Author: Rabindra Ghosh
Publication: The Organiser
Date: October 14, 2001
Introduction: Hindus feel unsafe
in Bangladesh
After the independence of Bangladesh
in the year 1971 the basic structure of the Constitution of the People's
Republic of Bangladesh was: (a) nationalism (b) socialism, (c) democracy
and (d) secularism. But on April 23, 1977, i.e. under Amendment, 1977,
the then President of Bangladesh, Lt General Zia-ur Rahman by a proclamation,
Order No. 1 of 1977 amended the said Constitution in the name of Allah,
the Beneficent, the Merciful the word "Bismillah-ar-Rahman-ar-Rahim" was
incorporated in place of (d) secularism. And a new clause has been added,
namely: (1) The State shall endeavour to consolidate, "preserve and strengthen
fraternal relations among Muslim countries based on Islamic solidarity.
" State religion 'Islam'
'Thereafter on June 9, 1988, that
is under 8th Amendment, the then President of Bangladesh Lt General H.M.
Ershad passed the Bill "The State Religion Islam" in the said Constitution
and a clause has been added 8(1): 'The principles of absolute trust and
faith in the Almighty Allah shall be the basis of all action. As a result
of full text of 1972 Constitution has been omitted by the proclamation
Order No. 1 of 1977. The Three fundamental principles of state policy as
stated in Articles 9, 10 and 12 of the Constitution, namely, Bengali nationalism,
socialism and secularism were completely repealed and although 'democracy'
as expressed in Article 11 was not formally abandoned. The denigration
and misdirection of this principle is incredible in an atmosphere of the
abandonment of the three principles under the military rule.
Enemy (Vested) Property Act
The bloody war between Pakistan
and India though ended within 17 days under Tashkent Peace Treaty at the
good offices of the Soviet Government and thereby the very purpose of vesting
the enemy property in the custodian came to an end but the communal and
sectarian government of Pakistan kept the law of enemy property in force.
A question arose in a case namely M. M. Mansur Ali vs Arabinda Shekhar
Chatterjee reported in a Law journal namely, 21 Dhaka Law Reports (Supreme
Court) at page 20 as to whether Pakistan was in war with India even after
peace treaty and whether India was an enemy country and in that case Justice
Sajjad Ahmed Jan opined that this was a delicate political question which
as a matter of state policy lays in the domain of the Executive Government
and on finding so he directed to issue notice to the Government to convey
their views.
The Government did not convey the
views, rather on 16-2-1969 gave a formal declaration of revocation of Proclamation
of Emergency reciting that the grounds on which the state emergency was
proclaimed on 6-9-1965 had ceased to exist and there by them had been cessation
of Defence of Pakistan Ordinance and the Rules framed thereunder. But before
revocation of state emergency the government promulgated the enemy property
(Continuance of emergency provisions) Ordinance No. 1 of 1969 providing
therein that the provisions of the Defence of Pakistan Rules should continue
in force. The declaration of revocation of emergency and the promulgation
of Ordinance No. 1 were on the same date. Since the Ordinance No. 1 of
1969 was made during the period of state emergency. It would die a natural
death on the following day with the revocation of emergency. But the Government
illegally allowed to continue the emergence provision of the Defence of
Pakistan Ordinance and the Rules till death of Pakistan in this part now
forming Bangladesh.
On March 26, 1971, Bangabandhu Sheikh
Mujibur Rahman declared independence of Bangladesh. Accordingly there was
a proclamation of independence on April 10, 1971. On the same day in exercise
of the powers - contained in the said proclamation, government of Bangladesh
proclaimed Laws Continuance Enforcement Order, 1971 providing therein that
the laws that were in force in Bangladesh on march 25, 1971, should, subject
to the proclamation aforesaid, continue to be so in force with such consequential
changes as may be necessary on account of the creation of the sovereign
independent state of Bangladesh. During the liberation war, Indian government
and people materially helped Bangladesh in every respect including supply
of arms, training of freedom fighters and the armed forces, mobilising
the world opinion against the atrocities committed by Pakistan Army undertaking
the responsibilities of the Bangladesh refugees numbering more than one
crore and provided them with food, lodging, clothing etc. for long over
nine months.
Not only that, ultimately the liberation
war was ended under joint commandship of India and Bangladesh armed forces.
