenous peoples issues in the Poverty Strategy Paper(PRSP)
6. Continuing of quota reservation in the government jobs and educational institution for “tribal” people etc