Memorandum submitted by the PCJSS
to the Parliamentary Special Committee on Constitution Amendment of the People’s Republic of Bangladesh on the proposals for constitutional amendments and demand for constitutional rights with constitutional recognition of the indigenous peoples of Bangladesh
Dhaka, 11 January, 2011, Tuesday
Eleven indigenous peoples of the Chittagong Hill Tracts (CHT) along with indigenous peoples of Bangladesh have been living in this sub-continent since the remote past and were involved in anti-British and all other democratic movements including the great liberation war and building of nation. But the matter of deep regret was that neither did Pakistan nor Bangladesh governments for that matter take appropriate measures for security and progress of these indigenous peoples. Efforts are also on to change the demographic character of the indigenous populated regions. At this time of the 21st century even, the right of the indigenous peoples to self-identify them is being denied to them. However, with the conscious section of the mainstream people becoming vocal and the 5th amendment to the constitution declared void by a judgment of the Supreme Court, an opportunity after 39 years was created to get constitutional recognition of the indigenous peoples. Therefore, the following discourses aimed at achieving constitutional rights with constitutional guarantee are being put forwarded:
1. Special rights during British-Pakistan-Bangladesh period:CHT had its own administrative history during the British, Pakistan and even Bangladesh period. In 1860, the British set up a separate district in the name of the Chittagong Hill Tracts. It was accorded the status of a special area under the Scheduled District Act 14 of 1874; Mong Circle was created by promulgating Rules for the Territorial Circles in the Chittagong Hill Tracts 1884; the responsibilities for law and order was clearly defined and the extent of the headman’s power was determined under the Rules for the Territorial Circles in the Chittagong Hill Tracts 1892; conferred with a specially administered area status by the Chittagong Hill Tracts Regulation of 1900; declared as a Backward Tract under 1919 Act; and turned into a Excluded Area under the India Act of 1935.
The Pakistan government retained the Excluded Area status of the CHT which was incorporated into the 1956 constitution of Pakistan. In the second constitution of Pakistan framed in 1962 CHT was, keeping the previous status undisturbed, declared a Tribal Area in line with West Pakistan. But in 1963, the “Tribal Area” status of the CHT was repealed by article 12 of 1st amendment under the Constitution Amendment Act (1st amendment) 1963 (Act 1 of 1963) in contravention of article 242 which requires of the state to consult the people concerned prior to bringing in any change/amendment in law or framing a new law.
2. Special privilege was denied in the 1972 constitution:
The unanimous demand for regional autonomy by the indigenous leaders was repudiated in 1972. The special administrative status of the CHT introduced by the British was even discontinued. All the non-Bengali indigenous peoples of the country were identified as Bengali by article 6 of the constitution. On 31 October 1972, late Manabendra Narayan Larma declared in the Constituent Assembly “We think and believe that we are Bangladeshis, but we are not Bengalese.” In reply Mr. Suranjit Sengupta, the then Opposition member of the Constituent Assembly, said that “By Bengali we mean that those who speak in Bengali are called Bengalese.” Article 9 of the constitution denied the participation of non-Bengalese in the liberation war. Article 23 of the constitution as well denies recognition to indigenous language, literature, arts and culture. Rejecting the demand for regional autonomy and denying them their identity, gruesome actions like mass killing and torching of villages by the liberation forces were carried out against the indigenous peoples terming them as anti-liberation elements; waves of Bengali Muslims ran through the indigenous villages wrecking them and taking possession of lands forcibly.
3. CHT was recognized as “tribal” populated territory:
The CHT Accord signed on 2nd December 1997 between the People’s Republic of Bangladesh and the Parbatya Chattagram Jana Samhati Samity ended, providing for a Regional Council over the three Hill District Councils, the two decades old armed struggle. This Accord recognized CHT as the “Tribal” inhabited territory. The preambles of both the CHT Regional Council Act and the Acts of three Hill District Councils also acknowledged the three hill districts as the “Tribal” populated territory. Two observations are worth mentioning here: A judgment on a case of Anwar Hossain vs. Bangladesh [DLR (AD)] declared “If any provision can be called the pole star of the constitution then it is the preamble.” Similarly, the Chief Justice of India, Suba Rao, in one of his judgments observed “The preamble to an Act sets out the main objectives which the legislation is intended to achieve. It continues in a nutshell its ideals and aspirations.”
