Abstract
The historic Chittagong Hill Tracts Peace Accord of 1997 between the Government of Bangladesh and the indigenous leaders of Chittagong Hill Tracts (CHT) provides, inter alia, for the establishment of a CHT Land Commission to settle the land disputes of the CHT region, which is home of 11 different indigenous peoples. The disputes are the direct result of colonial and post-colonial policy of denial of customary land rights of indigenous people as well as other policies of dispossession leading to constant unrest in this region ever since its colonization by the British in 1860. Resolution of “the Land Question” is central to establishing durable peace in CHT, and the role of the CHT Land Commission could be pivotal in that. But ever since its establishment in 1999, the Commission has been non-functional. This chapter diagnoses the reasons behind the Commission’s failure to settle even a single dispute so far, and suggests that recognizing customary land regimes on par with the mainstream Anglo-American-type land regime should be the modus operandi of the Commission moving forward. Being the first of its type in South Asia, the Commission could set good example for other nations which face similar land issues with their own indigenous people.
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Notes
- 1.
The other rare special courts/tribunals are: the Finnmark Land Tribunal (established in 2014 as a special court in the Finnmark country of Norway to settle disputes regarding land rights of Sami indigenous peoples), the Aboriginal Land Tribunals in Queensland, Australia (established under the Aboriginal Land Act, 1991 to hear claims of aboriginal people regarding claimable lands), and the Native Courts of Sabah and Sarawak States in Malaysia (established under the Native Courts Enactment, 1992, and the Native Courts Ordinance, 1992, respectively).
- 2.
The Chittagong Hill Tracts Peace Accord (shortly, the CHT Peace Accord or the Accord) was signed on 2 December 1997 between Bangladesh government and Parbatya Chattagram Jana Sanhati Samiti (PCJSS). PCJSS is a political party of indigenous peoples of Chittagong Hill Tracts, which was formed on 7 March 1972. The military wing of the party called Shanti Bahini engaged in prolonged guerilla warfare with the Bangladeshi forces from 1975 up to the signing of the Peace Accord in 1997.
- 3.
Establishment of the Land Commission was mandated by Part D (Clause 4) of the CHT Peace Accord 1997.
- 4.
See the Preamble of the CHT Land Dispute Resolution Commission Act, 2001.
- 5.
Mohsin 1998.
- 6.
Jyotiridra Budhipriyo Larma, alias Shantu Larma, who signed the Peace Accord as the leader of indigenous peoples of CHT, has repeatedly complained throughout the last 18 years that the successive governments of Bangladesh were not sincere in solving the land disputes in CHT. See, Correspondent, Rangamati, ‘Govt Not Sincere to Execute Peace Deal,’ the Daily Star (1 November 2013).
- 7.
Though Bengalis supported the Commission during the tenure of Justice Khademul Islam, the third Chairman of the Commission, before and after that period Bengalis opposed the Commission tooth and nail. They even called strikes many a times opposing the Commission. The Bengali opposition peaked after the passing of the amendment of the Land Dispute Resolution Commission Act in 2016. See, ‘Settlers Demand Cancellation of CHT Land Commission Amendment Act,’ Dhaka Tribune (12 October 2013); Correspondent, Rangamati, ‘Hartal in CHT Observed,’ the Independent (14 October 2016); Sun Onlie Desk, ‘Hartal in Chittagong Hill Tracts Underway,’ Daily Sun (6 March 2017).
- 8.
Bangladesh Bureau of Statistics 2011.
- 9.
- 10.
Roy 2002.
- 11.
See Roy 2000.
- 12.
Ibid., p. 103.
- 13.
The land rights of indigenous peoples were customary. Indigenous land rights were not granted by any sovereign State. It was based on traditional occupation from time immemorial. Indigenous peoples owned their ancestral properties during a time when no State was there to confer them their land rights or interfere with their life-ways and practices. Hence, indigenous land rights were inherent and inalienable, conceptualized in terms of customary rights. Ibid.
