Beyond The Facade - A Legal Deep Dive Into Minority Rights In Bangladesh
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Category: General Law
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BEYOND THE FACADE: A LEGAL DEEP DIVE INTO
MINORITY RIGHTS IN BANGLADESH Abir Karmakar, Advocate (Dhaka District’s and Sessions Court) LL.M, Bangladesh University of Professionals LL.B. (Hon’s) Taylor’s University, Malaysia
ABSTRACT
The Independence of Bangladesh was considered as a victory for the ‘secular power’ which reflected in the original constitution of Bangladesh being founded on ‘secularism and non-discrimination’. However, 1975 was a point of departure when the constitution adopted an ‘Islamic Character’ making the minorities second class citizen of this country. In addition, the biased stance of constitution towards the Muslim community impacted the whole minority society at large in relation to their human rights. Inconsistencies and abnormality in the constitution and from other legislations made the equality clauses meaningless. Further, communal violence, violence against religious rights, torture, extortion, forceful conversion to Islam, religious discrimination have pushed the minorities on the verge of vanishing.
Thus, this paper articulates different aspects of the minorities rights in Bangladesh and attempts to reveal the truth behind the fancy words such as ‘equality, justice, rule of law and fundamental human rights’ that are used to draw an impression of communal harmony in Bangladesh. Keywords: Minorities Rights, Bangladesh, Reality, Human Rights, Religious Violations, Discriminations, Constitutional Inconsistencies
Introduction
Bangladesh is country that possesses a society whose characteristic is pluralistic and involves a wide diversity of beliefs, ethnicity, culture and language. On the basis of religion, Muslims are the majorities whereas a decent number of Hindus, Buddhists, Christians and other religions can also be noticed. Furthermore, Bengalis are considered as the vast majorities but in the north and northeaster areas consist of a significant number of ethnic people1. History suggests that, different religious and ethnic groups have demonstrated a communal harmony and coexisted in the land of Bangladesh for thousands of years. However, due to the ‘divide and rule’ approach of British liberal humanism was weakened and the environment of communal harmony and religious tolerance has been ceased2.
Emergence of India-Pakistan based on religion was a demonstration of selfish and sectarian motivated politics that denied the existence of minorities in the state. Pakistan became a Muslim nation in 1947 possessing a huge number of Non-Muslim communities specially based on East Pakistan (Now Bangladesh). Nonetheless, the independence of Bangladesh initially considered as a victory for the secular forces where the minority community assumed that it would end the communal tension3. However, the truth was that different bitter. After 1975, few Constitutional amendments founded on the Pakistani policies and legislations eliminated the secular status of Bangladesh and acquired the Islamic character making the minorities a second class citizen of this country4.
Further, Constitutional and legal support encouraged the radical cleansing process of minorities from the economic, professional and cultural life. Thus, a moderate declination of minority population can be observed with a threat of vanishing their existence from Bangladesh. This paper examines the rights of minorities in Bangladesh with an attempt to articulate the violations and discriminations conducted against them. Further, this paper attempts to unwrap the reality hiding behind the fancy words such as equality, justice, democracy, rule of law and human rights for the minorities in Bangladesh.
1 Muhammad Ghulam Kabir, Minority Politics in Bangladesh (Vikash Publications Delhi, 1980)
2 ibid
3 ibid
4 Gobinda Chandra Mandal, ‘ Rights of the Minorities
The Case of Bangladesh in Human Rights and Good Governance’ (1st edition, Rahman, Dr. Mizanur, ELCOP, Dhaka 2004)
Research Methodology
In this paper, non-doctrinal method of legal research has been used. The non-doctrinal concept can be defined as a method of research where a systematic search is conducted on social, political and other facts conditions that generate individual rules and by examining, effects of these rules are being identified5. Thus, in order to scrutinise the minorities rights in Bangladesh this method has been followed. Meaning of Minorities Under the international law, minorities indicate towards a particular group who are different from that of the dominant group within a state. Its members suffer disadvantages resulting from prejudice and discrimination.
