History of ethnic minority in law and rule

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

ABSTRACT *

This article traces the legal and political history of land dispossession affecting the ethnic minorities of the Chittagong Hill Tracts (CHT) in Bangladesh, linking their loss of land to broader questions of identity and political recognition. The author follows the trajectory from the British military campaigns of the late eighteenth century and the annexation of the CHT as a district in 1860, through the administrative division into the Chakma, Bohmong and Mong circles in 1884, to the Hill Tracts Manual of 1900 with its restrictions on entry by outsiders and its concentration of authority in the Deputy Commissioner. The paper identifies the coexistence of three overlapping and partly inconsistent legal orders, national law, CHT specific law and indigenous customary law, as a central source of conflict, and documents successive interventions that eroded minority land rights: the Forest Act of 1927, the Kaptai Dam of 1960 with the displacement of about one hundred thousand people and the loss of some 54,000 acres of arable land, the withdrawal of special status in 1964, the Development Board Act of 1976, and the settlement of Bengali farmers. The author then describes the institutional architecture created after the 1997 Peace Accord, the Hill District Councils, the Regional Council, the Land Commission and the Ministry of CHT Affairs, and argues that implementation remains incomplete, the Land Commission largely ineffective, the powers of the Deputy Commissioner unresolved, and dispossession, eviction and land related violence ongoing, with plain land minorities even more exposed and largely invisible.

KEYWORDS *

Chittagong Hill Tracts, ethnic minorities, land dispossession, CHT Regulation 1900, customary law, Forest Act 1927, Kaptai Dam, Peace Accord 1997, Land Commission, Hill District Councils, legal pluralism, indigenous rights

INTRODUCTION

Ethnic Minorities are suffering from land dispossession, land-related violence, reduced livelihood options, and narrow access to key social services. At the same time, it anchors the challenges faced by extremely poor minorities in broader political economy questions around identity and political recognition.

In 1776 British military attacked CHT and the hill people fought strongly. This fighting between the Chakma king and the British army continued for a decade (Levene, 1999; Serajuddin, 1984). In 1887 the conflict ended when Lord Cornwallis and Chakma King agreed to sign a mutual agreement by giving the right to the British to do trade in CHT. The process of colonization had started during the period of East India Company in 1770 after the defeat of the Mughal emperor and Bengal ruler at the Battle. But CHT was a self-governed and independent territory until 1860 and then annexed to the province of British Bengal in 1860 as a “district”. Then the CHT administration changed in 1884 into three administrative circles namely the Chakma, the Bohmong, and the Mong were formed and divided into three territorial boundaries. A superintendent of hill tribes was appointed by the British to observe the administration of the chiefs and traditional clan chief and Headman (Roy, 2000; Roy, 2004).

MAIN CORPUS

One of the challenges about CHT land status is that there are three major co-existing laws: (i) formal law which applies to the entire country (ii) formal laws that are specific to the CHT and its indigenous people (iii) customary laws of the indigenous people. These laws overlap in some places but are also inconsistent in others. Traditionally, land use was determined not by legal documents but by traditional customary oral laws. During the British colonial period, however, land use systems were introduced, formalizing land use through laws and policies.

In 1900 the CHT manual act was adopted by the British ruler (Hill Tracts Manual) for the protection of ethnic minorities’ culture and traditional livelihoods. This regulation provided a special identity for CHT indigenous people as well as a homeland and declared the CHT area as an ‘excluded’ one. Rule 52 of the Hill tracts Manual stated that: “no person other than a Chakma, Mogh or a member of any hill tribe indigenous to the Chittagong Hill Tracts, the Lushai Hills, the Arakan Hill Tracts, or the State of Tripura shall enter or reside within the Chittagong Hill Tracts unless he is in possession of a permit granted by the Deputy Commissioner (administrative head of district) at his discretion.” DC got authority for the purpose of criminal and civil jurisdiction and for revenue and general purposes. This manual recognized the rights of ethnic people over the CHT but at the same time authorized the DC, usually, a non-tribal to decide about (section 7) “any orders passed by the Local Government under Section 6, the general administration of the said Tracts, in criminal, civil, revenue and all other matters”.

Unfortunately, successive governments of British India and Pakistan have amended the CHT regulation 1900 act several times and the traditional leadership (Raja, Headman, Karbari) gradually lost control over land. The 1900 Regulation still remains an active law for a legal and administrative system in the CHT (Roy, 2004; Barkat et al. 2009).

After the independence of Pakistan and India in 1947, CHT fell under Pakistan (East Pakistan). The first and major blow to the minority was the construction of the Kaptai Hydro-electric dam in 1960. About 100,000 ethnic minority people had to be displaced from their ancestral land and resulted in the loss of about 54,000 acres of productive arable land.

