Case No: Civil Appeal No. 8 of 1997
Judge: Mustafa Kamal ,
Court: Appellate Division ,,
Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Dr. Kamal Hossain,,
Citation: 50 DLR (AD) (1998) 73
Case Year: 1998
Appellant: Aung Shwe Prue Chowdhury
Respondent: Kyaw Sain Prue Chowdhury and others
Subject: Tribal Laws,
Delivery Date: 1997-12-11
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
Aung Shwe Prue Chowdhury
Kyaw Sain Prue Chowdhury and others
December 11, 1997.
The Chittagong Hill Tracts Regulations, 1900
Selection of Bohmang Chief
The selection of Bohmang Chief is no doubt an executive selection and judiciary will not substitute its own selection in place of executive selection because it is not the function of the judiciary to select a Bohmang Chief. The selection will have to be made by the executive only. The court will once enquire whether the selection has been made following the tradition, custom and usage which govern such selection. If so made judiciary will not intervene. If extraneous considerations have influenced the executive decision the court has certainly the power to declare the selection to have been made without lawful authority, all the more so, because government will also not deny that the susceptibilities of the tribal people should not be ignored… ……………..(29)
Khandker Mahbubuddin Ahmed, Senior Advocate (SM Munir Advocate with him) instructed by Sajjadul Huq, Advocate-on-Record—For the Appellant.
Dr. Kamal Hossain, Senior Advocate, instructed by Aftab Hossain Advocate-on-Record— For the Respondent.
Civil Appeal No. 8 of 1997
(From the Judgment and Order dated 12-1-97 passed by the High Court Division in Writ Petition No. 5101 of 1996).
[Reversed the earlier decision which was also reported in 49 DLR 217.]
Mustafa Kamal J.
This appeal by leave by the writ petitioner is from the judgment and order dated 12-1-97 passed by a Division Bench of the High Court Division in Writ Petition No. 5101 of 1996 discharging the Rule Nisi and thereby affirming the impugned notification No. Spe: Aa: B I:(Ain)-32/96/205 dated 4-11-96 published in the Bangladesh Gazette on 21-11-96, appointing and recognising respondent No.1 Kyaw Sam Prue Chowdhury as the Chief of Bohmong Circle of Chittagong Hill Tracts under the Chittagong Hill Tracts Regulation 1900 and directing the Commissioner, Chittagong Division, Chittagong Hill Tracts to arrange his investiture under Regulation 48 of the said Regulations.
2. It was the case of the writ petitioner (appellant herein), Aung Shwe Prue Chowdhury that Bandarban Hill Tracts District and part of Rangarnati Hill Tracts District are inhabited by the tribal people of Bohmong circle who have their own way of lives and social pattern, governed by age-old usage, tradition and customs, one of which is to have a Chief of the Circle appointed from the Bohmong Dynasty. The Bohmong Dynasty was headed by Bohmong San Byu who was Governor of Chittagong during 1614 to 1630 under the Burmese Ruler. He was successively succeeded by Bohmong Mong Shwe Prue (1630-1665), Bohmong Hari Prue (1665-1687) and Bohmong Han Nyo (1687-1727). These four Governors ruled from Burma and did not enter into the area now known as Chittagong Hill Tracts. The fifth Governor Bohmongree Kong Hia Prue was the Chief of the Bohmong Circle of Chittagong Hill Tracts from 1727-1811. Henceforth all the Chiefs of Bohmong Circle had been living in the Hill Tracts and thereafter there were as many as nine Bobmong Chiefs who succeeded each after the other. The last Chief Bohmongree Mong Shaw Prue (1959-1996) died on the 16th June, 1996 causing a vacancy in the Chiefship. The successor has always been filled in by the eldest in male line who was not unfit. This rule is a custom of Bohmong Circle that has been recognised and reported in various publications beginning from the District Gazetteers. Thus RH Sneyd Hutchinson, while writing about the tribes of Chittagong Hill Tracts in the Eastern Bengal and Assam District Gazetteer, Chittagong Hill Tracts, wrote about succession at page 33 as follows:
The succession to the tribal chief ship of Bobmong, is the next eldest male blood relative and does not follow in the direct line.