In connection with the emigration of Greco-Bulgarian Communities, the Permanent Court of International Justice defined ‘minorities’ in an advisory opinion as below6: ‘Minorities are the people living in a given country or locality, having a race, religion, language and traditions of their own and united by this identity of race, religion, language and traditions in a sentiment of solidarity, with a view to preserving their traditions, maintaining their form of worship, ensuring the instruction and upbringing of their children in accordance with the spirit and traditions of their race and rendering mutual assistance to each other’ However, under United Nations the concept of minorities has been covered under the human rights and fundamental freedom.
Although the Universal Declaration on Human Rights, 1948 did not make any attempt to define these group of people but under Article 27 of the International Convention on Civil and Political Rights, 1976 minorities are specifically mentioned and further protection was provided7. It stated that, ‘In those States in which ethnic, religious and linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language’ Apart from the defined concept above, minorities demonstrate some distinctive features such as the have their own physic, culture dialect which they possess by birth, they identify their
5 Dr. Mona Purohit, ‘Legal Education and Research Methodology’ (2016) Central Law Publication
6 31st July 1930 in connection with the emigration of Greco-Bulgarian Communities
7 International Convention on the Civil and Political Rights 1976, article 27
selves as the member and integral part of the group, they have a strong brotherhood and they shows solidarity for preserving their culture, traditions, religion and language. Minorities in Bangladesh Based on the National Census Report 2001, the percentage of religious minorities in Bangladesh can be identified as 10. 30 per cent among which Hinduism possesses 9. 2 per cent, Buddhism 0. 7 per cent and Christianity 0. 3 per cent. A very negligible percentage of 0. 2 includes ethnic and linguistic minorities. Apart from these, Biharis are also considered as minorities who speaks Urdu and are from Pakistan. In terms of the indigenous people, Hindus are the mainstream Bengalis who resides across the country.
On the other hand, other minorities are predominantly, Buddhists and Christians mostly located in Chittagong Hill Tracts, but there are also quite a big number who lives in the other parts of the country. Being said that, Chittagong Hill Tracts is considered as the ‘homeland’ for 13 different communities among which Chakmas, Marmas and Tripura are the largest group. Chakmas and Marmas are Buddhists whereas Tripura are Hindus8. Further, Tanchangya and Brong are the sub-groups of Chakmaand Tripura. Mandi, Santal, Khasi, Monipuri, Paharia, Rakhaine, Rajbangshi,Koch, Oraon, Hajong,Mahat, Munda etc. are the important plain land ethnic groups with a variety of belief and language9. Legal Aspects of Minorities Rights in Bangladesh Under Article 27 of the Constitution10, every citizen of the country is ensured with equal treatment and protection of law.
Further, in the case of Sheikh Abdus Sabur v. Returning Officer and Other11, the Court mentioned that, the equal protection guarantees that similar people will be dealt with in a similar way. Thus, the constitution does not expressly adopt the expression of minorities and no special protection or promotion was provided, rather every citizen is considered equal and thus eliminated any kind of discrimination.
8 Father R.W.Timm, The Adivasis of Bangladesh, Minority Rights Group International ( 1991) P.1
9 ibid
10 The Constitution of Bangladesh 1972, article 27
11 Sheikh Abdus Sabur VS Returning Officer and Others, 41 DLR AD30
However, while it comes to treating non-Muslims as citizens serious abnormality and inconsistencies can be observed in the constitution of Bangladesh. As the state itself, has adopted the ‘Islamic Character’ and expressed full biasness to its majority Muslim Community, the equality clauses of the constitution becomes meaningless for others (who theoretically possess equal protection). For illustration purposes, Article 11 of the Constitution12 can be referred here which states: ‘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’. On the other hand, Article 8(IA) provides that, ‘Absolute trust and faith in the Almighty Allah shall be the basis of all actions’13. These two provisions directly go against each other.
