The Need for Family Courts in the Hill Districts

Mohammed Shahjahan: Strange as it may sound, the Family Courts operating in full swing elsewhere in the country are non-existent in the three Hill Districts of the Chittagong Hill Tracts (hereinafter referred to as the CHT). This pitiable state of affairs has led not only to serious deprivation of access to justice but also to discrimination coupled with legal complexities.

The CHT with approximately 10% of the country’s total land mass forms an integral part of Bangladesh being a unitary Republic as stipulated under Article 1 of the Constitution.

In terms of demography, the CHT is inhabited by people belonging to small ethnic groups and the Bengalis, the latter constituting almost half the entire population here. The members of the ethnic groups and the Bengalis in the CHT and the people living outside the CHT being citizens stand at par with one another as to equality before law, non-discrimination and equal protection of law per Articles 27 and 31 of the Constitution read together.

There are contentions for and against the establishment of Family Courts in the CHT. Before we delve deep into the contentions, let’s see what the Family Courts actually are.

What are the Family Courts?

The Family Courts are the Courts established under Section 4of the Family Courts Ordinance, 1985 (hereinafter referred to as the Ordinance). This Section of the Ordinance provides for as many Family Courts as there are Courts of Assistant Judges in the country. These Courts manned so by Assistant Judges deal with dissolution of marriage, restitution of conjugal rights, dower, maintenance and guardianship and custody of children exclusively; thereby ousting the jurisdiction of all other types of Courts over the said subject-matters. Though there had been confusion as to whether the Ordinance was meant for only the Muslims or for all religious communities initially, the confusion was set right in the Case of Pochon Rikssi Das Vs. Khuku Rani Dasi and Others reported in 50 DLR (HCD) 47 and 17 BLD (HCD) 563 wherein it was held, inter alia, that the Ordinance applies to all citizens irrespective of religion.

Family Courts in/for the CHT: Origin of the Debate

The current debate as regards the need for Family Courts in the CHT can be traced back to the promulgation of the Family Courts Ordinance,1985inasmuch as Section 1(2) of the Ordinance states that it extends to the whole of Bangladesh except the districts of Bandarban, Rangamati and Khagracahari. This exclusion might be attributed to a number of raison d’etre such as inexistence of Courts of Assistant Judges in the CHT at the relevant time, e.g., in 1985 together with ignorance about and indifference to the ground realities of the CHT on the part of the policy-makers and law-makers concerned.

Family Courts in/for the CHT: Narratives & Counter-Narratives

As evident from media and study reports, public opinion with regard to the need for Family Courts in the CHT is divided. While the Bengalis in this region are overwhelmingly in favour of the establishment of these Courts, a section of the tribal leaders and intelligentsia are not. Those opposing the proposition hold, inter alia, that the Family Courts are not necessary in the CHT as Karbaris, Headmen and the Circle Chiefs are tasked with adjudicating upon the family disputes in the CHT under the provisions of the Chittagong Hill Tracts Regulation, 1900 (hereinafter referred to as the Regulation). Apart from those holding these two diametrically opposite views, there are also a number of tribal and Bengali people advocating for a golden mean approach to the issue at hand. They hold that both the formal and informal systems of adjudication of family disputes in this region should co-exist, meaning thereby that the traditional system involving Karbaris, Headmen and the Circle Chiefs should be retained and at the same time, the Family Courts under the Ordinance should come into being.

Contentions for Family Courts in the CHT

To appreciate the contentions for the establishment of Family Courts in the CHT, we may have a look at the arguments pressed in the Case of Bangladesh Legal Aid and Services Trust (BLAST) and Ain-O-Shalish Kendra (ASK) Vs. Bangladesh and Others (Writ Petition No. 2813 of 2009).Put simply, the said Writ Petition argues that by barring applicability of the Ordinance in the three Hill Districts, Section 1(2) of the Family Court Ordinance, 1985 is depriving the citizens residing in the CHT of access to justice through Family Courts as enjoyed by those residing in the other 61 districts of Bangladesh and this constitutes a violation of the citizen’s fundamental rights to equal protection and treatment under law and non-discrimination, as entombed in Articles 27 and 31 of the Constitution. In fact, the contentions put forward for the establishment of Family Courts in the CHT include, but are not limited to, the following:

1. Non-existence of the Family Courts in the CHT violates Articles 27 and 31 of the Constitution.
2. Following the Judgment in the Case of Bangladesh Legal Aid and Services Trust and Others Vs. Secretary, Ministry of Law, Justice and Parliamentary Affairs and Others reported in 61 DLR (HCD) (2009) 109, Civil Courts in the three hill districts have been functional and hence Family Courts may easily be put in motion.
3. While the Tribal Population enjoy access to informal/traditional justice in matters of family disputes, the large number of Bengalis in the CHT are deprived of justice in such matters as they are neither covered by the informal/traditional justice system nor are the Family Courts functioning for them.
4. Disputes relating purely to family matters are giving rise to frivolous/false criminal cases filed with the criminal Courts/Tribunals in the CHT, thus wreaking havoc with peaceful family life.
5. Customary laws applicable to the tribal population are neither codified nor cohesive.
6. Customary laws varying from people to people are discriminatory and in conflict with the Constitution to certain extent.
7. Karbaris and Headmen lacking competence are not gender-sensitive, rendering tribal women without proper redress.
8. There are no mechanisms whatsoever for either conduct of proceedings of family matters or execution of verdicts passed by informal Courts comprising of Karbaris and Headmen.

