|
Enemy
Property Act (Vested Property) in Bangladesh
by Rabindra Ghosh
On
September 6, 1965, a war broke out between Pakistan and India. An ordinance
called “Defense of Pakistan Ordinance” (Ordinance xxiii of 1965) was
promulgated to provide special measures to ensure the security, the public
safety, interest and the defense of the state of Pakistan. Since the country
was threatened by war, Emergency was also proclaimed in the country. Under
the provisions of the Emergency powers and the “Defense of Pakistan Rules” (DPR),
the Government of Pakistan passed an executive order on September 9, 1965
named the Enemy Property (Custody and Regulation) Order II of 1965 and there
was a cease-fire on September 22, 1965 and the Indo-Pak war came to an end
after the Tashkent Declaration.
The
then East Pakistan Government also made an order in 1966 under Rule 161
titled the “East Pakistan Enemy Property (Lands and Building) Administration
and Disposal Order” of 1966. Though the war between Pakistan and India came
to an end after the Tashkent Declaration, there existed a controversy
regarding the question whether there had been an end of war situation
between Pakistan and India in the absence of a formal Peace Treaty. Using
that controversy, both the central and provincial governments continued to
keep the aforesaid orders operative by amending them from time to time.
Apparently, the innocent law of war-time, in practice, was implemented
completely in a different manner and direction. It created a panic among the
Hindu minorities due to historical family ties, some of whose close
relations were Indian nationals/residents. At one stage in 1968, the Supreme
Court of Pakistan asked the Government of Pakistan to explain its viewpoint
on the said Act as the Supreme Court considered it as a political question
to be answered by the Government of Pakistan (21 DLR (SC) page -20). However
the Government of Pakistan did not formulate its viewpoint on this question
till the independence of Bangladesh. The state of Emergency declared in 1965
was lifted on February 16, 1969. It was expected that with the withdrawal of
Emergency, the Enemy Property Law should not remain valid. But the
Government of Pakistan promulgated a new Ordinance named the Enemy Property
(Continuance of Emergency Provision) Ordinance, 1969 (Ordinance No. I of
1969) on the very day of the lifting of Emergency. On March 25, 1969,
Martial Law was promulgated by General Yahya Khan. He cancelled the then
existing constitution on April 1, 1969. Again in order to maintain previous
Enemy Property Ordinance, a new Ordinance was incorporated with
retrospective effect from March 25, 1969. Thus the most discriminatory law
against the minority Hindu community in Bangladesh remained in force till
the beginning of liberation war on March 26, 1971.
Transformation of Enemy Property into Vested Property--Old Wine in a New
Bottle
The
proclamation of independence and formation of the Provincial Government of
Bangladesh took place at Mujibnagar on April 10, 1971 and the order named
Laws of Continuance Enforcement Order, 1971 was promulgated on the same day
purporting to keep in force all the Pakistani laws which were in force in
the then East Pakistan on or before March 25, 1971. In other words,
Ordinance No. I of 1969, which does not fit with the spirit of proclamation
of independence of Bangladesh, automatically remained ineffective in the new
state. Bangladesh was not a successor state of Pakistan. On the contrary,
Bangladesh established itself by waging a war of independence against
Pakistan.
Immediately after liberation, the Government of Bangladesh enforced on March
26, 1972, the Bangladesh Vesting of Property and Assets Order, 1972 (Order
29 of 1972) By this order, the properties left behind by the Pakistanis and
the erstwhile enemy properties were combined to a single category. However,
in 1974 the Government of Bangladesh passed the Enemy Property (Continuance
of) Emergency Provisions (Repeal) Act, Act XLV of 1974, repealing Ordinance
I of 1969. But despite the fact of repealing Ordinance I of 1969
(Exhibit-II) all enemy properties and firms which were vested with the
custodian of enemy property in the then East Pakistan remained vested in the
Government of Bangladesh under the banner of vested property. At the some
time, Government also enacted another law namely the Vested and Non-resident
Property (Administration) Act (Act XLVI) of 1974. This act, as shown in
(Exhibit-III) was enacted to provide the management of certain properties
and assets of the persons who are non-residents of Bangladesh or have
acquired a foreign nationality. Though the principal aim of the Act XLVI of
1974 was to identify and take over the properties of those residents who
left Bangladesh during/immediately after liberation war and/or took foreign
citizenship, in practice this Act XLVI of 1974 was also widely used against
Hindu minorities who had no connection with Pakistan for quite valid and
obvious reasons.
