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Sunday, August 7, 2011

Paper by Devasish Roy for national conference on Indigenous peoples' land rights

Following is the paper by Devasish Roy for ongoing-two- days national conference on Indigenous peoples' land and forest rights. The two-days conference started yesterday(06.08.2011) at the Bangabandhu International Conference Centre, as a part of the programme marking International Day of the World’s Indigenous Peoples.

Land Disputes concerning Indigenous Peoples in Bangladesh:
Problems & Solutions[1]

Raja Devasish Roy[2]


The identity, integrity, culture, livelihood security and general well being of adibashi or indigenous peoples[3] in Bangladesh are intimately connected with their right to land. The situation may vary, depending upon location, ecology, legal categorization, the presence of conflicts and disputes, socio-political issues and so forth.  A discussion of all or even most of these contexts, typologies and permutations are beyond the scope of this paper. For example, I will not discuss the issues of lands categorized as forests in the plains, which is being addressed in a separate session of the conference. There are also other related issues concerning the participation of adibashis in administration and development, which are very vital for the protection of adibashi land rights, but which will not be discussed herein due to the narrow scope of the subject matter and constraints of time and the risks of loss of focus on crucial issues.   

In this paper, I wish to highlight some of the major issues of resolution of land disputes concerning Adibashis in the Chittagong Hill Tracts (CHT) and in other parts of Bangladesh (hereafter “the plains”). For the plains, these include (i) reforms to the justice administration system; (ii) re-possession of alienated adibashi lands through deputy commissioners; (iii) consultation with adibashis concerning transfer of aboriginal lands to non-aboriginals; and (iv) the establishment of a land commission for the plains;. For the CHT, I will discuss ways to (v) further functionalize and democratize the CHT Land Disputes Resolution Commission and (vi) strengthen role of the traditional institutions, the hill district councils and the CHT Regional Council, in land-related matters.

   II.           THE PLAINS

2.1.        Reforms to the Justice Administration System: Vesting District Courts with Land Disputes Resolution Authority[4]

In the plains, except for the repossession of aboriginal land by Deputy Commissioners in accordance with the land law of 1950 [5] - although seldom invoked nowadays – there are no administrative or quasi-judicial remedies available for the violation of aboriginal land rights. The only other avenue is to initiate litigation in a court of law, which is expensive and involves much time and effort. Hence the demand for a land commission along the line of the CHT land Commission, which has even received some support from policy-makers. However, this may not by itself provide efficacious remedies, for reasons I will discuss later.

A possible remedy is to either set up specialized land tribunals at district levels, by either appointing new judicial officers or vesting existing district-level judicial officers (judges) with the requisite authority to try such disputes. Courts of Assistant sub-judges already have such authority, but access to these general courts are effectively denied most adibashis on account of (i) backlog of cases; (ii) procedural complexities, involving litigation through legal practitioners and adherence to complex procedural laws (the laws on Civil Procedure and on Evidence); (iii) litigation costs, and so forth.

It is important that the Code of Civil Procedure does not apply in such cases. This will enable litigants to conduct their cases by themselves. Examples of such a system include the Chittagong Hill Tracts. In place of the Civil Procedure Code a simple system of civil litigation is provided in the CHT governmental courts.

The proposed reforms, particularly in the plains, can be brought about through a law that specifically mentions that the concerned code will not apply to certain cases, or apply in a limited manner or with modification, as required. The paramount consideration being fairness and simplicity of procedure and the manner of providing evidence, saving of time, effort and costs. Appeals from such cases should only be allowed where the matter involves (a) complex constitutional issues; (b) other complexities of law; (c) patent error of law; (d) bias; and so forth. 

