In the first part of November, 2015 a group of persons came into my sight which was advancing with a banner. In that banner it was stated that the RAJBANGSHII was to be recognized as an ethnic group. It could be assumed that their identity was embodied in the ethnicity as much that the statutory recognition and safe guard were necessary for them to survive among the majority. At present it is observed that in Bangladesh where Bengalee nationalism has been constitutionally accepted without specific appreciation of cultural relativism, the minority community i.e. ethnic, religious minority and so on are now claiming their constitutional safe guard and rights. However, this procession gave me some questions to be raised such as why this ethnic community was not received statutory recognition and what was the ultimate standard to be followed for determining status of a community as minor. Following the thought I have proceeded with this article.
In this article my attempt will be endured throughout the development of the definition of minority community which has been brought in the international level and the approaches to identify minority community. With this endeavor I will also emphasized the approach which has been embodied in the constitution Bangladesh for the minority community.
Minority Community and Member of a Minority Community: Definition, Explanation and Specification:
We find the legal characterization of minority community in 19th century in the Minority Schools in Albania case wherein it is stated by the Permanent Court of International Justice (PCIJ) that ‘the minority people are different from the majorities because of their race, religion and language. They have some special characteristics which distinguish them from the majority’.
But in 1930, the PCIJ in its advisory opinion in the case of Greco-Bulgarian Communities (1930)gave the definition of “community” as “a group of persons 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 in accordance with the spirit and traditions of their race and mutually assisting each other”.
With this plain and simple phrasing it is appeared that the term “minority” has been explained by emphasizing the numerical meaning. Numerically, it refers to a group or community which is smaller in size in comparison to the majority. However, after considering the definition of the community and minority as given by the PCIJ, then it is appeared that when a group of persons with their distinct characteristic and combined spirit has the sentiment to preserve their characteristics and if that group is numerically minor in a given society then that group can be identified as minority community.
Approaches of United Nations:
Though the United Nations (hereinafter UN) human rights system is such that it only addresses the rights of different categories of minorities without providing the standard for ascertaining when a community is to be called as minority. The philosophy, as it is appeared, embodied in the human rights system of UN may be that all States may have minority groups within their national territories and the groups are distinguished by their own national, ethnic, linguistic or religious identity which differs from that of the majority population. It might be said that the UN emphasized on the rights of minoritywithout addressing the definition of minorities communityas the dimensions which rendered a community as a minority are numerically as many as we can think.
The term ‘minority’ as used in the UN human rights system usually refers to national or ethnic, religious and linguistic minorities, pursuant to the United Nations Minorities Declaration.
Before the United Nations Minorities Declaration, article 27 of the International Covenant on Civil and Political Rights specifically addressed the rights of minorities and provided three types of minorities namely ethnic, religious and linguistic. Point to be noted that the community which is claiming for “self-determination” cannot claim its status as “minority”.
Again, Article 30 of Convention on the Rights of the Child (CRC) provides a similar standard for minority children:
In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.
However, in General Comment No. 23 on article 27 of the ICCPR, we find a short brief on minority. In General Comment No. 23, the Committee opined in the note 5.1. that “the terms used in article 27 indicate that the persons designed to be protected are those who belong to a group and who share in common a culture, a religion and/or a language. Those terms also indicate that the individuals designed to be protected need not be citizens of the State party.”
In note 5.2, the Committee again observed that “the existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria”.
So, these comments put light on the gray area wherein the method of identifying a minority community was ambiguous. Moreover, note 5.2 also introduced the objective criteria. Later on, we find that the subjective criteria along with the objective criteria have been used as the methods of identifying minority community.
In 1977, Francesco Capotorti, Special Rapoteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minoritiesprovided a definition focusing on the non-dominant position. The definition is as follows:
“A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members—being nationals of the State—possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.”
Though in Comment no. 23 on the article 27 of the ICCPR, the nationality criteria has not been approved but the requirement to be in a non-dominant position remains important. Though in most occasions, a minority group is numerically minor, but instances are also available where numerical majority are in a minority-like position because of the non-dominant position, such as Blacks under the apartheid regime in South Africa.
With this development and absence of a formal definition, two criteria namely, objective and subjective criteria have been used for assessing the status of minority community and also the status of an individual as member of a minority community. These criteria have been followed in various international documents.
The objective criteria are based on the shared characteristics of a community such as the ethnicity, origin of nationality, culture, religion or language. We find in note no. 5.2. of the Comment on article 27 of the ICCPR that the existence of an ethnic, religious or linguistic minority requires to be acknowledged as per the objective criteria. This criteria have been followed by the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities(UNDM) and also in ICCPR (article 27).