'Thus India proved herself to be the best friend of Bangladesh. Irrespective
of caste creed, religion and sex, all freedom loving Bengali people joined
together in the war of liberation and left no stone unturned to get their
motherland free and independent and the sacrifice of the minority people
was in no way less in the war of liberation than the Muslin majority people
in Bangladesh.
But as ill-luck would have it, just
after the independence of Bangladesh i.e., on December 16, 1971, the government
of Bangladesh following the sectarian policy of the erstwhile Pakistan,
promulgated Bangladesh (Vesting of Property and Assets) order, 1971 providing
that all properties and assets which were vested in the Government of Pakistan
should be deemed to have vested in the Government of Bangladesh on and
from March 26, 1971 which included the enemy property also. Subsequently,
the Government of Bangladesh enacted the enemy property (Continuance of
Emergency Provisions) (Repeal) Act. (Act No. XLV of 1974) and thereby repealed
the Ordinance No. 1 of 1969.
But in spite of the said repeal,
all the enemy properties, firms, trade of business etc. vested in the Custodian
of Enemy Property appointed under the Defence of Pakistan rules continued
in force by the same ordinance and at the same time enemy properties had
been remained "Vested Properties" for which another enactment namely Enemy
Property Administration Act (Act No. XLVI of 1974), was enacted. Subsequently,
after the assassination of Bangabandhu Sheikh Mujibur Rahman in a military
coup on August 15, 1975 and when Major General Zia-ul Rahman became the
chief Martial Law Administrator, the said Act No. XLVI of 1974 was repealed
by Ordinance No. XCII of 1976 and the Act No. XLV of 1974 was amended by
ordinance No. XCIII of 1976 adding therein that the vested properties should
be administered, controlled, managed and disposed of by transfer or otherwise,
by the Government or by such officer or authority as the Government might
decide and at the present moment this is the basic law relating to enemy
property or in other words, vested property.
Concept of Enemy
The concepts of enemy, enemy subject
enemy firm and enemy property are certainly confined to a state of war
and such concepts are clear from the definitions as enjoined in the Defence
of Pakistan Ordinance and the Rules. The objects and treatments meted out
are absolutely a temporary, solely for the purpose of successful prosecution
of war and during continuance of state emergency. But when such state of
war ends, the drastic actions encroaching upon the personal property and
liberty is not only unjustified but also malafide.
The post-liberation legislations
as stated herein above and executive actions are based on the hypothesis
that the enemy property (Continuance of Emergency Provisions) Ordinance
was a valid legislation and on such supposition the present Bangladesh
Government enacted President's Order XXIX of 1972, Act No. XLV of 1974,
Act No. XLVI of 1974, Ordinance No. XCII of 1976 and Ordinance No. XCIII
of 1976. The Bangladesh Government must realise the difference between
the law of war and that of peace.
The use of one for the other is
destined to produce a grave danger not only for the minorities but also
for the national integrity and sovereignty of the state. This difference
is uniformly recognised in jurisprudence of all nations and countries.
The law of war and peace with special reference to enemy subjects is fairly
elaborate in Islamic Jurisprudence. In Muslim Legal Theory, the object
of war is not the acquisition of enemy's property. The participants in
war are advised to refrain from destruction of property which is not necessary.
This was declared by Hazarat Abu
Bakr. In almost all the verses relating to jehad, one object remains consistently
apparent, that it is for the purpose of fulfillment of spiritual duty and
mission. The motive, it is stressed, should not be worldly gains. A necessary
conclusion is, therefore, that the enemy will not be deprived of his property
for the sake of physical gain only. The activities which have the effect
of adding to the war potentials of the enemy are necessarily prohibited,
but the object is not to deprive an enemy of his right or to shield the
citizen from the enforcement of just obligations by the enemy, but to prevent
any advantage by the enemy, directly or indirectly, pending hostilities.
The properties that come within
the mischief of enemy property
The following categories of properties
come within the mischief of vested properties:
a) The ordinary residents of the
East Pakistan or East Bengal who owing to communal disturbances left the
country before or after 14-8-1947, their properties were declared as Evacuee
Property and it was continued till 1965 and such property was taken over
by the Government and included in the list of enemy property illegally
though it does not come within the preview of the enemy property.
b) For certain public purposes Government
requisitioned certain properties of minorities but unfortunately those
were brought within the ambit of enemy property and which were compulsorily
acquisitioned, whatever might be the fact that it was for public purpose
or; under the law then in force no property of any citizen could be requisitioned
or acquisitioned unless the Government requires it for public purpose.
