June 19, 2006
The Court has to date heard submissions from the lawyers for the two private parties involved, and, briefly, the Attorney General. It may be noted that the Attorney General has submitted that the CHT Regulation is already a ‘dead law’, but that some savings are required in order to identify how to address pending cases etc which were being dealt with according to its terms.
It has been learned that the Chittagong Hill Tracts Regional Council, the three Circle Chiefs (Rajas) and the Headmen of the three hill districts, on becoming aware of these proceedings, have requested the Deputy Minister of the Ministry of CHT Affairs to take appropriate measures to advise the Office of the Attorney General about the implications of any judgment in the absence of submissions on behalf of the concerned Chittagong Hill Tracts institutions. The Deputy Minister in turn is known to have requested the Attorney General to consult with the concerned regional institutions, including the Chittagong Hill Tracts Regional Council, the Hill District Councils, and the Chiefs and Headmen, and to ensure that such views are presented before the Court.
There are very real concerns that if the CHT Regulation is indeed declared to be a “dead law” by the Hon’ble Court, serious questions will arise with regard to the scope and mandate of the Regional Council itself to safeguard the rights of the hill peoples, as well as the roles and functions of the Chiefs and the Headmen to dispense justice within the traditional systems currently in operation, and also with regard to the identity and cultural integrity of the eleven hill peoples, and the customary land and forest rights of their members.
A litigant whose money suit before the Deputy Commissioner (DC) Rangamati was decided against him, brought an appeal before a Division Bench of the High Court Division, arguing that the DC could not hear the matter, as his jurisdiction was based upon the CHT Regulation, and the CHT Regulation had already been declared to be a “dead law” in the judgment of High Court Division bench reported as Rangamati Foods v Commissioner of Customs (10 BLC 2005 524) .
Subsequently, the relevant Bench of the High Court forwarded the matter to the Chief Justice to constitute a Special Bench of three judges for the hearing, noting that there were conflicting High Court judgments on the question of the validity of the CHT Regulation (in the Rangamati Foods and another judgment), and therefore the matter should be conclusively determined by a Special Bench.
THE “CONFLICTING” JUDGMENTS:
The Rangamati Foods case concerned the question of whether the Value Added Tax Act was applicable to the CHT. The Court observed that, on and from 10 January, 1964, on account of a constitutional amendment, the CHT had ceased to be a ‘Tribal Area’, as defined by Art 242 of the then Constitution of Pakistan. Based on this, the Court drew the conclusion that the CHT Regulation became a “dead law” on and from that date. The Court observed that the status of ‘tribal area’ had been recognised by the CHT Regulation. The Court further observed that this change, although noticed by the central bureaucrats in Pakistan, had escaped the notice of the provincial bureaucracy, and later also escaped notice by the National Parliament of Bangladesh and bureaucrats.
However it should be noted that the Court was not required to deal with this question of the validity of the Regulation for adjudicating the case before it, and the Court’s comment on the issue was in essence no more than an observation, and therefore could not be seen as binding with regard to future judgments.
Earlier in the case of Abu Taher v. Land Appeal Board (8 BLC (2003) 453) another bench of the High Court Division had categorically and univocally declared that it “[is] undisputed that the Chittagong Hill Tracts Regulation 1900 (Regulation 1 of 1900) is still in force in the Chittagong Hill Tracts Districts and the same has neither been repealed nor amended”. Prior to this, another High Court bench, in BFIDC & Others v. Sheikh Abdul Jabbar (53 DLR (2001) 488), had discussed the issue of possible amendment of the Regulation through legislation, in the context of reforming the system of administration of justice, but unequivocally held the Regulation, in its totality, to be a fully valid and subsisting law. Even earlier, in Aung Shwe Prue Chowdhury v. Kyaw Sain Prue Chowdhury & Others (50 DLR, AD, 1998, 73), the Appellate Division of the Supreme Court, while deciding upon a disputed succession to the Chiefship of the Bohmong Circle, not only decided the issue by reference to the CHT Regulation, 1900 as the regulating law on the matter before the court - hence treating it as a fully valid and subsisting law - but actually upheld the importance of protecting the customary laws of the region, which form an integral and necessary part of the laws, customs, practices, and administrative system of the Chittagong Hill Tracts, which are expressly or implicitly acknowledged and protected by the 1900 Regulation. With regard to the succession to the Bohmong Chiefship, the Court held that “The Office of Bohmong Chief is a customary office and both the Government and the Court have to recognize the custom and not to introduce any other criterion or factor which will add to the customary requirements of that office”. The Court further advised that “ [the] susceptibilities of the tribal people should not be ignored”.
