Aboriginal Peoples are indeed indigenous to Bangladesh-illustrate and explain.
The overall justice system in Bangladesh has long been seen to provide a fading service to the population in general and for indigenous people in particular. Most of the approaches which have been adopted to date to enhance access to justice, whether systemic, institutional, social or pedagogic, have marginalized the rights of indigenous peoples, been inadequate in their outreach and largely insensitive to questions of cultural uniqueness. With a few notable exceptions, there is generally little institutionalized understanding of Adivasi rights or concerns, and even less so with regard to the rights of Adivasis from vulnerable groups, who experience intersecting discriminations, e.g. women, children or persons with disabilities or the elderly, within formal and informal justice institutions. Bangladesh has a unitary system of government, but with radically different institutional frameworks governing the rights of Adivasis in the plains and Hill people. The former are governed by the same administrative and judicial bodies as in other parts of Bangladesh, while a special system comprising of statutory bodies with regional and local powers, working in tandem with traditional institutions is applicable for Hill people.
This case study aims to identify the status of Indigenous people in the light of constitution of Bangladesh as they seek access to formal and traditional justice systems. It also focuses on their right to access to land and forests, their right to life and liberty and personal security, their right to gender justice and finally their right to participation and representation. It outlines the legal framework, including both formal and non-formal justice systems, as applicable to indigenous peoples. It sets out the pertinent institutional framework, and then analyses the key obstacles indigenous peoples face in obtaining access to both the formal and non-formal justice systems against the background of the overall situation concerning access to justice for the majority populations of Bangladesh.
3. Indigenous People
Indigenous means “native to the area.” In this sense, Aboriginal Peoples are indeed indigenous to Bangladesh. Its meaning is similar to Aboriginal Peoples, Native Peoples or First Peoples. Indigenous people are those that are native to an area. In Bangladesh there are 29 indigenous groups, approximately 1.2 million and 1.13% of the total population (Census Report: 1991). Among them the Garo is one of the largest indigenous communities of Bangladesh. They live in the north-eastern parts of the country especially in Gagipur, Mymensingh, Netrokona, Tangail, Sheerpur , Jamalpur and some in Syllet districts close to the Indian border. There are almost 100,000 Garos in Bangladesh, many more Garos live in the Meghaloya in Indian side but gaps exist between the government official figures and private estimates. A sample survey of 1979, conducted in Bangladesh, found that 20% of Garos do not possess any land, 30% have only a homestead, 30% worked as hired laborers’ and 20% cultivate mortgaged land. The indigenous people of Bangladesh are currently fighting for their rights as people: the rights to own land, to be free from prejudice, and to have their lands protected from society.
The people indigenous to Bangladesh are an extremely noteworthy group. The Bangladeshi population originally derives from four ethnic sources. From the beginning, the country has been a mixture of many “races” of people. The most populous indigenous peoples in Bangladesh are the Santal (200,000), Chakma (195,000), Marma (66,000) and Mandi (60,000). Of these the first and last are considered plains-dwelling Adivasis, with the Mandi living in north-central Bangladesh and the Santal in the north-west. In comparison with Bengalis, Adivasis are generally regarded by Bengalis themselves as more open, friendly, generous and honest. They have a strong relationship with the land and there is a deep interrelationship between their religious beliefs (animism) and their social structure.
The Garos (Mendi) Adivasi, a distinguished matriarchal community of Bangladesh is now living under a changing situation. While the Garo culture is changing then they are discarding many of their distinguished traits and accepting some others’ cultural traits.
4. The Constitutional and Legal Framework
4.1 International human rights framework
Bangladesh is bound under international human rights law to respect fundamental human rights, including those of indigenous peoples. It has specific treaty obligations to protect, endorse and fulfill human rights pursuant to its ratification of the major human rights treaties, including the ICCPR, ICESCR, CERD, CEDAW, CAT and the CRC. However, it should be noted that there are a number of significant declarations/reservations made with regard to several of these, the most pertinent is the rights of indigenous peoples as reservations to the ICCPR and ICESCR regarding equality, and to CEDAW (particularly, Article 2 – obligation to implement and Article 16 – rights within the family). The concluding comments and observations of the respective Treaty Bodies on Bangladesh’s state reports provide valuable guidance on the steps required to ensure effective implementation by Bangladesh of its treaty obligations.
