O’Brien, Margaret (2019) Law, Culture, and Community at the Borders of the state. PhD thesis. SOAS University of London. http://eprints.soas.ac.uk/32206 Copyright © and Moral Rights for this thesis are retained by the author and/or other copyright owners. A copy can be downloaded for personal non‐commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. When referring to this thesis, full bibliographic details including the author, title, awarding institution and date of the thesis must be given e.g. AUTHOR (year of submission) "Full thesis title", name of the School or Department, PhD Thesis, pagination. Law, Culture, and Community at the Borders of the state. Margaret O’Brien Thesis submitted for the degree of PhD in 2019 Department of Law, SOAS, University of London 1 Abstract This thesis explores the conditions under which the immediate and local narratives of communities might produce a culture of resistance. Focussing primarily on research with the Chakma people of Chittagong Hill Tracts(CHT), it recounts the complex role of legal pluralism in sustaining communities as political units in the postcolonial state, exploring how law’s framing narratives produce different iterations of communitarian legal practice ostensibly within the same postcolonial legal form. This exploration uses a conceptual frame of ‘critical communitarianism’, which draws specific attention to the parallels between political identity and legal culture, and community and legal mobilisation within a legally plural setting. Using legal culture and mobilisation as analytical tools, this thesis unpacks the relationship between law, power and resistance in a context where community and state are inherently unstable. In the post-conflict CHT, it appears that the processes of colonisation and de-colonisation have caused the boundaries and ideations of community to be highly mutable and contested, yet these very instabilities appear to diffuse power more equally across the community, and subvert the colonial legacy of feudal hierarchies. To further illustrate this hypothesis, the brief contrast drawn between the CHT and an Indian Chakma community demonstrates how a rigid system of constitutional recognition under the Sixth Schedule of the Indian Constitution has an ossifying effect on communitarian law; recognition reinforces an elderly and conservative customary elite and ultimately pushes communitarian legal practice to the margins of community. The thesis concludes that conditions of crisis appear to diffuse power across communities, causing dynamic and resistant interpretations of law and culture to emerge from within non-state communities. 3 Acknowledgements Thanks are due to many people, firstly to my supervisors, Dr Brenna Bhandar and Dr Subir Sinha for their support. Of all the family and friends who supported me during this project, I would like to thank particularly those who found space for the me when roofless, namely Mary Morrissey, Mark Wheeler , Gijs and Ishita in Dhaka, and my big sister Katy. Thanks also to little sister Jenny who heroically proofed the draft twice. In the Hill Tracts, there are too many people to mention by name. Naba Bikram Kishore Tripura, the CHT Secretary, organised permission to research given through the offices, and Professor Nasir Uddin organised my affiliation to University of Chittagong and supported my research visa. Both are busy men and I am indebted to them for their kindness in making time for me. It was a pleasure to return to Khagrachari if only for a short time, and I am extremely grateful for the efforts of the Mong Raja, Saching Prue Chowdhury and my dear friend Umaching Chowdhury to square my presence there with the military. In Rangamati, my project was made possible by wingmen Salit Chakma and Jidit Chakma, who were great research assistants and remain great friends. Every moment of time spent in their company was a great joy. In my final year of study, Denny’s confidence and pride in me rendered quitting inconceivable when completing seemed quite impossible. That he still cared so much while facing his final battle is testament to the extraordinary courage, compassion and generosity of my big brother, a truly great man in all the ways that really matter. This thesis is dedicated to Denis Alexander O’Brien, 17th July 1952 to 10 July 2018. 