- 14.
The ownership was collective, but for the time being, lands were allocated for exclusive use of individuals for specific purposes. Therefore, land could be owned by individuals in a limited sense; limited because the lands would revert back to the community once the purposes were served, or when the individual allottees no longer required those lands, or when the allottees abandoned them, or when the area was no longer productive because of the exhaustion of top soil. Similarly, lands that were not allocated to individuals remained the common property of the community, and were accessible to all members of the community as “village commons.” Especially, forests were used by all, and the forest produce could be collected for individual use. The concept of shared use was thus an important aspect of indigenous land tenure. Ibid., pp. 54–56.
- 15.
In indigenous land regime, possession was synonymous to ownership, and vice versa. Since indigenous land rights were mainly collective rights, and since individual ownership only took the form of temporary possession of a particular piece of land for specific use, the only type of individual ownership consisted of temporary possession. Hence, unlike Anglo-American legal systems, there was no clear-cut distinction between ownership and possession. In CHT, possession and ownership were “cumulative rights”—a person owning the land qua ‘immediate possession,’ or owning it under the rubric ‘common ownership’ despite not being in immediate possession. Ibid., p. 63.
- 16.
Traditional chiefs and community leaders decided the allocation of lands for shared used. The allocation was not made through written title; rather possession was transferred through oral transaction. Formal lease through written deeds was not necessary, though the particulars of the transaction were written in a central registry book of the indigenous chief. Written title was totally foreign to indigenous land tenure system. In a system of collective land tenure based on temporary individual use, written title deed as practised in the Anglo-American legal systems was totally unnecessary. Uddin 2014–15.
- 17.
At the village level, village heads had administrative authority to settle disputes, manage land and other resources, and maintain law and order situation. The village heads were nominated by the villagers but formally appointed by the Raja. After colonization of CHT, village heads were named Karbaris and were given the responsibility of revenue collection on behalf of the Headman, as defined below. See Roy and Chakma 2010.
- 18.
At the Taluk level, which consisted of a number of villages, the Dewans were the administrative heads. The Dewans’ main responsibility was collection of revenues on behalf of Rajas. After British annexation of CHT in 1860, Taluks were named Mauzas, and the new designation of Dewan was now Headman. Headmen were given extensive responsibilities, including collection of revenues, maintenance of law and order, management of lands, forests and other resources, advising Rajas on settlements and leases of lands and issuing certificate of residency to inhabitants. Ibid.
- 19.
At the highest tier, the Raja was the head of the indigenous tribe. Three Rajas and other lesser chiefs reigned over their tribes. The Rajas held the lands in trust for all the people within his dominion, not as personal property. Thus, the land was a common property in CHT, and heads of all the three administrative tiers, namely the Raja, the Dewan and the Karbari, had distinct roles on land administration.
- 20.
Almost all indigenous peoples of CHT practised this form agriculture up until 1918. It was mainly a subsistence-oriented farming. Kalindi Roy, supra note 11, p. 62.
- 21.
Before annexation to Bengal, Chakma indigenous tribe had to pay tribute to the mighty Mughals owing to a misunderstood trade deal with them. The mighty Mughal Empire and the Chakmas of the region entered into a deal whereby hill people could trade with the plainsmen of Bengal with a provision of tariff to be paid. The nature of the tariff fixed in the deal became the subject of debate later on. The Mughals contended that the amount paid by the Chakmas to the Mughals was not a tariff, but a tribute in the nature of “revenue payable to State.” The Chakmas, on the other hand, claimed that it was only a “business concession,” paid as an exchange for “transit privilege.” However, upon denial to pay the tribute, the Mughals destroyed Chakma settlements. Subsequently, the then Chakma Chief Shermust Khan made peace by recommitting to pay the tribute in 1737. However, Mughals did not claim territorial jurisdiction over the CHT. Serajuddin and Buller 1984.
