THE EFFECTIVENESS OF THE AFFIRMATIVE ACTION FOR THE INDIGENOUS PEOPLE OF BANGLADESH UNDER THE NOTION OF “BACKWARD SECTION”: AN ANALYSIS

- Muhammad Rezaur Rahman

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Published On - June 19, 2016 [Vol. 4, Jan - Jun, 2016]

Introduction:

The ‘Principle of equality’[1] entails non-differential treatment for all human beings. However, it “does not mean identical treatment in every instance”[2] because in a society a certain part of the population may face more discrimination than others. Therefore, the principle may sometimes require states to take affirmative action[3] to diminish or eliminate conditions that cause or help to perpetuate discrimination against minority groups.[4] In Bangladesh, article 28 (4) of the Constitution[5] incorporates affirmative action for the benefit of certain groups of people as this Article provides- “Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens”  . This article, after briefly discussing the background for incorporating the provision, by applying Critical Legal Studies’[6] (CLS) view, firstly argues that the affirmative action provision became discriminatory with respect to indigenous people as it categorizes indigenous people of Bangladesh as ‘backward section”. This allows dominant class i.e. Bangalees[7]to impose their standard of equality on the indigenous people.Secondly, by using Thompson’s[8] language, the article will present an alternative view that the affirmative action can, in general, facilitates positive measures for the indigenous people and there are beneficial minimal restraints against the ruler. Finally, by assessing these two views, the article will conclude that though, affirmative action has some positive implications, however, under the notion of backwardness; the affirmative action provision in the Constitution instead of ensuring equality furthers the discrimination against the indigenous people.

PART I

The philosophy behind incorporating an affirmative action provision can be found in the preamble of the constitution, which speaks of ‘equality and justice (political, economic and social) for all.[9] Article-28 (4) of the constitution which empowers the government to take measures for the advancement of any backward section of citizens is an actualization of the aspiration echoed in the preamble. This postulates that the said law underpins positive implications for the backward section.

In the context of these assumed benefits of the said law, from CLS’s perspective, however, the law (in general), is not neutral, but instead reflects the ideology of the dominant class,[10] who manipulate the law to reflect their own interests in order to perpetuate their dominance over the powerless.[11] From this perspective, if the law in general is a tool of class power, then it can be assumed that the affirmative action provision also reflects the interest of the dominant class. Against this assumption, a question may arise whether the CLS view of general law is also applicable in case of a particular/special law. In this backdrop, a fresh Critical Legal analysis of the provision does raise a concern. In particular, the existence of the phrase any backwards sections of citizens in the provision can be seen as highly problematic, because by categorizing a certain part of the population, e.g. indigenous people as backward, it reaffirms the fact of class division (i.e. superior and inferior class). This class division is problematic because it empowers the dominant class to ascertain the standard of equality for the inferior class. In this context, MacKinnon’s view on gender equality will facilitate to comprehend the merit of the above proposition. Mackinnon observed that with men’s dominance in the society, the gender equality for woman is measured with reference to male standard (i.e. either to be treated same as men or different from men).[12] Therefore, the baseline is the standard set is actually a superficial and hegemonic standard. In Bangladesh, the government has actually opted for such dominant approach to define equality for indigenous people. Under such approach, the Government (represented mostly by Bangalees[13]) tries to equalize the indigenous by putting them into the shoes and coats of the Bangalees. An analysis of the Government’s affirmative action program can further substantiate the above proposition. In Bangladesh, special measures for indigenous people are confined within the allocation of quota facilities in education, public services, etc. These facilities, while can be seen as mere incentives that benefit few indigenous people,[14] nevertheless, failing to diminish the level of inequalities as a whole.[15]

To diminish inequality measures must be taken in line with indigenous’ way of equality as the reality for the Bangalees and the indigenous people is not identical. Their history of socioeconomic struggle and the notion of life do not align together. For indigenous people, equality means to be treated differently[16] rather than as equal to the dominant class. To ensure an indigenous’ way of equality requires acknowledging their right: to self-determination,[17] to maintain and strengthen their distinct political, legal, economic, social and cultural institutions,[18] and the right to determine their own identity or membership,[19]etc. However, the type of measures taken by the government for their equality appears to be more compatible with the dominant class’ version of equality, one that, they believe to be suitable for the backward class. As a result, the affirmative action provision and measures that follow became discriminatory, as it does not recognize indigenous people’s way of equality.

Part II

In contrast to above argument, which is based on CLS’s view of the law, the paper now will assess the affirmative action provision from Thompson’s view of law. Thompson observed that although the law mediates the class relations and in general favoring the rulers, but does not make the law as equivalent to class power.20[20] This is because the law mediates these class relations through legal form which itself inhibits the power of the ruler and affords some protections to the powerless.[21] Besides, the law inherently embodies the principles of equity and universality.[22] What Thompson was implying by pointing these inherent characteristics of law is whilst a law may apparently favor the dominant class,  it also provides a means to fight against them. From Thompson’s perspective, it can be argued that a specific provision of law (e.g. the affirmative action provision) also possess the inherent characteristics of the law (i.e. equity, justness and inhibit ruler’s action). In this context, the provision that incorporated for the benefit of backward section not only facilitates positive measures for indigenous but also provides a means to bargain better treatment from the dominant class. Moreover, its absence would actually benefit the government because in such case the government would have no obligation to do anything for the benefit of indigenous people whatsoever. The term backward, therefore, can be seen as a linguistic limitation of the provision. However, it does not debar indigenous people of Bangladesh to make their claims for justice through courts to change the very nature of the measures to be taken by the Government.

