Indigenous Peoples and Ethnic Minorities of Pakistan

Constitutional and Legal Perspectives

Shaheen Sardar Ali, Javaid Rehman

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9781138972575
• eBook ISBN: 9781136778681
• Edition: 1
• Topic: Social Sciences
• Subtopic: Regional Studies
• Index: Social Sciences

Examines the issues facing indigenous peoples and ethnic minorities, including their role in the nation's constitutional and legal developments, and makes a number of recommendations which would satisfy their demands without compromising the sovereignty of the state.

Chapter One

Preliminary Issues: The Meaning of ‘Indigenous Peoples’ and ‘Ethnic Minorities’

The issue of the rights of ethnic minorities and indigenous peoples has reached an extremely sensitive position in comparative constitutional laws as well as in international law.¹ Notwithstanding its importance, there are serious disagreements regarding the definition of ‘peoples’, ‘minorities’ and ‘indigenous peoples’. The primary reason for this controversy is that although ‘peoples’ and ‘indigenous peoples’ have a right to self-determination, under contemporary international law ‘minorities’ do not enjoy the same rights.² As the International Labour Organisation Convention 169 (entitled the Convention Concerning Indigenous and Tribal Peoples in Independent Countries [1989])³ and the Draft United Nations Declaration on the Rights of Indigenous People⁴ confirm, indigenous peoples are increasingly being recognised as having the right to self-determination. This right, if accorded widespread recognition, could make a difference between the right to independent statehood as opposed to mere entitlement of cultural, linguistic or religious existence within established international boundaries.

Commonality between Minorities and Indigenous Peoples

Minorities and indigenous peoples share much in common. Any consideration of the position of minorities could not afford to ignore the case of indigenous peoples and vice versa. From a substantive, practical point of view, indigenous peoples also tend to epitomise the minority syndrome – annals of history testify to the systematic persecution, discrimination and genocide wherein minorities and indigenous peoples have suffered in partnership with each other. A number of minority groups (like the indigenous peoples) were killed off, while the survivors were conquered or subjugated.⁵ Having been relentlessly victimised in the contemporary age, minorities and indigenous people frequently face rejection and remain in conditions which governments of modern states regard as less developed or unacceptable. Persecution and discrimination against these groups exist in many societies, and the persistence of a number of discriminatory laws is an unfortunate reflection of the treatment meted out to minorities and indigenous peoples.

This overlap between indigenous peoples and minorities often makes it difficult to identify a particular group as a minority or indigenous people. These difficulties become obvious if we consider the position of such groups as the Kurds of Turkey, Iraq and Iran, the Tamils of Sri Lanka, the Baluchis of Iran and Pakistan, the Bengalis of the former East Pakistan (now Bangladesh), and the Nagas or Kashmirs of India.⁶ State practice has varied considerably, as have attitudes of members of these groups themselves.

In the case of Sri Lankan Tamils, claims to indigenousness become problematic when we consider their historical origins, for while the ‘Jaffna’ Tamils appear to have settled in the island between the first and tenth centuries A.D., the ‘estate’ Tamils were brought in only during the British colonial period.⁷ The Tamils nevertheless have persistently claimed the right to self-determination, including secession from Sri Lanka.

Similar difficulties emerge in the position of the Bengalis.⁸ The Bengalis waged a successful secessionist movement under the banner of the right to self-determination. Prior to 1971, the Bengalis claimed that they were a ‘people’ and not a minority and were therefore entitled to the right of self-determination. After the establishment of Bangladesh, successive Bangladeshi governments have maintained that as self-determination was attained in 1971, the country now represents a homogeneous unit. As shall be discussed below, the official stance has been that all peoples of Bangladesh are indigenous and therefore groups such as the Chakmas of the Chittagong Hill Tract cannot put forward independent self-determination claims in their capacity of indigenous peoples.⁹

The line of argumentation put forward by India is also very similar to that of Bangladesh. Successive Indian governments have taken the position that after the independence of India in 1947 all claims to the right of self-determination expired. India has placed a reservation on Article 1 of the International Covenant of the Civil and Political Rights (1966) for fear of generating further claims to the right of self-determination and secession.¹⁰ This Article provides that:

1. All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resource without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit and international law. In no case may a people be deprived of its own means of subsistence.
3. The State Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust territories, shall promote the realization of the right to self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.¹¹

Not surprisingly, the Indian standpoint has been contested and opposed by groups including the Nagas, the Kashmirs and Punjabi separatists. Pakistan has not ratified the International Covenants and has persistently refuted any further claims of self-determination by the Baluchis, the Sindhis or the Pakhtuns. On the other hand, as this study argues, the aforementioned groups have claimed the right to self-determination in the capacity either of ‘peoples’ or indigenous peoples.