3. In a letter bearing No. 2549p dated Calcutta, the 22nd February, 1917 Mr. JH Kerr ICS officiating Chief Secretary to the Government of Bengal wrote to the Commissioner of Chittagong Division as follows:
In the Upajatiya Gabeshana Patrika published in September 1995 by the Upajatiya Sanskritik Institute Rangamati (Second Edition) it was at page 200 as follows:
4. The appellant is a grandson of the 9th Chief (1875-1901) and is the nephew of the 11th Chief (1916-1923). Of all the living male members of Bohmong Dynasty he is the seniormost in age being only five days younger to the last 14th chief (1959-1996), whereas respondent No.1 in this appeal Kyaw Sam Prue Chowdhury (who was respondent No.4 in the writ petition) is third in seniority amongst his three brothers, all of whom are younger in age to the appellant who is highly educated and was State Minister of Bangladesh during 1979-1982. The appellant is physically fit and mentally alert to perform the functions of the Bohmong Chief’s office. According to the customs as to succession of Chiefship of Bohmong Circle the appellant is legally entitled to succeed to the dignity of Bohmong Chiefship, but the Special Affairs Division of the Government, being politically influenced decided to appoint respondent No.1 Kyaw Sam Prue Chowdhury as the Bohmong Chief and accordingly the impugned Notification dated 4.11-96 passed under the orders of the President was published in the Bangladesh Gazette on 21-11-96.
5. Respondent No. 1 in the writ petition (Government of the People’s Republic of Bangladesh through the Secretary, Special Affairs Division(respondent No.2 in this appeal)) filed an affidavit-in-opposition and contended that it is not correct to say that the successor has always been filled in by the eldest in male line who was not unfit. Age is not the only determining factor: rather fitness and age together determine the priority of nomination. Respondent No. 1 is directly linked with the 12th, 13th and 14th Bohmong Chiefs who were his paternal grandfather, father and paternal uncle respectively covering a continuous period from 1923-1996. The appellant was senior in age to the 14th Bohmong Chief and was born on the 12th August, 1915 according to the horoscope maintained by the traditional Marma Customs. Respondent No.1 has four brothers and not three. His two elder brothers did not submit any claim for the Bohmong Chiefship. The appellant is a matriculate, was a State Minister during the time of President Ziaur Rahman, served as a Sub-Inspector of Police in the Chittagong Hill Tracts Police Service and left the job without earning any promotion. The Government considered without any favour respondent No. 1 to the office and dignity of Bohmong Chief on the basis of fitness and age as was the case with his predecessor the 14th Bohmong Chief.
6. Respondent No. 3, Divisional Commissioner, Chittagong Division (respondent No, 3 in this appeal as well) also filed a separate affidavit-in-opposition reiterating the statements made in the affidavit-in-opposition of respondent No. 2 in this appeal. It was further stated that the appellant is nearing 83 years of age and increasingly losing all his qualities for performing the functions of the Bohmong Chief. On the other hand respondent No. 1 is running 60 years in age and has much better physical, mental and educational strength. He has also higher educational qualification than that of the appellant. The Government giving full weight age to the tradition, customs, age, fitness and educational qualification selected respondent No. 1 to the office and dignity of Bohmong Chief.
7. Respondent No. 4 in the writ petition (respondent No. 1 in this appeal) also filed a separate affidavit-in-position and more or less adopted the facts and arguments of the Government-respondents.
The Writ petitioner-appellant filed an affidavit-in-reply to the affidavit-in-opposition of respondent No. 1 denying the allegations made in the affidavit-in-opposition and stating further that the Government’s decision is a political decision rather than a legal decision. The appellant was found junior to the 14th Bohmong Chief by a couple of days and accordingly Chiefship was given to the last 14th Chief on the ground of seniority. Respondent No. 1 is a time-server who originally belonged to the Awami League, thereafter changed the party affiliation and joined BNP and contested the 1991 General Election as a BNP candidate. Finally, he has switched over to Awami League since 5-6-96.