4. The opposite tenor of the CHT Accord: But most unfortunately, no measures, in the light of the preambles contained in the Acts promulgated under the Accord, have so far been taken in support of “Tribal” populated territory. In addition, some of the vital elements of the Accord were transgressed while we witness exercises aimed at taking stands conflicting to the Accord. The CHT people are extremely apprehensive at the move of the High Court to declare the CHT regional Council and some important provisions of the three Hill District Councils void, perpetuation of the military authority through operation “Uttoron” keeping operative the Counter Insurgency Wing under the 24 Infantry Division despite the fact that the PCJSS deposited their arms immediately after signing the Accord and the news item appeared in the daily Jugantar under the caption “Extensive Plan in Developing and Stopping violence in the CHT”.
5. The present status of territories of British India similar to CHT:The territories of British India enjoying similar status as that of the CHT are now transformed into full-fledged state, union territories etc in India and the peoples living there in are engaged in national progress. Similarly, the North West Frontier Province administered by the Commissioner and British Baluchistan have now been turned into provinces of Pakhtoonkhoa and Baluchistan respectively. The specially administered tribal territories and agencies are now enjoying the status of Federally Administered Tribal Areas (FATA). The Pakistan government did not preserve the vestiges of the status of partially excluded area of Sherpur and Susang Pargana enjoyed by Garo, Hajang, Koch, Dalu and Banai (present Sreebardi, Nalitabari, Haluaghat, Durgapur and Kalmakanda Upazila of greater Mymensingh).
6. Fundamental problems of the indigenous peoples in relation to the spirits of Bengali nationalism and Islamic nationalism:
Despite a land of diverse race, language and religion our constitution, during the last 39 years, failed to recognize this reality. Rather, the indigenous peoples continued to be racially suppressed and discriminated against by the Bengali nationalism embodied in the 1972 constitution and the state policies constructed on the spirits of Islamic nationalism brought in through the 5th amendment of the constitution in 1979. It is our impression that the implementation of the CHT Accord is being delayed as a quarter subscribing to the above mentioned views are not cooperating with the Prime Minister in the enforcement of the Accord. The indigenous peoples are being ejected from their lands through widespread unlawful occupation, acquisition and lease. Communal divide is being drawn in between the hill men and the Bengalis while the anti-Accord activities are allowed to continue.
Basically, the indigenous peoples living in the plain land have a very small population. Their economy is entirely land based. The existence or survival of the indigenous peoples in the plains is poised critically in the face of their continued ejection from their lands. Nachol, historically famed as second Dumka with 98% indigenous peoples at the time of partition, has now 2% indigenous population. After the birth of Pakistan there was organized campaign to resort to repressive measures to grab indigenous lands. These actions forced hundreds and thousands of adivashis to settle in foreign country or were driven away from their lands. The forest lands also disappeared gradually, as a result. Section 97 of the East Bengal State Acquisition and Tenancy Act, 1950 was often violated while transferring lands belonging to the indigenous peoples. With the declaration of landed properties belonging to Hindus as enemy property, hundreds of acres of indigenous lands were also brought under the occupation of the state. The Special Affairs Division of the Prime Minister’s secretariat only executes the development programs of the indigenous peoples in the plains in a very limited way and there is a very insignificant indigenous participation in it.
7. International recognition of the indigenous peoples:
Movements in support of the indigenous peoples were built up following persecution and repression perpetrated by colonialism, imperialism, racism and the nation states directly or indirectly. The ILO came forward backing the movement. Some people and organizations with conscience across the world along with some state organizations also stood by their side. As a result, ILO conventions 107 and 169 of 1957 and 1989 respectively relating to rights of indigenous peoples and tribals were adopted, 1994 was declared as the Indigenous Decade, UN Permanent Forum on Indigenous Issues came into existence in the year 2000, UNDP’s Indigenous Policy was adopted in 2001 and UN Declaration on the Rights of the Indigenous peoples was endorsed in 2007. Besides, the ADB and WB adopted their own indigenous policies in the light of the definition determined by the UN, provided for consulting the indigenous peoples before any of their self financed programs get underway. They also ensured that indigenous peoples were not harmed by their projects either.