2.2.        Repossession of Alienated Adibashi Lands through Deputy Commissioners
According to EBST Act, 1950 “no transfer by an aboriginal raiyat[6] of his right in his holding or in any portion thereof shall be valid unless it is made to another aboriginal domiciled or permanently residing in Bangladesh” [section 97(2)]. If an aboriginal raiyat wishes to transfer his/her land to “any person who is not such an aboriginal, he may apply to the Revenue-officer for permission in that behalf, and the Revenue-officer may pass such order on the application as he thinks fit”. And if any transfer is made in violation of the above provisions such a transfer “will be void” [section 97(7)]. The law says further, “If a transfer of a holding or any portion thereof is made by an aboriginal raiyat in contravention of the provision of this section, the Revenue-officer may, on his own initiative or on application made in that behalf, by an order in writing, eject the transferee from such holding before the order is passed” [section 97(8)].

Therefore, the Deputy Commissioner – who performs the functions of a revenue officer at the district level – may eject the transferee, either on his own volition or based upon a complaint. However, with regard to the actual situation on the ground, there are two, among other, difficulties, that are discussed below.

Firstly, instances of Deputy Commissioners ejecting illegal non-aboriginal transferees, even based upon application, are rare.[7] Cases of the aforesaid district officers doing the same suo moto (on their own volition) are even rarer, if at all. This may be facilitated by executive orders or policy directives from the government, whether through the Divisional Commissioners or otherwise – such as through the directives of the Ministry of Land. It will not require any legislation.

Secondly, the problem is the ejectment deals with unauthorized transfers. In the British and early Pakistani period – when these provisions were introduced or reformed – instances of forceful or otherwise unlawful possession by non-aboriginals were rare. One way to resolve this would be for the government to clarify that loss of possession not involving transfer of title falls within the ambit of the concerned clause. A second way would be for a court of law, such as the Supreme Court of Bangladesh, to interpret this law. Alternatively, a third way would be for the concerned legal provisions to be amended to deal also with cases of loss of possession not involving any transfer of title. 

2.3.        Consultation with Adibashis concerning Transfer of Aboriginal Lands to Non-aboriginals

Although the concerned law vests the authority to revenue officer (Deputy Commissioners, in practice), there appears to be no enabling rule, regulation or policy directive that guides the officer to inform himself or herself of the matter. However, there is a practice in the greater Mymensingh area, where the deputy commissioners or their subordinate authorized officials, consult the Tribal Welfare Association, an aboriginal organization dating from the British or early Pakistan times. No such process is evident in other parts of the plains. In earlier times, [Tribal] Welfare Officers  or Special Officers in grater Dinajpur and Patuakhali-Barguna are known to have played such a role. This problem may be addressed through policy directives to the concerned officers to consult with adibashi organizations or other leadership in a structured manner. This can be complemented by appointing Welfare Officers in the districts with large aboriginal populations. The post of Welfare Officer was in existence in the CHT until the early 1970s, and even after the independence of Bangladesh in 1971, as is known commonly in the CHT, including by this author, who met the last Welfare Officer in the CHT.

2.4.     Establishment of a Land Commission for the Plains
Indigenous peoples of the plains have long been demanding the establishment of a land commission for the plains modeled along the lines of the CHT Land Commission (discussed below in chapter III below). Some senior leaders of the government, including the Land Minister are on record for having supported such a demand. However, the practical side of the matter requires attention, such as the large area of the plains, greater Mymensingh, greater Sylhet, greater Patuakhali-Barguna and greater Rajshahi-Dinajpur; far-flung in different corners of the country. Another matter is, who will form the commission, and how will Adibashi representation be ensured for the different parts of the plains. In the CHT, the matter is relatively simpler, because there are indigenous peoples institutions – the CHT Regional Council, the Hill District Councils and the Chiefs – which are recognized by law. Also, the distance between the three district headquarters of the CHT is less than is the case for the plains regions. These matters therefore require careful consideration before more concrete proposals can be sent to the government.

The dispute resolution issue for the plains may be addressed through both the establishment of a commission and the establishment of district-level courts or tribunals, as discussed above in section 2.1. In addition, it may be considered whether a future land Commission for the plains should have both dispute resolution functions, and advisory functions, to be fulfilled through separate wings of the commission. The latter functions may be necessary to deal with such issues as allotment of “khas” lands to landless adibashis, land rights in areas categorized as government forests, and so forth.