8. The High Court Division held that succession to the Chiefship of the Bohmong Circle is regulated by the customs and usages of the tribe. Fitness as well as seniority are to be considered as a custom in recognising a person as the Chief of the Bohmong Circle. In the absence of any provision in the Chittagong Hill Tracts Regulation, 1990 or in the Rules made thereunder the Deputy Commissioner of the concerned Hill Tracts recommends the name or names of male member or members from amongst the surviving members of the ruling family for recognition as the Chief to the Divisional Commissioner who in his turn recommends the name of a surviving male member of the ruling family to the Government for such recognition. The Government normally accepts and recognizes the person so recommended. In the present case the Deputy Commissioner, Bandarban recommended the names of both the appellant and respondent No. 1 for nomination and recognition as the Chief. The Divisional Commissioner after considering the case of both the persons recommended the name of the appellant for nomination and recognition as he is the fit, competent and senior most person. The Divisional Commissioner also stated that the appellant is not incapacitated or unfit though he is 81 years of age and that he is more experienced than respondent No. 1. The High Court Division then considered the recommendation of the Deputy Commissioner, Bandarban dated 7-7-96 (a photocopy of which was produced before the High Court Division for the perusal of the Court only) that the appellant was a matriculate, an ex-Minister, man of social standing and aged 81 years and respondent No.1 is aged 60 years: an IA, has the support of majority members of the Raj family, an eminent social worker and ex-Chairman; Union Parishad and in that perspective respondent No.1 is physically more able than the appellant to discharge the onerous duties of the Bohmong Chief. The Divisional Commissioner did not find fault with the aforesaid opinion of the Deputy Commissioner but merely opined that the appellant is not incapacitated or unfit though he was 81 years of age. The High Court Division considered a Summary dated 2-11-96 prepared by the Secretary-in-Charge of the Special Affairs Division (a photocopy of which was produced for the Court’s perusal only). In the said Summary, the substance of the reports of the Deputy Commissioner and Divisional Commissioner were placed before the Prime Minister and the name of respondent No.1 was suggested for approval of the Prime Minister on the ground that the appellant was a collaborator of the Pakistan occupation army and was a Minister of Malek cabinet in 1971, that he was involved in activities prejudicial to the liberation of Bangladesh, that he was detained for a long period after liberation as a collaborator, that subsequently in 1970 he was elected as Member of Parliament and from 1979-82 he was a Minister of State in the Cabinet of late Ziaur Rahman and, as such, he was a disputed person. It was further stated in the said Summary that the appellant has no support of the ruling family and the tribal people for being recognised for their Chief. Respondent No. 1 is one of the senior members of the ruling family, an eminent social worker, former Chairman of Union Parishad and has the support of the majority members of the ruling family. The said summary was approved by the Prime Minister on 2-11-96 and by Notification dated 4-11-96 (published in the Bangladesh Gazette on 21-11-96) respondent No.1 was nominated and recognised as the Chief of Bohmong Circle. The High Court Division held that recommendation of a subordinate authority is not binding on the higher authority which may accept or reject the same after considering the same if there are reasons for not accepting them. Then the High Court Division found as follows:
9. Leave was granted to consider the appellant’s submission that succession to the office of the Chief of Bohmong Circle being a right accruing to one according to usage and custom of the Bohmong Circle and nomination and recognition by Government being a procedural formality, the Government cannot adversely affect such right in law. Secondly, respondent No.1, a time- server having lastly joined the present ruling party on 5-6-96, has been rewarded by recognition as the Bohmong Chief for political reason and convenience of the said party and thereby the appellant’s right to succession to the said office based on custom and usage has been ignored illegally on the alleged plea of “political administrative consideration.” Lastly the High Court Division erred in holding that “suitability” in the sense of “acceptability to Government” is also a measure of “fitness” to decide succession to the Chiefship.