c) The Hindus worship their various
deities and for getting spiritual benefits dedicate properties in their
names. Such deities are none but a symbol of god. In the narrow sense,
a deity cannot move and cannot leave the country but in the wider sense
deities are omnipresent according to the mythological point of view. Even
such deities' properties have not escaped from the clutches of 'enemy property'.
d) A trust is an obligation annexed
to the ownership of property and arising out of a confidence reposed in
and accepted as by the owner, or declared and accepted by him, but for
the benefit of another or of another and the owner. The subject matter
of the trust is called die cost property. Such trust properties are created
for social, religious or charitable purposes. Trust properties are not
properties of any individual rather the properties are entrusted for a
particular purpose. Trust properties are managed by the trustees who do
not have any personal interest. But those properties had not been left
untouched and brought within the clutches of enemy properties.
e) The minorities have got public
or private cremation grounds or graveyards where dead bodies are burnt
or buried or cremated. These cremation or burial grounds have also been
included in the list of enemy properties.
f) A particular category of employees
and officials have been appointed by the Government for looking after such
properties under the revenue collection department of each police station
including district headquarters. These employees mid officials have been
appointed on commission basis but they have not been given the status of
government servants. They are being paid either from the sale proceeds
of the property or lease money collected by them on certain percentage
basis.
The policy of the government was
so mischievous that it could introduce incentive bonus scheme and even
the systems of rewards based on the volume of sale proceeds of enemy property
with the sole intention of finding out such properties in every nook and
corner of Bangladesh. These employees are quite corrupt people or they
have been made so and to increase their amount of commission, they chase
each and every minority citizen of the country and put their names and
properties in the list of enemy properties. In Bangladesh, no minority
family, specially the Hindus, are spared such misery.
How does Government deal with property
'The basic law in force till today
with respect to enemy properties or in other words vested properties is
the Section 3 of the Enemy Property (Continuance of Emergency provisions
(Repeal) (Amendment) Ordinance, 1976 as has been mentioned above and the
Government deals with the properties by issuing circulars, orders, letters,
instructions, etc. from time to time. No specific rules have been framed
for management, control and administration.
Government leases out both agricultural
and agricultural lands year to year or by way of auction sale periodically
and sale proceeds and lease money are being deposited in the personal deposit
account of the Vested Properties (Lands and Buildings). It is very much
pertinent to mention here that the law as it stands till April 8, 2001
neither the Government of Pakistan nor the Bangladesh Government is the
owner of the property and the ownership still lies with the alleged enemies
who are, according to government residing in India. The Government is nothing
but mere Custodian/Manager of the property and no better status can be
claimed by the Government. In such a situation, is there any justification
for managing the properties of the foreigners for unlimited period of time
at the cost of millions of Hindu minorities in Bangladesh?
Government's discriminatory treatment
a) With a view to evicting the minorities,
the Pakistan Government by a circular dated 14-3-1966 ordered that in the
case of property owned by enemy subjects and Pakistani nationals jointly,
the extent of shares and title to said property owned by the enemy subjects
should be ascertained correctly and the possession of such property to
that extent should only be taken but properties in which shares of Indian
Muslims combined with those of Pakistanis are in a majority should not
be treated as enemy property. Properties in which shares of Indian Muslims
combined with those Pakistanis are in a majority and shares of non-Muslim
Indians, are a majority will be treated as enemy' property but Indian Muslims,
as therein will not be treated as enemy property and given same treatment
as is given to Pakistani share. From such government orders, it is clear
that Muslims ever if reside in enemy territory, are not enemies and their
properties have not been treated as enemy properties but only the non-Muslims
are enemies and their properties have been treated as enemy properties.
b) The evacuee properties managed
by government though do not come within the mischief of enemy (vested)
property but have been declared enemy properties.
c) The properties which have been
requisitioned for any public purpose belonging to an enemy have also been
brought within the clutches of enemy properties and were subsequently compulsorily
acquisitioned by the Government even though there was no public purpose
therefore.
d) The deities are not human beings.
They are installed with honour and dignity. They cannot move or run to
Indian territory but the Pakistan Government, even the Hasina Government,
assuming that the deities are also enemies of the Pakistan Government,
their properties are treated as enemy properties. So also is the case of
the Buddhists and the Christians and the trust property.
e) When liberation struggle of Bangladesh
started on March 26, 1971, Pakistan Government was committing acts of genocide
and unprecedented tortures on the civilians by levying unjust war. The
West Pakistanis including other non-Bengali Muslims were collaborating
with them. After the emergence of Bangladesh, the West Pakistanis and other
non-Bengali Muslims who owned properties abandoned the same and thereby
the government of Bangladesh promulgate President's order No. 16 of 1972
namely, Bangladesh Abandoned Property (Control, Management and Disposal)
order 1972. By the said order, all those properties were absolutely vested
upon and taken over by the Government.