In
November 1976, the Government of Bangladesh repealed previous Act No. XLVI
of 1974 by Ordinance XCII of 1976 (Exhibit-and with a retrospective effect
from the date of enactment amended the Act XCIII of 1976 empowered the
Government not only to administer and manage the vested properties, but also
to dispose of a transfer the same on long term basis. All the Acts prior to
Ordinance XCIII of 1976 (including Ordinance I of 1969 empowered the
Government only to become the custodian and to preserve enemy property in
contemplation of arrangements to be made in the conclusion of peace with
India. But the Ordinance XCII of 1976 made the Government owner of vested
properties instead of protector of the same. Thus, the Government encroached
the right of ownership, which is a gross violation of the existing laws
pertaining to the right to private ownership. These steps undertaken by the
military dictator had several dimensions all related to the strengthening of
the political-base of the vested groups. First the military rulers wanted to
accelerate the process of Islamization, and eliminate the spirit of Bengali
nationalism built-upon secularism and developed and rooted through the war
of independence of 1971. Second, the military dictators wanted to create a
feeling of panic and insecurity among the 9.7 million Hindus (census 1974)
as they were considered to be the bridge of Bengali nationalism, culture and
spirit. Third the military wanted to establish a strong foothold of the
ruling Government and the power mechanism with the local level power
structure by providing them the right to acquire vested properties in
exchange for collaboration with the Government. Fourth, the military ruler
wanted to divert the attention of the economically rising strata of the
society from the current socio-political development and by engaging them in
the procurement of the property of the emigrant Hindus. It must be mentioned
here that in a densely populated country like Bangladesh, getting a chance
of acquiring real estate- the prime resource, is considered a great
opportunity. All the above stated objectives of the military dictator were
accomplished to a great extent.
In
1984 the then president of Bangladesh Lt General Hossain Mohammad Ershad and
Chief Martial Law Administrator announced in a conference with the
representatives of the Hindu community that henceforth no new property would
be declared as vested property and the properties already enlisted as vested
would not be disposed off any more. He also pledged that unless there was
any legal bar, the enlisted property would be managed in accordance with the
existing Hindu Law of Inheritance. Furthermore the pledge included the
declaration that no deity property (i.e. property under Hindu temples and
other institutions), property dedicated by Hindu families to Brahmins and
the property belonging to the Hindu cremation places would not be disposed
off or leased out without the concurrence of the Government. The circular
directed the Deputy Commissioners to implement the presidential pledge with
effect from 21-6-1990 in the sample unions. The total instances of
dispossession related to the Enemy or Vested Property Act among 161 sample
respondents during the year 1965-1995 were 179. Over 15 per cent of the
total instances that took place during 1982-90 period proved that the above
stated pledges and circulars were of declaratory nature only. Furthermore,
during the field exploration, a big category of affected persons was found
to have not been included in the Vested Property list prepared earlier. The
respondents of this category were enjoying their property without any
hindrance from the Government till late 1980’s and were paying relevant
taxes to the Government. However, in early 1990’s, they were informed that
as their properties belong to the category of ‘Vested Property’, no taxes
could be received from them against those properties. From the Government
side, no notice was served to the owners of this category of property.
Moreover, these properties were also not leased out. It has been identified
that such strange inclusion of property in the vested category, commonly
known as ‘red marked’ properties, started taking place since late 1980’s and
was practiced all over the country. For obvious reasons, it would have been
difficult for the district administration all over Bangladesh to violate the
Government circulars at a time without proper knowledge of the then
Government and/or instructions from the some.
Two Paradoxes Related to the Law of Vested Enemy Properties
Paradox-I: It may be recalled from my previous analyses that the
term ‘enemy’ here related has its root in the Defense of Pakistan Rule of
1965 and in the East Pakistan Enemy Property (Lands and Buildings)
Administration and Disposal Order of 1966.
On
March 23, 1974 the Government of Bangladesh passed two acts in this
connection. The first of these two repealed (abolished) the relevant “Enemy
Property Ordinance” of Pakistan and vested the properties already enlisted
as ‘enemy properties’ in the Government i.e., the management and
administration of previous ‘enemy properties’ were entrusted with the
government of Bangladesh. The second act, on the other hand, brought the
properties of non-residents under the vested category. The second act
created scope for fresh enlistment of some properties, including the
properties of religious minorities residing in India (no matter whether they
were residing on permanent or temporary basis), though this act was not
intended exclusively for the religious minorities.
The
analysis presented above implies that (a) legally, there can be no new
enlistment of properties under the enemy/vested/non-resident category after
March 23, 1974. But in spite of this fact, fresh enlistment is still
continuing through various government circulars issued from time to time
thereafter, (b) the government became the owner of already vested (enemy)
properties which is questionable from legal perspective.