3.1.     Functionalization & Democratization of the Land Commission

3.1.1.  Structure
The commission is headed by a retired judge of the Supreme Court of Bangladesh and includes as members (i) the chairperson of the CHT Regional Council (or her/his representative), (ii) the concerned Hill District Council chairperson,  (iii) the concerned Circle Chief and (iv) the Divisional Commissioner/Additional Divisional Commissioner of Chittagong, a senior civil servant.

3.1.2.  Term of Office
The omission is to function for three years, but its term of office may be extended by the Government of Bangladesh (GOB) in consultation with the CHT Regional Council.

3.1.3.  Functions
Although called a commission, its function will not be to advise the executive, like other commissions, but to provide decisions on land-related disputes brought before it in accordance with “laws, customs and systems prevailing in the CHT”. It has the authority to declare land grants illegal and to restore possession with authority of civil court.

3.1.4.  Procedure
The Commission will not be bound by rules of procedure or evidence. It can formulate its own work procedures. There are to be no appeals against the decision of the commission, but this will not prevent judicial review in the Supreme Court of Bangladesh (High Court Division).

3.1.5.  Causes of Dysfunctionality
The main reason behind the commission’s inability to start hearing disputes and providing decisions is (i) the inconsistency of crucial provisions of the law with the letter and spirit of the 1997 Accord provisions on the commission and (ii) disagreements between the commission’s current chairperson, Mr. Justice Khademul Islam, and the indigenous members of the commission. The major inconsistencies are (i) the excessive authority vested upon the chairperson to provide a ruling (which will be regarded as the decision of the commission) when there are differences of opinion among its members; (ii) the quorum; (iii) the inability of some members to send representatives, while others can; and (iv) uncertainties regarding the jurisdiction of the commission over forest land and seasonally cultivable plough lands of the Karnaphuli reservoir area known as “fringelands”, among others.

3.1.6.  Proposed Amendments to Land Commission Law
The CHT Regional Council sent proposals for amendments of the concerned law to the Ministry of CHT Affairs, which in turn is reported to have endorsed most of the recommendations and sent them to the Ministry of Land, which is reportedly in the process of proposing legislation.[8] 

If the proposed amendments are accepted and passed into law, the following positive changes would be effected:

  • the work methods of the commission would become more inclusive and participatory (by removing the virtual veto powers of the commission’s chairperson and by providing him a casting vote only in the event of lack of consensus or unanimity); and

  • the uncertainties over the jurisdiction of the commission would be clarified ( for example, by redefining “fringelands” and by clarifying that the commission would hear disputes involving India-returnee Jumma refugees and other land-related disputes);

3.1.7.  Disagreements between Indigenous Members & the Chairperson
The main disagreements between the chairperson and the indigenous members of the commission concern two matters. One is the process in which the commission is to conduct its work. The other is on the question of a land survey.

A survey will effectively amount to a  "trial by revenue officials (amin, kanungoes and surveyors)", rather than adjudication by a court of law or the CHT Land Commission in the case of the CHT. Survey officials will conduct their functions upon plains Bangladesh concepts of private ownership on former zamindari (feudal landed estate-holders) estates, which have little or no room for local "customs, practices and usages", rather than upon CHT law, which recognizes customary rights even where there is no title or other documented record of rights. This is likely because survey officials are mostly non-indigenous officials from the plains, with no training, knowledge or exposure to customary land rights (which are neglected and denied in the plains). 

The collective memory of people - particularly hill people - in the CHT of bias, corruption

and unfair treatment by survey officials is still fresh. Therefore, it is understandable why the hillpeople resist attempts to conduct a land survey in the CHT until and unless the terms of reference (TOR) for such survey categorically and unequivocally gives due regard to customary law-based rights of indigenous individuals, communities and peoples. Since no such TOR based upon the concerned laws (including the CHT Regulation, 1900 and the Hill District Council Acts of 1989 and the CHT Land Disputes Resolution Commission Act of 2001) have so far been framed, it is safe to assume that the survey would follow plain land concepts of survey, record of rights and so forth, in the process denying proper acknowledgment of custom-based rights of the hill peoples.