The Government of Bangladesh has
made provisions therein in such a manner that if any member or heir of'
such a family is present in Bangladesh on the relevant date it cannot be
treated as abandoned property and if owner or any member of his family
comes back to Bangladesh and owe allegiance thereto, the abandoned property
vested upon the government absolutely is restored to them. But in case
of enemy property, if any person goes to India or elsewhere, his properties
become enemy property and if any member of his family resides in Bangladesh
or the then Pakistan or is able to manage, control and administer his properties
or if the alleged 'enemy' returns to Bangladesh the properly is not restored.
In the circumstances given, it is crystal clear that the discriminatory
treatment to the Hindus by the government is from the core and inherent.
f) A citizen of Bangladesh who owns
property to the extent of 2 acres of land is to pay land development tax
(instead land revenue) at the rate of Rs 0.03 per decimal subject to maximum
of Rs 1.00 and the citizen who owns property to the extent of more than
25 acres of land is to pay Rs 1481.00 plus Rs 1.435 per decimal for the
lands in excess of 25 acres of land. But in the case of vested properties
whoever takes lease, he is to pay Rs 300.00 to Rs 400.00 per acre per annum
without, any limitation. It means a citizen is to pay Rs 1.00 for 2 acres
of land per annum as land development tax for lease of 2 acres but if he
takes lease of 2 acres of vested property, he is to pay Rs 800.00 per annum.
These provisions have been made
by the government deliberately to squeeze money and to make the minority
Hindu economically crippled or to compel them to surrender claim of lease
of vested property. On the validity or legality of declaration of certain
property, if anybody institutes suit in court of law against the Government
and if the court of law decides that the declaration of the property as
vested property is illegal and without any lawful authority, even then,
the government in many cases, as has been found, has once again declared
the same property as vested Property.
g) Ninety percent minority Hindus
live in rural areas with their hearth and homes which consist of dwelling
houses, courtyard, orchard, garden, pond, derelict tanks, drain, fallow
lands etc. Such homestead, in almost all cases, jointly owned by the minority
people living in Bangladesh and by the alleged enemies living in Indian
territory or elsewhere. In such state of affairs and positions of the homestead
of minorities, the Government has maliciously directed to auction sell
such homesteads to the highest bidder for nothing but to compel the minority
people to leave their homesteads.
h) The policy of the state mechanism
is that if any minority leaves Bangladesh, he leaves for India and no other
country and he cannot go to any country other than India. So if any member
of minority goes to the USA, the UK, Myanmar or to some other countries
of the world for service, study or business and resides there, in that
case also his properties are declared enemy property.
i) The law of enemy property though
made for the enemies, enemy subjects or enemy country, India without any
reservation of caste, creed or colour but the government applies the law
only against the minority Hindus.
j) The citizenship of the minority
is always questioned and it is at the grip of enemy property tehsildars.
If he reports to the concerning authority that a particular person resides
in India from before 1965 (though he still lives in Bangladesh), his property
is declared enemy properly and once a property is declared, the person
thus affected is to run from pillar to post to release his property from
the category of enemy property. The enemy property tehsildars and other
officials almost all being corrupt and having been over jubilant to increase
their commission amount, do not hesitate to declare Bangladeshi minority
people's properties as enemy property.
Effect on minority Hindus
The said black law of enemy property
has become a woe to the minority community of Bangladesh as Howang Ho river
is to China. By that law the whole minority community has been seriously
affected. In course of time lakhs of people have already been evicted or
being evicted from their hearth and homes. By this law the entire population
has been divided into two classes, one is the majority and the other is
minority and due to this national unity stands jeopardised. This law is
also against the tenor of the liberation movement of Bangladesh.
Violation of Human and Fundamental
Rights
Recognition of the inherent dignity
and of the equal and inalienable rights of all members of the human family
is the foundation of freedom, justice and peace. Disregard and contempt
for such human rights have resulted in barbarous acts which have outraged
the conscience of mankind. Thus it is essential, if a man is not to be
compelled to recourse as a last to resort to rebellion against tyranny
and oppression, that human and fundamental rights should he protected by
the rule of law.