Paradox-2: Bangladesh is supposed to be at war with India since
1965: The People’s Republic of Bangladesh is neither a part nor a successor
of Pakistan. It severed its ties with Pakistan through its heroic liberation
struggle and achieved independence 29 years back, neither Bangladesh nor
India waged/declared war against each other. So logically the enemy of
Pakistan (i.e. India) cannot be an enemy of Bangladesh. But by virtue of the
continuance enforcement order promulgated on 10th of April 1971 all the laws
operative in the then Pakistan on or before March 25, 1971 remained valid in
the People’s Republic of Bangladesh. Though the Enemy Property Act of
Pakistan was repealed/amended through various acts/ordinances enacted or
promulgated after the Independence of Bangladesh, no government of
Bangladesh so far repealed the effectiveness of the Defence of Pakistan
Ordinance (XXIII of 1965) of 1965. As a result Bangladesh still remains at a
state of war with India. Unless the Enemy/Vested Property Acts are
abolished, the harassment of Hindu citizens of Bangladesh would be a never
ending process.
The Vested Property Act and the Constitution of Bangladesh
The
Vested Property Act is anti-constitutional. Some of the major aspects of the
law are as follows:-
Article 11 of the Constitution: Fundamental principles of state
policy proclaim that the republic shall be a democracy in which the
fundamental human rights and freedom and respect for the dignity and worth
of human person shall be guaranteed.
Article 27 of the Constitution: Fundamental rights chapter of the
constitution proclaims that "All citizens are equal before law and entitled
to equal protection of law."
It
is a fact, not a fiction that certain group of people numbered in millions,
even in the nineties of the twentieth century, were incorporated as
‘enemies’ of the country in the truest understanding of the word and were
evicted from their and/or (both in de facto and/or de jure)
ancestor’s property in violation to the Hindu law of inheritance and the law
of ownership of the Hindu joint family. The constitution however has
provided the persons of such category also with the right to live under the
rule of law and ensured them all the fundamental human rights as mentioned
above. It is in contravention to the right of equality before law and
entitlement of equal protection of law guaranteed by constitution. The right
and privilege of citizens are grossly violated for the said segment of
citizens who cannot even seek for relief from the court as the continuance
of Defense of Pakistan Rule of 1965 under different names and circulars does
not permit them to do so.
Article 2A of the constitution proclaims that "The state religion of the
Republic is Islam", at the same time, guarantees that "other religion may be
practiced in peace and harmony in the Republic." Also part III of the
constitution captioned "Fundamental Rights" bears Article 2 (I) which
declares that "The state shall not discriminate against any citizen on the
grounds only for religion, race, caste, sex or place of birth."
The
vested property act with all its attributes is a gross violation of all the
above stated articles in constitution. Firstly, it is a deliberate
discrimination to certain section of manifold citizens of Bangladesh due to
their religious belief. Secondly, it is contradictory to the right of
practicing other religions in peace and harmony in the country. Thirdly, it
appears that if anybody practicing Hinduism falls in the category of "enemy
of Pakistan" and changes his/her belief and be converted to Islam, then
under the earlier mentioned circular, the person is cleared from being
incorporated as enemy. Finally, the places of worship of the Hindus
(equivalent to places of public uses) could be vested according to so-called
location of God or deity. This is a bitter obstacle for the followers of God
to practice their religion smoothly, without any interference.
Article 13(c) guaranteed "private ownership, that is ownership by
individuals within such limits as may be prescribed by law". Article 25(1)
proclaimed that: "The state shall uphold the right of every people freely to
determine and build up its own social, economic and political system by ways
and means of its own free choice; and © support oppressed peoples throughout
the world waging a just struggle against imperialism, colonialism or
racialism."
From
the analysis presented above, it is evident that the de facto
continuance of the law of vested property (though formally repealed in 1974)
contradicts the spirit of the proclamation of Independence and at least nine
articles of the constitution, and therefore, adequate immediate measures
should be taken by the law-makers and the Supreme Court of Bangladesh to
recourse the prevailing undesirable situation.
Missing Hindu population- A Major Effect of Enemy and Vested Property Acts
Mass
out-migration of Hindu population (mostly to India) during mid-1960’s and
thereafter is a reality beyond doubt. Among the various factors responsible
for such mass out-migration of Hindu population, the effects of Enemy
Property Act and Vested Property Act were important ones. The exact effect
of all these factors (e.g. communal riots, Indo-Pak War of 1965, Enemy and
Vested Property Acts) is difficult to assess because of a lack of relevant
and reliable information. Thus, an attempt has been made to estimate the
missing Hindu population using appropriate assumptions.