The subjective criteria focus on principle of self-identification and the desire to preserve group identity. According to the principle of self-identification, individuals belonging to minority groups have the right to self-identify itself as a minority or to not self-identify as a minority. Therefore, as per the subjective criteria, a community can claim the right to self-identification as minority and thereby rights guaranteed to minority community. But in case of an individual, he or she can claim his or her membership in a minority community on the basis of objective criteria i.e. shared characteristic. Moreover, to identify itself as a minority community, the consensus among members is important.
However, both the subjective and objective criteria may be combined in determining the status of a community as minority. It is to be stated that a careful scrutiny of the definition of Francesco Capotorti implicates that both the criteria may be present in a particular instance. As for example, both the collective will of a community and will of individuals needed to be present and work together for claiming the status of minority community and rights ensured to the minority. If individuals deny to be a part of the shared characteristic of minority community then the community might not claim its status as minority.
Addressing this issue the UN Committee on the Elimination of Racial Discrimination, General Recommendation VIII, states that unless there is justification to the contrary, identification of persons as members of a racial or ethnic group will be based on “self-identification by the individual concerned.The choice of individual again point out in the OSCE Copenhagen Document (1990) wherein it is stated that “To belong to a national minority is a matter of a person’s individual choice and no disadvantage may arise from the exercise of such choice”.
From the above discussion, it may be materialized that the status of a community as minority does not depend upon the decision of a State. Rather, it is the individual and the community itself who can make the choice and claim the status. But if the State is a signatory of the UN Conventions, treaties and declarations then it is under obligation to give the lawful protection to minority communities and its member and also under obligation to provide the rights they are entitled to.
Even after scrutinizing both the subjective and objective criteria, the question remains is that at what point a community may claim its status as “minority”. As Feagin identified that a minority group has five characteristics: (1) suffering discrimination and subordination, (2) physical and/or cultural traits that set them apart, and which are disapproved by the dominant group, (3) a shared sense of collective identity and common burdens, (4) socially shared rules about who belongs and who does not determine minority status, and (5) tendency to marry within the group. It is appeared that Feagin is much more specific in identifying the characteristic of minority.
Sociologist Louis Wirth defined a minority group as “a group of people who, because of their physical or cultural characteristics, are singled out from the others in the society in which they live for differential and unequal treatment and who therefore regard themselves as objects of collective discrimination.” The political scientist and law professor Gad Barzilai, has offered a theoretical definition of non-ruling communities which are conceptualizes groups that don’t rule and are excluded from resources of political power.
This definition of Louis Wirth embraces both the objective and subjective criteria in the manner that the reaction of society towards a community objectively push that community to claim minority status and such reaction is based on individual’s distinct physical or behavioral characteristics. Subjective criteria come into play when the status of minority is claimed by its members on the basis of characteristics, group identity or solidarity. Moreover, as per the definition, minority group status is categorical in nature in every case as the physical or behavioral characteristics of an individual of a given minority community is to be accorded with the status of that community and treated in the same manner as other members of that community are treated.
Power Based Approach:
Another feature of the definition provided by Lousi Wirth may be that the collective discrimination through different and unequal treatment has been emphasized in the definition and this feature supports the definition as provided by Feagin. It may be stated that this discrimination is inflicted upon a member of minority community for being a member of the community irrespective of that member’s personal achievement. This discrimination may also be inflicted because of the power structure of a given society where the protection and enjoyment of rights is not accessible by the members of minority community only because of his or her shared characteristics.
Minority community being different from a social group is required specification to be identified.It may not be irrelevant to say that a minority community and a member of minority community can claim for different or special treatment and the reason may be that the majority community introduce and follow a power structure where the minority community and its members is discriminated through unequal treatment.
Moreover, a minority community may also be in a dominating position in a given structure and such domination may also direct to a system which results discrimination and deprivation inflicted to the majority community. Therefore, minority community having the characteristics of ruling or dominating community cannot claim status of minority community and therefore, cannot claim the protections and securities provided in the human rights documents.
Rights Based Approach: A Probability to Address:
The unequal treatment followed by discrimination may instigate a rights based approach. The rights based approach in defining, identifying and protecting a minority community does not necessarily call the unembroidered implementation of the rights based approach of development but the ability to approach a discriminated and marginalized community based on unequal treatment remain the same.
The common principles of rights based approach of development put burden on the development actors or organizations to change their approach from doing business to play supportive role in helping those who are discriminated and marginalized.In most cases, the development organizations or actors observe the “rights-based” or “human rights” approach as a method that can convert the practice of development from a focus on identifying and meeting needs to enabling people to recognize and claim rights which are included in the human rights documents.Therefore, this approach requires, firstly to work with actors who are duty holders i.e. state, non-state actors in order to increase their capacity to respond and be accountable in protecting, respecting and fulfilling human rights; and secondly, to work to build or increase the capacity of citizens to claim their rights, to work with them as advocates and by seeking to provide opportunities for people to empower themselves. The philosophy of the rights based approach of development is persistent in identification of minority community.
