In 1972, Bangladesh enacted its constitution. The country was newly liberated and war-ravaged from the previous year. Its constitution was designed with socio-political and legal equality in mind. The constitution acknowledged peoples’ right to equality: an equality based on religion, race, ethnicity, gender and place of origin. It also outlined equal access to public services. At the same time, laws or policies that violate equal rights provisions were made unconstitutional. Such provisions can be struck down through judicial intervention.

The constitution-framers were cognizant of providing historically disadvantaged groups with a level playing field. Initially, women, religious minorities, ethnic minorities and the rural population were the most deserving candidates for preferential treatment. Accordingly, Article 28(4) of the constitution was the first in the book mandating the state to enact ‘special provisions in favour of women or children or for the advancement of any backward section of citizens.’

Thereafter, article 29(3) permitted preferential treatment for ‘any backward section of citizens to secure their adequate representation.’ It is important to know that the phrase ‘backward section of citizens’ is not defined in the text. Bangladesh’s constitution, however, mandated affirmative action for those groups of citizens who might have been subject to historic and prolonged disadvantage, disempowerment and exclusion. This action was mend to address the deeply rooted social marginalisation facing a post-colonial nation.

2021 marks the 50th year of Bangladesh’s constitution. How has the country fared in safeguarding its marginalised groups? This writeup argues that Bangladesh’s implementation of two crucial constitutional provisions, articles 28(4) and 29(3), has amounted to a positive-discrimination approach. Bangladesh’s Supreme Court, however, calls this affirmative action a ‘reasonable classification.’ To understand how a post-colonial country like Bangladesh dealt with its most vulnerable, the differences between ‘positive discrimination’ and ‘reasonable classification’ needs to be properly discussed.

The ‘positive discrimination’

In Bangladesh’s case, the constitutional preference for marginal groups is popularly, perhaps mistakenly, called the ‘positive discrimination’ system. Discrimination being the antithesis to premises of equality and non-discrimination contained in the country’s founding constitutional provisions. Here the term ‘positive discrimination’ might not reflect the philosophy behind of the two rights-provisioning articles, 28(4) and 29(3).

Positive discrimination conveys a message where a discriminatory treatment is given to a group to balance against their antagonistic counterparts. There are some issues with this articulation though. On the one hand, it might imbue policymakers with a simplistic understanding of why addressing the concerns is marginalised is important. On the other hand, it may invite makeshift policies that serve populist and political advantages rather than objectively addressing the setbacks facing marginalised communities. More importantly, it trivialises the proportionality of action. Let us take two examples.

Until recently, Bangladesh’s quota system in public service used to be criticised as a subjective tool. In other words, it lacked a thorough evaluation of the necessity and the proportionality of the policy. The policy ensured the reservation of some 55% jobs in the civil service for certain groups for an indefinite period. However, the policy didn’t have a review mechanism. In other words, thus there could be no periodic evaluation of its necessity or impact.

Similar arguments are being made about women’s representation in Bangladesh’s Parliament. There is no denying that historically women were excluded from the country’s political process and, of course, there is a legitimate need for a preference system. However, the methods chosen should be subject to proper scrutiny.

Bangladesh has a gender-based reservation for women in the legislature. The reserved candidates are not directly elected by voters; rather they are appointed by political parties. However, they cannot legislate laws. The impact and the democratic value that the reserved seat members add to the parliamentary process is therefore up for debate. In 1972, the non-amended constitution introduced reserved seats for women members through indirect election for ten years. The system has since continued, albeit with periodic renewals.[1] In reality though, these renewals have essentially been an extension of the same policy.

Consecutive extensions of the reserved seats, however, has not gone uncriticised. On two occasions, the issue went before the Supreme Court. In two cases, first in Dr Ahmed Hussein v. Bangladesh[2] and later in Farida Akter v. Bangladesh,[3] it was argued that indirectly elected seats were undemocratic. In both cases, the Court rejected this argument and held that indirect election was justifiable under article 28(4) of the constitution. In other words, indirect election was a preferential action.

The Supreme Court’s verdicts, however, could not silence the critiques. In another case, a bench of the High Court Division of Bangladesh’s Supreme Court questioned the indefinite continuation of the policy.[4] This case dealt with women’s reserved seats in city corporations. In the verdict, the court expressed its doubts on the constitutionality of the parliamentary reservation. It recognised the need for a system of direct election to generate women’s reserved seats.

