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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 179
February 27, 2005

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Human Rights analysis

Between Empire and Nationalism

The marginalisation of the indigenous people in Bangladesh

Kawser Ahmed

In international law as well as other disciplines, the thought that indigenous people are entitled to a special set of rights has become incontestable and universal. Admittedly, discourses purely relating to rights and duties of indigenous people originated in international legal plane may contain a kind of unanimity, though the case is not same when viewed from other disciplines' point of view in the national plane. For instance, any discourse focusing on legal sociology of the American Red Indian cannot be meant to qualify the situation regard to the indigenous people of Bangladesh. That's why it needs more circumspection in dealing with issues regarding indigenous people in the national context, because many important factors situated apparently outside legal arena may have close link with it, without which the outcome of the discourse may be misleading. Granted, the concern of the present article is to identify the reasons for marginalisation of the indigenous people of Bangladesh and its solution. But in doing this, we will go beyond the frontier of law for the sake of a better discussion and give special emphasis on two other things, namely Imperialism and Nationalism.

After a constellation of scholars' effort to put anti-imperialistic thought in motion, it has become crystal-clear that any discourse about history of a colonised territory cannot become complete unless intrusion of imperialism in native culture is properly pointed out, which Edward Said has pictured almost exhaustively in his work "Culture And Imperialism". Similarly as inhabitants of a colonised territory, this statement goes true for the indigenous people of Bangladesh because their present condition reveals that marginalisation of the indigenous people has causal relationship with earlier empire and latter nationalism immediately and remotely in a linear flow. To elucidate the role of empire, the first thing we can mention is its hegemonic nature. That is to say, imperialism always imposed its culture on periphery in various direct and indirect ways to obtain consent of the ruled. In this endeavour, the various means applied by the empire such as reshaping physical environment, remoulding ideological fabric of the native people or legal and administrative endeavour helped to turn indigenous people a peripheral entity. Examples may be drawn from literatures of decolonisation and works of subaltern school of history.

Eventually, towards the end of imperial era nationalism became a predominating thought in the political trends since the progressive members of the majority people were acquainted with western political ideas through education. But once again, nationalism failed to patch up the rupture between the indigenous people and national politics. It happened not for the reason that the indigenous were lack of western education; in fact it entailed a problem the root of which lies in the philosophical idea of nation-state itselfwhich was impossible for the numerically and geographically inferior indigenous people to resolve in their favour. Thomas D. Musgrave in "Self-Determination And National Minorities" has rightly put it -

"The concept of nation-state presupposed an exact correlation in the boundaries of the nation and the state; in reality this seldom occurred. Whenever it did not occur, so that some other ethnic group was also encompassed within the state, tension arose between the majority and indigenous groups, because the indigenous was ipso facto an alien element. The indigenous could not join in building the national character and culture of the dominant people, nor could its own national aspiration be satisfied."

Accordingly, the situation after dismantling of British Empire in Indian sub-continent in 1947 surprisingly conform to the foregoing statement because the partition of sub-continent into two separate states, namely India and Pakistan, took place on the ground of ethno-religious identity with hundreds of indigenous and religious subgroups in each state's boundary. What is more, the state of Pakistan was founded on strong religious nationalism which after 1947 turned into something not less than what should be exactly called religious fanaticism. In the following decades, the absence of constitutional democracy in Pakistan led to gradual decay of rule of law and paved way for intrusion of despotism and power politics wherein religion appeared as a conclusive determinant in socio-political events. So it was certain that in religious sentiment swayed Pakistani politics, non-Muslim communities including the indigenous people would be edged out of the scene and succumbed to bondage of domination.

On the other hand, as a reaction to this unjust domination and exploitation in the name of religion, resistance began to grow in East-Pakistan against the ruling class in the form of a rather secular political movement demanding autonomy finally resulting in a historic liberation war. After independence, the adoption of the constitution for the People's Republic of Bangladesh deserves mention for its bearing on the indigenous issue on two grounds. The first is undoubtedly Bangalee nationalism, which was then and there rejected outright by the indigenous people. The second is incorporation of article-38 to the effect that "no person shall have the right to form, or be a member or otherwise take part in the activities of, any communal or other association or union which in the name or on the basis of any religion has for its object, or pursues, a political purpose". The objective of this proviso was to cause Secularism, one of the fundamental principles of the state policy to take effect, and thereby to found a theoretical basis for a secular kind of nationalism which will entitle anyone from any caste, race or religion to join political life equally and indiscriminately.