10. We have heard Khandker Mahbubuddin Ahmed, learned Counsel for the appellant, Dr. Kamal Hossain, learned Counsel for respondent No. 1 and Mr. KS Nabi, learned Attorney-General appearing for respondent Nos.2-4. It appears that there is a broad consensus amongst the learned Counsels that we have no hesitation in endorsing in the following matters:
(1) the succession to the dignity of the Bohmong Chief is not transmitted to the eldest surviving male relative by male line of descent Fitness and age rather than priority of descent regulate succession to the Bohmongship. The enunciation of this principle by Mr. JH Kerr ICS, Officiating Chief Secretary to the Government of Bengal by a Memo dated the 22nd February, 1917 still holds the field and any deviation therefrom has actually been corrected by the Government itself. Thus when the last 14th Chief was appointed and recognised by the then Government of East Pakistan by resolution No. 6605 Poll.—l5th August, 1959 the reason of the acceptance of Kaw Zaw San Prue Chowdhury was expressed in the Notification in the following words:
“No. 6605 Poll:—l5th August, 1959 Read—A memorandum from the Commissioner of Chittagong Division No.406/C., dated the 27th March 1959, reporting the death of Bohmong Kaw Zaw San Prue Chowdhury of the Chittagong Hill Tracts.”
Read also—A letter from the Commissioner of Chittagong Division No.924/C, dated the 18th July 1959, recommending that Mr. Maung Shwe Prue, half-brother of late Bohmong Kaw Zaw San Prue Chowdhury, should be formally appointed and recognised by Government as the Bohmong Chief. He has attained the age of majority and is the seniormost and most experienced amongst the claimants and also the most suitable.
The Governor is pleased to accept the recommendation of the Commissioner of the Chittagong Division and approve of the succession of Mr. Maung Shwe Prue to the office and dignity of the Bohmong Chief.
11. It will be seen that in the said Notification the 14th Chief was formally appointed and recognised based on four criteria:
(1) He has attained the age of majority;
(2) He is the seniormost;
(3) He is the most experienced amongst the claimants; and
(4) He is also the most suitable.
12 days after publication of the aforesaid Notification the then Government of East Pakistan realised that alien criteria have been mentioned in the Notification which have had the effect of altering the age-old custom and usage of the Bohmong Circle and which runs contrary to the enunciation of the principle of succession by Mr. J H Kerr, ICS. On the 27th August; 1959 a revised Notification was published in the Dacca Gazette as follows:
“No. 6885 Poll:—27th August 1959—Read—A memorandum from the Commissioner of Chittagong Division No.406/C, dated the 27th March 1959 reporting the death of Bohmong Kaw Zaw San Prue Chowdhury of the Chittagong Hill Tracts.
Read also—A letter from the Commissioner of Chittagong Division No.924/C, dated the 18th July 1959, in which, after considering the claims of all the claimants on the basis of fitness and age, he has recommended that Mr Maung Shwe Prue, half-brother of late Bohmong Kaw Zaw San Prue Chowdhury, should be formally appointed and recognised by Government as the Bohmong Chief as he is the most suitable amongst the claimants.
The Governor is pleased to accept the recommendation of the Commissioner of the Chittagong Division and approve of the succession of Mr. Maung Shwe Prue to the office and dignity of the Bohmong Chief.
This cancels this Department Resolution No.6605 Poll. dated the 15th August, 1959.”
It will be seen that the revised Notification restored the principle of fitness and age enunciated by Mr. JH Kerr, ICS and thereby the traditional Bohmong custom was given full recognition.
12. It seems to be basically correct, as Dr. Kamal Hossain submits, that there may be more than one claimant to the office and it will then be a question of selection among rival claimants and that this selection is vested in the Government. Dr. Kamal Hossain has rightly drawn our attention to the Notification of August 27, 1959 wherein the last Bohmong Chief was formally appointed and recognised by the Government “as he is the most suitable amongst the claimants.”
(2) It is also the consensus that the Government has never recognised the right of an outgoing Bohmong Chief to nominate his successor. Also, the recommendations of different factions of the Bohmong Dynasty in favour of or against any particular claimant does not weigh with the Government. Dr Kamal Hossain, of course, submits that the support of a majority group behind a claimant may have a persuasive influence upon the Government, for the Bohmong Chief is responsible for collection of revenue from Headmen and therefore his influence over the Raj family may be a factor which the Government may take into consideration, although he does not submit that this is the paramount consideration.
The bone of contention between the parties is now centered round the interpretation of the words “age”, “fitness” and “most suitable”.