Contentions against Family Courts in the CHT

There are a number of contentions put forward by a section of the tribal leaders and intelligentsia against the establishment of Family Courts in the CHT. These can best be exemplified by what Mr. Devasish Roy has to say here:

“In a recent case before the High Court Division of the Supreme Court of Bangladesh, the Petitioners sought to extend the application of the Family Courts Ordinance, 1985 to the CHT and thereby establish Family Courts in the CHT. Such extension may bring benefits by opening another avenue of redress, but it may also lead to increased and lengthy litigation, which may not by itself mean better remedies. Extension of the law may be problematic if it were to apply to the indigenous people. At the moment, family law matters of the hill peoples are tried by the traditional chiefs, headmen and karbaris and the civil courts are barred from exercising jurisdiction over matters tried by the traditional courts. The low number of revisions and appeals from the traditional courts suggests that indigenous people are reluctant to go outside their community for such matters. Moreover, the judicial officers of a Family Court may not be familiar with the personal laws of the indigenous people concerned (most of which follow oral traditions). Therefore, the whole question of whether, if so, to what extent, Family Courts ought to have jurisdiction over the indigenous population of the CHT requires informed debates before the matter is decided upon. It is likely that several interested parties, including the traditional chiefs and headmen and the CHT Regional Council, might apply to be added as parties in the case to put forward their views on the matter. Another important question here is the prerogative of the CHT Regional Council and (to a lesser extent) the hill district councils to be consulted on the question of whether Family Courts Ordinance should be applied to the CHT, and if so, whether this should be in its original or modified form.”

[Raja Devasish Roy, TheILO Convention on Indigenous and Tribal Populations, 1957 and the Laws of Bangladesh: A Comparative Review, ILO Office, Dhaka, Pages-91-92]  

These contentions, amongst others, may be summarized as follow:

1. The Ordinance not being in the Schedule to the Regulation under Section 4is not applicable to the CHT.
2. The CHT being a tribal-dominated area is not in need of Family Courts.
3. As informal/traditional justice mechanisms dealing with family disputes are in existence in the CHT, Family Courts are not needed here.
4. Family Courts will lead to increased and lengthy litigations in the CHT.
5. Formal justice mechanisms such as Family Courts entail a lot of costs leading to increased hardship on the litigants.
6. Judicial Officers manning the formal justice mechanisms may not be familiarwith the family laws of the tribal people.
7. Prerogative of the CHT Regional Council and the Hill District Councils to be consulted before establishing Family Courts in the CHT.

A critical look at the arguments against the Family Courts in the CHT:

True it is that the Ordinance is not listed in the Schedule under Section 4 of the Regulation. So is it with many other acts of parliament such as the three acts of 1989 pertaining to the three Hill District Councils and the act of 1998 relating to the Chittagong Hill Tracts Regional Council enacted solely for the CHT. Under the circumstances, Section 4 of the Regulation appears to have been rendered redundant de facto. The CHT may be a tribal-dominated area, but one can not be oblivious to the Bengalis constituting almost half the population of the CHT and there can not be any justification for depriving them of justice. This is all the more so in view of the fact that informal/traditional justice mechanisms do not apply to the Bengalis. As for the argument that Judicial Officers manning the formal justice mechanisms may not be familiar with the family laws of the tribal people, this would suffice to say that the judicial officers stand on a much better footing than the Karbaris and Headmen in terms of education and training and they may easily be made familiar with the same through on-the-job training. When it comes to costs of litigation, one must not lose sight of the fact that compared to other civil litigations, family matters cost very little as evidenced by the nominal Court Fees of only 25/- Taka to be paid on the Plaint. And a special right or privilege in the form of prerogative conceded to an individual or individuals holding particular office may not be mandatory, rather it may be directory; it can not take away the sovereignty of the national parliament to enact or amend laws and it is certainly clothed with conditions more than one!

Boiling down to Triple Jeopardy for the Bengalis in the CHT for no fault of their own?

With a view to illustrating the inequality and discrimination caused by the non-existence of the Family Courts in the CHT, let’s take the examples of Mrs. ‘A’, Mrs. ‘B’ and Mrs. ‘C’ (All Pseudonyms)-‘A’ being a tribal lady and ‘B’ being a Bengali lady, both living in the CHT and ‘C’ being a Bengali lady living in Cox’s Bazar bordering the CHT. Under the prevailing legal regime, ‘A’ can file for remedy before the informal/traditional forum of justice in family matters while ‘B’ can not. Again, ‘C’ can file for maintenance before the Family Court concerned in Cox’s Bazar whereas ‘B’ can not. On top of that, with the jurisdiction of the Ordinance barred in respect of the CHT, ‘B’ might have opted for remedy of maintenance under Sections 488, 489 and 490 of the Code of Criminal Procedure, 1898. But alas! These provisions also have now been omitted by Section 86 of the Code of Criminal Procedure (Amendment) Act, 2009 and that too with retrospective effect from the 1^st November, 2007.Doesn’t it all boil down to sort of triple jeopardy for the Bengali ladies hailing from the CHT?

The way forward

In the midst of all these debates on Family Courts for the CHT, what one looks forward to is an amicable solution based on the aforesaid golden mean approach: Let the Family Courts be set up while retaining the informal/traditional system comprising of Karbaris, Headmen and the Circle Chiefs for adjudication of family disputes of the ethnic groups, with both options for choice of forum open to them. For that to happen, both the Ordinance and the Regulation are required to be amended accordingly. Last but not the least, one hopes that the parties concerned shall take necessary steps to have the Writ Petition No. 2813 of 2009 on Family Courts for the CHT, now pending before the hon’ble High Court Division of the Supreme Court of Bangladesh, heard and disposed of soon.

 Mohammed Shahjahan: Advocate, Supreme Court of Bangladesh. E-mail: shahjahanmohammed38@gmail.com