The UN has accepted the definition on indigenous peoples recommended by Mr. J. Martinez Cobo, special rapporteur of the Sub-commission on Human Rights, as the functional one. This is also treated as standard international definition on the indigenous nationalities. So far 148 countries across the globe endorsed the UN Declaration on the Rights of the Indigenous Peoples. Bangladesh did not oppose it though it refrained from endorsing. We expect that Bangladesh would endorse this Declaration retracting immediately its earlier decision in 2007 to refrain from voting. Article 25 of the Bangladesh constitution is committed to “uphold the right of every people freely to determine and build up its own social, economic and political systems by ways and means of its own free choice” in respect to principles embodied in the principles of the UN Charters.
8. This is the right time for constitutional recognition of indigenous rights:
Bangladesh ratified the ILO convention 107 on indigenous and tribal rights before it became a member of the UN. But no governments so far implemented it. The conditions in the CHT deteriorated in many ways following the procrastination in executing the CHT Accord signed in 1997 to end the armed conflict. Besides, the CHT people are worried and frustrated deeply at the future of the judgment delivered by the High Court on the CHT Regional Council Act and the three Hill District Council Acts. Though the CHT Accord Implementation Committee was reorganized but it met thrice in two years and could hardly make any headway. We heartily congratulate Begum Sajeda Chowdhury, the chairperson of the Accord Implementation Committee, for withholding the first hearing of the CHT Land Dispute Resolution Commission. We want to be rest assured of the full implementation of the CHT Accord following the assurance of the Prime Minister to exactly implement its election manifesto in her address to the nation on the anniversary of Awami League’s two years in power. However, we believe that it is not possible to promote and safeguard the existence of the Jumma people with the rights embodied in the Accord at the way and degrees the provisions of the Accord are being violated consciously by the concerned ministries and authorities. It, therefore, demands of more rights.
The constitutional rights of the indigenous peoples have been recognized in many countries around the world. It resulted in consolidating national solidarity instead of war and conflict. The constitutional rights of the indigenous peoples have also been acknowledged in India, Nepal, Philippines and Malaysia. Instance of granting considerable rights in a Unitary System is also seen in Scotland of the UK. Inuit, the indigenous peoples of Greenland represents the indigenous peoples of Denmark at the international level. The Norway government does not oversee or control radio and television run under the Saami Parliament in Saamiland, the home of indigenous Saami people in Norway. The Faroe Island of Denmark controls all other subjects except defence, justice and foreign affairs. They have their own coast guards as well.
Following the repeal of 5th amendment to the constitution by the Appellate Division of the Supreme Court, an opportunity to moot over the constitutional recognition of the indigenous rights showed up before the nation. Moreover, the ideas and thoughts of the world leaders have developed further. Now a liability has been thrust upon the government, parliament and the special committee on the constitutional amendment as to the extent of scientific solution they want to the problem of nationality issues in Bangladesh. It is the need of the hour to have a secular constitution for diverse race and religion. In the context of the discourses discussed above, we demand that:
1). To grant, considering the administrative history, tradition and culture of the CHT, regional autonomy having authority to enact laws on culture, social code, land, water bodies, natural resources and development in the interest of security and progress of the indigenous peoples;
2). To grant, considering the rights of the plain land indigenous peoples on their land, the status of autonomous indigenous territory having authority over culture, social code, land, water bodies, natural resources and development in the interest of their collective security and progress;
3). To give constitutional recognition to the indigenous peoples of the CHT and other indigenous areas of Bangladesh;
4). To arrange for constitutional safeguards denying amendment to any provision dealing with the rights of indigenous peoples of the CHT and other indigenous areas of Bangladesh without their consent;
5). To reserve 12 parliamentary seats for all indigenous peoples including present 3 in the CHT;
6). To include a new chapter on “The Rights of the Indigenous Peoples” in the constitution that shall include the recognition of the indigenous peoples and the purview of their rights and other concerned issues;
7). To accord constitutional recognition to the traditional land rights and customary laws of the indigenous peoples of CHT and
8). To accord constitutional recognition to the CHT Accord signed between the People’s Republic of Bangladesh and the PCJSS.
