We talk about the present authoritarian rule, but even so the government has changed its stance occasionally in face of public demand. There were some changes in the road act, VAT on private university fees was withdrawn, and the quota system for public service jobs was abolished.
However, now a process is underway to render these measures ineffective or to reject them altogether. The stringent clauses in the road act have been relaxed, the Supreme Court has cancelled the VAT withdrawal order, and a few days ago the court declared unlawful the circular that abolished the freedom fighter quota in public service.
The latter ruling of the court has evoked reaction among the people. There have been demonstrations and rallies in various educational institutions against this decision. There has been a flurry of discussion and debate on the issue on social media. Many have also expressed their expectations that the government will take a well-considered decision in this regard.
I have written about the quota system in the past. As a university teacher, I understand the mindset of the stakeholders. I feel that most of the decisions taken in the past about introducing the quota system, expanding it and then absolutely dropping it, have all been emotional and one-sided decisions. When taking these decisions, no proper considerations were given to the justification of having a quota system, its scope, who the beneficiaries of the system will be, and so on.
To take such a decision, the government will now have to take up a strong appeal against the High Court ruling. If the quota system is to be reintroduced, the relevant constitutional clauses, recommendations of experts and past experience must be taken into consideration.
It was called "interim" because this quota was to be for a short period of time. After freedom fighters were appointed to 350 posts based on merit through the Public Service Commission in 1973, there was no longer any justification to expand this provision further
2.
We must first keep in mind that one of the main pillars of Bangladesh's constitution is equality, equal opportunities and no discrimination. In certain cases some exceptions to the equality clause are allowed in the interests of ensuring pragmatic equality. Such views appear in our constitution as well. For example, Article 29 of the constitution speaks of "making special provision in favour of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic." By virtue of this clause, it will not be unconstitutional to have a quota for the "backward" section of citizens in government service.
There was extreme discontent regarding the quota issue over the exact meaning of "backward section" and "adequate representation". The past and present debate over the quota issue basically is centered on the quota for freedom fighters (and even their children and grandchildren). Are freedom fighters counted as the "backward section of society"?
Back then, people from all walks of life, even from elite families, took place in the liberation war. How can they all be defined as "backward"? And what is the extent of benefits due to them?
During a debate over the constitution in the national assembly in 1972, there was a lot of discussion on the sacrifices, the contributions and the aspirations of the freedom fighters. But they were not termed "backward" and no special privileges were demanded for them.
However, under Article 15 of the constitution regarding social security for citizens, special mention was made regarding the families of disabled and killed freedom fighters (Bangladesh National Assembly Debates, 1972). If we consider this liberally, then perhaps we can consider quota in public service only for the families of disabled and killed freedom fighters. If "adequate representation" is to be ensured, then a quota of around 5 per cent can be allocated for them.
Other quotas, such as the district quota, are contradictory of Article 28 (1) of the constitution which prohibits discrimination on the basis of place of birth. Due to the success of women in the case of competitive recruitment exams, the relevance of women's quota had considerably decreased. However, there is still need for a limited quota for the ethnic minorities and the physically disabled.
3.
There are certain observations regarding the quota issue based on past experience and expertise. During Bangabandhu's times, when the freedom fighter quota was introduced, this was not linked to the spirit of the liberation war. In the interim recruitment policy of 1972, there was a 30 per cent quota for freedom fighters.
It was called "interim" because this quota was to be for a short period of time. After freedom fighters were appointed to 350 posts based on merit through the Public Service Commission in 1973, there was no longer any justification to expand this provision further.
That is why in 1977, all members of the Pay and Service Commission, except one, opposed the quota system in public service. Only one member of the commission spoke in favour of keeping the quota in place, gradually lessening it over a span of 10 years from 1987 and then abolishing it.
Yet in 1997 this quota system was expanded even further, including the children of freedom fighters and then their grandchildren too, and even keeping these posts vacant if they were not available. These decisions hugely shrunk the scope for recruitment through merit-based competition in the interest of the quota beneficiaries.
The extent of the quota is another matter of consideration. In the latest system there was 56 per cent recruitment through quota and only 44 per cent through merit. Eminent freedom fighter Dr Akbar Ali Khan, as head of the regulatory reforms commission, carried out research in March 2008 on the quota system.
Those who with fake freedom fighter certificates, who entered public service or whose children entered public service, must be identified and sacked. All forms of corruption and nepotism in public service much be dealt with strictly
The conclusion drawn in the study was that it was not constitutional to recruit only 45 per cent (as it was then) on the basis of merit. The constitution spoke against discrimination and allowed quota for special exceptions (such as the backward section of society).
These quota excesses created extreme discrimination in society. For example, in the 25th BCS exam that took place in 2006, those ranking in the first 228 were recruited on merit basis. The rest below that were not recruited because, it was said, they did not qualify. Yet, on the basis of various quotas, candidates ranking 1611th got recruited into foreign service, at 5104th into administration, 5377th into the police cadres and so on.
Another shocking matter is though such a huge number of posts was reserved under the quotas for these persons, not that many even managed to pass the recruitment exams. That is why from the 28th to the 31st BCS, a total of 3,162 posts remained vacant. Yet many of those ranking high in the combined merit list, did not get jobs.
4.
If the government is to consider implementing the quota system once again, it must certainly take this anarchic picture into consideration. Those who with fake freedom fighter certificates, who entered public service or whose children entered public service, must be identified and sacked. All forms of corruption and nepotism in public service much be dealt with strictly.
Alongside such measures, realistically speaking, if the number of quota recruitments is made 10 to 15 per cent and the provision to keep posts vacant is abolished, the quota system will then be acceptable and yield good results. The prevailing dissatisfaction among the people about the quota system will be considerably assuaged.
Rather than emotion or obstinacy, cool-headed consideration is required regarding the quota system.
* Asif Nazrul is professor of the law department law at Dhaka University.
* This column appeared in the print and online edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir