All we witnessed a historical movement for the reformation of existing quota in civil service of Bangladesh in the last few months. At last, Prime Minister declared to cancel all kinds of quota and upheld the merit as the threshold of recruitment in civil service of Bangladesh. Article 28(4) of Bangladesh constitution gives a considerable power to the government to make special provision for women, children and backward sections of the citizens for their advantages. Therefore quota as affirmative action is not unconstitutional. Rather, how much is it rational or justifiable? This has been a question for the last decade.
The quota system exists not only in the developing countries like us but also in the developed country like the USA. All kinds of reservation or quota in the name of positive discrimination or affirmative action are justified by the social justice. In 1990, Prime Minister of India, V. P. Singh had said the reservation for Other Backward class (OBCs) is ‘a momentous decision of social justice. The USA also passed the same legislation for guaranteeing 15% of the places in educational institution to ensure social justice for black.The preamble of Bangladesh constitution provides the source of social justice and Article 10 of the constitution says about the principle of egalitarianism. Egalitarianism does not have a conflict with equality in the understanding of fundamental equality where all human beings have the same fundamental moral status. This is totally different from the idea of Aristotle. He said that Equality is justice. This principle states in purely formal sense that one must treat relevantly like cases alike and unlike cases unlike. But in the former principle, individual persons are due equal shares in some fundamental substantial good following the principle of distributive justice (Thomas Christiano 2005). In addition, egalitarianism follows the distributive justice. Oppenheim said that it is a rule of redistribution characterizing egalitarianism when a distribution reduces the percentage of difference between the holdings of those to whom the rule is being applied. In simple language, quota system is a rule of distribution of a benefit and burden among two or more groups on the basis of fix percentage or share of each group (Thomas R. Conrad 1976). Given the distributive and redistributive rule on the basis of egalitarianism in context of Bangladesh, the allocation of percentage of quota among the six groups of people (Merit 46%, Freedom Fighter 30%, Women 10%, District 10%, Tribal 5% and special advantage person 1%) could be examined.
First, the total number of quota is 56% and the rest is 44% for merit. Indian Supreme Court upheld the merit and made a balance meritocracy and reservation (Balaji v. state of Mysore 1963).
Second, the representation of number of people is also important in egalitarian justice. The distribution ought to be for reducing the maximum difference among the group comparison with the figure of population. Thus is why there exists a rule of distribution and redistribution. The number of 97.37% people have 44% share of the benefits in government job and 2.63% people of total population enjoys 56% share of it. So the difference between the two is not egalitarian. The gap between the two is like a mountain. Even the number of freedom fighter is 1% comparison with whole population; they enjoy 30% the share of benefits. How does the egalitarian principle support this distribution?
Third, the law must be definitive and determinative in its application. If the Law contains any indeterminacy, it causes the arbitrariness. The purpose of law to ensure justice could be vitiated. How does the BPSC allocate the given quota? Dr. Sadat Hossain, ex-chairman of BPSC, gave an example in a TV talk-show how BPSC distribute quota on the basis of population among all districts of Bangladesh. (https://www.youtube.com/watch?v=l-eVZgNpc3I). He said that A, B, C is from Dhaka, D from Rajshahi, E from Dinajpure. A, B, C, D and E have obtained merit serially 1-5. A and B are given out of its allocation. Now the Quota privilege goes to D escaping C. The reason is that the number of allocation of Dhaka is already finished. Hence, among quota holders, C is not given the privileges despite of being third. And D is given the privilege despite of being forth in the merit list among quota holder. This system seems to be “quota within quota”.
Fourth, the efficiency of law is also important. The allotted numbers of seats in quota were not fulfilled in the previous BCS exams. This is not because of lack of meritorious candidate rather there is a lack of qualified quota candidate. This is ridiculous also because the unemployment people are about 4.1% of the whole population (Economics Trading). On the other hand, there remains the vacancy in the government job sector where it is possible to reduce the unemployment rate of Bangladesh.
Fifth, what the status and quality is considered for the classification of a particular group determines the reasonable decision behind the justice. Sometimes it also reveals the relevancy of a particular law and shows the strength of quota system in a particular society to ensure the social justice. Let’s see that Freedom Fighters and its extension to grand daughter and son. Some say that it is for the remembrance of their endless contribution to the nation. And there is no distinction among poor, physically disable due to injury in the war, economically sound freedom fighters in giving quota privilege. So, a question can be raised – how they all are included in the backward section of citizens under Article 28(4). Do they only face any discrimination? Therefore Historical consideration does go also against the given quota for them only. They must deserve special treatment from the state but not under the existing categories. Because the principle of social justice under any constitutional law even also in Bangladesh is for ensuring the removal of any kind of inequalities which caused them backward section of a society in history of a society. That could be good enough argument for women and tribal. But the district category does not serve any purpose of social justice in contemporary Bangladesh because the disparity among the districts of Bangladesh is not found now. Other categories of people like landless worker and landless farmer of Bangladesh are not taken into consideration despite of having special constitutional provision for taking any constitutional scheme (article 14); and sometimes it is also true that candidate from such family are being deprived of getting a government job due to the existing quota system.Therefore the demands from the agitated student and civil society to bring a reformation into the existing quota system urge that the government needs to pay an attention into as soon as possible.
The writer is an LLM student of South Asian University, New Delhi