Revisiting CHT Peace Accord
THE High Court Division on April 13 declared the Chittagong Hill Tracts (CHT) Regional Council Act of 1998 unconstitutional and illegal. On the government's petition the judgement was later stayed for six weeks by the Appellate Division. Now the government has to seek leave to appeal, the granting of which would take the matter to the apex court.
This write-up does not intend to make any comments on the judgement at this stage. However, in the wake of the judgement, it would be pertinent to have a fresh look at the CHT Peace Accord, which was also challenged in a separate writ petition, and the same court did not make any order leaving its legality intact. Notably, the Accord served as the basis of the CHT Regional Council Act.
It may be recalled that when the Accord was signed in December 1997, the then party in opposition, BNP, launched a nation-wide movement against the Accord, claiming that it undermined the sovereignty of the country, violated equality, free movement and land ownership provisions of the Constitution, and also curtailed the executive and legislative power of the government in relation to CHT.
However, the Accord was greatly vindicated when BNP, returning to power in the very next general elections, neither scrapped the Accord nor repealed the act, nor did it interfere with the functioning of the Regional Council which was formed under the act.
It was argued that the Accord had been based on universal recognition of the special rights of the indigenous people. This position appears from customary international law as well as from widely accepted international instruments like the 1989 ILO Convention on the Indigenous and Tribal Peoples in the Independent States and the 2007 UN General Assembly Declaration on the Rights of the Indigenous People.
The United States, Canada, Australia and New Zealand, where there are considerable numbers of indigenous and aboriginal people, have special legislations on their rights, which in many cases resulted from numerous accords signed between the government and the indigenous tribes. There are also judicial decisions recognising their special rights. Amongst them is the famous Mabo Case of the Australian High Court in 1992, which recognised special land rights of the Aboriginal communities.
The special status and rights of the people of CHT can be traced back to 1900 when the CHT Regulation or Manual was adopted to preserve the culture, heritage, land rights and special life-style of the tribal communities. The CHT was declared an Excluded Area and kept outside of the regular administration. Migration of the outsiders to the area from the plain land was strictly controlled and owning of land by them prohibited.
The 1900 Manual was confirmed in the Government of India Act, 1935. It was also approved by the 1956 Constitution of Pakistan. However, the position was comprehensively changed in the 1962 Constitution, and CHT was termed as a Tribal Area. Government control over the area as well as number of settlers from outside increased.
The 1971 War of Liberation brought massive socio-economic and political changes in the CHT region. Tribal people became more organised and conscious of their traditional rights. However, to their utter frustration, they failed to achieve constitutional guarantees of their special status and rights. A late realisation of the then government of Bangladesh assured them of their special rights, and pledged to continue the 1900 Manual by an executive order.
However, the scenario changed drastically after the tragic and terrible incidents in 1975. Subsequent government policy caused the number of outside settlers in CHT, which was barely 10 percent when Bangladesh came into being, to swell to 40 percent of the total population by the end of the '70s. The military wing of the Parbatya Chattagram Jana Sanghati Samity (PCJSS), Shanti Bahini, continued an armed struggle for about two decades, which was brought to an end by the CHT Peace Accord of 1997.
The CHT Regional Council formed in 1999, under the Regional Council Act of 1998 in pursuance of the Peace Accord, has been created as a special administrative unit under Articles 59 and 60 of the Constitution in furtherance of the goals of local government laid down in Articles 9 and 11. To protect the special rights of the indigenous people in CHT, the Council has been given more power than other administrative units of local government in other parts of Bangladesh.
Such enhanced powers for similar reasons were earlier also given to three CHT district councils of Rangamati, Bandarban and Khagrachhari under three separate acts in 1989. The Regional Council basically coordinates the activities of the above district councils. It also advises the government on matters relating to CHT. The government can dissolve the Regional Council any time on any specific ground and contention.
The Regional Council does in no way resemble any organ in a federative unit e.g. a province in a federal state. It does not violate the unitary character of the state or government of Bangladesh. The Council has only been given special territorial jurisdiction and powers as a special administrative unit, which the legislature is empowered to do under Articles 59 and 60.
The special rights of the indigenous people mainly relate to their rights on land. This, however, does not apply to the protected and reserved forests and some other areas specially acquired by the government for specific public interest purposes, amounting to more than 40 percent of the territory of CHT and remaining within the exclusive jurisdiction of the government.
Outsiders are not allowed to acquire lands in CHT without the permission of the district councils or the Regional Council. This is not a creation of the Accord. This was long in existence, recognised both by custom and legislation prior to the Accord.
The provisions of the Accord have been argued to be legitimate exceptions rather than violation of equality, equal opportunity and property rights clauses (Articles 27, 29 & 42) of the Constitution. Violation of Article 36 on freedom of movement has also been alleged. In fact, movement has not been barred; only strict control has been imposed on further permanent settlement by outsiders by restricting their rights to own lands in CHT.
The exceptions and restrictions have been imposed under the authority of the Constitution itself, and necessarily relying on the qualifying clause "subject to any restrictions imposed by law" put before the relevant Articles of the Constitution, or that nothing in the law can prevent the state from making special provisions to protect the interests of any backward class or group of people. This also applies to enhanced representation of the tribal people in the district and regional councils and reservation of the top posts exclusively for them.
Whatever exceptions have been made in the Accord and in the subsequent legislation have been made to recognise and protect the long established special rights and status of the indigenous people. These have been done within the concept of the local government and under the relevant provisions of the Constitution with their liberal but permissible interpretations.
Dr. M. Shah Alam is Professor, Department of Law, University of Chittagong. (Currently on deputation as Member, Law Commission.)