Conclusion:

The paper will conclude by rejecting the above view (Thompson’s view) by saying that although the law, in general, may possess some positive characteristics, but that does not mean every law will give a positive outcome. This is because to address specific issues, the law should be constructed in specific ways. In case of indigenous people, the recognition of identity and right to self-determination is the starting point of equality. These must reflect both the language of law and measures that follow. However, this paper demonstrates through examples that the present affirmative action provision by categorizing indigenous as backward becomes discriminatory and dominant class’s tool to impose their own idea of equality that furthers the discrimination against indigenous people of Bangladesh.

[1] Everyone is equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, vide: Universal Declaration of Human Rights, 10 December 1948, UN General Assembly Res 217 A (III) art 7 and  International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171art 26.

[2]  Office of the High Commissioner for Human Right and The International Bar Association, Professional Training Series no. 9 Human rights in the Administration of Justice: A Manual on Human rights For Judges, Prosecutors and Lawyers, (New York and Geneva: United Nations, 2003) at 652.

[3] Generally, affirmative action means special measures to favor a group of disadvantageous people who suffer discrimination within a society. The affirmative action policies may include various beneficial program depending on the target groups. Generally, these programs include reserve seat in parliament, quota reservation in public employment and academic institutions, special budgetary allocation etc.

[4] For example, racial and ethnic minorities, indigenous people etc.

[5] The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth…Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens, Constitution of the People’s Republic of Bangladesh, 1972 art 28 [Constitution of Bangladesh].

[6] Joan Williams, ‘Critical Legal Studies: The Death of Transcendence and the Rise of the new Langdells’ (1987) 62 NY University Law Review.

[7] In Bangladesh, 98 percent of the population belong to Bangalee nationalism who are the dominant class of citizen. On the other hand, only 2 percent belongs to indigenous communities who are considered as minorities,          See,     National     Information     Portal,     “Know     Bangladesh”   http  online: <//www.bangladesh.gov.bd/site/page>.

[8] E.P. Thompson, Whigs and Hunters: The Origins of the Black (London: Allen Lane, 1975).

[9] Further pledging that it shall be a fundamental aim of the State to realise through the democratic process a socialist society, free from exploitation a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens, Constitution of Bangladesh, supra note 5, preamble.

[10] Williams, supra note 6 at 488.

[11] Ibid at 489; See also, Stanford Encyclopedia of Philosophy, “Law and Ideology”(October 2014) online: <http://plato.stanford.edu/entries/law-ideology/>.

[12] Catherine Mackinnon, ‘Difference and Dominance’ in Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard University Press, 1987) at 33-34.

[13] The representation of the indigenous people in the Cabinet of Bangladesh is less than 1 percent, See,  Cabinet Division of the Government of the People’s Republic of Bangladesh, List of Ministers, online: <http://www.cabinet.gov.bd/site/page/e1>.

[14] See, Asian Indigenous People Pact (AIPP), A Brief Account of Human Rights Situation of the Indigenous People in Bangladesh (Chiang Mai, Thailand: Asian Indigenous People Pact (AIPP), 2007) at 19-20.

[15] The indigenous communities of Bangladesh often argue that some of the measures like increase political participation, economic development programs etc. can facilitate their claim for equality. To them, political participation can be ensured through accessibility in the parliament by allocating reserve seats. This will facilitate the indigenous to raise their voice and bargain for their rights. However, in Bangladesh, neither there is any reserve seat in the parliament for indigenous people nor there is any large scale economic development policy introduced. In fact, the budgetary allocation for indigenous people is just less than 1 percent, See for details, Staff Correspondent, ‘Separate allocation for nat’l minorities demanded’ New Age (13 May 2015), online: <http://newagebd.net/119378/separate-allocation-for-natl-minorities-demanded/>.

[16] The preamble to the United Nations Declaration on the Rights of Indigenous People has mentioned that indigenous people are equal to all other people, while recognizing the right of all people to be different, to consider themselves different, and to be respected as such, See generally, United Nations Declaration on the Rights of Indigenous People, 2 October 2007, UN General Assembly res A/RES/61/295.

[17] Indigenous people have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development, Ibid, art 3.

[18] Ibid, art 5

[19] Ibid, art 33

[20] Thompson, supra note 8 at 264.

[21] Ibid at 266.

[22] Ibid at 264

About The Writer

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Muhammad Rezaur Rahman

Lecturer, Faculty of Law in Northern University Bangladesh.

Email: shuvo953@gmail.com.

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