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 AsiaLikely trends: challenges and opportunitiesReforms to the Land Commission LawRecent trends show a mixed bag of events. No doubt the challengesconfronting the indigenous peoples are difficult, but they are perhaps notinsurmountable. As regards the Land Commission, a likely positivedevelopment is a forthcoming meeting to be hosted by the Minister forLand, to which indigenous leaders from the CHT have been invited, todiscuss possible reforms to the Land Commission Law. 39 This is the fruit ofrelentless lobbying by indigenous activists and by progressive civil societyactors.Conduct of a land surveyThe aforementioned proposed land survey is a disturbing development, butit can perhaps be resisted if the indigenous leadership is united. So far theyseem to be, at least on this issue. In this regard, the Hill District Councilscould perhaps play the most assertive role, since they are mandated by lawto have the last say on land allotment and transfer matters. Whether a landsurvey should be carried out is entirely a matter for them to decide, wherethey deem it appropriate, after all the refugees and displaced people arerehabilitated, as stipulated in the CHT Accord, and when so proposed by theCHT Regional Council.The Hill District Councils have not framed any regulations to help themguide them in their land administration and land management role. TheGovernment has not framed any rules either (which it is obliged to frame inconsultation with the councils). However, the District Councils are nowconstituted with government appointees – pending elections – and it isuncertain to what extent they will act in an independent manner. None of the39 The meeting is scheduled to be held on 22 September 2010 in the Ministry ofLand, which is expected to be attended by the author in his capacity as a member ofthe commission, along with the chairpersons of the CHT Regional Council and thehill district councils.119
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiadistrict councils or even the CHT Regional Councils have framed a landpolicy on their respective area of jurisdiction. Nor has the Government ofBangladesh. If they were accommodative of customary land rights, suchpolicies could have helped protect these rights.Litigation in the Supreme Court of Bangladesh and constitutional reformsTwo sets of cases are pending in the Appellate Division of the SupremeCourt of Bangladesh in which crucial matters of self-government and landissues will be decided, after rulings by separate benches of the High CourtDivision declaring invalid some CHT laws that recognise indigenouspeoples’ rights, including those drawn upon customary law principles. It isexpected that the cases will come up for hearing in the apex court over thenext year or so. In one, the legality and very existence, of the CHTRegulation of 1900 - which provides a special legal and administrativestatus to the CHT- is under review. 40 In another two, the existence of theCHT Regional Council, and some provisions of the Hill District CouncilActs of 1989, including the electoral roll for the councils and laws onpermanent residence requiring a certificate from the Circle Chief, andaffirmative action-based appointments in council posts for “tribals”, amongothers, are under scrutiny. 41The aforesaid debacle in the High Court has prompted renewed demands forconstitutional recognition of the status of indigenous peoples and onsafeguards for the special legal and political system of the CHT region. 4240 Rangamati Foods v, Commissioner of Customs & Others, 19 BLC 2005, 525.41 Writ Petition No. 4113 of 1999 (Shamsuddin Ahmed v Government of Bangladeshand Others) and Writ Petition No. 2669 of 2000 (Mohammed Badiuzzaman vGovernment of Bangladesh and Others) in the Supreme Court of Bangladesh (HighCourt Division).42 Daily Prothom Alo, Dhaka, 19 September, 2010, reporting on a meeting on 18September, 2010 on The CHT Accord Implementation & Constitutional Reforms,hosted by the CHT Citizens Committee and supported by the national NGO, ALRD.The report quoted retired Justice G. Rabbani, CHT Citizens Committee convenorGautam Dewan and the author (in his capacity as the Chakma Chief).120
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Divers Paths to Justice - English - Forest Peoples Programme

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