But during two first martial law regimes, the constitutionalism and political trend of Bangladesh underwent a considerable change. The then government effaced the aforementioned proviso of article-38 by the Second Proclamation Order No. III of 1976, and subsequently affirmed it by the Constitution (Fifth Amendment) Act, 1979. By the Proclamations Order No. I of 1977 Bismillah-Ar-Rahman-Ar-Rahim was inserted at the beginning of the Constitution. By the same proclamations, Secularism was replaced by the absolute trust and faith in the Almighty Allah as a fundamental principle of state policy. The recognition of Islam as state religion has completed the circle of de-secularisation [The Constitution (Eighth Amendment) Act, 1988]. Needless to speak, the alteration of article-38 and the others were more than enough to divert the concept of nationalism from secular way and give way to reintroduction of Islamic fundamentalism in the political arena of Bangladesh. It is also undeniable that the reinstatement of Islamic fundamentalism has by now left enough influence on the political make up of a section of general populace of Bangladesh. The simple reason is influence of political regime on human being is much more penetrating than legal regime. When politics tries to capitalise on factors which should be left off to individual's own choice, it gradually becomes synonymous with extremism and fanaticism which results in purging of lesser community from national politics by manipulating state power and public sentiment. To do this an artificial ethnic barrier is also constantly maintained. In Bangladesh, the Chittagong Hill Tracts tragedy is a burning example of this.

Similarly the marginalisation of the indigenous people in Bangladesh has chiefly stemmed from their constant absence from the mainstream national politics. Though apparently this is attributable to causes like numeric inferiority, weak economic condition or disempowerment, the fundamentalist elements in mainstream politics, as discussed earlier is equally liable. The reinstatement of religion based politics, inclusion of Bismillah-Ar-Rahman-Ar-Rahim and Islam as state religion in the Constitution has set out a trend of Islamic Nationalism, which was further reinforced by propaganda of some political parties as a means of achieving political aim. In fact this strategy cuts both way While labelling people of other creed as the unpatriotic and unreliable fringe in the eye of the majority Muslim, it also deploys social force by capitalising people's religious sentiment to create sharp ethnic schism so as to inflict on the ethnic minority groups (inclusive of the indigenous) a mixed feelings of social pressure and insecurity. The outcome of this situation is very serious in the first instance history is gradually failing to work as a connective among different sections of people, so politics is becoming more fragmented and saturated with ethno-religious flavour. The second one is even more alarming the gap between our constitutionalism and politics is increasing. And if it continues at this pace, the first one falling prey to this will be the indigenous people.

But by the last comment it is not intended to mean that law has no role to play in resolving the present crisis pertaining to the indigenous people. Rather it must be admitted that in some cases law is the only solution. Even then there are certain rights much of whose enjoyment depends on political attitude and atmosphere. In our Constitution some of these rights, purely of civil and political nature have the status of fundamental rights, without whose enjoyment it is impossible to secure the fundamental aim of the state that is to realise through a democratic process a socialist society, free from exploitation in which rule of law, fundamental human rights and freedom, equality and justice, political, economic and social shall prevail. With this end in view, a legal reform with some positive discrimination may be done, yet it remains doubtful how far this can serve to eradicate mutual distrust between the majority and the indigenous flowing from the long lasting dogmatic political trend. Because no initiative has properly been taken since the imperial period down to the present to bridge the gap between the nation and the indigenous people. Without the help of politics in prevailing circumstances, it would nearly be impossible for law to work as an adhesive to fix this crack. So alongside normative reform, the politics should be absolutely secularised which will better solve the riddle of nation and its boundary.

The author has graduated from Department of Law, University of Dhaka.



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