Thus, some constitutional provisions theoretically protect minorities’ rights but hardly have they got any benefit out of it. Moreover, the intention of the constitution seems to bring minorities as the same and equal footing of others but in reality that does not ensures equal benefits of law. Such as, Article 28 (1) articulates an obligation on the state not to make any adverse discrimination against any citizen based on religion, race, caste, sex or place of birth14. But the 5th and 8th amendments of the constitution have done the very job which was prohibited by the Article 28 (1). Similar with Article 11, Article 28 (1) and several others become irrelevant and meaningless as Article 2A adopted Islam as the state religion of the Republic or in the preamble includes ‘pleadings that the high ideals of absolute trust and faith o the Almighty Allah’15.
Furthermore, Article 23 imposes obligation on the state to undertake necessary initiatives to preserve the cultural traditions and heritage of the people of this country. Moreover, this article further states that people should be ensured with the opportunity in order to contribute towards enrichment of ‘national culture’. However, in Bangladesh this national culture always meant Bengali Muslim culture for which the other religious or ethnic minorities never think to involve in the improvement of the language or literature or the art. Thus, due to the discrimination and torture against the minorities seriously affected their political, economic, social and cultural rights and hampered the basic constitutional safeguards16.
12 The Constitution of Bangladesh 1972, article 11
13 The Constitution of Bangladesh 1972, article 89(IA)
14 The Constitution of Bangladesh 1972, article 28(1)
15 The Constitution of Bangladesh 1972, article 2A
16 Kabir, Shahriar, ‘Human Rights in Bangladesh
Focus on Communal Persecution’ (2007) www. secularvoiceofbangladesh. org Nonetheless, not only constitution’s inconsistencies have detrimental effect on the minorities some other legislations have proved that minorities are the second class citizen of Bangladesh. For example, Enemy/ Vested Property Act can be referred in this context which is considered as the most detrimental one for the Hindu minorities. This legislation can legally be identified to take away land and properties from the Hindus who were levelled as Indian supporters during the 1965 Indo-Pak war. Although the law is not operative since 1974 but for some mysterious reason every now and then this dead law gets its life back by the land officials.
A constitutional environment along with other laws and policies, which does not favour or provides comprehensive protection to its minorities, thus pushing them on the verge of vanishing line in Bangladesh. Human Rights Violations of Minorities Bangladesh is a country where the minorities remain under a constant fear and insecurity due to the communal violence. Even in recent past, violence against Hindu minorities during the Durga Puja 2021 has put them in a fear that, their life, properties are not safe. Apart from these, there are many general violence that are reported but mostly remained unreported specially the violence that are conducted in rural areas where the media coverage is not so strong17. Thus, this section of the paper will attempt to articulate the general human rights violations of the minorities in Bangladesh.
Violations of Religious Rights: the constitution has recognised ‘Islam’ as the state religion of the country, however it does not prohibit other citizens to practice, profess or propagate their religion. The question arises whether the position of constitution is enough to protect the religious minorities? The answer will be in negative. Hindus of this country, often gets the victim of communal violence. For example, in 2021 communal violence against the Hindus were conducted based on an allegation that the Holy Quran was disrespected18. Thousands of Hindu temples were destroyed in different parts of the country, Hindu properties and people were attacked and the government kept their silence on. An irony is that, all this violations took
17 Arun Bikash Dey, ‘Attacks on minorities part of a blueprint’ (2021) https://www.thedailystar.net/news/bangladesh/news/attacks-minorities-parts-blueprint-2200036>
18 ibid
place during the biggest religious festival of Hindus, the ‘Durga Puja’. However, the investigation demonstrates that, the allegation against the community was wrong. Loss of Land Rights: Hindu Community is often eliminated from their lands by the Vested Property Act19. Through the implementation of this legislation, Hindus are legally identified as enemy of this country. Further, the ethnic minorities of the Chittagong Hill Tracts (CHT) have been alienated from their land and forest resources by state acquisition and state sponsored Bengali settlement programmes The much talked Land Commission formed after signing of the CHT peace accord to settle the land issue in the region is yet to start functioning, even after six years of the signing of the accord.
