Identify the main problems faced by indigenous peoples as they seek access to formal and traditional justice systems
Introduction: This report aims to find the situation of indigenous people in Bangladesh in the context of the rights available for them in the constitution of Bangladesh. In addition to this the report tries to find the recent changes in the constitution of Bangladesh for their right. The report will provide broader information on the human rights situation in the country as well as other endeavors deemed necessary. It also aims to identify the main problems faced by indigenous peoples as they seek access to formal and traditional justice systems
Definition: According to UN, Indigenous peoples, or Natives, are ethnic groups who are native to a land or region, especially before the arrival and intrusion of a foreign and possibly dominating culture. They are a group of people whose members share a cultural identity that has been shaped by their geographical region. A variety of names are used in various countries to identify such groups of people, but they generally are regarded as the “original inhabitants” of a territory or region. Their right to self-determination may be materially affected by the later-arriving ethnic groups.
Different terms are used throughout Bangladesh to refer to its indigenous peoples. Legal and policy documents of the Government of Bangladesh (GOB) use the terms ‘indigenous’, ‘aboriginal’, ‘adivasi’, ‘ethnic minority’, ‘hillmen/hillpeople’ and/or ‘upajati’ (subnational/tribe/tribal). A vocal group of indigenous peoples 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’ or swidden cultivation) and ‘Pahari’ (hill people).
Bangladesh has more than 45 Indigenous ethnic communities who have been living in the country for centuries. According to the official census of 2001, the total number of indigenous people in Bangladesh was 1,772,788. However, these figures are a gross underestimation. Indigenous peoples claim that the indigenous population in the country is about three million. The largest concentration of indigenous peoples in Bangladesh is found in the southeastern border region of the Chittagong Hill Tracts (CHT). According to the 1991 census, the indigenous Jumma people in CHT together numbered 501,144 and the indigenous peoples of the plain regions were estimated to number about 704,834.
As it is mentioned above the government of Bangladesh refers indigenous peoples as ‘tribal’ in official documents, although some legal documents also sometimes refer to them as ‘aboriginals’ and ‘indigenous hill men’. The Constitution of Bangladesh does not directly mention the indigenous peoples or tribal, but it is understood that the indigenous peoples form part of the disadvantaged part of the citizenry, which the constitution terms as ‘backward section of citizens’.
Constitution and Specific Legislation for Indigenous Peoples: Overall, there are not many laws in Bangladesh that directly or indirectly address indigenous peoples. The few laws there are occur in the partially autonomous CHT region, where several special laws and regulations apply. In contrast, there are very few Bangladeshi laws that refer to the plains indigenous peoples, let alone address their rights and socio-economic marginality in a direct manner. Some of the notable laws are as follows –
‘Article 27’ of the Constitution of Bangladesh states that all citizens are equal before law and are entitled to equal protection of law. ‘Article 28(1)’ outlaws discrimination on grounds of race, religion and place of birth and ‘Article 28(4)’ states that nothing in this article shall prevent the State from making special provision in favor of women or children or for the advancement of any backward section of citizens. Though the Constitution of Bangladesh does not directly mention the indigenous or tribal peoples, it is understood that the indigenous peoples form part of the disadvantaged part of the citizens, which the constitution terms ‘backward section of citizens’. As opined by the interviewees, it is widely recognized that indigenous peoples do not enjoy equal treatment before the law and administration.
In addition, Article 29(2) of the Constitution states that nothing in this article shall prevent the State from: (a) making special provision in favor of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic; (b)giving effect to any law which makes provision for reserving appointments relating to any religious or denominational institution to persons of that religion or denomination; (c) reserving for members of one sex any class of employment or office on the ground that it is considered by its nature to be unsuited to members of the opposite sex. This provision provides the scope for affirmative action for indigenous peoples in the name of the ‘backward section of citizens’.
There are some ordinary laws that make specific reference to indigenous people. In the plains, the only substantive law is the East Bengal State Acquisition and Tenancy Act, 1950 (at section 97), which forbids the transfer of lands owned by aboriginals to non-aboriginal persons without the express consent of the government’s district officer. This law – along with the special provisions on restrictions of transfer of aboriginal lands – is specially protected in the Constitution (Article 47(2) and First Schedule), on account of administrative implications of legal challenges regarding complex land issues, rather than on account of the indigenous peoples.
In contrast, the CHT has a far larger body of laws that refers directly to indigenous people. Some of these laws recognize 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 Act of 1998, the CHT Land Dispute Resolution Commission Act, 2001 and the CHT Regulation (Amendment) Act, 2003.
The CHTRC Act and three HDC Acts were passed after the signing of the CHT Peace Accord in 1997, which provided a framework for the recognition and strengthening of the CHT self-government system and the customary resource rights of its aboriginal inhabitants. However, indigenous leaders of the CHT have opined that the main provisions of the Accord, such as the devolution of powers to the CHTRC and HDCs, resolution of land disputes through Land Commission, rehabilitation of returnee Jumma refugees and internally Jumma displaced people, demilitarization of the region, etc. are yet to be implemented.
One national level indigenous leader said that indigenous issues had remained ignored for many decades. With regard to the plains areas (as also the CHT), the only positive policy advance worthy of mention is perhaps the adoption of the National Poverty Reduction Strategy Paper (PRSP), adopted in October 2005. The document refers to the indigenous peoples as “Adivasi/Ethnic Minority”. Although the document’s implementation provisions do not contain any detailed strategies on how to deal with the indigenous peoples’ poverty issues, the PRSP acknowledges the disadvantaged position of indigenous peoples and their exclusion from the development process, and more importantly, it refers to the “inadequate representation of [Adivasi/Ethnic Minorities] at various levels of government and policy processes”. However, one indigenous leader who participated in the PRSP consultation said that the PRSP has the potential to be used as a major policy tool to advance the social and economic rights of indigenous peoples through the formal ‘development’ process. In the long run, it can be invoked to also enhance Adivasi participation in the overall process of administration and governance as well.
