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)

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

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

East Bengal State Acquisition and Tenancy Act of 1950

While Section 97 of the State Acquisition and Tenancy Act 1950 is favorable to indigenous peoples as it protects the alienation of lands from Adibashis without the permission of the revenue officer, this law however is not practiced fully. Many an indigenous person have sold and transferred his land to another without the full permission of the revenue officer, or in cases where the approval of the revenue officer is taken, the process was given to the land purchaser with the approval of the land owner who in most cases is an illiterate Adibashi.

The law thus reads:

Section 97. Restriction on alienation of land by Aboriginals. (1) The government may from time to time by notification, declare that the provisions of this section, shall in any district or local area, apply to such of the following original castes or tribes as may be specified in the notification, and that such castes or tribes shall be specified in the notification and that such castes or tribes shall be deemed to be aboriginals for the purposes of this section, and the publication of such notification shall be conclusive evidence that the provisions of this section have been duly applied to such castes or tribes namely:

Sonthals, Banais, Bhuiyas, Bhumijies, Dalus, Garos, Gonds, Hadis, Hajangs,
Hos, Kharias, Kharwars, Kochs ( Daca Division) Koras, Maghs ( Bakargaj
District) Mal and Saurai Paharias, Maches, Mundas, Oraons, and Turis.

(2)Except as provided in this section, no transfer by an aboriginal raiyat of this right in into his holding or in any portion thereof shall be valid unless it is made to another aboriginal domiciled or permanently residing in Bangladesh who is a person to whom the transfer of such holding or portion thereof can be made under section 90. If in any case, an aboriginal raiyat desires to transfer holding or any portion thereof by private sale, gift, or will any person who is not such an aboriginal, he many apply to the Revenue Officer for permission in that behalf and the Revenue Officer may pass such order on the application as the thinks fit having regards to the provisions of section 88 and 90. Every transfer referred to in sub section 3 shall be made by registered deed and before the deed is registered and the holding or any portion thereof is transferred, the written consent of the Revenue Officer shall be obtained to the terms if the deed and the transfer.

The EBSAT Act covers two issues. The coverage of the law vis a vis existing ethnic peoples of the country, and the implementation of the salient provisions of the law itself.

Advocate Michael Soren noted that EBSAT Act 1950 added Section 97 in the same way as in the section of Bengal Tenancy Act of 1918. This is the ONLY law imposed by the British government for the interest of the Adibashi peoples to protect and preserve Adibashi land rights. The very title of the Act was Restriction on Alienation of Land by Aboriginals which targets that Adibashi peoples should not be turned landless.

The law listed only 21 sections of aboriginal peoples and nothing stated about the rest of the Adibashi peoples. Soren asks, “what happens to the rest of the groups? The Law is practically implemented by the Assistant Deputy Commissioner but most of the time the concerned ADC does not have any idea about the Adibashi peoples”.

Two Presidential orders have been passed to refer coverage to the State Tenancy and Acquisition Act of 1950. The July 18, 1963 Order provides that the law shall be applicable in 10 districts of Bangladesh but not in Dinajpur district where a plenty Adibashis are found. The August 20, 1964 Order covered only four sections of Adibashi Peoples although there are about 35 sections living in the northwestern part of the country living since very ancient period. What will be the fate of the rest of the Adibashi or indigenous communities is not stated clearly in the section. This law needs to be reconsidered, Michael Soren said.

Advocate Michael Soren noted that the EBSAT Act 1950 added Section 97 which is the only law imposed by the British government for the interest of the Adibashi peoples to protect and preserve Adibashi land rights has become a “lost law”.

The Gamustapur Pargana and Digori Coordinating Council of Chappai Nawobgonch in a focus- group discussion noted that there is a need for Pargana Permission before any land transfer is effected. To prevent illegal land transfers from an Adibashi to a non-adibashi, the Gamustapur Pargana and Digori Council of Chappai Nawobgonch forwarded that the committee jointly acknowledge and provide certification that an Adibashi is selling land before the ADC will forward his warishun (permission) that such Adibashi is selling his land.

Similarly, Panchbibi Pargana and Jatiyo Adivashi Parishad leader Ram Vincent Tudu said there is a need for the Pargana to provide the necessary recommendation for land transfer before any transfer will be permitted by the Land Revenue Officer.

System needed to recover Adivasi land

Advocate Michael Soren, now in his late 50s, is one of few Adivasis in northwest Bangladesh who was able to go to school and earn a degree. A legal practioner at Rajshahi Court for quite sometime, Advocate Michael Soren joins five Adivasi- lawyers from northwest. With their few number, there is need for more educated Adivasis to articulate their concerns and relevantly situate their culture in legally related issues which confront them, one of which is land. Below is an interview with Advocate Michael Soren.