The human rights based approach can be justified for two underlying principles: the intrinsic rationale and the instrumental rationale. The intrinsic rationale is based on the acknowledgment that human rights based approach is the appropriate thing to be followed both legally and morally. The instrumental rationale is based on recognition of the policy that the outcome of this approach brings better and more sustainable human development.
The importance of a human rights-based approach lies in the following:
The focus of this approach is on the realization of the rights of excluded and marginalized portion of the society. The approach also keeps focus on those whose rights are at risk of being violated. In doing so the universal meaning of human rights is kept in mind as universality means that all people have human rights, though limited resource may have impact on prioritization. However, it does not mean that all problems of all people must be dealt with at once.
Human rights based approach is guided by a holistic view of its environment, considering the family, the community, civil society, local and national authorities. It considers the social, political and legal framework that determines the relationship between those institutions, and the resulting claims, duties and accountabilities.
Universal human rights instruments, conventions and other internationally agreed goals, targets, norms or standards are to be followed for implementing the human rights based approach. A human rights-based approach assists countries in translating such goals and standards into time-bound and achievable national results.
Accountabilities for accomplishing the result or standards can be ensured through participatory process i.e. developing policy, national planning. For this purpose, the consensus between right holders and duty bearers is necessary.
Formulation of policy, legislation, regulations and budgets are necessary for addressing the needed human rights and the human rights approach provides necessary principles in this regard. Also the approach empowers people and communities to hold those who have a duty to act accountable, ensuring effective remedies where rights are violated.
Human rights based approach also monitors the State commitments and provide recommendations when it is required.
The human rights-based approach ensures a sustainable result by:
Building and increasing capacity of rights holders to engage in dialogue and hold the duty bearer accountable.
Codifying social and political consensus for formulating laws, policies and programmes aligned with international conventions;
Embodying and implementing human rights entitlements within a framework of laws and institutions;
Institutionalizing democratic processes; and
Intensification the capacities of duty bearer to carry out their obligations as expressed in local, national and international laws, policies and programs.
The embodied philosophy of rights based approach of development implicates that the marginalized and discriminated citizens must be offered and empowered the capacity to claim their rights in this regard. In other words, the attitude of the main actors or organizations and the characteristics of deprived or discriminated people are to be taken into consideration and along with this the deprived or discriminated are to be empowered to claim their rights.
It is highly improbable to say that whoever is subject to the deprivation from enjoying rights and/or subject to discrimination may call him minority. But in this case, a filtering process can be introduced. The subject matters of filtering process may be the nature of discrimination and deprivation, the attitude of the dominating or ruling class or actors to the given community and physical or cultural characteristic of that community. This filtering process possibly will justify the rights based approach to determine the status of a community as minor.
Moreover, in a considerable way, this rights based approach covers both the collective and individual status as minority. In this approach, the State is a duty bearer and the State has not been given the capacity to act as determining body. So, in this approach, the minority communities do not require to be acknowledged by the State. Whenever a community is subject to deprivation and becomes the subject matter of discrimination and also desires to preserve the group identity then that community may identify itself as minority. With these subjective criteria, an individual of that community may also approach the objective criteria by claiming the shared characteristics and claim for the protection from deprivation and discrimination. As the discrimination is collective discrimination, therefore, an individual of a deprived minority community cannot deny the claim for protection.
Bangladesh and Minority Communities:
In determining the minority community, both the subjective and objective criteria are well established in international level. But appearently in Bangladesh these two criteria are not followed. Though the international standard does not put any State in a position to determine and recognize who will be minority but in case of Bangladesh, if the constitution and other laws are considered, the State takes the role to determine and recognize the minority community. Moreover, Bangladesh does not follow the mandate of international law in providing the protection and rights which any minority community can claim as per the international law. As a result, the movement from minority communities are well seen.
Being based on the Bangalee nationalism and Bangladeshi citizenship, the constitution of Bangladesh primarily gives an inference of denial of the cultural relativism. Along with other principles, the principle of nationalism is also recognized as a devise to formulate fundamental principles of state policy. Moreover, emphasizing on the common language and culture,it is stated in article 9 of the constitution that the unity and solidarity of the Bangalee nation, which deriving its identity from its language and culture, attained sovereign and independent Bangladesh through a united and determined struggle in the war of independence, shall be the basis of Bangalee nationalism.
So, it is clear from the relevant provisions of the constitution of Bangladesh that it overlooks the existence of multi-nationals in determining the nationality of the peoples and citizens of Bangladesh. Though, various provisions of the constitution provide scope for introducing State policy to give safe guards to the minority.