When the British took over the subcontinent, the Chakma Raja again asserted sovereignty. But the British sent troops to CHT, and after a prolonged battles the Chakma Raja surrendered to Governor General Warren Hastings in 1785. While the Raja committed to pay tribute again, the Company committed to preserve “tribal autonomy” and restrict migration from the plains Quanungo 1998. After the British Crown took over India, it staged a total administrative overhaul throughout Indian subcontinent. As part of that process, in 1860, the Chittagong Hill Tracts was converted into a separate district, which also amounted to the formal annexation of the region into Bengal—a centralized outside empire—for the first time.
- 22.
Those smaller policies are: (i) Privatization of Land Rights in CHT; (ii) Commercial Leases; and (iii) Construction of Big Cantonments. Apart from these smaller policies of the government, activities of individuals have also exacerbated the disputes in CHT. We will not discuss these policies and activities in details in this chapter.
- 23.
Writing on the variety and indigenous peoples’ dependence on bamboo, Hutchinson writes, “The bamboo, of which there are some ten varieties in the Hill Tracts, is the most important of the forest produce of the district, and is valuable to the hillman. It is no exaggeration to say his very existence is dependent on it….” Hutchinson 1906
- 24.
Ishaq writes that the colonizers, tempted for revenue generation, wanted to categorize four-fifths of the region as “government forest.” Ishaq 1975.
- 25.
See Roy 1994.
- 26.
Kalindi Roy, supra note 11, pp. 61–62.
- 27.
During the counter-insurgency of 1980s, the Government arrogated that USF was government-owned, and hence, the government had all legal authority to allocate any amount of USF to whoever it wanted.
- 28.
One commentator writes, “The indigenous peoples consider [these lands and forests] as their own forests and swidden commons. Roy 2002, supra note 10, p. 17.
- 29.
CHT District Gazetteer 1971, p. 42.
- 30.
Adnan and Dastidar 2011.
- 31.
Kalindi Roy, supra note 11, pp. 98–99.
- 32.
Sopher 1963.
- 33.
Panday and Jamil 2009.
- 34.
Anti-Slavery Society 1984.
- 35.
Sopher noted as early as 1963, “A significant ecological fact relevant to the dislocation of the Chakmas is that people in the Chittagong Hill Tracts were already pressed for space before the dam was built. In 1961 the population of the district was 347,000. When this figure is adjusted to eliminate two atypical conditions—the almost uninhabited Reserved Forests, occupying a quarter of the district, and the largely transient plainsman labor population at Kaptai and Chandraghona—a density of 91 persons per square mile is obtained for the rest of the district.” Sopher, supra note 32, p. 346.
- 36.
Kalindi Roy, supra note 11, pp. 113–115.
- 37.
Section 7(5) of the CHT Land Dispute Resolution Commission, 2001 provided for this extraordinary power of the Chairman of the Commission. Indigenous leaders argued that this was an undemocratic power. See the Letter of the three Circle Chiefs sent to the Mr. Justice Khademul Islam on 11 June 2010.
- 38.
Three Circle Chiefs of the CHT sent a letter to Mr. Justice Khademul Islam Chowdhury registering their dismay on 11 June 2010, and requesting him to stop the survey processes unless a unanimous decision is taken in this respect.
- 39.
27 December 2010 was fixed for inauguration of the adjudication process, and the Deputy Leader of the Parliament Ms. Sajeda Chowdhury was due for the inauguration. But in a meeting the day before (i.e. 26 December 2010), Ms. Sajeda Chowdhury met CHT Peace Accord Implementation Committee in Khagrachari Circuit House, from where it was announced that a bill will be introduced in the Parliament for amendment of the Land Dispute Resolution Commission Act, 2001 soon, and before that the adjudication process will not start. Justice Khademul Islam Chowdhury took offence of this declaration and wrote a strong letter to the Prime Minister of Bangladesh on 28 December 2010 in the Commission’s letterhead expressing his disappointment.
- 40.
The Ordinance was issued on 9 August 2016, and the Amending Act was passed on 6 October 2016.
