Tuesday, January 27, 2009

The constitutional question on Indigenous Peoples rights in Bangladesh

“In fact, the Constitution mentions about affirmative action on service to the republic, and adequate representation for the service of the Republic for all. These are basically potential of benefit to Indigenous Peoples if implemented. ( Raja Devasish Roy)

Interview with
Raja and Barrister DEVASISH ROY
Chief, Chakma Circle
Chittagong Hill Tracts and
Special Assistant to the Chief Adviser

Q>Is there a law in Bangladesh which is deterrent to the rights and welfare of Indigenous Peoples?

A>Apart from laws that specifically refer to Hill Tracts and one or two laws in the Plains (Adibashis outside of CHT) what I find difficult is not having follow up provisions based on fundamental rights mentioned on the Constitution. Bangladesh also has provisions that outlaw ethnicity, gender, religion and so forth. Despite the fact that it says that the State should not discriminate, it states about “backward sections of society”.

In fact, the Constitution mentions about affirmative action on service to the republic, and adequate representation for the service of the Republic for all. These are basic things that are basically potential of benefit to Indigenous Peoples if implemented.

Since the Constitution was passed in 1972, these numerous provisions had never been supplemented by laws, policies, administrative guidelines, programs.We should definitely be working on rights which are already recognized.

Q>You are saying that provisions calling for affirmative action in the Constitution has never been supplemented thus the reason why these provisions has not been actualized.

A>A program or somebody in power has to take those provisions and put more meat in the skeleton. But that has never been done. One reason is that “we are not there”. And second, the constitution should have gone more from there and how it could be implemented. Then, there is no reason why we should have to be in the mercy of political parties as provisions are cleared specially out in the constitution. So that is the difference of having and not being in the constitution.

I should say that the Constitution should make it very clear, apart from recognizing the status of Indigenous Peoples, how it really means to provide true equality unless and until the Constitution spells out that way. There should be special provisions to recognize status of Indigenous Peoples and specify how Indigenous Peoples exercise these fundamental rights that they have as citizens in a truly equal manner.

Q>The Indigenous Peoples of Bangladesh are also citizens of the country who are placed in the same status as citizens of Bangladesh. What makes them any different from the rest?

A>Our rights are not any more than anybody else but, because I live in a remote area, because of my socio economic realities and other disadvantages, my geographical realities, my special history and so forth. How can the average system reach you unless the State makes certain measures to enable one to get equal rights? This has to be spelled out.

What is equality? We have to be fair to IPs considering their particularities. How could you expect one who is in a remote area to get ready access to State services? True equality means the result of equality. It is not just treating everybody equally so the State keeps in mind the differences across the country to give special measures to give to equality.

Q>There are 45 tribes in Bangladesh. You are saying each tribe will be given special measures?

A>We don’t have to recognize tribes’ differences but a matter of principle in the Constitution. It is irrelevant whether the principle is at the beginning or the end of the Constitution. What is important is that, its part of the law of the land so, it guides the State to do what it does for Indigenous Peoples and we don’t have to depend on the government from day to day.

Q>What has been the problem so far why IPS have a hard time getting this constitutional recognition?

A>Constitutional recognition has been going on for years. Since 1964, CHT left constitutional status and also in the Constitution in 1972.

We don’t have the power. We are not represented. In the last parliament, only one Adibashi was there in the last 30 years, Promode Mankin, a Garo and an Awami League leader. It is a matter of putting in the Constitution equal representation among Adibashis. Unless we have special representation, chances for being elected is slim considering Adibashis’ small population.

Adibashis in the Plains don’t have a single channel. At least In the CHT, we have the Ministry of CHT and advisers to the Ministry. In the regional level we have the district council.
But the Plains have nothing. They should have also this representation with government and could start right in the Union level.

A>Adibashis in the CHT are somehow represented in government. How successfully implemented is this representation at the moment?

A> It depends where you are looking at. In the Ministry, we have a problem, we don’t have our own tribal minister now. Last time, we had a Deputy Minister at the Ministry level. We were supposed to have a tribal minister. The CHT accords say that preference will be given to a tribal first, but in practice, it is not so.

We don’t have the power. What is political is not legal. The agreement is political and not part of the law. There is no law which says that the minister has to be a tribal.

Then we have the CHT Ministry which does not have any direct links with local government bodies. The Regional Council complained that it is supposed to have coordinating responsibility over general administration, local government bodies, Union Councils, development, and to NGOs. Local governments however are under the Ministry of Local Governments separate from the CHT Ministry.

The chiefs and the headmen are continuing as before. There is no big change.

Q>What is the extent of power of these headmen?

A>The supposed power of these headmen continues in the village level at least
where they have authority though day to day government is not there. So by default, they are exercising their authority. On personal law-related disputes between indigenous to indigenous peoples, these disputes will go to the village elders then to the headmen or the chief and only when there is revision that these will go to the courts.