4.2 Constitutional framework
The Constitution of Bangladesh, adopted on 4 November 1972, guarantees fundamental rights to equality before the law, and for citizens to be treated in accordance with law, and to enjoy equal opportunities with regard to public employment or education, to life, liberty, personal security, and freedom of movement, assembly and association, expression, religion, profession and occupation and property, and to the protection of home and correspondence (Articles 27-43). The Constitution further guarantees the right to seek judicial remedies for violations of human rights (Article 44).
4.3 Legal framework
The country’s Constitution and criminal law applies to all persons across the country, although the Code of Criminal Procedure (1898) is sometimes applied in a modified form in the CHT. In the plains, civil laws applies uniformly to all persons (with some particular provisions operating in relation to property rights of Adivasis). A significant exception, and recognition of pluralism, is with regard to faith-based personal laws which vary depending on the religious identity of the person(s) concerned.
5. THE LAWS OF THE PLAINS AND INDIGENOUS PEOPLES
The only substantive law that deals with the plains indigenous peoples is the East Bengal State Acquisition and Tenancy Act, 1950. Another law that mentions plains indigenous peoples – along with those in the CHT – is the Drugs and Alcoholic Substances Control Act, 1990. In addition other laws that affect plains indigenous peoples, although they do not directly refer to these peoples, include the Vested Property Act, 1974 and the Forest Act, 1927, including subsidiary rules framed under the last-named Act. In addition, there are the personal laws of the different peoples, which are regulated largely by traditional customs and practices. Therefore, the overall situation of extremely limited legislative, administrative and supervisory measures concerning indigenous peoples’ issues of the plains area illustrates a state of affairs that falls far below the standard that was contemplated in Part VII (Article 27) of Convention No. 107. This contrasts with the situation in the semi-autonomous CHT region in the southeast, where one sees much more elaborate legislative, administrative and supervisory mechanisms concerning indigenous peoples’ issues.
5.1 The Vested Property Act, 1974
A 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. 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. The 1974 Act has been indiscriminately used against different minority groups, including indigenous peoples in the northwestern Rajshahi division, and against Mandi (Garo) people in north-central Bangladesh, among others. Although the law has since been repealed, certain loopholes stand in the way of redressing wrongs perpetuated in its name. The return of lands of indigenous people taken over by invoking the Vested Property Act is one of the 9-point demands of the Jatiyo Adivasi Parishad, the main organization of the indigenous peoples of the northwest.
5.2 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 rulescontain detailed provisions for social forestry projects, and “ethnic minorities” (a phrase that would include mostgroups 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”). The aforesaid provisions are compatible with article 15 of Convention No.107, which concerns prevention of discrimination against indigenous and tribal workers, and special measures for their recruitment. They are also compatible with the provisions of ILO Convention 111, which concerns the elimination of discrimination in employment.
5.3 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. Personal laws of most Bangladeshi peoples – whether indigenous or Muslim or Hindu – tend to be generally discriminatory against women. Apart from the peoples among whom Christianity has taken firm roots, polygene is practiced to a certain extent, and women are generally excluded from inheritance rights, either wholly or partially. The noteworthy exceptions are in the case of the Mandi (Garo) and the Khasi, both of whom follow matrilineal traditions, where generally, only the women inherit landed property. The express or implied recognition of the indigenous peoples’ customary laws is compatible with articles 7(1) and 7(2) of Convention 107, which deals with customary laws, customs and institutions of indigenous and tribal people. However, the presence of practices that are discriminatory against women is contrary to article 7(3) of the Convention. This article seeks to prevent situations in which the application of customary law may infringe upon rights that are otherwise available to other indigenous people as citizens of a state.
5.4 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. In contrast, the self-governing systems and representative institutions of the plains Adivasis have long ceased to be recognized by the Government, although their functions nevertheless continue, and most personal law disputes are still resolved at the level of traditional and other community leaders rather than in the government courts of justice. In 2008, a proposal was tabled before the Advisory Council of the Caretaker Government of Bangladesh to amend the Union Parishad Ordinance of 2008 to reserve seats in union councils for Adivasis of the plains . The latter law provides for arbitration headed by the Union Council chairman, including nominees of the litigants, whose decisions have the force of law.
6. THE LAWS OF THE CHITTAGONG HILL TRACTS
In contrast to the plains, there is a large body of law in the CHT that relates to the unique administrative system in the CHT, some of which recognize the primacy of the indigenous peoples of the region. These laws can be broadly divided into two groups: those of the period before 1997 – the year of the signing of the CHT “peace” Accord – and the laws of the post-1997 period.
6.1 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. These laws were amended in 1998 in accordance with the provisions of the CHT Accord of 1997, whereby the councils were provided more authority and autonomy than before, through an increase in the number of transferred subjects, and enhancement of their authority over land administration, local police, budgets, and other matters. Each council is to have 33 members, excluding the chairperson, and the chiefs have the prerogative of attending any meetings of the concerned council, although they cannot vote. The councils are to be ultimately elected by tribal and non-tribal permanent residents of the concerned districts. However, apart from the first and rather controversial election in 1989, the councils have until now been administered by government appointees. At the time of writing, the councils have one chairperson and four members each, all men, who were appointed by the interim Caretaker Government of Bangladesh. Dissatisfaction has been expressed on several occasions over the non-representation and under-representation of women, in the interim district councils, even during the earlier periods under BNP and Awami League. Similarly, complaints have been made about underrepresentation of different indigenous groups as well. It is to be seen whether the newly-elected Awami League government provides justice in this matter.
6.2 The CHT Regional Council Act of 1998
The CHT Regional Council Act, 1998 (Act XXII of 1998) is another law that resulted from the 1997 Accord. It established a regional council for the CHT, to be indirectly elected by the members of the three district councils. As in the case of the district councils, the office of the chairperson and that of two-thirds of the members of the regional council are reserved for ‘tribals’. It has 24 members excluding the chairperson. It is to be ultimately elected by an electoral college consisting of the 99 district councillors and the three chairpersons of the hill district councils. However, no elections for the regional council, or for that matter, for the district councils, have been held (except for the district councils in 1989). Pending elections, the members of the CHT Regional Council are all government appointees.
6.3 The CHT Land Commission Act of 2001
Apart from the regional and district council laws, the CHT Land Commission Act, 2001 (Act LIII of 2001) is the most important post-1997 law. This law introduces a body to provide expeditious remedies to the longstanding problem of land-related disputes, especially those between hill people and Bengali-speaking population transferees of the 1980s. Although called a ‘commission’, its functions will be more in the nature of an adjudicating body’s, rather than that of a commission of enquiry. In order to ensure a fair process, the Act ensures that seven of its nine members are indigenous leaders. The commission is also obliged to take into account the “laws, customs and usages” of the CHT. Among these are the virtual veto powers provided to the commission’s chairperson, in the event of disagreements between the commission’s other members and uncertainties regarding the jurisdiction of the commission over forest land and seasonally cultivable plough lands of the Karnafuli reservoir area known as “fringe lands”.
7. Government policy on Indigenous people
The Government of Bangladesh has a policy of affirmative action to reserve positions in government service and in a number of medical and engineering institutions for members of “tribes”. Similarly, semi-government and autonomous universities and a number of other educational institutions also offer quotas for admission. Thus, 5% of government jobs are to be reserved for tribals. However, in practice the due positions are not accessible to indigenous candidates, especially where the number of vacancies are small and the indigenous candidates lose out with the arithmetic of fractions. With regard to high positions in government, 2009 saw a marked improvement with the highest number of indigenous appointees, including in the coveted Ministry of Foreign Affairs. However, whether such a trend can be maintained will depend on whether the system of appointment by the Public Service Commission is adequately monitored to ensure fairness. In comparison, the reservation system for lower grade posts with primacy to tribal candidates in the CHT, particularly in the Hill district councils, works much more efficiently. This also has the formal sanction of the government.
The first part of the essay has discussed about the indigenous peoples of Bangladesh, the percentage among the whole population and the area of living. Indigenous means “native to the area.” In this sense, Aboriginal Peoples are indeed indigenous to Bangladesh. In Bangladesh there are 29 indigenous groups, approximately 1.2 million and 1.13% of the total population (Census Report: 1991). The indigenous people of Bangladesh are currently fighting for their rights as people: the rights to own land, to be free from prejudice, and to have their lands protected from society.
