Divers Paths to Justice - English - Forest Peoples Programme

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Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiaseen that customary land rights are often at risk of being subsumed into, ornegated by, mainstream concepts and practices of land ownership and usethat draw upon exchange-oriented individual rights. The latter are oftenpromoted by (largely non-indigenous) government functionaries and nonindigenoussettlers.Several indigenous peoples’ institutions and organisations, includingtraditional institutions (barring some exceptions), on the other hand, seem tobe equally determined to resist such a process, by invoking customarypractices and statutes that support their concept of land rights and land use.Although the force of the State is on the side of mainstream practices,indigenous peoples have the advantage of physical possession of theswidden and forest commons, knowledge about the resources thereon, theirrelative remoteness and the absence of land survey (which would haveprovided the State with detailed data on the lands in question). For the timebeing, the resistance is holding on, to some extent at least, but in the longrun, its persistence will depend upon how united the indigenous peoples canremain, and the extent to which they can combine peaceful occupation andresistance programmes with the strategic use of judicial and other recoursemechanisms.Legal pluralism in Bangladesh: a brief overviewBangladesh - a unitary system of government - practises a form of legalpluralism. This is primarily in regards to two major contexts. One concernspersonal laws. Thus, somewhat like in Pakistan, India and Malaysia - alsoformer British colonies like Bangladesh - the personal or family lawprinciples governing marriage, inheritance and related matters inBangladesh are based upon the ethnic or religious affiliation of theindividuals concerned. 3 This is true for all parts of the country. This paper,however, will not address personal law issues other than where they arepertinent to the issue of customary land rights. 4 The other major form of3 Roy 2009:19.4 For a detailed discussion of the customary personal laws of the indigenous peoples107
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asialegal pluralism that is practised in Bangladesh is in the partially autonomousCHT region in the country’s south-eastern frontier. Here, special regionalstatutes - such as the CHT Regulation 1900 - and customs, recognisedexpressly or implicitly in statutes, co-exist with national laws, albeit notwithout tension and conflict.Constitutional lawIn the Constitution of Bangladesh, the definition of law includes “custom orusage” 5 , and the expression “existing law” includes laws in existence priorto the commencement of the Constitution (article 152). In a case concerningthe succession to a hereditary chiefship in the CHT – the BohmongChiefship - the apex national court, the Supreme Court of Bangladesh,declared that neither the government nor the court itself had the authority tointerfere with the customary laws of the Bohmong Chief’s territory, knownas a ‘Chief’s Circle’. 6 While personal customary laws have been accorded areasonably high status in Bangladesh, as mentioned above, the case ofcustomary resource rights is more problematic, although not bereft offormal recognition. 7Customary land rightsThe customary land and resource rights regime in Bangladesh includesaspects of substantive law - i.e., the content of laws, whether based on oralcustomary traditions or statutes that expressly or implicitly acknowledgecustom-based rights - and procedural law in both land management and landdispute resolution. 8 Thus conflicts based upon competing legal regimes overof the Chittagong Hill Tracts, see Roy 2004a and Roy 2005.5 Under article 152, “law" means “any Act, ordinance, order rule, regulation, byelaw,notification or other legal instrument, and any custom or usage, having the forceof law in Bangladesh”.6 Aung Shwe Prue Chowdhury v. Kyaw Sain Prue Chowdhury and Others (CivilAppeal No. 8 of 1997)[1998] 18 BLD 33-43 at 41.7 Roy 2004a:124; Roy 2010:126-127.8 For a detailed discussion of the status of customary land rights in the CHT, see Roy108
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Divers Paths to Justice - English - Forest Peoples Programme

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