Bangladesh’s Quota Judgment: Balancing Legal Formalism With Social Movement – OpEd
The quota system is a policy of Bangladesh Government to allocate a portion of total government jobs to certain group to promote equality and representation. This system was introduced in 1972, just after the independence of Bangladesh, and it undergone several changes since then. When it was abolished in 2018, the quotas were reserved for 56% of total government jobs: 30% for freedom fighters’ children and grandchildren, 10% for women, 10% for disadvantaged region, 5% for ethnic minority, and 1% for disabled people. Only 44% of positions were reserved for the rest of the population.
Government jobs are highly desirable in Bangladesh because of job security, social status, prestige, stability, pension and other benefits, lack of alternative career options etc. Reserving 56% of total jobs to the above group who are minority in number creates shrink the number of government jobs open for rest of the population who are overwhelming majority. It creates dissatisfaction among the job seekers who want to fill the positions on the basis of merit, being grappled with high youth unemployment. This dissatisfaction turned into a nationwide movement in 2018 when the university students all over Bangladesh protested demanding a reformation in quota system by reducing the total number to an acceptable level. Though the students demanded reformation, the Government chose to abolish the quota system through a notification, meaning there will be no special benefit to a particular social group.
However, in Ohidul Islam and others vs the Government of Bangladesh and others (Writ Petition no 6063 of 2021), on June 5, 2024, the High Court Division (HCD) declared the 2018 notification abolishing the quota system unconstitutional, illegal and ineffective. Though the Court did not publish full judgment on the very day, it created agitation among the general students who are large in number and who do not have any quota. They have not taken the judgment easily and have gone to the streets to protest reinstallation of the quota system by the supreme judiciary just within 6 years of 2018 movement.
The HCD in the full judgment followed an overly formalistic approach to reach its decision. In this petition, Mr. Sk. Shaifuzzaman, the learned Deputy Attorney General appearing on behalf of the Government submits that the decision to abolish the quota system is a policy matter of the Government and this Court may not interfere with this matter. In the decision, the court acknowledged that this is a policy matter of the Government. However, the Court emphasized that the Government cannot take away the vested rights of the freedom fighters through mere policy decisions. In doing so, the Court relied on articles 28 (4) and 29 (3) (1) and its previous decisions in other writ petitions where the HCD “directed the Government to follow the 30% quota reserved for children of the Freedom Fighters strictly as per the relevant Rules”. The court observed that article 28 (4) and 29 (3) (1) gives the freedom fighters children and grandchildren this vested right as they belong to “backward section”.
Nevertheless, the Court did not mention the 2018 student movement. The 2018 movement compelled the executive to adopt a notification abolishing quota system. The decision to abolish quota system falls within the policy matter of the executive since the executive was required to balance various social and political interests in the public employment framework. The government’s decision to abolish quota system reflects evolving social needs as demonstrated in the 2018 student movement. If the Court took 2018 movement into consideration apart from a purely legalistic approach balancing the vested interest of the offsprings of the freedom fighters with the interest of the general students, the decision would be more realistic and acceptable. If the court would incorporate ‘legal realism’ approach to consider broader socio-political context and public sentiment, it would ensure that the decision aligned with legal texts as well as contemporary societal values.
Legal realism highlights that court decisions should reflect social, economic, and political contexts rather than being purely derived from abstract rules. In 2018, widespread protests demonstrated the public's dissatisfaction with the quota system, highlighting the demand for merit-based recruitment due to high unemployment and limited job opportunities. By acknowledging these protests and their underlying causes, the court could make informed decisions that balance legal principles with societal needs, preventing further unrest. As the student community did not demand full abolishment of the quota system rather a reasonable and acceptable reformation reducing the total percentage, it aligned with the Court’s decision which says that “this judgment will not create any bar upon the respondents/[government] if they change, reduce or increase the ratio or percentage of the quotas relating to the aforesaid criteria as and when necessary.” However, the message did not reach the students community or the executive on the very day since the court did not publish its full judgment on the very day of declaring the 2018 notification illegal. The relevant stakeholders came to know the decision of the court to reinstate the quota system without knowing that the executive can reduce or increase the ratio of the quotas from electronic and print media which created misunderstanding among general students.
It created doubt among students and the executives. Students protests the decision of the HCD, on the contrary, the executive prefer abstaining from interfering the matter pending before court. The court or the government lawyers initially proceeded slowly on the issue without considering the nature of public importance of it.
For example, on June 9 the Chamber Court of the Appellate Division rejected the petition to suspend the effectiveness of the HCD’s judgment. It agitated the student community, and they took a nation-wide blockade programme. When the students’ protests gained momentum, the government tried to resolve the issue. On July 10, the Court issued a status que order setting August 7 for the next hearing. Nevertheless, the protests became so intense that a swift settlement of the issue was necessary. At one point, the movement went out of control. Thousands of students came to the streets demanding the reformation. It was followed by a clash of the protesting students with the student wing of the ruling party. At one point the situation deteriorated when police shot a few students to dead. It spread all over the country and the unrest took away almost 200 lives, and thousands are wounded in Bangladesh. During the unrest, on 21st July, the Appellate Division gave its verdict on the issue which scrapped the HCD judgment that reinstated quotas in government jobs and gave an observation to reserve 5% for the Freedom Fighters family, 1% for the ethnic minority group, 1% for the disabled and third gender people, and rest 93% for the merit. The executive adopted a notification thereafter in accordance with the observation of the Appellate Division.
The decision of the Appellate Division would have more acceptable to the student community if it came earlier before happening of the incidents causing huge loss of lives and public property. If both the HCD and the AD followed legal realism approach considering the socio-political and economic situation, it may prevent the loss of life and public property. The HCD may deliver full judgment and may take the approach taken by the AD to balance the interests of various groups. On the other hand, the AD could settle the matter quickly because of the sensitive nature of the dispute and its public importance. During the huge unrest in Bangladesh government’s political will to settle the matter through court is praiseworthy. However, the executive could take the measures more earlier so that the humanitarian crisis would not arise. The stakeholders should take all the peaceful measures to settle the ongoing national crisis in Bangladesh.