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Bangladesh and 15th Amendment

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Submitted By kishormab
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The 15th amendment, CG, indigenous people, and related issues→ M. Serajul Islam The 15th amendment was inevitable because of the abolition of the 5th and 7th amendments by the Court. However, the Parliamentary Committee that was set up to deal with the Court's rulings extended its terms of reference beyond the rulings and delved into issues and areas that had already divided the nation, for instance the issue of the caretaker government. Interestingly, the day before the Committee placed the draft of the 15th amendment before Parliament; its Co-Chairman stated in the media that it would not make any recommendation on the CG. Lo and behold, the abolition of the CG was the number one recommendation of the Committee that did not enhance its credibility to the public.

The 15th amendment has also created controversy with regard to the people of our hill districts. Recently, on the occasion of World Indigenous People's Day, a few comments of the leaders of our hill tribes attracted my attention. One of them said on TV that the people of the hill tracts should be "grateful" to those who drafted the 15th amendment for "upgrading" their status from an "upajati" (sub-nation) to full "jati" (nation) by legally making them Bangalis from their hitherto status as Chakmas and members of other hill tribes of the country. The tone of sarcasm and sadness in his words did not escape viewers' attention.

Another tribal leader who was interviewed on the same issue said that regrettably when the Parliamentary Committee was making such fundamental changes in the Constitution affecting their fate; it did not consider it at all necessary to talk to them. This leader said that their efforts to be heard fell on deaf ears of the Committee.

The 15th amendment has denied the status of indigenous people to 3 million of the people of Bangladesh who do not speak Bengali and are not part of the Bengali culture. They are neither Muslims, the religion of the majority Bangalis of Bangladesh, nor Hindus, the religion of the largest minority Bangalis in the country. There are a host of other legal, moral and ethical issues that have been pushed aside by the 15th amendment where those who have been denied their rights have not even been heard or consulted.

If democracy is simply a matter of parliamentary majority, then the 15th amendment is democratic. It is the product of consensus among the 15 or so members of the Committee that drafted it. It was passed in a parliament of 350 members without any vote against it. But then democracy is much more than rights of the majority in parliament. In fact, the litmus test of a democratic country is one where the views of every group are given that extra consideration to rule out any possibility of a majority imposing its views on a minority. In this case, the ruling party's majority is in a parliament that for good part of the last two decades has been non-functional; a majority that translates to support in 40 per cent or less among the people!

In the context of what is contained in Part X on Amendment of the Constitution, the 15th amendment leaves a lot to be desired. This provision allows parliament to send a bill on amendment by a 23rd majority to the President. Nevertheless, the major part of Part X of the Constitution is on the power of the President to send such a bill for referendum, leaving little doubt that the framers of the Constitution placed the ultimate power of amending the Constitution on the people in case of controversy or on the importance of the amendment.

Then again, the committee that made the recommendations was entirely a committee of the ruling party and its allies. That the opposition was invited and did not attend can be a strong criticism against the BNP and its allies. Nevertheless, it does not substitute the requirements of democracy. In the process, the 15th amendment has been made without the views of a substantial number of the people of the country. For the sake of acceptability, the 15th amendment should have been placed to the people in the shape of a referendum once the opposition refused to participate in the work of the committee because it affects a larger number of people in the country beyond the Awami League and its allies.

The more pertinent question how logical is it to try citizens of sedition that is punishable by death who do not have respect for the Constitution that now includes controversial amendments that have not been supported by the majority of the people? The Leader of the Opposition has said her party will fight for the restoration of the CG. Does this constitute sedition for it surely shows disrespect for the Constitution? Leaving aside the legal arguments, should a Chakma by fear of sedition to become a Bangali? More importantly, can a Chakma be made a Bangali by a constitutional amendment because after the 15th amendment had made all of us Bangalis?

The questions are not difficult to answer. If the issue is democracy, the answers are self-evident. In a democratic country, the constitution is a consensus document where respect is spontaneous. It would be interesting to know if there is any other country where showing disrespect is seditious. Such an insertion in itself suggests that the constitution in question or a part of it has become controversial that is an anathema to very idea of a constitution. Those who drafted the 15th amendment would have done themselves and the country a world of good if they had studied a little about how constitutions are amended elsewhere, particularly the spirit with which such amendments are made.

In this context, what Dr. Kamal Hossain said recently is significant. He has urged the ruling party to bring a new amendment to deal with the controversies that it has brought to our politics by the 15th amendment. In particular, he asked the ruling party to revive the system of caretaker government and the spirit of the 1972 constitution that he drafted as the law minister. Talking of the spirit, the 15th amendment has re-established secularism but has kept the religious amendments inserted after August 15, 1975 changeover, thus making way for contradictory provisions on state principles to be a part of the Constitution.

Whether the ruling party does that or not, the politics of the country will, in one way or the other, resolve the controversy that the 15th amendment has injected in the context of the mechanism under which the next elections would be held. Both the parties are aware that a compromise has to be found. Unfortunately, in the absence of any culture of democratic negotiations among the mainstream parties, the compromise would probably come through the streets. The finance minister has clearly given a hint of the shape of things to come when he said that he saw losses to the economy in the next one year in the tune of US$ 235 billion arising of political conflict. No doubt he was pointing at some of the controversial provisions of the 15th amendment.

What no one has yet spoken is what would be the consequences of the controversy over the issue of indigenous people versus ethnic minorities that the amendment has introduced in our politics. Although the ruling party has not cared to explain, the reason for not allowing our hill tribes indigenous status is to protect the land and other rights of settlers from the planes who are from the majority Bengalis. If the constitution acknowledged the hill tribes peoples as indigenous peoples, it would deny the settlers, among other things, the right to own land.

This is why the foreign minister was at pains to explain to the foreign diplomats that the hill peoples of Bangladesh are ethnic people and not indigenous. She quoted from history to establish that the hill peoples migrated to the hill areas not that long ago and were not there when Bangladesh was inhabited by the ancestors of present day Bangalis of Bangladesh. As they were not here before the Bangalis, they have no claim as indigenous peoples but as ethnic minorities who migrated to the hill districts that would take away from them a host of rights and privileges to which they would be entitled under the relevant UN conventions, including the UN Convention on Indigenous People. Bangladesh, together with 11 other countries, abstained when this convention was adopted in 2007.

The issue is in fact being contested by Bangladesh in UN Human Rights Commission where the case of the hills peoples as indigenous peoples have many supporters among our development partners. The Bangladesh case is not weak either. However, by declaring the hills peoples as ethnic minorities and thereby forcing their separate identities as Chakmas, Moghs, etc to be subsumed by declaring in the 15th amendment that all people of Bangladesh are Bengalis, the Government has given an opportunity to the international forces who argue the case of the hills peoples in the Human Rights Commission , additional ammunitions to attack the Bangladesh case.

Whether the Bangladesh government calls them tribal peoplesethnic peoples or indigenous peoples, its case would be difficult to explain to the critics looking at the issue objectively. A lot of the difficulty has been inherited. The peoples of the hills of Bangladesh were betrayed during the Pakistan days when the Kaptai dam was built. The dam took away prime arable lands from the tribal peoples and they have not been compensated since.

When Bangladesh was created, the hill peoples were told to become Bengalis without addressing the issue of compensation for them for building the Kaptai dam. The call sowed the seeds of the insurgency in the hill districts. Manobendra Larma, a leader of the hill peoples had said then that they are not Bengalis by blood and that it would be impossible for them to ignore what they are by blood. The insurgency went on for a long time, fuelled by the attempts of the armed forces to force them into submission and Indian support for the insurgency. The military also tried to control the insurgency by allowing the people from the plains to settle there, the idea being to make the peoples of the hill districts a minority in their land. In fact, the military's objective was to do precisely that. They used questionable methods to tackle a highly sensitive, potentially volatile and totally political issue.

In a way, the ruling party has worked from the same mindset as the military in their decision to describe the hill peoples as ethnic minorities. They have backed the interests of the majority Bengalis in the hill districts where they have now settled in large numbers. The Indian government is now firmly behind the Bangladesh government for the major concessions that it has made on security and the promise of land transit. Therefore, it has no fear of insurgency from the peoples of the hill tracts who need India on its side for taking up arms against the Bangladesh government.

Although the government is in no immediate danger of insurgency of the hill peoples, it will face pressure over its decision on the issue from its development partners. In some form, this will be felt for sure. There was no reaction after the foreign minister's briefings to the foreign envoys here that suggests that they are critical of the subject. In the time ahead, the deliberations in the UN Human Rights Commission are expected to be heated when the subject that is on the agenda comes for discussion.