Complications of Definition

The issue of the rights of indigenous peoples presents particular difficulties not least because of the complexities surrounding attempts to define ‘indigenous’ or ‘minority’. A comparative analysis of the relevant international instruments as well as the survey of individual state constitutions and legislation reveals the fruitlessness of attempting to reach a consensual definition of these terms. Despite many attempts to develop a definition of the term ‘minority’, agreement over the definitional issue has not been reached. The latest, most substantial effort towards defining a ‘minority’ was made by the Special Rapporteur Francesco Capotorti. According to Capotorti, a minority is 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.¹²

Various challenges have been presented to the indices used to define a minority. Criticisms were made at the narrowing of the concept to numerical inferiority and at the exclusion of non-nationals. This definition focused on those minorities that desired to retain a minority status, as opposed to those that were forcibly excluded by the majority into a subservient position.¹³ Subsequent attempts that have been made, notably by Rapporteurs Deschênes and Eide, have also failed to gain universal acceptance.¹⁴ The most recent international instrument on minorities, namely the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, does not contain any definitions.¹⁵ Within the domestic constitutional frameworks there is also considerable divergence. In some instances states prefer to identify (rather than define) particular communities as minorities or indigenous peoples. In some cases minorities are termed as nations or nationalities and in others there is a refusal to recognise the existence of minorities.

Similar difficulties have been encountered in attempts to define the term ‘indigenous’. While within legal discourse as well in ordinary parlance, ‘indigenous’ is taken to mean ‘native’ or ‘originating or occurring naturally’, it is the articulation and specification of the concept that have remained highly ambiguous and problematic. Neither general international law nor regional custom has been able to provide a recognised and fully accepted definition of ‘indigenous peoples’.¹⁶ The common everyday meaning of the term ‘indigenous’ is ‘native’ or ‘originating naturally’, as previously stated. On other hand, the relativity inherent in the concept has made it difficult for international lawyers to come up with a consensual definition. Analysing the position in many of the societies, one finds that being indigenous is a relative concept; some communities are more indigenous than others. The most widely publicised definition of indigenous peoples and communities is the one put forward by the United Nations Special Rapporteur José R. Martínez-Cobo.

Indigenous communities, peoples and nations are those which, having continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.

The historical continuity may consist of the continuation, for an external period reaching into the present, of one or more of the following factors:

(a) Occupation of ancestral lands, or at least of part of them;

(b) Common ancestry with the original occupants of the lands;

(c) Culture in general, or in specific manifestation (such as religion, living under a tribal system, membership of international community, dress, means of livelihood, life-style, etc.);

(d) Language (whether used as the only language, as mother-tongue, as the habitual means of communication at home or in the family, or as the main preferred, habitual general or normal language).

(e) Residence in certain parts of the country, or in certain regions of the world;

(f) other relevant factors.¹⁷

The theory that the term ‘indigenous’ could only be ascribed to the native aboriginal population of the Americas and Australia has remained pronounced for a long period of time. Many states of Asia and Africa which emerged from the rubble of decolonisation after the Second World War have maintained that the term ‘indigenous’ cannot be applied to their populations. While there is some truth in the statement that the plight and circumstances relating to the indigenous peoples of the Americas and Australia cannot be treated as being identical to indigenous peoples globally, the existence of indigenous peoples within Asia, Africa and Europe equally cannot be refuted. However, as already indicated, many states have taken an opposing view to the existence of indigenous peoples.¹⁸ According to Barsh, a leading authority on the subject,

Bangladesh, Indonesia, the former Soviet Union, China and India have maintained that there are no ‘indigenous’ peoples in Asia, only minorities epitomising the former Soviet Ambassador Sofinsky’s view before the SubCommission in 1985 that ‘indigenous situations only arise in the Americas and Australasia where there are imported ‘populations’ of Europeans.¹⁹

These assertions are representative of attempts to deny the legitimate claims of indigenous peoples, in particular a right to self-determination.

Constitutional Practices within the Indian Subcontinent: Historical Anomalies and the Reshaping of the Indian Subcontinent

As far as the Indian subcontinent is concerned, the question of the rights of ethnic minorities and indigenous peoples has been a sensitive one.²⁰ Within the subcontinent, a number of groups can legitimately claim that they found themselves colonised long before the advance of the western European imperialist powers. In the transformation of the colonial world to one of new nation-states, the term ‘indigenous’ was equated with those wanting independence from western imperialists or as one author has appropriately put it, was based on ‘pigmentational’ or ‘racial’ sovereignty.²¹ In the march towards independence, the replacement of European colonisers by a local though equally oppressive form of colonisation has been particularly disillusioning to many minorities and indigenous peoples.²²

As this book attempts to argue, indigenous peoples and ethnic groups of the region including the Baluch, Sindhis and the Pukhtuns, have all suffered enormously. While the case for these groups to lay justifiable claims to be classified as ‘peoples’ or indigenous peoples under international law is compelling, it is doubtful whether these claims might include the coveted right to self-determination. They have, without doubt, remained in a subservient position, with their right to cultural existence and autonomy often been denied by the federal governments of Pakistan.

A contemporary analys...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• Preface
• Introduction
• 1. Preliminary Issues: The Meaning of ‘Indigenous Peoples’ and ‘Ethnic Minorities’
• 2. Constitutional Provisions Affecting Indigenous Peoples and Ethnic Minorities of Pakistan
• 3. Institutional Arrangements for the Protection of Indigenous Peoples and Ethnic Minorities in Pakistan
• 4. The Tribal Areas of Pakistan
• 5. Baluchistan
• 6. The North-West Frontier Province
• 7. Punjab
• 8. Sindh
• 9. The State of Azad Jammu and Kashmir
• 10. The Federally Administered Northern Areas
• 11. The Kalash
• 12. Concluding Remarks
• Appendices
• Select Bibliography
• Index