Constitutionality of the Chittagong Hill Tracts Peace Accord 1997: Is the Peace Process Valid?

Abstract

Bangladesh attained sovereign statehood in 1971 through a war of liberation against Pakistan and adopted its Constitution in 1972. The Constitution of Bangladesh proclaims that it is a democratic country established on the notion of Bengali nationalism. ‘Bengali’ is the mother tongue of the majority of the people of Bangladesh. The Bangladesh Constitution contemplates a unitary state integrated on the basis of a common culture. The Constitution purposefully ignored the existence of a distinct ethnic culture practiced by the tribal indigenous people living in the Chittagong Hill Tracts (CHT) region. The Chittagong Hill Tracts region is comprised of the Rangamati, Bandarban and Khagrachari districts. It is the home of eleven different ethnic indigenous groups. Since Bangladesh's nationhood, the indigenous people living in the CHT region have been demanding recognition of their separate identity and autonomy from Bangladesh. They also wanted to ban Bengali settlement in the CHT region. The indigenous people organised themselves into an armed separatist group ‘Parbotya Chottogram Jono Sanghati Somiti’ (PCJSS) in a movement to attain autonomy for the CHT region. This movement was a serious threat against the sovereignty and indivisibility of Bangladesh as a unitary state. The Government of Bangladesh has implemented different initiatives over the last 42 years to resolve this movement including a policy of militarisation resulting in genocide. Indigenous people were denied civil, political, economic, social and cultural rights. The Government of Bangladesh has also tried to resolve this issue through dialogue. However, both approaches have failed to settle this problem. In this context, the CHT Peace Accord (‘Accord’) was executed between the Government and the indigenous tribal people of the CHT region in 1997. Both parties agreed to end the conflict and establish peace in the region. Accordingly, the Government declared a general amnesty with the armed tribal persons on the condition that they surrender their arms. The Accord established a distinct administration for the CHT region which is completely different from other parts of the country. The local administration of the CHT region was given the power to autonomously function without interference from the Bengali Government. The Accord was successful in quelling the rebellion in the CHT region. It was acclaimed as a major peace initiative by the international community. New statutes were passed in order to implement the promises made in the Accord. These are the Chittagong Hill Tracts Regional Council Act 1998 and the Rangamati, Khagrachari and Bandarban Hill District Council Amendment Act 1998. The Hill District Council Amendment Acts 1998 brought changes to the original Hill District Council Acts 1989. Pursuant to these new laws, the Hill District Councils are no longer expressly characterised as local government institutions. At the same time, the amending acts also increased the power of the Hill District Councils to decide local administrative matters. Nevertheless, none of the promises made in the Accord has been realised. In the mean-time, the Accord itself has been challenged in the High Court Division (HCD) of the Supreme Court (SC) of Bangladesh for allegedly infringing provisions of the Constitution. The High Court Division has stated that some of the Accord provisions implemented through subsequent statues were also unconstitutional. The Court held that the Accord’s promise to established an administration framework was contradictory to the unitary nature of the Republic, which is a fundamental feature contemplated by the Bangladeshi Constitution. The judgment also held that provisions of the Accord and the implementing statutes result in discrimination against other citizens of Bangladesh, therefore violating the constitutional principle of equality before the law. The Appellate Division of Bangladesh Supreme Court granted a stay on the High Court Division judgment concerning this matter. Consequently, the Accord retains de jure validity. However, the HCD Judgment remains a threat to the legality and validity of the whole peace process that the Bangladesh Government is trying to establish in the CHT region. This paper critically analyses the constitutionality of the Accord in light of the HCD judgment. Firstly, it will discuss the contents of the Accord and its constitutionality. Sections two and three set out a detailed discussion of the administrative system in the CHT region and the main grounds of conflict between the Constitution and the provisions of the Accord as discussed in the HCD judgment focused on the issue of the unitary character of the Republic. The paper will then discuss the decision and reasoning of the High Court Division and critically analyse the arguments and counter-arguments. The underlying tenet of this paper is that the Accord and the implementing statutes are not unconstitutional.