13. Khandker Mahbubuddin Ahmed submits that when the word “age” is used without any qualification it certainly means the senior most in age or else the use of the word is meaningless. Dr. Kamal Hossain, on the other hand, submits that a highly advanced age of 82 years is an age of retirement and reflection and it may not be the appropriate age for holding an office of responsibility. We think both the submissions are correct, but in this particular case some material should be there either in the Deputy Commissioner’s recommendation or in the Divisional Commissioner’s recommendation or in the Summary of the Special Affairs Division that the age of the appellant has taken the toll of his faculties of body and mind to the extent that he is unable to discharge the onerous responsibility of a Bohmong Chief. On the contrary neither the Deputy Commissioner nor the Divisional Commissioner nor the Summary makes any statement that age has impaired the faculties of the appellant. The impairment of faculties of the appellant has been mentioned only in the affidavit-in-opposition of the Divisional Commissioner, respondent No.3 who stated contrarily in his recommendation that the appellant is not incapacitated or unfit though he was 81 years of age. In our opinion, if one has to be excluded as overaged a positive material should be there in the records which show that by reason of his advanced age he has been adjudged by someone in authority to be physically and mentally incapable of discharging his duties. No such adverse report is available in the materials produced by the Government.
14. With regard to “fitness” Dr. Kamal Hossain argues that it is related to fitness for the office. He has given a long list of components of fitness of both respondent. No.1 and the appellant like educational qualification, age, experience in affairs of Bohmong Circle, local support, abilities, health and genealogical qualifications and has argued that on all relevant considerations respondent No.1 is more fit than the appellant and the Government has rightly and validly exercised its choice.
15. Khandker Mahbubuddin Ahmed submits that “fitness” does not mean fitness for promotion to a job or fitness for a jab-oriented Government Office. The Bohmong Chief is a customary office which goes to a senior person in the Bohmong Dynasty and the office cannot be denied to him simply on the ground that there are other younger more educated, more qualified and more vigorous claimants than him. To deny him the office is to cut at the root of the age-old tribal custom.
16. We think that the words ‘age and “fitness” cannot be read disjunctively and have to be read conjunctively. If one is the most senior in age and is at the same time fit enough to discharge the responsibility of his office, the customary office goes to him. If overage impairers his fitness or capacity to bear the load of office, a senior person fails both the tests. The appellant, despite his advanced age, is on record to be an active person both physically and mentally. There may be other persons in the dynasty who are more vigorous, more alert, more fit and much younger in age but as long as senior person is not carrying his age as a load on him and is not on record to have lost the capability of discharging the responsible work of his customary office, the office cannot be denied to him. It is his customary right. In the Summary of the Special Affairs Division it has nowhere been stated that the appellant because of his overage and because of his proven incapacity to work has disentitled himself to the office. On the twin criterion of age and fitness no one has ever found that appellant to be lacking in qualification.
17. Khandker Mahbubuddin Ahmed has joined issue with the finding of the High Court Division that the office of the Bohmong Chief is a political office and that unless he is also found fit by the Government his suitability is affected. Mr. Ahmed submits that acceptability to the Government on the ground that the office is a political office and that the appointment and recognition are based on politico-administrative consideration have introduced a new criterion in the selection of Bohmong Chief which is alien to the customary law of the Bohmong Circle.
18. Dr Kamal Hossain, on the other hand, submits that under the Chittagong Hill Tracts Regulation, 1900 the Bohmong Chief is responsible for collection of revenue from Headmen and therefore his suitability to the Government is not an alien factor.
19. We do not find any recognition anywhere at any previous period that the office or the Bohmong Chief is a political office. If it is so, then the office will fall vacant at the change of each Government which will appoint a new Chief according to its own view of suitability. The office of Bohmong Chief is a customary office and both the Government and the Court have to recognise the custom and not to introduce any other criterion or farmer which 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 consideration. This finding is not based on any authority. It is an innovation which is an alien criterion contrary to the established usage and custom of the Bohmong Circle.