If a land survey were conducted before the Commission resolves the disputes appearing before it, it would be tantamount to the commission divesting its responsibilities of dispute resolution, because, until and unless evidence to the contrary was available to rebut the findings and other records of the survey, such findings and records would remain unchallenged and established. If the CHT people felt they could get justice at the hands of survey officials there would be no need for a commission to be formed that included a retired Supreme Court judge, chairpersons of the regional and district councils and circle chiefs.

The Accord provides for such a commission and categorically states that any land survey, if conducted, should be done on the basis of advice from the
CHT Regional Council, and only after the rehabilitation of India-returned Jumma refugees, rehabilitation of internally displaced people, resolution of land disputes and grant of two acres of land to landless hillpeople.

Is it therefore not understandable why the CHT indigenous peoples continue to resist any moves for a land survey on all CHT lands? If data and statistics on the physical properties of the CHT land and other natural resources are required, that can be done using modern GIS and other techniques, but only after the three
Hill District Councils are able to formulate policies in consultation with the chiefs, headmen and other members of CHT society, under the guidance of the CHT Regional Council.

The commission’s current chairperson’s intransigence on this matter leaves little room for doubt that if he continues to head this commission, the commission will not be able to carry out its mandate as framed by the law – with the expected legal amendments – within the letter of and spirit of the CHT Accord of 1997.  As demanded widely by CHT leaders and representatives over the last few years, there is perhaps no other way out but to replace the present chairperson of the commission with a more neutral and otherwise appropriate person.  

3.2.     Strengthening the Role & Functions of the Traditional Institutions, Hill District Councils & CHT Regional Council in Land Related Matters

3.2.1.  The Functions of the Traditional Institutions
The traditional institutions of the chiefs and headmen (who are aided by karbaries) have numerous functions with regard to administration and management of land and natural resources, collection of revenue and resolution of disputes in accordance with the CHT Regulation, 1900, which implicitly recognizes customary laws, customs and usages concerning both land rights and procedural matters.

3.2.2. The Functions of the Hill District Councils
The Hill District Councils are the premier district-level authority dealing with land administration, including land grants and land transfers. Section 64 of the Hill District Councils Acts of 1989 state the following:
Notwithstanding anything contained in any law for the time being in force- (a) no land including the khas land suitable for settlement within the jurisdiction of Rangamati Hill District shall be leased out, settled with, purchased, sold out or transferred otherwise with the prior approval of the Council…… No land, hills and forests under the control and jurisdiction of the Council shall be acquired or transferred without consultation with, and the consent of, the Council.”
Therefore, the role of these councils is crucial in several aspects of land. However, what is more relevant for the narrow purposes of this paper is their role in preventing land disputes from arising (actual disputes will be resolved either by the traditional institutions, civil courts or the CHT Land Commission), including disputes between indigenous communities or other groups and individuals. There are two examples of the recognition of forest commons and a Buddhist institution by the Rangamati Hill District Council, in consultation with the traditional institutions. This virtually amounts to providing custom-based title to the concerned communities. This may be one of the best ways to protect custom-based land rights.

3.2.3. The Functions of the CHT Regional Council
The CHT Regional Council is mandated by law to supervise and coordinate the general administration of the CHT, development activities, NGO activities, local government institutions and the Hill District Councils, among others. It is therefore crucial that the CHTRC has its own Regional Land Policy, which can guide the Hill District Councils and traditional institutions in dealing with land management and land disputes issues, including those under the regime of customary law.      

3.2.4.              Strengthening the Role of the Traditional Institutions
The CHT Land Commission, when hopefully reconstituted and strengthened through the expected legal amendments, can deal with land disputes, particularly where there are complex questions of title deeds and custom-based land rights. However, in the case of disputes over other lands that have not been titled, the primary role of dispute resolution is handled by the traditional institutions of the Chiefs, Headmen and Karbaries. On account of logistical difficulties and absence of financial and other technical support from the government, the traditional institutions’ role in dispute resolution has been rendered weak. Therefore, it is crucial that these offices receive logistical and other support from the government for carrying out their public duties.