- 41.
Within the fixed 45 days, 15,969 applications were submitted, and more applications were filed in the following days. Abul Kalam Azad, ‘Parbattya Bhumi Commissioner Birodde Ebar Bangalira,’ BBC Bangla (November, 2016). See http://www.bbc.com/bengali/news-3786292.
- 42.
See Resolution no. 1 of the First Meeting of the Commission during Justice Mohammad Anwarul Houque held on 4 September 2016.
- 43.
See Resolution no. 2 of the Second Meeting held on 30 October 2016.
- 44.
See Resolution no. 5 of the Second Meeting.
- 45.
There seems to be different versions of the Rules made by the government and the indigenous peoples.
- 46.
Clause 4 of Part D.
- 47.
Section 7 (3) of the Land Commission Act, 2001.
- 48.
After the Ordinance was promulgated amending the Land Commission Act, 5 Bengali organizations called a dawn-dusk hartal in three hill districts of Rangamati, Bandarban and Khagrachari, and demanded repeal of the amendments. See ‘Parbattya Bhumi Commission Ain Batiler Dabite Tin Jelai Hartal,’ Channel I Online (10 August 2016).
- 49.
The General Secretary of the Parbattya Bangali Chatra Parishad Sarwar Jahan told BBC Bangla. See Azad, supra note 41.
- 50.
Dr. Tareq Shamsur Rahman, Professor of Jahangirnagar University, told in a seminar organized by CHT Research Foundation in the aftermath of the amendment of the CHT Land Commission Act in 2016: “Santu Larma (the CHT Regional Commission Chairman) does not want Bengalis to stay in CHT.” See ‘Parbattya Oncholke Bishesh Onchol Bolar Shujug Nei,’ BBN News (23 December 2016).
- 51.
In a BBC news, one Bengali settler named Fatema Begum said: “Amrar modde atonko eidai, era eto bochor pore bole Bangali udai dibo, Bangali jaibo giya. Amra ehon kothai jamo, kon jaga, keno jamo?” She said, “Now our concern is, they are saying after so many years that Bengalis will be evicted, they have to go. Where will we go now, where, why?” See Azad, supra note 41.
- 52.
The General Secretary of Parbattya Bangali Chatra Parishad Sarwar Jahan made this comment to BBC. Ibid.; It is mentionable that the term “Upa-jati” or sub-nation is a word preferred by Bengali nationalists who think that only the Bengalis are a nation; and all other smaller nations are sub-nations, despite the fact that these smaller indigenous nations do not belong to the Bengali nation. They consider the epithet “Upa-jati” as pejorative, used to place them in a position of inferiority as nations.
- 53.
The Chairman of the Regional Council, the concerned Circle Chief and the concerned Chairman of the Hill District Council are indigenous, whereas the Divisional Commissioner of Chittagong and the Chairman of the Commission belong to the Bengali nation.
- 54.
Ex-Chairman of the CHT Land Commission Justice Khademul Islam Chowdhury said in a Seminar in 2016. See supra note 50.
- 55.
Basically, this version of the argument came out during my interview with one important Bengali interviewee. The argument is that without any defined precincts, as is the case elsewhere in Bangladesh, there is a scope for claiming huge land area based on eye measures of the area.
- 56.
Indeed Article 36 of the Constitution of Bangladesh guarantees as fundamental right the right of every citizen “to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh” [emphasis added]. But this right is not a blank cheque to reside and settle in houses and lands belonging to others. Article 31 of the same Constitution guarantees “the protection of law, and to be treated in accordance with law, [as] the inalienable right of every citizen, wherever he may be” and it further says, “in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.” Therefore, “settling in a land” must be proved to be “in accordance with law” in order for it to be backed by Article 36 of the Constitution.
- 57.
Justice Khademul Islam, See supra note 50.
- 58.
Major General (Retd.) Sayed Ibrahim told in a seminar. Ibid.
- 59.