And with regard to land and revenue administration, even the District Commissioner usually does not allow land transfer or land settlement without recommendation of headmen.

Q>What is the function of the chief?

A>As chief, special function is justice administration. Two, is to supervise the work of the headmen which deals on land administration, community forest. The DC seeks the chief’s advice and recommendation. The chief issues certificates for residents on admission to certain institutions and sometimes timber license. They also hear disputes. Thirdly, we are supposed to appreciate and protect people’s cultural functions. The fourth function is advisory to the government in different levels, district councils, and including Ministry of CHT Affairs.

Q>What is non- functional with regards to problems on land?

A>There are three major problems on land in the CHT. One, there are disputes between settlers and Adibashis. These were supposed to have been resolved in the CHT land regulation born out of the Peace Accord of 1997. Two, there are reserved forests till British time composing one fourth of the Hill Tracts but people live in these. Where customary rights are not recognized, that problem until today is unresolved. And three, government started to make new reserve areas.

Q>With this issue on migrants having already settled in CHT, will work include getting these settlers out of CHT?

A>If the Land Commission starts its work, it provides justice, at least that the settlers’ titles are wrong and IPs titles are in order, given power by the court to declare rights.
The Land Commission deals only with land. But of course, there is the physical challenge of what to do with these settlers. The government takes decision to take responsibility of what to do with these settlers because legal solutions can only be fashioned.

Q>How would you evaluate the state of Indigenous Peoples work in Bangladesh.
A>I expected more tension, more challenges. But then I thought on the whole that the people were respectful so in that case, am a little bit optimistic that the average Bengali is not a fundamentalist, not really a conservative race. Newspapers, the press club, cultural leaders have clarity of thoughts on Indigenous Peoples. Television itself has given talk shows for Adibashis during the IP Day last August 9, 2007.

Q>Is it safe to assume that this optimism can also be translated as optimism in the struggle for constitutional recognition?

A>Dr Kamal Hussein, a distinguished Statesman, was the chief guest during the IP Day. What more could we ask, except that the government still refuses to recognize Indigenous Peoples.This is some kind of an acceptance. It is just the opening but the next thing to deal with is the bureaucrats.

Q>Would you suggest more sit down strikes, demonstrations.....?

A>Fine, this would help, but what would help the most are clear cut recommendations on legislative change, policy change, institutional reform, programs, programs, budgets.

Q>What is the state of these clear cut recommendations?

A>They have not yet taken place. That is my fear. We have to go to serious research. I think our people have to do more homework. Some people have to sit down and identify what changes we want, like constitutional recognition.

I think most Indigenous People don’t even know what constitutional recognition means.
The conceptual clarity has to be there. Obviously, it has to start with the leaders. They have to know the meaning of constitutional recognition. What is its positive meaning to steer the path to Adibashis’ better services. What is the negative implication that no law is provided?

If the Santal people want the State to step in and introduce mother tongue instruction, the existing national primary education policy should have space and if it doesn’t have space, government can go for an Executive action or the Secretary the Education Ministry can do it.

Let us divide up all those little things that we want changes in and look at what may be changed by way of laws, institutions, budgets, and so forth. What is it that we expect the State to give?

Q>Whom are you referring to when you said “let’s sit down”…

A>The most reasonable people to take charge of these are NGOs. Let the people also take charge. On mother tongue education for example, Santals could get together. There can be a mother tongue network. There can be some other initiatives on health, traditional leaders. I think there should be a national conference of traditional leaders.

We don’t have enough information of how these are being implemented. What are the gaps? What is that that we have to do? How about human rights?

We can never plan or commonly assess the development of IPs because of the need for data. We ask the government of Bangladesh to aggregate these data. We design our own methodologies to produce our own set of data on human resources and land. We are experimenting at this moment. And from these data, we design our own indicators to assess so if the State does not do data collection, then we have to do this. This is necessary because if we don’t have data, we cannot plan comprehensive plans for IPs.

Is it necessary to have a national framework? Two or three NGOs can start the work and then share at a certain stage.

Q>What do you recommend to let this ideal work?

A>We should have strong secretariat in the system, an organizational presence in Dhaka for the IPs of Bangladesh. Somebody to do public relations desk, networking, emails. Somebody to remind people of what they have promised. What I am looking at is physical presence in Dhaka. It should be led by Indigenous Peoples so that they can keep in touch with IPs.

We tried to forward a project proposal to DANIDA. Proponents will shoulder some responsibilities and gradually put these ideas into action and we’ll see how we will implement the desired ends.

Q>In the international arena, how is the struggle for IPs being realized?

A>I co-chair the Working Group before we sent the UN Draft Declaration to the Human Rights Council. A lot of lobbying was done, writing letters, informal meetings, caucuses, late night negotiations. We invent language referred to as “constructive ambiguity”.

October 2007

Source: Discourses on Policy Perspectives on Land Rights of Adivasis of Northwest Bangladesh, by Gina Dizon, Published by VSOB, April 2008

No comments: