Law campaign
Analysing indigenous norms from human rights perspective
Sharin Shajahan Naomi
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Noor Alam/ Drik news |
IN May 2008 social development group of BRAC Research and Evaluation Division undertook a study on 'Exploring the Formal and Informal Justice System in Chittagong Hill Tracts (CHT)'. The members of the research team were from different backgrounds including sociology, anthropology and law. Because of my legal background I was assigned to analysis the legal dimensions of the study. For this study purpose, we had to stay in CHT for some time and travel the remotest areas of CHT to unfold the real picture of justice system of CHT. My colleagues from sociology and anthropology perceive things from a broader societal context which helped me to project my legal knowledge taking into account the cultural sensitivity of this region. What I felt closely observing the people and their life style was that the laws of their life were a part of their cultural identity and formed a reflection of their social values. The justice system of CHT possesses the distinctive characteristic of the existence of dual justice system. One is the formal one within the laws of the country and another is the customs and rituals of indigenous people.
The word 'human rights' in legal sense is not prevalent in the indigenous society, but they do have a concept of human rights having proximity with ethical perspective of human rights. The recent trend of international standard of human rights is more towards positivist and moral perspective prioritising individual human dignity. But in ethical perspective societal interest is the prime concern. Ethical perspective can be summarized as, 'what is good or bad for the hive is precisely what is good or bad for the bee'.
Indigenous people have their own customs and rituals to regulate their social dispute. 'Manusher Jonno' has codified the personal laws of eleven indigenous communities of CHT and I used the books to understand laws of this area. For resolving social dispute CHT people have their traditional salish system ranging from karbari, headman to the royal court. The royal court or the opinion of king is accepted as the highest authority to address any issue of indigenous laws.
These traditional courts have legal backing from different legislations as well as judicial pronouncement (In a case Aung Shwe Prue Chowdhury vs. Kyaw Sain Prue Chowdhury and others, 18 BLD, AD, 33, the Appellate Division recognized the Bohmongh circle's custom and usage and did not introduce any other criteria that would add to the customary requirements of that office). Our target indigenous groups were four in number- Chakma, Marma, Tripura and Mro and their laws were our area of concentration. Their laws and proof of the incidents are confined in rituals and customs rather than in written documents as prescribed in the laws of Bangladesh. In the issues of child marriage, maintenance, consent of the both the parties in marriage, there are conflicts with the national laws. Child marriage is prohibited according to the law of Bangladesh, which is not prohibited in the laws of indigenous people. Though child marriage is unknown and the marriageable age has been raised during the past decades, absence of any prohibition may lead to such conflict. On the other hand, the rule that husband will be a guardian of a minor wife indirectly sanctions marriage bellow eighteen years in the community. Indigenous women do not enjoy equal status as the men in inheriting property and guardianship. But they have the power to give divorce like men. The existence of full and free consent from the bride and groom is absent.
Chakma people have prohibited relations in which marriage is not recognized, like step sisters and brothers having same father, sons and daughters of paternal uncles, niece etc. In a case of 152 No. 'Gorasthan Mouja', where grand son and grand daughter of two brothers got married by means of the 'affidavit' of Notari Public, Chakma royal court gave the opinion that such type of marriage is not valid according to Chakma law. Even if their marriage is performed through a legal procedure, their marriage is not accepted within Chakma community. The king advised to separate them and make them return to their own family..
Though the Chakma royal court prioritised the cultural values, the court could utilize the scope to think about the human rights where every adult man and woman has the right to get married with full consent. But in another case (case no 3/2004, the royal court) the royal court took a progressive approach in interpreting the Chakma laws. The court took the view that the past rituals and customs need to be reconsidered under the present human rights and women rights norm.
In this case, the court emphasized the need for taking full and free consent from the woman for marriage and did not sanction the marriage where only rituals have been performed without taking free consent of the bride.
The other indigenous communities are also not legally bound to take full and free consent from both the parties during the time of marriage, which may cause forceful marriage, breaking the human rights norms. There is no specific law providing for maintenance of the wife during the time of divorce. This discourages women to go for divorce even if she may want to do so. At the same time unequal or no share in father's property will make the situation of women dependent on husband's wishes despite of their miserable situation in married life. Polygamy is not punishable as found in the laws of Bangladesh. The practice of making the guilty person bald headed and make him walk around the entire village in a insulting position violates the human right of not inflicting any degrading punishment.
However, these practices are not prevalent in the same form in all the areas of CHT. It is totally up to the discretion of the traditional court in which way they will resolve the social dispute. Though I did not find specific law for giving maintenance to wife after divorce in the literature, in some cases of our study it was found that some women received some sort of maintenance after divorce through the decision of traditional court.
It's true that on some points indigenous laws and norms are in conflict with international standard of human rights norms but their laws are also proof of their strong community bondage. For many social offences the punishment for the accused is to give the community pig and alcohol that opens the scope for the accused to get reintegrated in the society and start a normal life again.
Now days, the practice of giving shares of the property to the daughters of educated families is a good sign of willingness to change the laws according to the need of the time. Though women have unequal status before the law, in education and work, the indigenous women are well advanced.
My personal experience is that the indigenous populated regions of CHT are noticeably gender sensitive and comfortable for women to work and travel. I really believe that there are seeds of cherishing international standard of human rights in the mindset of indigenous people. But to what extent cultural norms need to be considered is very crucial. The periphery can be the cultural domain keeping the corpus on the basis of human rights. The circle chief (the kings of indigenous communities) can play an important role to incorporate the norms of human rights into the indigenous rituals as Chakma royal court did bringing the issue of consent of the bride in the marriage.
Our indigenous communities can consider embracing the international standard of human rights gradually into their laws and rituals to make their laws more acceptable to the demand of time.
Sharin Shajahan Naomi is a Researcher in Research and Evaluation Division, BRAC.