Barrister Sarwar Hossain told in a seminar. Ibid.
- 60.
Staff Correspondent, ‘Parbattya Bhumi Commission Name Parbattancholke Alada Jummaland Godar Shorojontro Cholche,’ Parbattanews (10 November 2016), available at http://parbattanews.com.
- 61.
Chakma 2012.
- 62.
One Bipin Bepary, who fled to India in 1980s, reported to BBC that when he left he had 38 acres of land, all of which were gone when he came back after the Peace Treaty. See Azad, supra note 41.
- 63.
The Chairman of the CHT Regional Council, Jyotiridra Bodhipriyo Larma, seems to hold this position, as several of my interviewees told me. I personally could not confirm this.
- 64.
General Secretary of the CHT Jumma Refugee Welfare Association gave these figures to BBC. See Azad, supra note 41.
- 65.
Neutrality is not the ultimate virtue of a system of justice. Neutrality in an otherwise unjust system does not bring about justice.
- 66.
Rokeya Chowdhury argues that recognition of separate legal regime of indigenous land rights of CHT people would require recognition of legal pluralism. Unfortunately, what we have in Bangladesh can at best be termed as “weal legal pluralism.” She contends that in CHT, “the existence or validity of most of the customary land rights is not recognized. The legal pluralism in the CHT in effect lies in those unrecognized parcels of law which exist independent of State recognition. For the existence of those laws the Jummas consider the khas lands as their own. The legal narratives on the CHT continue to emphasize and reemphasize that the CHT Regulation only partially recognized some of the customary rights.” Chowdhury 2012.
- 67.
One of my interviewees made this point to me.
- 68.
Roy 2017.
- 69.
On 13 September 2007, the UN Declaration on the Rights of Indigenous Peoples was passed. Hundred and forty-three countries voted in its favour, four countries against it, and 11 countries including Bangladesh abstained from voting. See http://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html.
- 70.
Anaya 2009.
- 71.
For example, the US Supreme Court recognizes customary land rights of indigenous American-Indians. In County of Oneida versus Oneida Indian Nation 470 U.S. 226, 105 S.Ct. 1245, 84 L. Ed. 2d 169, the US Supreme Court said: “From the first Indian claim presented, this Court recognized the aboriginal rights of the Indians to their lands. The Court spoke of the “unquestionable right” of the Indians to the exclusive possession of their lands, Cherokee Nation versus Georgia, 5, Pet. 1, 17 (1831), and stated that the Indian’s right to occupancy is “as sacred as the fee simple of the whites.” Mitchel versus United States, 9 Pet. 711, 746 (1835). This principle has been reaffirmed consistently. Thus, as we concluded in Oneida I, “the possessory right claimed [by the Oneidas] is a federal right to the lands at issue in this case.” 414 U.S., at 671.” Similarly, in Mabo versus Queensland 107 A.L.R. 1 (1992), the Australian High Court gave widest recognition when it said: “The theory that the indigenous inhabitants of a “settled” colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organization and customs. As the basis of the theory is false in fact and unacceptable in our society …. Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted …. Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.”
- 72.
See Report no. 75/02 (Case 11.140) of 27 December 2002. The Inter-American Commission on Human Rights said: “Perhaps most fundamentally, the Commission and other international authorities have recognized the collective aspect of indigenous rights, in the sense of rights that are realized in part or in whole through their guarantee to groups or organizations of people. And this recognition has extended to acknowledgment of a particular connection between communities of indigenous peoples and the lands and resources that they have traditionally occupied and used, the preservation of which is fundamental to the effective realization of the human rights of indigenous peoples more generally and therefore warrants special measures of protection”.
- 73.
I/A Court of H.R., Case of Mayagna (Sumo) Awas Tingni Community versus Nicaragua, Judgment of 31 August 2001 (Merits).
- 74.
The Saramaka People versus Suriname (Judgment of 28th November 2007).
- 75.