On such declarations the General
Assembly of the United Nations proclaimed a universal declaration of human
rights. Though Bangladesh signed the Charter of the Universal Declaration
of Human Rights but keeping the black law or vested property in force since
its birth till passing of Vested Property Return Law, 2001 had deprived
the minority Hindus of Bangladesh of their own property and other rights
in gross violation of the Charter of Universal Declaration.
Suggestion for abrogation of this
black law
Although suggestions were made to
abrogate this black law, the Government of Bangladesh did not care and
passed a bill namely Vested Property Return Bill, 2001 with errors and
blackmailed the Hindu community.
"All properties which were taken
over under the Defence of Pakistan Ordinance, 1965 read with the Defence
of Pakistan Rules framed thereunder or under the Enemy Property (continuance
of Emergency Provisions) Ordinance, 1969 (No. 1 of 1969) or under the Bangladesh
(Vesting of property and Assets) Order, 1972 or under the Enemy Property
(Continuance of Emergency Provisions (Repeal) Act, 1974 (No. XLV of 1974)
as enemy Property hereinafter referred to as Vested Prop" from any person
who as a permanent resident of the territory of Bangladesh and had been
in possession of the said person or persons and the right, title said interest
of the owner of the vested property shall be deemed to have been vested
in such person or persons absolutely.
No suggestion was complied by the
Government of Bangladesh and the bill namely Vested Property Bill 2001,
has been passed on April 9, 2001 in the Parliament.
After the passing of this bill the
then state minister Shri Hajee Rasaed Mussharaff in a press conference
on April 9, 2001 told that the Vested Property Return Law has been passed
only for the benefit of Muslims and which was also published in all newspaper
of Bangladesh. It was the minority community, especially the Hindu community,
which was the worst victim of the Vested Property Act. Under the law, the
original owner his/ her inheritor or the successor in interest will get
back only those vested property which at the disposal of the government.
The property which the government has already permanently handed over to
any organisation or any person or leased out to any organisation or any
person for 99 years will not be considered vested properly eligible for
returning to the original owner.
According to Dr Barkat's study.
44.2 per cent of the individual beneficiaries of the vested property act
belong to Awami League. 31.7 per cent belong to the BNP, 5.8 per cent to
the Jatiya Party, 4.8 per cent to the Jammat-e-Islami, 1 per cent to other
parties, while the researchers found it difficult to get political identity
of the rest 10.6 per cent who have been enjoying the property dispossessed
from the Hindus due to the vested Property act.
Besides, government will return
property only to those who have been living permanently in the country,
in other words, the Bangladeshi Hindus who are co-inheritors of certain
vested property with one, say, living in India or somewhere else, will
not get the property back. If the brother of a Muslim dies out of Bangladesh
then his relative will be the owner of the property in absence of his family,
but if a Hindu dies outside the country his family will not be entitled
to own that property and that property will go to the government.
As regards returning of the vested
property under the newly made law, the proposition will remain the same.
It is therefore, only natural that the minority Hindu community have come
up with mixed reaction over the so-called vested Property Return Act. It
appears from the bill, however, that this bill would present serious problems.
No citizen of Bangladesh can challenge
the bill in a court of law
The Bill also states that the proprietorship
status of the vested property will not be challenged if the property was
transferred to the Government, a governmental institution or a private
individual, has been sold has been handed over permanently by the Government
by the directions of the court. It will not even be possible to challenge
such cases in court. Lastly, the bill provides that in the event of death
of the original owner, rights of inheritance shall apply in accordance
with Hindu religious personal laws.
Hindu women therefore are automatically
excluded from inheritance, since Hindu religious personal laws do not accord
any right of inheritance to women in Bangladesh.
So the Vested Property Return Act
2001 is not only tokenism and is nothing but an eyewash on the part of
government only with a view to getting votes in elections. It may well
be the beginning of legalizing the omissions and commissions under a patently
discriminated law.
In the meantime a committee for
rectification of the Vested Property Return Law has been formed in Bangladesh
and a memorandum on behalf of the Hindu community in Bangladesh has been
presented to the Government. But time has made it clear as to who will
form the next Government. The Hindu minority are very much in doubt whether
the Government will at all rectify or amend this deliberate omission of
the Vested Property Return Act, 2001.
(The author Is an Advocate, Supreme
Court of Bangladesh.)