The second part discussed the constitution and legal framework of Bangladesh. The Constitution of Bangladesh, adopted on 4 November 1972, guarantees fundamental rights to equality before the law, and for citizens to be treated in accordance with law, and to enjoy equal opportunities with regard to public employment or education, to life, liberty, personal security, and freedom of movement, assembly and association, expression, religion, profession and occupation and property, and to the protection of home and correspondence. The country’s Constitution and criminal law applies to all persons across the country, although the Code of Criminal Procedure (1898) is sometimes applied in a modified form in the CHT. In the plains, civil laws applies uniformly to all persons (with some particular provisions operating in relation to property rights of Adivasis).
It has further discussed the laws of plains and indigenous people.The Vested Property Act, 1974, The Social Forestry Rules, Customary Personal Laws, Personal Laws of Adivasis, and some law of The Chittagong Hill Tracts. These law focused on indigenous right on their land, freedom of religion, the rules of family matters of the indigenous peoples.
The Government of Bangladesh has a policy of affirmative action to reserve positions in government service and in a number of medical and engineering institutions for members of “tribes”. Similarly, semi-government and autonomous universities and a number of other educational institutions also offer quotas for admission.
The above analysis shows that Bangladesh has vast laws to ensure indigenous peoples rights. But the main problem is implementation of laws. Indigenous people are often face some crucial problem because of grabbing their land .Sometimes social leaders interrupt in indigenous peoples rights. Bangladesh government should implement its law to ensure indigenous peoples rights.
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19.Larma, J. B., 2003. “The CHT and its Solution”, paper presented at the Regional Training Program to Enhance the Conflict Prevention and Peace-Building Capacities of Indigenous Peoples’ Representatives of the Asia-Pacific” organized by the United Nations Institute for Training and Research (UNITAR) at Chiang Mai, Thailand on 7-12 April, 2003.
20.Lewin, Capt. T. H., 1869. The Hill Tracts of Chittagong and the Dwellers Therein; with Comparative vocabularies of the HillDialects, Bengal Printing Company Ltd., Calcutta.
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24.Indigenous Peoples Research and development (CIPRAD), Dhaka.
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26.Mohsin, Amena, 1998. Chittagong Hill Tracts Peace Accord: Looking Ahead, the Journal of Social Studies, University of Dhaka, Aug-Oct 1998, pp. 104-117.
 The number of ethnic communities has been variously mentioned in the written sources. For example
Qureshi 1984: 12, Samad 1984: 28 based on 1974 census report , Urao 1984:31 and Maloney 1984: 46.
Quoted from Ethnic Communities of Bangladesh by Kibriaul Khaleque, SHED, 1998
 No one knows certainly how many Garos live in Bangladesh, ( Bal, Ellen: 1999). According to the Census
report in 1991, there are 64,280 Garos who live in Bangladesh.
 Sustainable Development Networking Programme (SDNP) is a global catalytic initiative launched by the
United Nations Development Program (UNDP) in response to Agenda 21, which articulated the need for
improved information dissemination to support sustainable development. See www.sdnpbd.org 2008.
 Garos of Bangladesh also use the name Mendi and sometimes A’chik people. In this thesis I have preferred
to use the term Garo, however, the term Mendi is also used occasionally.
 Adivasi -this word is used for the Indigenous/Minority people in Bangladesh.
 The discussion in this section is drawn largely from Raja Devasish Roy, “Challenges for Juridical Pluralism and Customary Laws of Indigenous Peoples: The Case of Chittagong Hill Tracts, Bangladesh”, Arizona Journal of International and Comparative Law; Vol. 21:1, 2004, p. 113, at 160 ff .
 See for example the CERD Committee’s concluding observations of 2001 A/56/18 (2001) 21 at paragraphs 66 and 71 (regarding affirmative action provisions for the socially and economically disadvantaged, including ‘tribal’ populations of the CHT, and for ensuring security of person in the CHT, in the context of reports of detention and ill-treatment by the security forces.
 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).
 Timm (1991: 21). See also, Bleie (2005: 213-241).
 Timm (1991: 20, 21, 26).
 Roy (2005a:17).
 Soren (2006: 25).
 For a critique of the Forest (Amendment) Act, 2000 and the (then draft) Social Forestry Rules (passed in accordance with
the 2000 Act) as violative of the land and other rights of indigenous peoples, see Roy & Halim (2001).