Center for Minority Rights Development (Kenya) & Minority Rights Group International on behalf of the Endorois Welfare Council versus The Republic of Kenya, Communication No. 276/2003.
- 76.
Ibid., para 234.
- 77.
Hoque 2016.
- 78.
See Article 23-A of the Constitution of Bangladesh (inserted by the 15th Amendment of Bangladesh Constitution), which reads: “The State shall take steps to protect and develop the unique local culture and tradition of the tribes, minor races, ethnic sects and communities.”
- 79.
Perhaps about these kinds of recognition as we see in the 15th Amendment, James Tully wrote: “The language employed in assessing claims to recognition continues to stifle cultural differences and impose a dominant culture, while masquerading as culturally neutral, comprehensive or unavoidably ethnocentric.” Tully 1995.
- 80.
Bangladesh Supreme Court has two divisions: the High Court Division and the Appellate Division. The Appellate Division hears appeals from the High Court Division.
- 81.
Badiuzzaman (Md.) and another versus Bangladesh 15 BLC 2010. As to the constitutionality of the CHT Accord, the High Court Division said the Accord “does not create substantive and enforceable rights and obligations but merely charts the pathways through which this may be achieved.” [Para 30]. On the other hand, as to the CHT Regional Council Act 1998, the Court accepted the petitioners’ argument that the sort of autonomy and devolution of power introduced by the Act was “alien to the Constitution.” [Para 41]. Consequently, the High Court Division declared the Regional Council Act, 1998 unconstitutional and void. An appeal against this verdict is now pending in the Appellate Division.
- 82.
Wagachara Tea Estate Limited versus Muhammad Abu Taher and others (Civil Appeal No. 147 of 2004) (Judgment of 2 December 2014).
- 83.
Government of Bangladesh versus Rangamati Food Products Ltd. (Civil Appeal No. 08 of 2008) (Judgment of 22 November 2016).
- 84.
Wagachara, supra note 82, p. 54.
- 85.
Ibid., pp. 12–13.
- 86.
Ibid., p. 54.
- 87.
Rangamati Food, supra note 83, p. 10.
- 88.
Ibid., pp. 19–22.
- 89.
Ibid., pp. 30–31.
- 90.
Roldan Ortega 2004.
- 91.
Ibid., p. 6.
- 92.
Ibid., pp. 6–9.
- 93.
Rejecting the theories on the basis of which indigenous lands were occupied by the British in the first place, the Australian High Court in Mabo case wrote:
It is one thing for our contemporary law to accept that the laws of England, so far as applicable, became the Laws of New South Wales and of the other Australian colonies. It is another thing for our contemporary law to accept that, when the common law of England became the common law of the several colonies, the theory [the doctrine of terra nullius] which was advanced to support the introduction of the common law of England accords with our present knowledge and appreciation of facts…. If the international law notion that inhabited land may be classified as terra nullius no longer commands general support, the doctrines of the common law which depend on the notion that native peoples may be “so low in the scale of social organization” that it is “idle to impute to such people some shadow of the rights known to our law”… can hardly be retained.”
Mabo, Supra note 71.
- 94.
See Section 6 of the Land Commission Act, 2001.
- 95.
Sopher, supra note 32, p. 348.
- 96.
Land reform conducted by the State in general faces backlash from the communities on the ground. Therefore, community-based land reform rather than the top-down approach yields better result. Sikor and Muller 2009.
- 97.
See generally, Lund 2008.
- 98.
Roque, supra note 90, p. 5.
- 99.
Ibid., 8.
- 100.
Wagachara, supra note 82.
- 101.
Rangamati Food, supra note 83.
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Uddin, M.M. (2019). Settlement of Indigenous Land Disputes by the CHT Land Dispute Resolution Commission of Bangladesh: Challenges and Possible Solutions. In: Singh, M., Kumar, N. (eds) The Indian Yearbook of Comparative Law 2018. The Indian Yearbook of Comparative Law. Springer, Singapore. https://doi.org/10.1007/978-981-13-7052-6_11
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