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Vested Property Act Explained
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Vested Property Act
On September 6, 1965, a war broke out between Pakistan and India. An Ordinance called Defence of Pakistan Ordinance (Ordinance xxiii of 1965) was promulgated to provide special measures to ensure the security, the public safety, interest and the defence 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 Tashkant 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 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 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 view point 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 view point 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 lifting the 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, as can be seen in Exhibit-1 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 (Exhibit-II). 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 Pakistanisation, and to eliminate the spirit of Bangalee nationalism built-upon secularism and has been developed and rooted through the war of independence of 1971. Second, the military dictators wanted to create a panic and insecurity feeling among the 9.7 million Hindus (census 1974) as they are considered to be the bridge of Bengalee 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 to acquire vested properties in exchange of collaboration with the Government. Fourth, the miltiary ruler wanted to divert the attention of the economically rising strata of the society from the current socio-political development and being engaged in procuring the property of the emigrant Hindus. It is to be mentioned here that the context of a densely populated country like Bangladesh, it is considered to be a great opportunity to get a chance for further expanding the resource, the real estate. 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 would have any legal bar, the enlisted property would be managed in accordance with the existing Hindu Law of Inheritance. Furthermore the pledge include the declaration that no deity property and property dedicated by Hindu families to Brahmins along with 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 number of instances of dispossession related to the Enemy or Vested Property Act among 161 sample respondents during the year 1965-1995 were 179 instances. Over 15 per cent of the total instances that took place during 1982-90 period evidenced that the above stated pledges and circulars were of declaratory nature only. Furthermore, during the field exploration a category of affected person was found who was not included in the vested property list prepared earlier. The respondents of this category were enjoying their proeprty without any hindrance from the Government side till late eighties and were paying relevant taxes to the Government. However, in early nineties 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 were served neither to the owners of these 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 eighties and 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’ as here related has its root in the Defence of Pakistan Rule of 1965 and in the East Paksitan 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. This 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 point of view.

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 enemy and being 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 nto 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 and 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, as 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. It 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; major effect of enemy and vested property acts and blow against social capital formation

Mass out-migration of Hindu population (mostly to India) during mid-1960s and onward 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 relevant 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.....more....

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