3.2.5.              Strengthening the Role of the Hill District Councils
The role of the Hill District Councils may be strengthened in several ways. One way would be effectively transfer land administration as “transferred subject” to the Hill District Councils, as Land and Land Administration are included within the schedule of the Hill District Councils Acts as a matter under the councils jurisdiction (as in the case Health, Education, Agriculture and so forth). That has not happened in the last thirteen years after the reform to the Hill District Councils law! Nevertheless, on the basis of the Hill District Councils’ authority under the Hill District Councils Acts, these councils are still the penultimate authority on land matters, without whose consent no lands may be transferred, titled or compulsorily acquired! The Hill District Councils therefore need to strengthen their roles through the formulation of ancillary rules (to be framed by the government in consultation with the Hill District Councils), and the formulation regulations (by the Hill District Councils themselves). In addition, Hill District Councils need to appoint employed trained on land matters.

3.2.6.              Strengthening the Role of the CHT Regional Council 
Although the Hill District Councils have been bestowed substantive authority on land matters, for the ultimate need of protecting the indigenous peoples’ integrity – which is closely related to the protection of their land and territorial rights – some level and uniformity and coordination among the three Hill District Councils may be crucial. This can only be done at the level of an authority higher than the Hill District Councils. It is logical that this role is fulfilled by the CHT Regional Council. Therefore, the CHTRC could consider the formulation of Regional Land Policy to guide the Hill District Councils in their land administration role, defining the parameters of their role to safeguard indigenous rights, particularly with regard to customarily used lands, and the principles upon which the Hill District Councils may provide or withhold consent to land transfers, titling (settlements and leases) and land acquisition by a government agency.   

IV.             CONCLUSION

Ultimately, the protection of adibashi land rights will depend upon how much awareness there is, among the general public, and on the part of the government, and other crucial actors – indigenous peoples’ organizations, NGOs, human rights organizations, judicial officers, legal practitioners, human rights activists and the press and media – about adibashi land rights. Therefore, coordinated action by both rights-holders – primarily the indigenous peoples – and the duty-bearers – the government, courts of law, indigenous institutions, human rights organizations and so forth – will be required.

V.               RECOMMENDATIONS

The recommendations made earlier on in this paper, are reproduced below, in point form, for reasons of clarity:


5.1.     Government to establish Specialized Land Tribunals at District Levels:

-       by either appointing new judicial officers, or

-       vesting existing district-level judicial officers (judges) with the requisite authority to try such disputes

Note: The Code of Civil Procedure should not apply in such cases. Appeals from such cases should only be allowed where the matter involves (a) complex constitutional issues; (b) other complexities of law; (c) patent error of law; (d) bias; and so forth. This will enable to conduct their cases on their own. The option of legal representation, including its pros and cons, ought be considered in-depth. 

5.2.     Government to Instruct Deputy Commissioners to Repossess Alienated Aboriginal Lands

-           Government to clarify that loss of possession not involving transfer of title falls within the ambit of the revenue officers’ repossession authority under the East Bengal State Acquisition & Tenancy Act, 1950

-           A court of law, such as the Supreme Court of Bangladesh, to so interpret this law to clarify that repossession of aboriginal land by the revenue officer falls within the ambit of authority under the East Bengal State Acquisition & Tenancy Act, 1950

5.3.     Government to amend East Bengal State Acquisition & Tenancy Act, 1950 to expressly include cases of loss of possession not involving any transfer of title within the ambit of the Act 

5.4.     Government to Instruct Deputy Commissioners to Consult Aboriginal Organizations/Leaders/Representatives concerning Transfer of Aboriginal Lands to Non-aboriginals following the example of consultation with the Tribal Welfare Association in greater Mymensingh

5.5.     Government to appoint Welfare Officers or Special Officers  or Aboriginal Officers – with priority to aboriginal individuals – to advice the Deputy Commissioners concerning land transfer of aboriginal lands and other aboriginal land issues    