It appears therefore that different benches of the High Court Division, far from holding differing views on whether the CHT Regulation was dead, had in fact differed on the question of the extent to which the provisions of the CHT Regulation were relevant in the current context, particularly those that referred to special constitutional dispensations of the time which are not applicable in the current constitutional and political contexts. Clearly this is a wholly distinct question and one which is of no relevance in the current case, and therefore in our view does not seem to require the establishment of a special bench or any separate consideration at this juncture. Moreover, it is important to have due regard to the unequivocal and categorical judgment of the Appellate Division of the Supreme Court, which did not in any way question the validity of the 1900 Regulation, both in the case of Aung Shwe Prue Chowdhury v. Kyaw Sain Prue Chowdhury & Others (50 DLR AD (1998) 73) and in Rajkumari Unika Devi v. Bangladesh & Others (9 BLC AD (2004) 181).
POTENTIAL IMPLICATIONS OF THE JUDGMENT:
If the Court were to declare the CHT Regulation a ‘dead law’ the following issues would arise:
a) Such a view would run counter to post-Accord Government of Bangladesh (GOB) policy on the CHT Regulation (see the Regional Council Act, 1998, the Hill District Council (Amendment) Acts, 1998, the Land Commission Act 2001, and indeed the CHT Regulation (Amendment) Act, 2003)
b) It would leave a legal/administrative vacuum that can or should only be filled through agreements between the GOB and the CHT people;
c) The current political context is not conducive to any such dialogues that can be substantive and equitable, given that the term of office of the present government is about to end in less than a year and the country will be facing general elections;
d) All of the above could ultimately result in the repeal of the CHT Regulation and the application of all laws to the CHT region which did not hitherto apply to the region, either through a judicial pronouncement or through special legislation or notification, or otherwise;
e) Such a decision would render ineffective the post-Accord prerogative of the RC and the HDCs on legislation (particularly the RC’s power to provide advice to the GOB to remove any inconsistency between the CHT Regulation and the HDC Acts etc.)
f) Such a decision would remove the policy advice prerogative of Chiefs (and indirectly, also that of the Headmen: see Rule 39)
Further, the consequences of such a judgment could include the following:
a) the customary laws, customs, usages and practices protecting collectively used forest lands, grazing lands, grass lands and jum (swidden) lands, water bodies, burial and cremation grounds, would cease to have the existing protection available to them under the Regulation;
b) the wide interpretation that would otherwise be given to
the provisions of the CHT Land Dispute Resolution Commission Act, 2001 on “laws,
customs and usages” of the CHT would be lost;
c) the positive developments in the CHT Regulation (Amendment) Act, 2003, barring the to-be-set-up district-level civil and sessions level criminal courts in the CHT from hearing cases triable by Chiefs and Headmen; and the stipulation that the aforesaid new courts try cases “in accordance with the laws, customs and usages” of the CHT, will be lost;
d) the complicated system of the Civil Procedure Code would replace the simple system of litigation in the CHT now provided by rules 1- 10 of the Regulation;
e) a wide body of land and fiscal laws would begin to be applicable within the CHT and serve as another potential tool for exploitation of the hill peoples;
f) customary administrative norms, primarily exercised through the Chiefs, Headmen and Karbaries, would be further diluted, and district and upazilla administrations could usurp authority hitherto exercised by traditional leaders;
g) Regional and district councils would be further weakened.
In this context, we express our grave concerns that such a decision:
• taken without due notice to the RC, the HDC, the Chiefs, Headmen and others could be based upon an inadequate understanding of the specific CHT context and realities;
• could undermine various rights of the hill people that are expressly or impliedly acknowledged by the Regulation;
• would run counter to the international law obligations of Bangladesh concerning its indigenous and tribal people, including those contained in ILO Convention No. 107, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of Racial Discrimination, and the Convention on Biological Diversity;
• could effectively undo the acknowledgement of tribal rights brought about by the CHT Accord of 1997.
• could significantly erode the confidence of the CHT people on the government and have negative implications for the peace process.
Given the above background and context, we would urge:
THE GOVERNMENT OF BANGLADESH:
• to conduct substantive consultations on the issues in question in this case with the Chittagong Hill Tracts Regional Council, the Hill District Councils, the three Circle Chiefs and the Mauza Headmen of the three hill districts;
• to advise the Office of the Attorney General to consult the Ministry of CHT Affairs, the Chittagong Hill Tracts Regional Council, the Hill District Councils, the three Circle Chiefs and the Mauza Headmen of the three hill districts, and based upon such consultations, to offer an opinion before the concerned Court, if appropriate;
• to consider whether the Office of the Attorney General may seek an adjournment of the matter to enable the findings of its consultations to be placed before the Hon’ble Court.
THE INTERNATIONAL COMMUNITY:
• to raise its concerns with the GoB with regard to the need to ensure that the views of the people of the CHT, as reflected by representative institutions such as the CHT Regional Council, the HDCs and traditional bodies such as the three Circle Chiefs and the Mauza Headmen of the three hill districts, are taken into consideration in any submissions to be addressed to the Hon’ble Court;
• to draw to the attention of the GoB the potential implications, with respect to the GoB’s international obligations to safeguard the rights of indigenous peoples, of a judgment holding the CHT Regulation to be a ‘dead law’.
• to draw to the attention of the GoB the potential implications of any such judgment with respect to the implementation of the Peace Accord of 1997.