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    Unwise perhaps, but not unconstitutional

    online desk | 03 May 2018 | 1:00 pm

    Unwise perhaps, but not unconstitutional

    Misrepresenting the law regarding a decision of the government is not acceptable

    A quota system is a system wherein something is reserved for an underprivileged section of a society in order to uphold their representation in education, business, service, or policy-making process.

    The common logic behind the system is to eliminate discrimination against those sections.

    But in reality, it is often used to increase representation of certain backward elements in government activities, providing them with preferential treatment.

    In developed countries, it is treated as affirmative action, which helps the underprivileged be more representative of their communities.

    The quota system should be in place for a specific time period in order to correct past wrongdoing or inequality — usually a result of historic oppression of certain communities.

    Before the protests

    Bangladesh recently experienced widespread protests demanding reforms in the quota system regarding recruitment in government services. The protesters demanded a reduction in the percentage of quotas in various categories.

    Prior to the protests, which took place earlier this month, the quota provisions were as follows:

    30% reserved for freedom fighters or the children of freedom fighters

    10% reserved for women

    5% reserved for indigenous groups

    10% reserved for various districts (based on the districts’ population density)

    Many found these provisions frustrating, as it left only 45% of the posts to the meritorious.

    Repealing the quota system

    The nationwide protests for quota reform culminated in the overall repealing of all quotas in government jobs.

    The prime minister, however, said that the government will make a special arrangement for ethnic minorities and the physically challenged in the public service recruitment system.

    This gave rise to yet another debate on whether overall repealing of this quota system is constitutional or not.

    A bulk of our society believes that the decision to scrap the entire existing quota system for government jobs would contradict the constitution of Bangladesh, that the constitution requires the government to provide allowances to Bangladeshi nationals belonging to small ethnic groups and disadvantaged communities.

    If the government repeals the quota system altogether, as misguided as it would be, calling it unconstitutional is wrong

    Constitutional expert Advocate Shahdeen Malik has stated that the quota system should not be cancelled entirely, as many underprivileged groups still rely on it.

    Discussing the matter in more detail, he said: “Bangladesh has many small ethnic groups, religious minority communities, disabled citizens, and disadvantaged groups living in specific regions. Our government has a constitutional obligation to support these groups.”

    The legal basis of recruitment of services of Bangladesh is laid down in Article 133 of the Constitution of the People’s Republic of Bangladesh. The constitution recognizes that all citizens are equal before law under Article 27, and undertakes to give them equal opportunities under Article 29. Article 28(1) also provides that the state shall not discriminate against any citizen on grounds of religion, race, caste, sex, or place of birth.

    Article 29 of the constitution states that there shall be equality of opportunity for all citizens in respect of employment or office in the service of the republic.

    However, this is also true that, Article 28(4) allows the state to make special provisions in favour of women or children or for the advancement of any underprivileged sections of society.

    Therefore, the constitution empowers the government to provide benefits to disadvantaged communities, religious minority groups, the disabled, small ethnic groups, and others who need support. However, in my opinion, if the government repeals the quota system altogether, as misguided as it would be, calling it unconstitutional is wrong. It is widely acknowledged that raising the quota to 56% was an abnormal solution to the issue, but cancelling the quota system may also be just as inexplicable.

    It may be said that cutting down quotas to 0% will increase the suffering of disadvantaged communities across the country.

    In our situation, a commission should be formed to tackle the issue. Dr Malik has said that any democratic country would form a commission to reach a viable solution on the quota system debate.

    Saying that, if we form a commission, the government would be able to discuss the quota allocation system with it to reach a consensus.

    Advocate Sultana Kamal pointed out that the quota system is used by most countries in the world to combat inequality, and the Bangladesh constitution also has a clear directive on safeguarding the rights of its citizens.

    Our government also considered this matter while repealing the quota system and hence, the PM later stated that there will be special arrangement in place for employment of small ethnic groups and disabled citizens.

    It would be a wise solution to talk to the government to deal with this matter, so that we can safeguard the rights of all citizens affected by the quota system.

    However, it is entirely unacceptable to misrepresent the law against the decision of the government.

    Tasmiah Nuhiya Ahmed is Advocate, Supreme Court of Bangladesh, and Research Assistant (Law), Bangladesh Institute of Law and International Affairs (BILIA).

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