With a vague term like “backward sections”, article 14 of the Constitution provides that it shall be a fundamental responsibility of the State to emancipate the toiling masses the peasants and workers and backward sections of the people from all forms of exploitation.
In order to ensure secularism, article 12, clause (d) provides that the secularism shall be realized by the eliminating any discrimination against, or persecution of, persons practicing a particular religion and also communalism in all its forms.
Emphasizing nationality, article 23 provides that the State shall adopt measures to conserve the cultural traditions and heritage of the people, and so to foster and improve the national language, literature and the arts that all sections of the people are afforded the opportunity to contribute towards and to participate in the enrichment of the national culture. After this, article 23A states that the State shall take steps to protect and develop the unique local culture and tradition of the tribes, minor races, ethnic sects and communities. Again, as it is assumed that the constitution prioritizes the nationality i.e. bengalee nationality and put the protection of the minorities in inferior position.
Though the minority communities and the members of those communities satisfy both the subjective and objective criteria through collective and individual movement for ensuring their rights in every sphere of the State and society but Bangladesh does not provide effective mechanism for them to enjoy such rights and protection as per the international law. Here, the rights based approach may come into play.
Though the minority communities are neglected and discriminated all over the world but at the same time it is to be stated that the development of international law in protecting the rights of the minority community is also affirmative. It is appeared from the discussion that the international instruments are not able to provide any definition of minority community. Due to the absence of definition, the minority communities are in a crisis to claim their status. Though different approaches have been evolved to indentify minority communities but all those approaches are not sufficient to address the crisis. The social structure, nature and power structure of a society in a given situation vary in many ways and for these reasons it is not viable to set a rigid definition or approach. In this context, a broader approach is necessary. Hence, the rights based approach comes into play. The rights based approach can successfully identify communities who are claiming minority status for being marginalized and discriminated. As it is stated earlier, the very inherent nature of rights based approach is to empower the target communities to claim their rights and to obligate the duty bearer i.e. State to perform its duties. Moreover, countries like Bangladesh, wherein the minorities are not constitutionally recognized, the rights based approach can play more important role by providing a structure through which the State cannot deny its liability to protect minority communities. In order to ensure the human rights for all the citizen of world, the international bodies are working for decades and the rights based approach has been developed as a result of their working experiences. So, in this situation the rights based approach can play a better role for ensuring the status of communities who are claiming themselves as minority.
Advisory opinion of 6th April 1935,series A/B, no. 64, Eleventh Annual Report of the PCIJ,15 June 1934-15 June 1935,series E, no. 11, pp. 136-143.
Advisory opinion of 31 July 1930,series B, no. 17,Seventh Annual Report of the PCIJ, 15 June 1930-15 June 1931,series E, No.7, pp. 245-254.
Tapos Kumar Das, ‘National Commission for Minorities-Towards a Protection Regime’ in Mizanur Rahman (ed.) Human Rights & Religion Dhaka, Empowerment through Law of the Common People (ELCOP), 2014, pp.107-108.
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by General Assembly, resolution 47/135 of 18 December 1992.
UN Human Rights Committee (HRC), CCPR General Comment No. 23: Article 27 (Rights of Minorities), 8 April 1994, CCPR/C/21/Rev.1/Add.5, available at: http://www.refworld.org/docid/453883fc0.html [accessed 9 November 2015]
Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entered into force 2 September 1990
Supra note 5.
For example, The UN Human Rights Committee, General Comment No. 23: The Rights of Minorities (Article 27), CCPR/C/21/Rev.1/Add.5; the UN Working Group on Minorities, Commentary on the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, E/CN.4/Sub.2/AC.5/2005/2 (4 April 2005); and the UN Independent Expert on Minority Issues, Annual Report of the Independent Expert on Minority Issues, E/CN.4/2006/74,6 January 2006.
The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities Article 3.2.
Committee on the Elimination of Racial Discrimination, General Recommendation 8, Membership of racial or ethnic groups based on self-identification (Thirty-eighth session, 1990), U.N. Doc. A/45/18 at 79 (1991), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.6 at 200 (2003).
See for details, http://www.osce.org/odihr/elections/14304?download=true (accessed 11 November 2015).
L.Wirth, “The Problem of Minority Groups”, in Ralph Linton (ed.), The Science of Man in the World Crisis, New York, Columbia University Press, 1945,p.347.
G. Barzilai, Communities and Law: Politics and Cultures of Legal Identities, Ann Arbor, University of Michigan Press.
Office Of The United Nations High Commissioner For Human Rights, “Frequently Asked Questions On A Human Rights-Based Approach To Development Cooperation”, United Nations, New York and Geneva, 2006,http://www.ohchr.org/Documents/Publications/ FAQen,( accessed on 10.11.2015).
The Constitution of Peoples Republic of Bangladesh, article 6.
Ibid, article 8.
Ibid, article 23A.