5.6.     Government to establish a Land Commission for the Plains following the model of the CHT Land Commission


5.7.     Government to amend CHT Land Commission law in accordance with the advice of the CHT Regional Council

5.8.     Government to remove Mr. Justice Khademul Islam from the chairpersonship of the CHT Land Commission & appoint a more neutral and otherwise suitable person as the chairperson of the Commission

5.9.     Government to provide logistical and other support to Traditional Institutions to enable them to carry out their Justice Administration, Revenue & Land and Natural Resource Management Functions in a more effective & functional manner

5.10.   Hill District Councils to exercise their authority and assert their role in accordance with the HDC Act, 1989, including to provide recognition to collective customary law use of untitled lands

5.11.   Government to frame rules – in consultation with the CHTRC and the Hill District Councils - to supplement the provisions of the HDC Acts (esp section 64)

5.12.    Hill District Councils to frame regulations to guide the exercise of their authority on Land Administration and Management

5.13.   CHT Regional Council to adopt a Regional Land Policy to guide the roles of the Hill District Councils, Deputy Commissioners and Upazilla Nirbahi Officers, and Traditional Institutions, on land-related Matters, among others

 5.14.  Government, NGOs & Others to provide Training, Orientation, Sensitization, Awareness-Raising, Advocacy etc on Adibashi Land Rights

[1] Paper prepared for presentation at the National Conference on Land, Forest and Culture of Indigenous Peoples, organized by the Bangladesh Indigenous Peoples Forum in Dhaka, Bangladesh on 6-7 August, 2011.

[2] The writer is the hereditary Chakma Raja and Chief of the Chakma Circle in the Chittagong Hill Tract..
He holds a Barrister-at-Law degree from the Inns of Court School of Law, London and is an advocate at
the Supreme Court of Bangladesh (High Court Division). He is also the Indigenous Expert Member from
the Asia region to the UN Permanent Forum on Indigenous Issues for its 2011-2013 term√

[3] In this paper, the terms ‘indigenous’, ‘aboriginal’ and ‘adibashi’ will be used interchangeably, as contextual. These terms appear in several Bangladeshi laws and in judicial decisions, including Sampriti Chakma v. Commissioner of Customs & Others (5 BLC, AD, 29). The term ‘aboriginal’ occurs in the East Bengal State Acquisition and Tenancy Act, 1950 (Act XXVIII, 1950; at section 97). The term ‘adibashi’ has been used in the Small Ethnic Groups Cultural Institutes Act, 2010. Although the aforesaid three terms are not used in the Constitution of Bangladesh, the recently inserted Article 23A refers to “upa-jati” (tribe?), “khudro jatishotta” (small nations/peoples), “nrigoshthhi” (ethnic groups) and “shomprodai” (communities). Similarly, there is no reference to “minorities” in the constitution.
[4] This section reproduces ideas expressed in Devasish Roy Wangza, “State Policy, the Constitution & Equal Rights for Disadvantaged Groups”, published in Forum, a monthly publication of The Daily Star, Dhaka, dated 1 August, 2011, Vol. 5, Issue 8, pages 6-11.

[5] In accordance with section 97 of the East Bengal State Acquisition and Tenancy Act, 1950.
[6] Banglapadia (http://www.banglapedia.org/httpdocs/HT/R_0056.HTM) defines raiyat as follows: “Raiyat: a nomenclature used customarily and legally for the peasantry of Bengal during the Mughal and British periods, but in its widest sense, also used for subjects of the state and of the ruling classes…. It must be noted that raiyats, though legally declared to be tenants under the rules of the Permanent Settlement, had never reconciled themselves with the idea of becoming tenants having no rights in land. From the beginning of the Permanent Settlement the conscious section of peasants had been arguing that they had rights in land sanctioned by customs and usage and that the zamindars had no right to regulate their productive behaviour in their own terms.”

[7] Advocate Babul Rabidas, a participant at this conference, informed the writer, in July 2011, that several such applications are lying unattended in several districts of the Rajshahi division.

[8] Author’s discussions with the Land Minister, CHT Affairs State Minister, and CHTRC member, Goutam Kumar Chakma, in June-July, 2011.

 D Roy Paper Land Dispute & Adibashi Rights

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