THE tribal and the minor race-people of the hill-tracts and the plain land of Bangladesh have, for a couple of years, been raising voice for Constitutional recognition as 'indigenous'(adivasi). The voice intensified after the 15th Amendment to the Constitution of 2011. Their expectation was the recognition as indigenous in this very Amendment. The Amendment, however, recognized them in Article 23A not as indigenous but as tribes, minor races, ethnic sects and communities. This provision as inserted in this regard in the Constitution by means of the 15th Amendment runs: The State shall take steps to protect and develop the unique local culture and tradition of the tribes, minor races, ethnic sects and communities. Among them are the Saontals of Rajshahi, Naogaon and Chapai Nawabganj, the Chakmas, Mogs, Murongs, Marmas etc. of the Chittagong Hill-Tracts, and the Garos or Khasias of Mymensing and Kishoreganj districts and so on. Around a number of 57 ethnic groups of the kind are living in the country.

According to the census of 2011 the population of the tribal and minor-race people is 1.57 million that amounts to 1.10% of the total population of the country. Nearly 98.90% of the population is ethnically and linguistically Bangalee. In the BCS and other competitive examinations for public service 5% quota is reserved for them which is four-times than their proportion. Moreover they are free to enjoy the other service and education facilities preserved for the backward section of the people that is backed by Article 28(4) of the Constitution, viz. 30% for freedom-fighters, 10% for women and 10% for districts. But today's question is neither their number or percentage nor the percentage of quota they enjoy in service or education sector.  Today's, question, is rather the justification of the claim for the constitutional recognition as indigenous. It is relevant to mention that for the religious minorities of the country like the Hindus, Buddhists, Christians or Shikhs no such quota is reserved.

In Article 11 of the Constitution is reflected the same tune: The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed. The indigenous people, if there be any in the country deserve recognition.  

It is observed that the ethnic minority peoples as mentioned and recognized in Article 23A of the Constitution are not satisfied with such recognition as tribes, minor races, ethnic sects and communities. Before entering into the debate about the indegenous issue we need to clarify what does the term indegenous imply.

There is, fortunately or unfortunately, merely the mentioning of the term indigenous in some municipal laws of Bangladesh but no definition thereof. The term indigenous is mentioned in the Chittagong Hill-Tracts Regulation of 1900, but the term aboriginal castes and tribes is mentioned in the State Acquisition and Tenancy Act of 1950 for the purpose of meaning the same peoples. It shows that there is no uniformity in the laws of Bangladesh in mentioning and meaning the ethnic-minority peoples.

The major and effective inter-state instrument on the point is the Indigenous and Tribal Peoples Convention (No. 169) declared on 27 June 1989 by the ILO. It is mentionable that the United Nations General Assembly adopted the UN Declaration on the Rights of Indigenous Peoples vide Resolution [without reference to a Main Committee (A/61/L.67 and Add.1)] 61/295 in the 107th plenary meeting on13 September 2007 which did not define the term indigenous. However, the ILO Convention No. 169 of 1989 is relevantly defines the term indigenous.

For an easy understanding of the definition it may be designed as follows and all the ethnic peoples of the country should be compared with it, be they Saontal or Chakma, Mog, Murong, or Garo etc. or even, and very importantly, Bangalee. According to the ILO Convention No. 169 those peoples are indigenous:
* who live in an independent country, and
* who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs at the time of-
* conquest, or
* colonization, or
* the establishment of present state boundaries, and
* who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.

In the light of the definition provided by the International Labour Organizaion the ethnic minority peoples of Bangladesh who claim them to be recognized as indigenous should be assessed. If only the major points satisfy the ILO Convention-conditions then they should be recognized as indigenous by the Constitution.

Now question arises, if all the ethnic minorities i.e. a number of 57 ethnic and/or linguistic minorities of Bangladesh like Saontal, Mog, Murong, Garo etc. as well as ethnic and linguistic majority Bangalee are given legal or constitutional recognition as indigenous what will be the result and situation? Why shouldn't the ethnic and linguistic majority Bangalee be supposed to be constitutionally recognized as indigenous so far as they can satisfy all the conditions of the ILO Convention No. 169 of 1989? In such a situation the recognition of only the minorities as indigenous shall create hazard and nothing else, because the majority Bangalee should also lawfully be recognized as indigenous. There will then be no distinction between the ethnic and/linguistic minorities like Saontal, Mog, Murong, Garo etc. and the ethnic and linguistic majority Bangalee. In all sectors the minorities as well as the majority Bangalee should be eligible to apply on the same footing.

It is therefore safe for the ethnic and/or linguistic minority people of Bangladesh to be satisfied with their constitutional recognition as tribes, minor races, ethnic sects and communities as prescribed in Article 23A of the Constitution of Bangladesh. This recognition made by the Government under the prudent leadership of Bangabandhu-daughter Prime Minister Shaikh Hasina has brought the minority people in a position of dignity.

The writer is Professor, Department of Law, Islamic University Kushtia Bangladesh; e-mail: [email protected]