 Mankin (2004: 25-31).
 It has been alleged that this law is suffering from acute neglect in most parts of Bangladesh. See, e.g., “Legal limitations
impedes Gram Adalat to be effectual” in Daily Star Internet Edition, 20 June, 2004
 It is noteworthy that the words ‘autonomy’ or ‘self-government’ do not appear anywhere in the 1997 Accord or in the
subsequent laws, reflecting the desire of the Government of Bangladesh to avoid such words.
When they were first passed in 1989, the Hill District Council Acts, 1989 were called the Hill District (Local Government)
Council Acts, and the three district councils were called “local government councils”. The aforesaid three Acts were part of a
package resulting from an agreement between the Government of Bangladesh and a number of indigenous leaders from the
three districts in 1988, but excluding the then underground JSS. See Roy (2000b: 30).
 For a detailed description of the role of the hill district councils, see Khan (2004: 13-18) and Martin (2004: 47-70).
Demands were made recently, on 8 March, 2009 on the occasion of International Women’s Rights Day in Rangamati,
Chittagong Hill Tracts. The matter was reported in the press and media, including in the internet version of the Daily Sangbad,
Dhaka, of 9 March, 2009. For other coverage, see Daily Ittefaq, Dhaka of 23 March, 2009.
 Interview with Sudatta Bikash Tanchangya, General Secretary, Bangladesh Tanchangya Welfare Association and Zuam
Lian Amlai, President, Bawm Social Council, several times between 2003-2008.
 For a detailed description of the role of the CHT Regional Councils, see Khan (2004: 8, 9) and Martin (2004: 31-46).
 Section 6, CHT Regional Council Act, 1998.
 The incumbent chairperson of the CHT Regional Council is J. B. Larma, the chairperson of the JSS. Larma represented the
JSS and was one of the two signatories to the CHT Accord of 1997. The other signatory was Abul Hasnat Abdulla, MP,
representing the Government of Bangladesh.
 The head of the commission is a retired judge of the High Court, another member is the Commissioner of the Chittagong
Division (a senior civil servant), and the other seven members are the chairperson of the CHT Regional Council, the
chairpersons of the three hill district councils and the three rajas or circle chiefs.
 Goutam Kumar Chakma, member, CHT Regional Council – in several discussions with the author, including in June, 2006 –
stated that the Government of Bangladesh had at one stage of negotiations agreed to amend the law as advised by the CHT
Regional Council, but had backtracked on account of lack of coordination among the government ministers attending the
concerned meetings. See also, Adnan (2004: 178).
 From Shafiur Rahman, Secretary, Ministry of Establishment, Government of the People’s Republic of Bangladesh, Rule-1
Section, to Cabinet Secretary et al, vide Memo No. Sha Ma (Bidhi-1)-S-8/95 (Angsha-2)-56 (500) dated 17.03.1997, Chakma
Raja’s Archives, Rangamati
 This author in his capacity as the State Minister for CHT Affairs wrote a demi official letter to the Chairman of the Public
Service Commission, Dr. Sadat Hossain (vide DO No. Pabchim…./ 2008/56 dated 09 June 2008) requesting fair appointment
of indigenous people in accordance with the quota policy. The PSC obliged by appointing the highest number of tribals in Class
I jobs for any given year, including one in coveted Bangladesh Foreign Service (only the second indigenous person in the
service). In a telephonic conversation with the author in November 2008, the PSC Chairman lamented that indigenous persons
did not get their due posts because they did not have enough people to lobby and advocate for them
 From A. L. M. Abdur Rahman, Senior Assistant Secretary, Ministry of Establishment, Government of the People’s Republic
of Bangladesh, Rule-1 Section, to Secretary, Ministry of CHT Affairs, vide Memo No. Sha Ma (Bidhi-1)-SR-1/2000-183, dated
21.10.2000, Chakma Raja’s Archives, Rangamati. See also, Md. Abdul Hannan, Senior Assistant Secretary (Sha Ma-1) to
Secretaries, Chairman, CHT Regional Council, Chairmen, Hill District Councils, vide Memo No. Pachobim (Sha Ma-1)-
30/2001-529 dated 26.06.2002, Chakma Raja’s Archives, Rangamati.