Righting Past Wrongs

Righting Past Wrongs

Volume 5 Issue 05 | May 2011

KARTICK CHANDRA MANDAL conducts an institutional analysis of the land problem in the CHT.

Photo: ZAHEDUL I KHAN

Bangladesh, a multi-religious, multi-ethnic nation, consists of 1.2 percent adibashi (indigenous) people (Barkat 2009: 28; Drong 2001). Thirty-five percent of the adibashis live in the CHT (Chittagong Hill Tracts). The minority adibashis have long been discriminated in various forms including the denial of their constitutional recognition, even though they, together with the majority Bengali people, fought for the just demands of the nation-state and in the War of Liberation. Though state exploitation of adibashis started in the late 1950s, a concerted effort was introduced in the late 1970s by the power-grabbing coup-d'etat, leading to an armed struggle between the state and the adibashis. From 1979 to 1983, in four different phases, an estimated 4,00,000 Bengali settlers were transmigrated to CHT and were allotted 4-5 acres of land along with Tk 3,000 for each family, together with monthly food rations (Chakma and Tripura 2010: 14). Whereas once only 9 percent (in 1950s) of the population of the CHT were Bengalis, as a result of the transmigration it has now inflated to 49 percent of the CHT population (census 1959, 1991, Roy 2002: 26). The democratic transition in the 1990s, however, has disengaged the state from a bloody war, and a historic Accord was signed between the adibashis and the state in 1997. The Treaty is thus a milestone, one of the most successful achievements of Sheikh Hasina's Awami League government during its first tenure, having far-reaching impacts on the advancement of the nation's democratisation process. By signing it, Sheikh Hasina, as the Prime Minister, has emerged as a statesperson while the JSS (Jana Sanghati Samiti) has established itself as a legitimate political entity of the CHT adibashis. Both the Prime Minister and the Chief of the JSS have thus made history as creators of the peace process.

Among others, the Treaty has created an important institution to work for adibashis, called the CHT Land Dispute Settlement Commission (the Land Commission), headed by a retired Supreme Court Judge whose mandate is to resolve the problems related to land dispossession that adibashis faced against the settlers in the last three decades or so. Despite being in existence for one and a half years, the Land Commission, chaired by Justice Khademul Islam, has so far failed to make any headway in its prescribed mandate. This article presents an institutional analysis of this failure using the evolutionary theory of institution as advocated by Douglass North and some other institutionalists. It also predicts the future trajectories of the land problems based on the past and present power plays in the CHT. This author analyses concerned laws, supported by contemporary evidences, and views them through the lens of the theoretical underpinnings of institutionalism.

Among complex and interdependent institutional settings, apart from the Land Commission (hereafter referred to as the Commission), this article brings another institution -- the Treaty Implementation Committee -- into discussion. There are contradictions between the Treaty itself and the Land Commission Act 2001. The article discusses three issues: narrow jurisdiction, working modality, and sequence of tasks.

Firstly, in sharp contrast to the Treaty, the Commission's jurisdiction is too narrow to encompass major land disputes. For example, Article 4 of Part 4 (D) (gha) of the Treaty provides the Commission with a wide mandate which explicitly mentions "in addition to settling disputes of lands of rehabilitated tribal refugees, shall have full power for cancellation of ownership of those lands and hills which have been so far been illegally settled and occupied (Source: http://www.lcgbangladesh. org/CHT/reports)." On the contrary, Article 6 of the Commission maintains exemptions, and excludes six types of land such as reserved forests, the Kaptai Dam area, land recorded for government authorities, etc. This means the Commission has no mandate if a land is illegally occupied by the forest department, for example. Of 1.3 million acres of land, the forest department alone possesses 0.5 million acres while the settlers do another 0.5 million acres (Tripura, 2008: 63). The Commission's jurisdiction over the disputed land, therefore, is substantially limited as it does not have authority to resolve disputes over the above mentioned land.

Secondly, the functional modality of the Commission is perplexing. Article 7(5) says that the Commission's decision has to be unanimous, and 'otherwise' the Chairman's decision is deemed to be final. This particular provision fundamentally violates democratic norms and practices. The question is, how does an institution composed of nine individuals make decisions in such an undemocratic way? The country has a number of constitutional and statutory commissions. Do any of them function in such a way? Shielded by this particular provision, the Commission has entered into a chicken-and-egg debate. Thirdly, Article 2 of the same Part of the Treaty observes "…after finalisation of land ownership of tribal people by settlement of land dispute through proper verification, shall record their land and ensure land rights." Derailed from the very essence of the Treaty, the Chair is insisting on land survey instead. All the discrepancies, therefore, have thus made the Commission non-functional. Before analysing the underlying cause of such contradictions, we examine the behaviour of another institution -- the Treaty Implementation Committee.