Potentially, the more threatening aspect of the issue is the fact that the hills peoples are either Buddhists or Christians. Their Buddhist connections will surely resonate adversely against the Bangladesh Government from countries such as Japan, our largest development partner, that has known weakness for Buddhism as a good part of its people are Buddhists or influenced by Buddhism. The Christian connection will likewise resonate adversely against us among our western development partners.

Most dangerous is the fact that although the insurgency issue may not explode so long as the present ruling party is in power, once a non-AL government not willing to give India what it wants from Bangladesh assumes power, the insurgency could start again and could become more serious because of the constitutional provisions we have made to deny them their rights. The government should not forget that a number of three million and growing is by no means to be taken lightly, particularly when they have been given reasons to fight.

It is in this context there is the need to consider a strong parallel here. As Bengali Muslims, we fought and created Pakistan. But Pakistan wanted to subsume our Bengali character and we revolted. At least we had a number of common factors that make a nation when we were a part of Pakistan, like a common religion and a common historical experience. The peoples of the hills have no such common factors with people of Bangladesh. To force them to become Bangalis would be a denial of the very issues and principals that gave our war of independence in 1971 the high legal, moral and ethical contents that has made it a unique movement for self determination in modern history.

The hill peoples are by no means confrontational. They have been subjected to historical injustices, many in the Pakistan era. The Government of Pakistan took away their agricultural land by building the Kaptai Dam and did not fulfil the promises of rehabilitating them. Their experience under Bangladesh has not been fortunate either that has forced them to take up arms against the government of Bangladesh. The Chittagong Hill Tracts Agreement of 1997 has promised them justice and fair play but by all accounts, the successive governments of Bangladesh have not fulfilled the promises.

There is no evidence that the hills peoples are progressing in any sector of activities in Bangladesh. Before taking away their special status as indigenous peoples, the government of Bangladesh should have undertaken massive programmes to bring them into the mainstream of the economy and administration of the country. There should have been special quotas for them everywhere where the government employs people. The International Mother Language Day that UNESCO celebrates every year on 21st February was introduced to save languages of many nationstribesindigenous peoples around the world whose mother tongues are threatened. Our hills peoples are facing this threat and the 15th amendment may only hasten this process.

Let the government not mistake the fact that there are strong forces abroad that would need to be convinced that the 15th amendment has done the right thing to our tribal peoples. It does not seem that the ambassadors whom the foreign minister briefed were convinced by her when she called them to the foreign ministry to explain the amendment. Their Buddhist and Christian backgrounds are important factors in their favour with our development partners. Added to these is the weakness of these countries for issues of rights of minorities and indigenous peoples. By the 15th amendment, the government may thus have bargained more trouble than it can handle because on issue of minorities and indigenous peoples, a country is no longer at liberty to do as it pleases.

The 15th amendment has thus treaded into dangerous waters but with a mindset of imposing the will of the ruling party in the name of the government on the people and calling it democratic. On the issue of abolishing the CG system, the drafters and the ruling party coalition parliamentarians knew that it would not be accepted by the opposition who despite their parliamentary lack of strength, represents the majority in the country. On the issue of transforming the hills peoples into Bangalis, they also knew or if they did not, they should have known that they were treating the subject in the same manner that the military-bureaucratic rulers of Pakistan treated Bengali nationalism.

In these cases, with full respect for the Constitution upon which the ruling party has placed such great emphasis, let the following be said on the issues raised here. Although there are four state principles, it is democracy that is the operating principle in our Constitution. It is for democracy that hundreds of thousands sacrificed their lives in 1971. It is for democracy that people followed the clarion call of Bangabandhu Sheikh Mujibur Rahman to fight for independence at any cost. The underlying essence, in fact the soul of democracy is the need to discuss for building consensus in matters of the state. Imposition of opinion on a majority or a minority, no matter how wise those imposing it may consider their viewsdecisions to be, is the anti-thesis of democracy.

Hence the 15th amendment must be reviewed for sake of democracy and to help us respect the Constitution. After all, humans inserted it and hence it has no claims to divinity. The 15th amendment has to be re-amended so that in case of the caretaker government issue, the majority view is reflected and in case of the indigenous people, the views of the tribal peoples are taken into consideration, to arrive at a consensus. If these are done, then there would be no need to insert the threat to anyone that disrespect for the Constitution would be sedition because then everyone would spontaneously respect it.

The writer is a former Ambassador to Japan.…...

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