The
size of out-migration was different during various historic periods. For
example, the approximate size of the missing Hindu population was as high as
703 persons per day during 1964-1971, 537 persons per day during 1971-1981,
and 439 persons per day during 1981-1991. It the above estimates are close
to reality, then the inference emerges that the Enemy and Vested Property
Acts acted as an effective mechanism for the extermination of Hindu
minorities from their motherland, and thereby, affected the process of
social-capital formation in our country.
Major Findings and Some suggestions
The
process of mass out-migration of the Hindu community had started as a
consequence of the Partition of India based on religious grounds. Communal
riots became a major cause of concern for the whole nation. Afterwards, the
implementation of Enemy Property Act/Vested Property Act has accelerated the
process of mass out-migration of Hindu population during mid-1960s and
onward.
On
the basis of the analysis of Enemy Property Act/VPA, their impact, opinions
of the affected and knowledgeable persons as well as the officials (at the
Union and Thana levels) the following recommendations are made which
should be actively considered in order to develop a civil society and to
improve the condition of the religious minorities in this country:
1.
Vested Property Act, as an encroachment on the law of inheritance, should be
abolished. More so, the context under which the "Enemy Property Act"
emerged, ceases from the date of proclamation of Independence of Bangladesh
in 1971, and there exists a Friendship Treaty with India. Therefore, VPA is
anti-constitutional.
2. A
list containing details (name, address, amount of land and other assets
dispossessed by type and year of dispossession, dag, khatian, mouza, current
status etc.) of those affected by EPA/VPA should be published by the
Government.
3.
All activities related to the identification and enlistment of any property
as vested should be banned, immediately. In this regard, a declaration in
the mass media should be the immediate action of the democratic government.
4.
All vested property under the custody of the government should be leased out
to real owners or their legal heirs who are permanent residents of
Bangladesh till the final settlement of the problem. In this regard
preference should be assigned in accordance with the law of inheritance.
5.
No property should be taken to the custody of the vested property
administration if the owners of the property of their legal inheritors are
in possession of that property.
6.
All 99 years leases of vested properties should be declared null and void
and the ownership rights of the original owners or their inheritors should
be established if they are the bona-fide citizens of Bangladesh.
7.
All vested deity property and places of cremation should be unvested and
brought under public trust. The leased-out or sold-out properties belonging
to this category should be declared void.
8.
Law of inheritance should be enforced with an adequate provision for women
inheritance. If the male heirs of the property are absent and the females
are permanently resident in Bangladesh, the property should be leased out to
them until a final settlement is made.
9.
The Government of Bangladesh should be pressurized to repeal this sort of
black law for the greater interest of better relationship with India;
otherwise the exodus of Hindu minorities will be a great problem for India.
Source: Organiser (Vol. LI, No. 39)
________________________________________
Islam Declared as State Religion in the
Constitution of Bangladesh
Rabindra Ghosh
Hindu, Buddhist and Christian Unity Council was formed in Bangladesh in May
1988 when a bill was introduced and passed at Parliament with a view to
making Islam as state religion of the country. Bangladesh was created
through liberation struggle with the help of India in the year 1971 with the
promise that it would be a secular state. Because of the very existence of
Islam as state religion in the Constitution of Bangladesh, equality of
adherents of all religions cannot be guaranteed as in a secular state. Above
all, during the liberation war, several temples including 500-year-old "Ramna
Kali Mandir" and the "Ma Anandamayee Ashram" in the capital city at Dhaka
were irreparably damaged by the Pakistani Army. But it is unfortunate that
till today after 29 years of the Independence those temples were not
reconstructed nor any steps were taken to repair the same for obvious
reasons which added a black chapter for the whole nation of Bangladesh. On
the contrary, the site of the former temple was converted into a public
playground. People of the minority Hindu, Buddhist and the Christian
communities have completely lost their faith in the state policy. The
communal rioting in October 1990 is not an accidental, isolated affair but a
systematic and continuous practice of communal state policy, since the
establishment of Pakistan in 1947. This has been putting tremendous pressure
on the Hindus to leave the country and the process is very much systematic.
The people of minority communities are now prey to serious insecurity and
uncertainty. They have been given to believe that former Pakistan and
present Bangladesh were created exclusively for the Muslims. The Islamic
state character revealed a deep-rooted political crisis, which has already
generated many questions regarding national unity and solidarity of members
of different religions in the Bangladesh.
Source: Organiser (Vol. LI, No. 39)
          
|