In 1964, the government withdrew the special status of the CHT people by amending the CHT act. This amendment allowed the entry of ‘external’ people into the CHT (Roy, 2000; Roy, 2004). After the independence of Bangladesh in 1971, the rights of the CHT people were largely ignored in the constitution of 1972. In 1976 the CHT development Board act (repealed in 2014) was created. However, the main intention of the act was to settle Bengali farmers within the CHT by redistributing indigenous people’s land (Faiz and Mohaiemen, 1997). In 1989, three Hill District Councils of Rangamati, Khagrachari, and Bandarban were created with a view to improving the socio-economic conditions of the CHT people. This move was enacted in the Local Government Councils Bills Acts in 1989. In 1997, a peace accord was signed between the Government and PCJSS (Parbatya Chattagram Jana Samhati Samiti), which ended 25 years of protracted armed conflict between the government and PCJSS. The CHT was officially again recognized as a “tribal–inhabited area” through the peace accord.

In accordance with the peace accord, the Hill District council acts were amended in 1998, and in 1998 the Chittagong Hill Tracts Regional Council was formed, followed by the CHT land commission in 2001. Apart from these, one specific ministry called the “Ministry of Chittagong Hill Tracts Affairs” was created based on the peace accord. The aim of the Ministry was to regulate the above-mentioned institutions. As a result, the CHT has three different governance systems namely: the traditional government (three Circle Chiefs), the government system (deputy commissioner office), and the self-rule government system (hill district council and CHT regional council). The Ministry of CHT Affairs (MoCHTA) is responsible for the supervision of all activities in CHT. 17 years after it was signed, the CHT peace accord is still to be fully implemented, and the land commission remains largely inefficient (Faruque, 2014).

Historically CHT ethnic groups rely on agriculture, practicing subsistence Jhum (swidden) cultivation. A central policy was the Chittagong Hill Tracts Regulation Act of 1900 gave ethnic minorities unique access to the hilly land since none can take possession without permission of DC. Later in 1927, the Forest Act was introduced, however, and reduced ethnic minorities’ access to land as well as forest. The Act states that “The Government may constitute any forest-land or waste-land [or any land suitable for afforestation] which is the property of Government”. The law prohibited the entry of anybody into the forest area without permission of the forest department.

The mainland grabbing processes in the CHT were (i) state acquisition of private and common lands of the indigenous people, converting these into state-owned lands; (ii) forcible occupation of private and common lands of Jumma by Bengali interest groups and agencies, resulting in the conversion of these into the private property of the latter; (iii) privatization of Hilly common lands by individual members of indigenous communities, converting these into their private property; and (iv) acquisition of the titled lands given to Bengali settlers during the counter-insurgency by influential Bengali interest groups based both inside and outside the CHT.

The CHT land commission was formed in 2011 according to the CHT peace accord to solely look after different land-related issues such as land-related settlement or leasing, sales or transfer, etc. The council has the power to override the Deputy Commissioner as per the CHT regulation of 1900. However, in reality, the District Commissioner’s offices have violated the law and continue to exercise their power over CHT land issues (Adnan and Dastidar, 2011).

There are some inconsistent laws. For example, The Land acquisition law empowers the DC to exercise force to acquire designated lands without consultation with landowners but the CHT land commission has been given the responsibility of lands in CHT without curtailing the authority of DC. Land dispossession and eviction are still common in the CHT. For this reason, peace in the CHT is largely dependent upon the resolution of the land issue” (Barman and Neo, 2014) report that in 2013 the forest department, elites, and even the security forces grabbed 3,992 acres of land. In 2011, there were 111 cases of houses being burnt down due to land-related conflicts, followed by another 36 in 2013. In the CHT, 13 families were evicted from their ancestral land in 2012 and 26 families in 2013 (Barman and Neo, 2014). These occurred despite the peace accord (Adnan and Dastidar, 2011).

SUMMARY

The plain land ethnic minorities lost their land because outsider Bengalis took possession of those, in the CHT land dispossession was by and large undertaken by the government and supervised by military forces and elites (Adnan and Dastidar, 2011). It might be that plain land ethnic minorities have a weak political background or lack mobility because the population is more scattered than in the CHT. There is little doubt that the plain land ethnic minorities are more insecure in terms of land-grabbing, threats, evictions, and killings. In most cases, these go unreported and are actually ‘invisible’ to different governmental and non-governmental agencies led usually by representatives of the majority Bengali population (Barkat et al, 2009a; Dhamai, 2014).

