Customary law plays an important role in many indigenous communities. In Bangladesh, there are many indigenous groups who are practicing their own customary laws since generations. They have their own customs and rituals which regulate their social disputes. During the drafting of the constitution, Shri Manabendra Narayan Larma, a member of the constituent assembly, demanded the recognition of other indigenous peoples besides Bengalees but it was ignored.[1] The 15th amendment of the constitution of Bangladesh did not recognize the indigenous but as a small ethnic group. Nevertheless, the Chittagong Hill Tracts Regulation 1900 (Regulation), adopted by the then British Raj, preserves the distinctive customs and traditions of the indigenous people of the Chittagong Hill Tracts (CHT) and gave them full autonomy.
By signing the Chittagong Hill Tracts Peace Accord, the government of Bangladesh recognized the region as a ‘tribal area’, acknowledging the historic role of the circle chiefs (Kings), headmen and karbari (village head) and the vital role of customs and traditions of tribes. The article will discuss the condition and practice of customary laws as well as the judgements of the Supreme Court on the recognition of these laws.
Usage of customary laws:
Historically, custom-based family law has been administered by karbari, headman (mouza head) and circle chief who play important roles in the administrative structure of the CHT.[2] In the case of land and natural resources, importance is given to the age-old practice although there is no documented law. The head of a neighborhood or village is called a karbari whose main responsibility is to participate in social functions and to ensure rule of law in the society. Circle chief appoints the karbaris. On the other hand, many villages or neighborhoods together form a mouza. Mouza is usually an administrative system created for the collection of taxes and rents based on clusters. The mouza is a separate unit in the civil and judicial administration. The main responsibilities of the mouza head are to manage assets properly, collect land rent and taxes, uphold the rule of law, and file appeals to the headman if they are not satisfied with the tribal justice system. The unwritten practice in the appointment of headman is that the Deputy Commissioner shall appoint the person recommended by the circle chief. The title of karbari and headman passes down from generation to generation. The headmen of a total of 380 mouzas in the CHT are divided into three administrative circles.[3]
Traditionally, when a problem arises on a subject, it first goes to the karbari. Any party may appeal to the headman against the karbari‘s decision. Appeal verdicts are usually provided in writing. Hearings are held in the court of the circle chief whereas the King’s Court hears complex issues. Final decisions or decrees are issued in written form.
Indigenous people follow traditional family law in marriage. It is customary to marry only within the limits of a local community, group or clan. Although inter-communal marriage is now practiced, marriage with the mainstream Bengali community is strictly discouraged. In the case of distribution of inherited property, the women of the Marma[4] community inherit the property but in other tribal communities, women are not yet given a place in the chain of inheritance the same way. However, active participation of women is increasing in indigenous societies which is a very positive sign.
Landmark Judgements from the Supreme Court:
The Supreme Court of Bangladesh has recognized the customary law of the CHT. In 2016, the High Court Division of the Supreme Court in Rangamati Food Products v Commissioner of Customs[5]gave a decisive verdict declaring the Chittagong Hill Tracts Regulation 1900 as an effective law while discussing the applicability of tax law in this region. In this case, dispute between the parties arose when the commissioner of taxes unlawfully collected advance taxes from plaintiff whereas it is clearly stated in Regulation as well as in Income Tax Ordinance,1984 that any kind of industries including cinema halls situated at the CHT are exempted from customs and excise duties, income tax and VAT.
Furthermore, in the case of Abrechai Magh v Joint District Judge, Khagrachari[6] the lowercourt bypassed the customary law of the Marma community and applied the Hindu Dayabhaga law in the distribution of property which is clearly in conflict with the Regulation. Thereafter, the High Court Division subsequently ordered to give the due share to the female heir through customary law which further strengthened the footing of customary law in the CHT.
One of the rare examples where a CHT customary law case reached the apex court concerned disputed claims over the succession to the chieftainship of the Bohmong Circle between two members of the chief’s family. While deciding that government’s recognition of one member of the family was unlawful for not having been in accordance with the customary laws of Bohmong Circle, the Supreme Court declared:
The office of Bohmong Chief is a customary office and both the government, and the Court have to recognize the custom and not to introduce any other criterion or factor that will add to the customary requirements of that office. The High Court Division was manifestly wrong in holding that the office of Bohmong Chief is a political office and that the claimant is nominated by the government on politico-administrative considerations. It is an innovation which is an alien criterion contrary to the established usage and custom of the Bohmong Circle . . . government will also not deny that the susceptibilities of the tribal people should not be ignored.[7]
In this case, the Appellate Division professed the Bohmong circle’s custom and usage and did not introduce any other criteria that would add to the customary requirements of that office.
Now, there remains a question – when there is a conflict between customary law and civil law which one should prevail? Judgements from the apex court have cleared this question and the court will apply the rules of customary law which is valid constitutionally. But in criminal cases, the court will follow the criminal law of the state.
Conclusion:
The use of customary law in the state structure of Bangladesh is narrow due to multiple reasons. In the current context, the state must take necessary steps to strengthen the traditional laws as well as to transform the traditional institutions ie the office of circle chief, headmen, karbari and also the three hill district councils into a more representative structure in order to preserve the individual identity and cultural diversity of the indigenous people. Following steps can be taken by the state:
- Implementing the CHT peace accord fully;
- Engaging the representatives of indigenous groups and discussing their customs and traditions;
- Ensuring discussion between the expert from the law commission and the circle chiefs (Kings) regarding the legal matters;
- Forming special committee from law commission to review and analyze the impact of customary laws.
Moreover, the political willingness of the government is crucial in order to codify the customary laws.
[1] Bangladesh Gono Parishader Bitarka, Sarkari Biboroni (1972).
[2] The Chittagong Hill Tracts Regulation 1900.
[3] Martin Paul, Institutional Capacity Building: A review of the CHT institutions of Governance (United Nations Development Programme 2004).
[4] Susmita Chakma, Inheritance & Customary Law (Chittagong Hill Tracts Development Plan 1998).
[5] Rangamati Food Products v Commissioner of the Customs (2005) 10 BLC [525].
[6] Abrechai Magh v Joint District Judge, Khagrachari (2014) 19 BLC [25].
[7] Aung Shew Prue Chowdhury v Kyaw Sain Prue Chowdhury (1998) 50 DLR (AD) [07].
No Comments
Leave a comment Cancel