9. Recommendations for constitutional amendment:
A. A separate chapter on “The Rights of the Indigenous Peoples” shall be added to the constitution. This chapter shall include:
i) Recognition of the indigenous peoples: Peoples different from the Bengalese and living for a very long time in Bangladesh shall be known as indigenous peoples;
ii) Chittagong Hill Tracts Autonomous Region: Chittagong Hill Tracts, being recognized as the indigenous inhabited region considering its distinctive characteristics with regard to its special administrative history, political, economic, social and religious rights, shall be known as the Chittagong Hill Tracts Autonomous Region under a special autonomy;
iii) Power to enact laws: Nothing shall prevent the CHT Regional Council from enacting laws on culture, social code, land, water bodies, natural resources and development of the CHT and its indigenous peoples;
iv) Autonomous Indigenous Regions: Considering the special features of the indigenous peoples living in the plains, their overall vulnerable situation and historic rights over their lands, several Autonomous Indigenous Regions shall be created with respective Regional Councils and to make these councils effective nothing shall prevent the State from enacting laws on culture, social code, land, water bodies, natural resources and development of the indigenous peoples living in these regions;
v) Autonomous Indigenous Regional Council shall also administer such subjects as education, sanitation, health etc which are likely to have bearing on the lives at the grass roots level among the indigenous peoples;
vi) In order to ensure indigenous participation in the state administration nothing shall prevent the state from reserving 4 seats in the CHT and 8 seats in the autonomous regions as “Reserved Parliamentary Indigenous Seats”;
vii) The state shall not repeal or amend the constitutional status of the Autonomous CHT Region and the Autonomous Indigenous Regions without consulting the peoples of these regions. The government shall consult the Regional Councils of these regions before making any law or document resembling law and shall go for opinion polls on demand;
B. Article 3. “The state language of the Republic is Bangla”. At the end of this sentence shall be added, “However, the state shall preserve and patronize the indigenous languages”;
C. Article 9. “The state shall encourage the local government institutions composed of representatives of the areas concerned and in such institutions special representation shall be given, as far as possible, to peasants, workers and women.” At the end of this sentence shall be added, “Nothing shall prevent the state from giving special constitutional status considering the special features of the indigenous peoples and their overall vulnerable situation;
D. A new article “23 A” stating “The state shall, for their protection and development, patronize the culture, language, literature, arts, customs and usages, tradition, historical relics and archeological traditions of the indigenous peoples” shall be added.
E. To insert the expression “including the indigenous peoples” in article 29 clause (3) (a) after the expression “backward section of citizens”. After the insertion the article would read: “making special provision in favor of any backward section of citizens including the indigenous peoples for the purpose of securing their adequate representation in the service of the Republic.”
F. While restoring article 9 of the original constitution of 1972, following the historic verdict on the 5th amendment to the constitution by the Supreme Court, it is to be taken care that the concerned article is amended properly considering that Bangladesh is a land of diverse race, religion and culture other than that of Bengalese themselves and to recognize the contributions made by the indigenous peoples of the CHT and other areas of Bangladesh or to add a new article 9 (a) stating “However, side by side the national identity of the indigenous peoples molded during their participation in the anti-British struggle, democratic movement before the national liberation war, and national freedom struggle and the contributions thus made by them is also considered as a supporting force to the Bengali Nationalism.”
On behalf of the Parbatya Chattagram Jana Samhati Samiti
(Tatindra Lal Chakma)
Central Convening Committee
Phone: +880-371-61373, E-mail: firstname.lastname@example.org, Web: http://chtvoice.blogspot.com