4 Figure One: Maps of the Chakma in India and Bangladesh The Chakma in Bangladesh The Chakma in India and Bangladesh 5 Table of Contents FIGURE ONE: MAPS OF THE CHAKMA IN INDIA AND BANGLADESH 5 The Chakma in Bangladesh 5 The Chakma in India and Bangladesh 5 CHAPTER ONE. THE CHAKMA NATION AND THE PAHARI 10 1. AN OVERVIEW 10 1.1. Thesis Objectives 10 1.2. A Brief History of the Chakma 13 1.3. Pakistan and Bangladesh 15 1.4. Minorities and Rebellion in Bangladesh 21 1.5. Two Forms of Justice 26 1.6. Terminology 31 2. HYPOTHESIS AND METHODOLOGY 34 2.1. Hypothesis 34 2.2. Research Questions 35 2.3. Methodology 36 2.4. Interview and Workshop Structure 37 2.5. Constraints 38 3. THESIS OUTLINE 39 CHAPTER TWO. THE LOCATION OF COMMUNITY 43 1. INTRODUCTION 43 2. UNIVERSALISM, CULTURE AND COMMUNITY 44 2.1. Theories of Law and Rights 44 2.2. Community as an Intervening Variable 47 2.3. The Politics of Difference 51 2.4. Resistance in the Postcolonial World 58 2.5. Governmentality of the East 65 3. LEGAL PLURALISM 69 3.1. The Colonial Roots of Legal Pluralism 70 3.2. Law from Society. 74 3.3. State and Power 78 4. LEGAL CULTURE 81 4.1. Critical Communitarianism 81 4.2. Critics and Sub-concepts 85 4.3. Mobilisation and Consciousness 86 5. CONCLUSION 89 6 CHAPTER THREE. INVENTION AND RETURN 91 1. INTRODUCTION 91 2. THE LEGAL CONSTRUCTION OF THE TRIBE 92 2.1. Comparative Jurisprudence 93 2.2. Inner Lines 96 2.3. Land and Territory 98 3. THE CHAKMA AND THE BRITISH 100 3.1. Chakma Mobility 100 3.2. Territorialisation and the Circle System 106 3.3. Law in the Hill Tracts 110 3.4. The CHT Regulations 1900 114 3.5. Summary 118 4. COURTS, CONTINUITY AND CHANGE 119 4.1. Custom Redux 120 4.2. The Act of Return 125 4.3. After Peace 130 4.4. Re-formed Boundaries 134 4.5. Constitutional Recognition 140 5. CONCLUSION 144 CHAPTER FOUR. THE CURATORS OF CULTURE 146 1. LEGAL CULTURE AND METHODOLOGY 146 2. THE STATE AND CUSTOMARY LAW 148 3. LEGAL CULTURE FROM THE BORDERS 151 3.1. Donors and Development 152 3.2. Advocates in Formal Courts 156 3.3. Social Movements, Indigeneity and Human Rights 160 3.4. Summary 164 4. ELITE MOBILISATION AND CONSCIOUSNESS 166 4.1. Customary Mobilisation 166 4.2. The Chakma Chief 166 4.3. The Headmen 169 4.4. The Karbari 175 4.5. Political Mobilisation 178 4.6. PCJSS 179 4.7. United Peoples Democratic Front (UPDF) 185 5. IMPERFECT LAW 188 5.1. Legal mobilisation and Identity 189 7 5.2. Legal Consciousness and Change 190 5.3. Critical communitarianism 191 CHAPTER FIVE. CHT VILLAGE PRACTICE 193 1. OUTLINE 193 1.1. Diversity and Method 193 2. VILLAGE CULTURE 195 2.1. Mobilisation and Pluralism 195 2.2. Legal Process and Culture 197 2.3. Cases and Consciousness 198 2.4. Remedies and Forum Shopping 204 2.5. Culture and Consciousness 207 3. LOCALITY CASE STUDIES 209 3.1. Kaynda, Mouza Number 129 210 3.2. Sebakkon Mouza Number 1, Naniochari Village 218 3.3. Jograbil Mouza Number 104 222 4. CRITICAL COMMUNITARIANISM AND VILLAGE LAW 230 CHAPTER SIX. A CULTURE OF PERFECTION 235 1. LEGAL CULTURE IN CONTRAST 235 1.1. Summary 235 1.2. Methodology and Difference 236 2. STABILITY IN DISORDER 237 2.1. Othering the Hills 237 2.2. The Sixth Schedule of the Indian Constitution 243 2.3. The Mechanics of Recognition 245 2.4. The Migrants’ Story 248 3. CUSTOM RETURNED IN TRIPURA 250 3.1. Mobilising for Perfection 251 3.2. Consciousness and Identity 256 3.3. Mobilisation and Participation 262 3.4. Mobilisation and Politics 265 4. LEGAL CULTURE IN THE VILLAGES 267 4.1. Process, Cases and Remedies 267 4.2. Personal Law 272 4.3. Land and Formal Law 276 4.4. Disorder 276 5. CONCLUSION 278 8 CHAPTER SEVEN. THE LOCATION OF RESISTANCE 281 1. THESIS OVERVIEW 281 1.1. The Ultimate Paradox 281 2. THESIS SUMMARY 283 2.1. Summary of Theory and Concepts 283 2.2. Summary of Historical Context 285 2.3. Summary of Research Data 286 3. CRITICAL COMMUNITARIANISM 289 3.1. Mobilisation and Recognition 290 3.2. Mobilisation and Resistance 295 3.3. Mobilisation in the Villages 296 3.4. Legal Consciousness 298 3.5. Critical Communitarianism 300 4. CONCLUSION 301 4.1. Post Conflict Implications 302 4.2. Development 303 4.3. The Paradox of Recognition 304 5. TWO CASES 306 BIBLIOGRAPHY 310 9 Chapter One. The Chakma nation and the Pahari 1. An Overview 1.1. Thesis Objectives Legal form in a postcolonial context plays a complex but central role in producing and sustaining ‘community’ as a political entity in the postcolonial South Asian state. This thesis suggests postcolonial legal form in certain circumstances not only sustains community as a political form but also creates the conditions under which the interior world of the postcolonial community is transformed. Its central premise is that state violence provokes a community resistance that simultaneously and paradoxically disperses power amongst community members, whilst state recognition ossifies communities and empowers a narrow elite.