Opinion
CHT Peace Accord: A Critical Analysis
By Mohammad Mujibur Rahman
THE CHT peace accord which was signed on December 3, 1997 to protect the characteristics and attain overall development of the region has at the very outset the postulate that Chittagong Hill Tracts is a tribal inhabited region, although about 50 per cent inhabitants of the region are Bengali-speaking people, and Bengalis of CHT were never consulted while negotiating the accord. There is nothing in our constitution recognising CHT as a tribal inhabited region. The postulate therefore runs contrary to Section 1 of the Constitution, according to which Bangladesh is a unitary Republic. Again, according to Section 6 (2) of the Constitution, the citizens of Bangladesh should be known as Bangladeshis.
It may be noted in this connection that, sub-clause Ga (3) of the accord, defining non-tribal permanent residents who are not tribals but have legal lands and generally live in the hill districts at specific addresses has excluded Bengali-speaking people living in CHT as tenants by tilling land for others or hiring house in that region from all the rights and privileges including voting rights is CHT. This is in violation of Section 19(1) of the Constitution which ensures equality of opportunity to all citizens.
Under the accord, a Parbattya Zilla Parishad for each of the three districts of Chittagong Hill Tracts will be formed. These Parishads have been entrusted with vast powers and responsibilities such as recruitment of class three and four employees, appointment of hill districts police down from Sub-Inspector, collection of Land Development Tax, etc., which are not given to any local government bodies in other districts. Again, although the Bengalis are about 50 per cent of the population in that region, two-thirds of the members of the Parishad will be elected from the tribals and one third from the local Bengalis. Under Section 9 of the Constitution, "special representation shall be given .... to peasants, workers and women." In this section there is no provision for special representation to the backward section of the citizens, let alone the special representation to the tribals. Therefore the provision for reserving two-thirds seats for the tribals only is ultra vires of the Constitution. This is also in violation of Section 19(1), which says, "The state shall endeavour to ensure equality of opportunity to all citizens, and also Section 11, which says that the Republic shall be a democracy in which effective participation by the people through their elected representation in administration at all levels shall be ensured."The sub-section 3(a) of section 29 empowers the state to make special provision for any backward section of the citizens for the purpose of securing their adequate representation in the service of the Republic. This means, the state can fix certain quota or number of posts for the tribals in the service of the Republic. But on the plea of providing adequate representation, the appointments of tribals exclusively for all the posts of chairmen, District Councils, Regional Councils and Minister in-charge of CHT Affairs, and giving preference to the tribals for appointment of Secretary with the rank and status of Deputy Secretary in the Parishad, appointment of executive officer in the Regional Council, appointment of Chairmen of CHT Development Board etc.
, will seriously affect the rights and interests of the Bengalis in CHT, and will be in violation of sections 19(1), 27 and 29 of the Constitution.
According to clause Ga 26 of the accord, without permission of the Parishad no land including leasable khas land in the district can be leased out, sold or purchased. Even the government cannot acquire or lease any land, hills and forest without permission of the Parishad. This clause severely curtails the sovereignty of the Republic as it is a clear violation of Section 143 of the Constitution, which says, "There shall vest in the Republic, in addition to any other land or property law fully vested, (a) all minerals or other things of value underlying any land of Bangladesh .... "This is also in violation of Section 144 of the Constitution which says that "the executive authority of the Republic shall extend to the acquisition, sale, transfer, mortgage and disposal of property....". Besides land, the clause also curtail sovereignty of the Republic over forestry and mineral sources in CHT as the Parishad will be entitled to unspecified portions of royalty on forest and mineral resources in CHT.
Again, as in the Parishad, two-thirds of the members will be tribals it will be impossible for any Bengali to get permission to purchase land in CHT and settle there. This is a violation of Section 36 of the Constitution, which ensures that "every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein", and also Section 42 of the Constitution which gives every citizen the right to acquire, hold, transfer, dispose of property.
Lastly, by making provisions for cancellation of the allotments of land to non-tribals and non-residents (not tribals) for rubber cultivation and other purposes not yet utilised and scrutiny of the legal right of ownership of land by non-tribals it seems an insidious plan has been obviously made not only to stop settlement of Bengalis but to oust them from CHT!
According to clause Ga (1), a Regional Council will be formed combining the three Hill Districts' Local Government Parishads. According to the accord, the members of the Council will be elected indirectly by the elected members of the three Hill District Parishads, in which two thirds members will be tribals. Besides, the Chairmen (who will also be tribals) of the three hill districts will be ex-officio members of the council and they will have voting rights. Under sections 59 and 60 of the Constitution, no power to make provision exclusively for the backward section of the citizens has been given to the government. In the same section, Local Government in each administrative Unit of the Republic can be entrusted to bodies composed of persons elected in accordance with law and every such body will perform within the appropriate administrative unit such functions as shall be prescribed by the act of the Parliament. But according to the statement dated 8-12-97 of the Law Ministry the Regional Council will be responsible to the Prime Minister, and to the legislature which is not an administrative unit. Therefore formation of a tribal-dominated Regional Council exclusively for CHT (not for any other greater districts), which is entrusted with vast powers and will perform its functions under the legislature, is ultra vires of the Constitution.
Under Section 65 of the Constitution, there shall be a Parliament for Bangladesh in which shall be vested the legislative powers of the Republic. The Parliament can delegate to any person authority to make orders, rules, bye-laws etc. having legislative effect. It may be noted in this connection that, 'delegation of authority' does not imply a parting with power by the person who grants the delegation, but rather to the conferring of an authority to do things which otherwise that person would have to do himself (Eng. Huth V. Clarke 25 QBD 391,395). "Delegate" is distinguished from "Surrender" which is defined as meaning the relinquishment of a thing or property right there to another (Ky-Justice V. Burgess, 52 SW 2nd 726, 744 Ky 774).
The legislative powers and also the sovereignty of the Republic have been seriously curtailed due to clause Ga (13) of the CHT accord, according to which no law regarding Chittagong Hill Tracts can be formulated by the government without discussion with the Regional Council and done as per advice of the Council. Thus by virtue of this clause the legislative powers of the Republic, regarding CHT have rather been surrendered to the Regional Council.
The writer is a retired Collector of Customs.
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