Q> Constitutional recognition is one of the major demands of Adivasis in claiming for their rights.
A>The Adibashi need to be concerned about the law especially land law. It is the law which will prevent them from obstacles and rescue them from unfair situations. That is why by constitutional recognition, Adibashis are made aware about the law and it can be useful for them to safeguard and redeem their land properties. But at present state, it is not working that way, so Adibashis have to be more careful about the law. Separate policies will be prepared for them for their development and upliftment. If it will be written in the law that such and such people are regarded as Adibashi people and for their growth and progress, a separate commission or policies and funding will be drawn out. Out of that budget, it will be easy for the government to impose this law and carry out the mandates of what the law provides.

Q> Is there any special distinction for Adibashis to be specially recognized in the Constitution? They are also citizens of Bangladesh and to be treated just like any other Bangladeshi.
A>I do agree with you that they are citizens of the country. But still they have to be specially treated as they are treated as minority group, a minority of the minorities. By minorities, these people are deprived of many scopes of the government that is presently running the way that it is dealing. The thing is that when this section of people is recognized, that makes them aware of their own standing and at the same time also the reasons of their deprivation. Because these people depend mostly on their cultural life, they don’t care about the running laws. They don’t care about what the government is doing. By recognition, we try to implicate especially this section of people on what benefits they can have from the government.

Q>You were talking about a separate commission.
A>A separate commission can be made by the government to look after these people for their good. So the commission can look after these. That means the commission as soon as it is formed, about 5 to 10 members will produce the policies and guidelines for the good of these people, along with requirements. And this body to be approved by the National Assembly and ministries concerned about the Adivashi peoples.

Q>Do you have special recommendations who the members will be?
A>It has to be composed of Adibashi peoples. Special constitution maybe kept for the non- Adibashis who are concerned about the Adibashi peoples and can be taken into the commission by the Adibashi peoples, otherwise, it will purely be for Adibashi peoples.

Q>Land is one major issues among Adibashis…
A>This commission as soon as it is formed will look at the land issues most especially, health, education. On the basis of these issues, they will make guidelines of what they will want to do and this has to be approved by the National Assembly.

Q> I would like to be more specific. A special law on Section 97 of the EBSAT Act of 1950 protects Adibashis’ alienation from their land. How far has the law been exercised?
A>Many problems are there in the present existing law. For example, its interpretation among the Santals. How to recognize these Santals is not stated in the law. How to identify these people is not clear in Section 97. What law they will follow, is it the Hindu law or their traditional law. It is not clear in this section. .

Q>You are saying that Section 97 has to incorporate issues about who an Adibashi is.
A>There is not much criteria about who an Adibashi is in Section 97. Once, we went to a Divisional Commissioner to prove that a Santal is a Santal. We cannot prove that a Santal is a Santal belonging to the Adibashi tribe as there are no written criteria on who is a Santal so we lost the case. There is need for criteria and these criteria have to be mentioned in the EBSAT Act. Our argument was that Santals hold the 12 titles ( Santals have consistent 12 titles). Hembrom is one of them so he belongs to the Santal community. Section 97 should then be applied regarding his land rights but the judge said, “no, the way you are saying is not enough, so I cannot give any decision.”

Q> There are 45 tribes of Bangladesh so each tribe has a separate way of looking at land management and ownership.
A>Section 97 is only one page or two. Section 97 needs more than the pages than it holds now.

Q> Bangladesh has a national land policy. How could these recommended laws and policies applied apart from national land law.
A>It may be parallel to national land policies and may run in the same way as national land policies are running. It can run the same way as the national land policy is running but at the same time it will be a separate thing.

Q> Adibashis have distinct practices which may be contrary to national policies. Could there be some areas where such may be contrary to national law.
A>I don’t think this will contradict national land policies because as any obstacle comes this will be obstacle to the national land policies also. Ways and means have to be found out to overcome those obstacles.

Q>Adibashis have yet to recover their lands. Is there a law which is favorable to recovery of their lands?
A>There is no law yet to get back the properties of the Adibashis as of now. I think it is necessary to get back the property but system has to be formed. Suppose the person who went to India was victimized leaving his property, these circumstances he has to prove up to the time he lost his documents and since the time he has been in possession of his land.

September 2007


Source: Discourses on Policy Perspectives on Land Rights of the Adivasis of Northwest Bangladesh, by Gina Dizon, Published by Voluntary Service Overseas Bangladesh-Indigenous Community Rights Programme, April 2008