If the civil service quota and the gender-reserved seats in the parliament are any indication, Bangladesh’s successive governments haven’t got to grips with the constitutional provisions on affirmative action. Meanwhile a ‘reasonable classification’ approach to affirmative action might present policymakers with a better tool for affirmative action. As one prominent Bangladeshi judge put it, a preferential classification ‘must be founded on an intelligible differentia which distinguishes persons who are grouped together from others left out of the group.’[5]

Difference will be intelligible only when policymakers show ‘a rational relation of the action they take to the object they seek to achieve.’ A preference system, in that sense, should never be arbitrary, artificial or too subjective to carry it towards ‘a point where instead of being a useful servant, it becomes a dangerous master.’

The ‘reasonable classification’

For Bangladesh, a ‘reasonable classification’ approach over a ‘positive discrimination approach’ would be commensurate with the commonly acclaimed affirmative action jurisprudence of the United States. The USA has a continuing struggle with racial justice and a fundamental tension with constitutional equality. The country has over a hundred years of history of liberal attempts to uplift its black communities. The equalising attempts, through laws and policies, have all faced resistance from the privileged white groups.

Despite some minor contradictions, the US Supreme Court adopted a clear principle. The principle is: any policy with race and gender as a basis for action would survive the constitutionality challenge only if it not a numerical quota system. It also has to be limited in scope and backed up by evidence of past discrimination. The US Supreme Court also has a rigid threshold known as the ‘strict scrutiny test.’ Here the court questions whether an affirmative action law reflects a ‘compelling governmental interest’ that could make the action worth pursuing.[6]

Facing a constitutional controversy, former president Bill Clinton famously announced his four ‘Clinton Principles.’ It required that any existing affirmative action programme in the country would be discontinued or reformed if they inculcated the following four principles:

  1. Subjective quotas’
  2. Preference for unqualified claimants of benefit;
  3. Reverse discrimination towards other equally qualified claimants; or
  4. Unnecessary continuation even after the fulfilling the original purpose.

Clinton’s first principle distinguished the more whimsically allocated ‘quotas’ from objectively settled affirmative action ‘goals.’ The quotas were essentially fixed and rigid, whereas the affirmation action goals were more flexible.

The second principle halted preferences for anyone ‘unqualified.’ This principle is particularly relevant for Bangladesh. For example, in Bangladesh thousands of quota vacancies in its public service remain unfilled due to the lack of qualified candidates.

Clinton’s fourth principle, i.e. ending affirmative action as soon as the purpose is achieved, requires a continuous evaluation of the progress and the process. Using this principle as a yardstick, Bangladesh’s strict quota reservation for women parliamentarians fails to serve any significant input to the women political empowerment goals. Critics have argued that far from addressing the male numerical majority, Bangladesh’s reservation policy has not enriched the parliamentary process.

Bangladesh’s current mindset of positive discrimination might not fulfill the basic tenets of its constitutional equality philosophy.

Bangladesh’s current mindset of positive discrimination might not fulfill the basic tenets of its constitutional equality philosophy. Bangladesh’s commitment to equality for the groups that require it most is well-documented. However, the preference system in Bangladesh – that is to say the quota policy – is unhelpfully rigid. It is imprudently non-institutional and does not have a system of objective evaluation of what is in the interests of necessity. After a 50-year journey, Bangladesh is ready for some constitutional retrospection.

 

[1] Renewals were in 1978, 1990, 2004, 2011 and lastly, 2018

[2] 44 DLR (AD) 109

[3] 11 MLR (2006) (AD) 237

[4] In Shamima Sultana Seema v. Bangladesh, 57 DLR (2005) 201

[5] Justice ATM Afzal put it in Sheikh Abdus Sabur v. Returning. Officer 41 DLR (AD) (1989) 30

[6] Wygant v. Jackson Board of Education 76 U.S. 267 (1986) and City of Richmond v. J.A. Croson Co 488 U.S. 469 (1989)

 

Photo ©️ Mahmud Hossain Opu

 

Jashim Ali Chowdhury is Assistant Professor of law at the University of Chittagong, Bangladesh. He is a lawyer and a legal researcher. He was a Fulbright Scholar at the Institute of International Education, USA. He pursued his graduate studies in comparative law at Tulane University, USA.