20. From the papers submitted to us by the learned Attorney-General, we find that Dr. Fazlul Hasan Yusuf, Secretary, Special Affairs Division, prepared a Summary for the Prime Minister on 1-8-96, On receipt of the Divisional Commissioner’s recommendation dated 19-7-96. That Summary does not appear to have been placed before the Prime Minister. In that Summary the appellant was recommended for appointment and recognition by the Prime Minister. A subsequent Summary was prepared on 2-11-96 by Mr. Kazi Golam Rahman, Acting Secretary, Special Affairs Division for consideration of the Prime Minister. In five paragraphs thereof the background of selection of Bohmomg Chief, the recommendations of the Deputy Commissioner and the Divisional Commissioner have been summarised. Then in paragraphs 6 and 7 of the Summary the political background of the appellant, as noticed by the High Court Division and the support of the majority of Raj family for respondent No.1 have been stated.
21. Khandker Mahbubuddin Ahmed submits that the appellant in his affidavit-in-reply stated that the appellant rendered service to his people to protect them from the onslaught of the Pakistan regime and he had to undergo sufferings due to misunderstanding of his said service to the people during a critical juncture in the history of the tribal people. The appellant was subsequently elected as a member of the legislature by his own people and his son defeated respondent No.1 by a large number or votes in the election of local body. The considerations in paragraph 6 of the Summary are political considerations and not legal ones, he submits.
22. Dr Kamal Hossain has refrained from commenting on paragraph 6 of the Summary and Mr. KS Nabi, learned Attorney-General has also not made any specific submission on paragraph 6 of the Summary.
23. In our view the statements made in paragraph 6 of the Summary are political in nature and since the office of Bohmong Chief is not a political office such considerations are extraneous considerations in the selection of Bohmong Chief. The High Court Division has introduced an element of political acceptability of a claimant, which from the standpoint of Bohmong tribal custom and use is an alien criterion. We do not think therefore that the considerations made in paragraph 6 of the Summary were relevant considerations in appointing and recognising a Bohmong Chief. The High Court Division was obviously in the wrong in being swayed by politico-administrative considerations.
24. With regard to the statements made in paragraph 7 of the Summary Dr. Kamal Hossain submits that the support of a majority of the ruling family is a factor in the consideration of suitability of rival claimants, since the Bohmong Chief has to operate amongst his own people with whom he must have a rapport.
25. Khandker Mahbubuddin Ahmed on the other hand submits that as it is alien to the Bohmong custom to nominate a successor to the Bohmong Chief so it is alien to Bohmong custom to choose a successor who can muster more paper support for him. The appellant has also annexed a number of petitions one of which is filed by the elder brother of respondent No.1 to show that he has the current support of the majority of his tribesmen. These claims and counter-claims will neither weaken nor reinforce the case of any claimant.
26. We find that the office of Bohmong Chief is not an elective office and therefore the question of support which in this particular case is not expressed in favour of either claimant by way of any poll or election but by individual letters, is not a customary yardstick for selection to the office either.
27. As for Khandker Mahbubuddin Ahmed’s submission that respondent No.1 has been politically rewarded for switching his allegiance to the ruling party, we think that we do not have any official record before us, like the recommendations and Summary of the Officers, besides the assertion of the appellant only, to come to such conclusion.
28. Mr. KS Nabi, learned Attorney-General, besides adopting Dr. Kamal submission, submits that the question of selection of Bohmong Chief, being an executive decision, is not amenable to the writ jurisdiction and therefore the writ petition’s was not maintainable.
29. This point was not argued before the High Court Division. The selection of Bohmong Chief is no doubt an executive selection and the judiciary will not substitute its own selection in place of the executive selection because it is not the function of the judiciary to select a Bohmong Chief. The selection will have to be made by the executive only. The Court will only inquire whether the selection has been made following the tradition, custom and usage which govern such selection. If so made the judiciary will not intervene. If extraneous considerations have influenced the executive decision the Court has certainly the power to declare the selection to have been made without lawful authority, all the more so, because Government will also not deny that the susceptibilities of the tribal people should not be ignored. The learned Attorney-General’s submissions therefore have no legs to stand.
30. For all the aforesaid reasons we do not think that the respondents were guided in their selection of Bohmong Chief on the right and relevant considerations. They have taken extraneous matters into consideration which have vitiated appointment and recognition.
The appeal is therefore allowed without any order as to costs. The Impugned Notification No. Spe: Aa: B1: Ain-32/96/205 dated 4-11-96 published in the Bangladesh Gazette on 21-11-96 is declared to have been made and issued without lawful authority and of no legal effect.