The government in 2009 -- in compliance with Article 3 of Part 1 (A) (ka) of the Treaty -- formed a three-member Implementation Committee headed by the Deputy Leader of the Parliament to foster and coordinate land disputes. Unfortunately, the public position of the Head of the Committee seemed to swing like a pendulum. She said she favoured the idea of doing land survey -- meant for legalising the illegal ownership of the settlers -- first (Daily Jugantar, August 8, 2010). But in a meeting of the implementation committee she said that necessary amendments to the 2001 Act would be placed in the Parliament's next session and also suspended the activities of the Land Commission, which was fervently protested by the indigenous people (New Age, December 27, 2010). At the same time she explicitly pointed out that the government would realise the rights of the CHT people following completion of the trial of war crimes. Our point is: this trial is certainly one of the prime challenges for the government and the nation as well, and as many as three institutions are exclusively assigned for it. But why do the Treaty issues have to take a back seat because of it? Given her position, she should rather take the initiative to make the Commission functional. However, the Land Commission Chairman's autocratic initiative for land survey has been recently stopped. In addition, it has been made known through newspapers that the amendments to the Land Commission Act will be raised in the next parliamentary session.

Now we analyse a very crucial question -- why are these two institutions functioning in such a manner and prolonging the deprivation of the indigenous people? Why are they made to be dysfunctional? Why are they not working in the spirit of the landmark Treaty? If we look at the work of the Nobel laureate and scholar Douglass North's genesis of the institution, we see that the theorises that the institutions (the rules of the game, pattern of regularity, formal/ informal rules, norms, human behaviour) are created by the powerful individuals, and once created they serve the interest of their creators (1990: 3, 1995: 23). As we mentioned earlier that although in 1997 the JSS emerged as one of the powerful creators of the Treaty, after a lapse of four years, it has perhaps lost that authority. Surprisingly, neither was JSS consulted nor did it have representation in the Parliament which framed the Land Commission Act 2001. Had it been able to create an organised demand at that time, the Act could have taken a different form than what it is now. The Commission's rules are solely crafted and dominated by a certain attitude called 'Bengali-ism', and devoid of empathy and realisation to the adibashi tradition, custom, culture and institutions, which is why it has failed to serve the adibashis' interests. That is why both the institutions are derailed from what they are supposed to do. This justifies that the institution is important and so is the person leading an institution.

Photo: ZAHEDUL I KHAN

In terms of the future trajectories of land issues, even if activated -- as the institutional theory says -- the Commission will not be able to effectively fulfil its mission. North further observes that the longer it exists the institutions create an 'interdependent web of institutional matrix' that obstructs new institutions from flourishing and functioning (1990: 95). For decades, the settlers are enjoying support from Bengali-dominated civil and military administration, the forest department, etc., to occupy adibashi land (see the illustrated feature published in The Daily Star, February 21, 2010; Chakma and Tripura 2010: 61-68). The Commission cannot work in isolation and needs support from these institutions. Once the time approaches to restore land to the original adibashi owners, these institutions will collectively -- by forming a matrix, deeply rooted in 'Bengali-ism,' through interpretation of different rules and laws -- come to the aid of settlers to perpetuate their illegal occupancy in the first place. Secondly, there are vested interests as some of the officials themselves have become the owners of such dispossessed land (Chakma and Tripura 2010: 61-68). They will let loose the anti-treaty, undemocratic forces in the scene to thwart the process. Thirdly, CHT's uniqueness is characterised in the coexistence of customary and statutory institutions whose jurisdictions overlap in many ways. For example, an adibashi may claim customary rights on an untitled plot of a mouza, while the forest department may use it as an 'unclassed state forest'. The Deputy Commissioner may auction it to a non-resident while the district collectorate may consider it a khas land. This may appear a crucial challenge for the Commission. Raja Devasish Roy, the Chakma circle chief, has termed it 'dysfunctionalities in administrative pluralism' (2002: 53-55). The power plays go far beyond, not limiting to these institutions. Finally and most importantly, the political economy of CHT cannot be overlooked: one-tenth of Bangladesh, the resourceful CHT to be reserved for one percent of the population. Thus the future trajectory of resolving dispute is evidently bleak.

To conclude, we opine that as the formulation to and implementation of any public policy are the manifestations of power relations, the JSS has to gain its power through community and civic mobilisation to pressurise the state. At the same time, with all appreciation, we recognise that the government has been striving hard to bring certain institutional and structural changes to eradicate poverty, exploitation and injustices from the society. The Land Commission was formed under the auspices of the CHT Accord of 1997 signed by Sheikh Hasina's government to bring peace in the CHT. A historic wrong was done to the indigenous people of the CHT when the government-sponsored settlers were brought in truckloads during Ziaur Rahman's time. The Land Commission can right that historic wrong by properly settling all land disputes in the CHT that break the communal harmony of this beautiful part of Bangladesh.

Kartick Chandra Mandal is a human rights activist and can be reached at mandal1964@gmail.com.

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Courtesy: Daily star Forum