A solitary exception is a provision of the major land law for the plains, the East Bengal State Acquisition and Tenancy Act, 1950 (Act XX of 1950, at section 97), which restricts the sale of lands of ‘aboriginal castes and tribes’ to anyone other than aboriginal castes and tribes domiciled in Bangladesh. In addition, the personal laws of the plains indigenous peoples – which are largely based upon oral customary rules – regulate marriage, divorce, maintenance, child custody, inheritance and related matters of the peoples concerned. It is noteworthy that in Bangladesh, like India, Pakistan and Malaysia, personal law for all citizens is regulated either by religious affiliation (e.g. Muslim and Hindu) or by ethnic affiliation (e.g. indigenous groups or ‘tribal’).
Finally, five major Acts of the CHT address crucial aspects of indigenous peoples’ rights in the CHT. These are: (i) the CHT Regulation, 1900, which provides a unique administrative, legal and judicial system for the CHT that combines the functions of traditional chiefs and headmen, associated with oversight and executive functions of state functionaries, based on statutes and local customs, practices and usages; (ii) the CHT Development Board Ordinance, 1976 (Ordinance XX of 1976), which provides for a statutory development authority for the CHT with local and indigenous participation; (iii) the Hill District Council Acts of 1989 (Acts XIX, XX and XXI of 1989), which provide for partially autonomous administrative, land and developmental functions (a total of 33 subjects) upon indigenous-majority district-level councils, headed by indigenous chairpersons; (iv) the CHT Regional Council Act, 1998 (Act XII of 1998) which provides for a regional council for the entire CHT – also with a two-thirds indigenous majority and an indigenous chairperson – to supervise the functions of the district and lower tier local government councils, among others; and (v) the CHT Land Disputes Resolution Commission Act, 2001 (Act XX of 2001), which establishes a body with the authority of a civil court, including indigenous leaders, to provide expeditious remedies on land-related disputes in the CHT.[1] In addition, there is a large body of customary law, including both family law and resource rights regimes of indigenous peoples, which apply to the region.
In addition to these , Bangladesh has ratified, along with the ILO Conventions on Indigenous and Tribal Populations (Convention No. 107) and on Discrimination in Employment (Convention No. 111), several other important human rights treaties, including the International Convention on the Elimination of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child and the Convention on the Elimination of All forms of Discrimination against Women (CEDAW). Moreover, there is the Convention on Biological Diversity, which deals primarily with biological diversity, but also contains a number of provisions relevant to the resource rights and cultural heritage of indigenous peoples.
Despite the fact that Bangladesh is party to several multilateral human rights treaties, the implementation of the provisions in those treaties through legislation, programmatic action and so forth, is far from good.[2] The problem is compounded by two factors, among others: one, that Bangladesh has a monistic system of law wherein international treaty law is not part of municipal law that is directly enforceable in a court (unlike in Mexico, Nepal, Spain and the United States of America);[3] and two: the extreme marginality of indigenous groups prevents effective monitoring of the implementation of the treaties.
Recent situation: it is a matter of great regrets that though there were some laws for the rights of the ‘indigenous people’ of Bangladesh exercise or implementation of those are greatly lacking in terms of both judiciary and legislative perspective. However recent government of Bangladesh has taken some positive steps to reconcile the problem; some of those are as follows –
Under some reformed provisions of the constitution, the government undertakes some affirmative action’s in favor of indigenous peoples. Notable among these are:
- setting up of a Special Affairs Division under the Prime Minister’s Office particularly for plains land indigenous peoples;
- signing of the CHT Peace Accord with the PCJSS as a solution of the CHT problem through political and peaceful means and accordingly establishment of CHTRC and HDCs as special administrative arrangements for the CHT;
- enactment of the CHT Land Dispute Resolution Commission Act of 2001;
- amendment of CHT Regulation in 2003 for establishment of a separate district judge court in CHT;
- inclusion of the term ‘adivasi’ and indigenous peoples’ issues in the Poverty Reduction Strategy Paper (PRSP);
- continuing of quota reservation in the government jobs and educational institutions for ‘tribal’ people, etc.
And on demand to the indigenous people, The government passed the CHT Regulation (Amendment) Act of 2003 (Act no 38 of 2003) to bring in major changes to the CHT Judicial system, including the transferring of civil and criminal judicial authority. In spite of this, the CHT judicial service is still operated by the executive administrators i.e. Deputy Commissioners and District Magistrates of the three hill districts who are not free from bias administratively or from interference by the military. Hence, as most of the interviewees opined, the judicial section could not play a positive role in highlighting and upholding the rights of indigenous peoples.
Conclusion: The indigenous peoples of Bangladesh are marginalized as a result of the lack of respect for their culture, customs and traditions. They do not have the right to self-determination, control over their own land and territories, and full and effective participation in their development nor are they involved in the decision-making. Their century old systems are at the edge of extinction. The overall justice system in Bangladesh has long been seen to provide a deteriorating 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 distinction
[1] Ibid., pp. 28-30
[2] See, e.g., Roy (2009), op. cit., pp. 52-55, Roy (2004), pp. 160-166.
[3] For a list of countries in which international treaty law has the same status as, or higher status than, national law, see Program to Promote ILO Convention No. 169 (PRO 169), Indigenous & Tribal Peoples’ Rights in Practice: A Guide to ILO Convention No. 169, 2009, pp. 182-184.