Forceful Conversion to Islam: Previously, forceful conversion to Islam was a common practice in Bangladesh especially in rural areas however, as of today, although not as common as past but it is not rare. Mostly, the minor girls and women are the target group for conversion. In many cases it has been seen that the minor girls/ women are being kidnapped and forcefully converted in to Islam where the local administration, politicians and religious leaders plays crucial roles. In this context, the Malo case of Madaripur can be considered here20. In this case, two minor girls from the Hindu Community were kidnapped by a group of Muslims of the same village by the support of Jamat-E-Islami Party and were forced to declare in an affidavit that they were 20 years old and wilfully converting into Islam. Once the girls went back to their parents, a huge number of groups attacked their parents.
The Police remained not only silent but also tactically forced the parents not to disclose about the heinous incident and refuged to lodge any complain. Thus, the minorities are forced to convert into Islam. Torture and Extortion: Minorities are the most endangered section of the citizens in Bangladesh who face the vulnerability of torture and extortion. This became a political norm in Bangladesh. Further, many reports have been published where miscreants armed with deadly weapons trespassed into the properties of minorities at midnight robbed them. Nonetheless, many girls and female members have been gang raped in front of their parents and family members on gunpoint. However, due to avoid the humiliations these incidents often remains 19 Amena Mohsin, ‘Rights of Minorities in Bangladesh, Human Rights in Bangladesh’ (2003) Ain O Salish Kendra
20 Rahul Gupta, ‘Ethnic Cleansing in Bangladesh’ (2002) http://www.mukto-mon.com/human-rights/ethnic
cleansing Bangladesh. html unreported and the young girls and women are being sent to either India or in town areas for their safety. Further, there are many other forms of violations of human rights of the minorities in Bangladesh, apart from the mentioned ones such as attacks on life and property, discrimination in the work places, abduction and forcible eviction. Vanishing Minorities in Bangladesh In the year of 1941, the total Hindu population in Bangladesh was 28 percent. Since then the number has drastically declined. By 1951 the number went down to 22 percent. Further, according to the National Census 2001, only 8 per cent Hindu remained in Bangladesh. Lastly, as of 2022 the percentage went down as low as only 7. 4. While talking about the other minorities only 0. 61 percent Buddhists, 0. 30 percent Christians remained in Bangladesh21.
Bangladesh after its independence tried but failed to establish social justice by implementing a secular and democratic society with modern national outlook due to local and international conspiracy. Pakistani ghost was whipping us. A new plundering class was created like Pakistan whose main job is collecting commission and use religion to camouflage their evil deeds. Further, no effective and comprehensive efforts have been taken by the government to preserve them which indicate the government’s position against the minorities. Thus, There will be a time when the minorities will be vanished from Bangladesh due to the legal discrimination against them. Conclusion and Recommendations Democracy indicates of equality, justice and respect for human rights. In any situation, the status of democracy in a state can be identified from its minority situation.
In Bangladesh, the constitution adopted an ‘Islamic Character’ after 1975 which directly goes against its own founding spirit of secularism and non-discrimination. Thus, discriminatory and anti-democratic decisions, through the 5th and 8th constitution amendments have made the equality and secular concept totally irrelevant and meaningless.
21 National Population Census Report, 2001
Further, democracy can be considered as an illusion in Bangladesh. The political parties and politicians have routinely used religion as tool for power against the minorities. In addition, the Islamic extremists do not provide any place for minorities to be a part of Islamic societies. Thus, it has been forgotten that minorities are the child of this soil too who must be recognised, protected and treated with due honour and dignity. In order to protect the minorities, the original founding concept of Bangladesh which is ‘secularism and non-discrimination’ needs to be brought back. Bangladesh was built with sacrifice of unlimited blood of different minority communities too. Therefore, a communal harmony and cultural tolerance need to be established. Finally, migration to India causes the minorities especially Hindus to diminish in size and took them on the verge of vanishing line.
Nonetheless, their history, cultural heritage is being lost. However, State has the utmost responsibility and duty to prevent this cultural genocide due to the international obligations imposed by different international Conventions and practices. Good governance in all level of state affairs, tolerance for others and due respect for human rights of the minorities can only way to establish that. Further, legislations need to draft to legally recognise the minorities and provide a comprehensive protection to them. And the implementation of those legislations is also essential elements to protect the minorities rights in Bangladesh.