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High Court verdict for quick settlement of ‘Enemy Property’ cases
The High Court has issued directives for properly and quickly settling the ‘enemy property’ cases and ordering public officials not to make any attempt in future to include any property in the official gazette as ‘vested property’. The full text of the verdict which was delivered on November 23 last year has been released on April 1. The court observed that the 1962 Pakistan Constitution is not a Constitution at all in the eye of law. So, enactment of the Enemy Property Act under the so-called charter of this Constitution was a ‘misnomer’.

Enemy (Vested) Property Act of Bangladesh is a successor to the Enemy Property Act, 1965 of Pakistan. Before commencement of the 1965 Indo-Pakistan war, the Pakistani authorities declared ‘Emergency’ and promulgated Defence of Pakistan Ordinance under which Defence of Pakistan Rules were framed.

 

Judged from this point of view, there is hardly any reason for continuance of the Enemy Property Act which came into being in view of the then prevailing state of war between India and Pakistan. Bangladesh came into being by waging a war against Pakistan and it was not a successor to the state of Pakistan or its assets and liabilities. But this law continued to remain in force virtually reducing Bangladesh to the status of a client agent of Pakistan.
Rule 17 of Defence of Pakistan Rules authorized the appointment of Controller of ‘Enemy Funds’ and Rule 182 authorized the appointment of Custodian of Enemy Property, ordering vesting of property in them for preventing payment of money to an ‘Enemy Firm’ and preserving the ‘enemy property’. Thereafter the Governor of East Pakistan issued notification ordering that all lands and buildings and all movable properties of the ‘enemies’ in East Pakistan would vest in the Custodian of Enemy Property.

 

The vested property, which was termed enemy property by the Pakistani rulers before the Liberation War in 1971, was left behind by the Hindus during the 1947 partition and the India-Pakistan war in 1965. After independence in 1971the government of Bangladesh took ownership of these properties by enacting the Enemy Property Act and renamed the law as the Vested Property Act in 1974.

 

Vested Property Act of Bangladesh is a successor to the Enemy Property Act, 1965, of Pakistan that came into being prior to outbreak of the Indo-Pak war. After the Indo-Pak war of 1965 came to an end, the very purpose of vesting ‘enemy property’ in the Custodian became defunct. But in 1969, before revocation of Emergency, the Pakistan government promulgated Enemy Property (Continuation of Emergency Provisions) Ordinance, 1969.

 

After the emergence of Bangladesh in 1971, a Presidential Order named Law Continuance Enforcement Order, 1971 was promulgated. Under this order, all Pakistani laws which were found consistent with the sovereign status of Bangladesh were allowed to continue to remain in force. Later, Bangladesh (Vesting of Property and Assets) Order No 29 was promulgated on March 26, 1972 under which properties and assets which had been vested in the government of East Pakistan came to be vested in the government of Bangladesh till such properties were returned to their rightful owners or heirs.

 

 Judged from this point of view, there is hardly any reason for continuance of the Enemy Property Act which came into being in view of the then prevailing state of war between India and Pakistan. Bangladesh came into being by waging a war against Pakistan and it was not a successor to the state of Pakistan or its assets and liabilities. But this law continued to remain in force virtually reducing Bangladesh to the status of a client agent of Pakistan.

 

There are reasons to question the wisdom behind thinking that the law, which was enacted in Pakistan on the ground that there was a war between India and Pakistan, could continue to remain valid in Bangladesh. Continued application of the law even after the emergence of Bangladesh as an independent country implied continuation of the war between India and Pakistan as a war between India and Bangladesh. It also implied thereby that India and Indian nationals were enemies of Bangladesh.

Bangladesh cabinet headed by Prime Minister Sheikh Hasina, decided on September 9, 2009, to scrap the Vested Property Act. But the Government is finding it difficult to scrap this pernicious Act as vested interest is at work and sections within the administration want to grab such properties.

 

The continued application of this law in Bangladesh enabled the successive governments of the country to confiscate property from select group of individuals terming them as enemy. It has become a tool for appropriating the lands and properties of those belonging to the Hindu community. In fact the Enemy Property Act is the culmination of several successive discriminatory laws against the Hindus enacted during the East Pakistan days.

 

During the 47 years of independence, politicians across party lines paid only lip services by making promises to repeal this pernicious law merely to appease the Hindus and gain their support during election. The first government of Sheikh Mujibur Rahman vowed to repeal all laws that contradicted the values of the newly liberated country. But instead of being repealed the law was sustained under a new name ‘Vested Property Act’. In 1980 the then military ruler Gen HM Ershad issued an order that no new property could be listed as vested property and also assured that vested properties would be guided by the personal law of the Hindus. But despite this, the properties belonging to the Hindu minorities continued to be enlisted as vested property.

 

Under provisions of Vested Property Act, thousands of Hindu families have been evicted, while some are in the process of being evicted from their ancestral properties.  This raises fundamental issues like violation of human rights, appropriation of properties, violation of the principles of the laws of inheritance as per tenets of the Hindu Law of Succession, discrimination between communities on grounds of religion to undermine the basic principles of national unity.

 

Abul Barkat, an eminent Professor of Dhaka University, recently published a research work under the heading 'Inquiry into Causes and Consequences of Deprivation of Hindu Minorities in Bangladesh through the Vested Property Act'. This research work revealed that 925,050 Hindu households (40% of Hindu families in Bangladesh) have been affected by the Enemy (Vested) Property Act. This included 748,850 families dispossessed of agricultural land. The total amount of land lost by Hindu households as a result of this discriminatory law was estimated at 1.64 million acres (6,640 km²), which is equivalent to 53 per cent of the total land owned by the Hindu community and 5.3 per cent of the total land area of Bangladesh.

 

Professor Abul Barkat maintained that the beneficiaries of the property grab through the controversial Act cut across party lines. Politically powerful people grabbed most of the property during the BNP-Jamaat rule (2001-06). 45% of the property grabbers were associated with BNP, 31% with the Awami League, 8% with Jamaat and 6% with Jatiya Party. He observed that the affected Hindu families met with more incidents of violence and repression during the BNP-Jamaat rule than in the Awami League rule.

 

Professor Abul Barkat's work also showed that since 1948, 75% of the land belonging to the Hindus in erstwhile East Pakistan and subsequent Bangladesh had been confiscated through provisions of the Act. He also emphasized that less than 0.4% of the population of Bangladesh has benefited from the Vested Property Act, demonstrating that this law has been abused by those in power through corruption, with no demonstrated sanction by the population at large.

 

Bangladesh cabinet headed by Prime Minister Sheikh Hasina, decided on September 9, 2009, to scrap the Vested Property Act. But the Government is finding it difficult to scrap this pernicious Act as vested interest is at work and sections within the administration want to grab such properties.

 

If and when the actual process of returning the properties to the original Hindu owners or their lawful heirs begins, a great deal of complications and chaos will in all probability be created by party cadres and activists belonging to both the ruling and opposition having vested interest, as major segment of such properties are under the control of influential political leaders and their agents irrespective of party affiliations.

 




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