CONCLUSION

The important political factors related to land in Chattogram Hill Tract are enormous to identify the cause of conflicts between Banglali (people from plain land) and ethnic minorities in CHT. These changes in law and political actions resulted in ethnic minorities being excluded from development intervention, facing ethnic violence, and suffer land dispossession. This is the historic reality for the ethnic minority in Bangladesh.

POTENTIAL SOLUTION *

The article identifies with unusual precision where this conflict actually lives: not in any single injustice but in the coexistence of three legal orders that contradict one another, so that every actor can point to a valid law supporting an incompatible claim. As long as the Deputy Commissioner and the Land Commission both hold authority over the same land, and as long as customary rights exist in practice but not in enforceable form, dispossession will continue regardless of political intent. A resolution therefore has to be legal before it can be social.

First, remove the contradiction rather than manage it. A legislative harmonisation review, conducted jointly by the Ministry of CHT Affairs, the Regional Council and the traditional circle authorities, should map every point where national land acquisition law, the 1900 Regulation, the Forest Act and the Land Commission Act conflict, and settle each one explicitly. The decisive question, whether the Land Commission’s jurisdiction genuinely displaces the Deputy Commissioner’s acquisition powers within the CHT, must be answered unambiguously in statute, because a commission that can be overridden is not a remedy but a delay.

Second, make customary tenure justiciable. Oral customary rights are real to those who hold them and invisible to those who adjudicate them. Recognising community land held under mouza and karbari administration as a registered category, and admitting oral and community testimony as evidence before the Land Commission, would let the third legal order defend itself rather than merely exist.

Third, protect possession while claims are pending. A moratorium on evictions, new leases and forest reclassification in disputed areas until the Commission has ruled would end the pattern in which the facts on the ground change faster than the process meant to judge them, and would remove the incentive to create irreversible situations.

Fourth, resolve at the lowest possible level. Most disputes between neighbouring hill and settler families concern boundaries, water and access rather than history. Trained mediation panels at mouza level, composed of hill and Bengali members in balance and supported by the traditional leadership, could settle these locally, with only unresolved or systemic cases escalating to the Commission. This preserves relationships that no ruling can restore.

Fifth, make invisibility impossible. Independent, published monitoring of evictions, land transfers and land related violence, covering plain land minorities as well as the CHT, creates the record without which no policy can be evaluated and no community can be defended. What is counted can be corrected; what remains unreported remains permanent.

* Added by the WMO Editorial Team

REFERENCES *

1. The Chittagong Hill Tracts Regulation, 1900 (Regulation I of 1900), including Rule 52 of the Hill Tracts Manual, and subsequent amendments.
2. The Forest Act, 1927 (Act No. XVI of 1927), British India, as applicable in Bangladesh.
3. The Chittagong Hill Tracts Development Board Ordinance, 1976, Bangladesh (repealed 2014).
4. The Hill District Local Government Council Acts, 1989, as amended 1998, Bangladesh.
5. The Chittagong Hill Tracts Peace Accord, Dhaka, 2 December 1997.
6. The Chittagong Hill Tracts Regional Council Act, 1998, Bangladesh.
7. The Chittagong Hill Tracts Land Dispute Resolution Commission Act, 2001, as amended 2016, Bangladesh.
8. The Acquisition and Requisition of Immovable Property Act, 2017, Bangladesh (land acquisition powers).
9. Roy, R. D. (2000). Land Rights of the Indigenous Peoples of the Chittagong Hill Tracts, Bangladesh. IWGIA, Copenhagen.
10. Roy, R. D. (2004). Challenges for Juridical Pluralism and Customary Laws of Indigenous Peoples: The Case of the Chittagong Hill Tracts, Bangladesh. Arizona Journal of International and Comparative Law, 21(1), 113 to 182.
11. Barkat, A. et al. (2009). Socio Economic Baseline Survey of Chittagong Hill Tracts. Human Development Research Centre, Dhaka.
12. Adnan, S., & Dastidar, R. (2011). Alienation of the Lands of Indigenous Peoples in the Chittagong Hill Tracts of Bangladesh. Chittagong Hill Tracts Commission and IWGIA, Dhaka and Copenhagen.
13. Levene, M. (1999). The Chittagong Hill Tracts: A Case Study in the Political Economy of Creeping Genocide. Third World Quarterly, 20(2), 339 to 369.
14. Serajuddin, A. M. (1984). The Origin of the Rajas of the Chittagong Hill Tracts and their Relations with the Mughals and the East India Company. Journal of the Pakistan Historical Society.
15. United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), General Assembly Resolution 61/295, 13 September 2007.