The Vested Property Repeal (Return) Act 2001
A Road to Solution or the Perpetuation of Deprivation of the Hindu Minorities in Bangladesh
Upal Aditya Oikya
The right to own (inherit) property is a fundamental right, and neither an individual nor the State can snatch away this right arbitrarily. This paper has tried to illustrate the process how the minority Hindu community’s expected right on their properties has been abandoned which has caused a deep-rooted deprivation. The continuance of the Vested Property Act after the liberation war was contradictory with the spirit of freedom & liberty mentioned in our Constitution. Thus to ensure justice, upholding the equality, freedom, liberty and the rule of law principles could provide us the best solution to this wrongful act of the State.
As rightly said by Dr. Amartya Sen, “Development is a process of expanding the real freedoms that people enjoy. Development requires the removal of the primary sources of unfreedom: poverty as well as tyranny, poor economic opportunities as well as a systematic social deprivation, neglect of public facilities as well as intolerance or overactivity of repressive states. There are five distinct types of freedom: political freedoms, economic facilities, social opportunities, transparency guarantees and protective security.”
Thus to ensure actual human development, these five types of freedom are essential; however, Promulgation of the Enemy Property Act 1965 and its continuation as Vested Property Act even after the Liberation war of 1971 in Bangladesh have denied all the types of freedom and created an environment of widespread deprivation among the Hindu minority. The Article 27 (III) of the Constitution of Bangladesh states that ‘All citizens are equal before law & entitled to equal protection of the law.’ If it is so, then why the former Enemy Property Act continued in Bangladesh even after the independence from Pakistan. Moreover, Article 02 (i) & (ii) of the Constitution of Bangladesh states that there shall be no discrimination against any citizen on the grounds of religion, caste, sex, etc. However, the Vested Property Act already created the discriminatory framework against the minority Hindu community, which is also anti-constitutional. Furthermore, the Preamble of the Constitution upholds the aims of the State by seeking to secure peoples’ fundamental human rights, freedom, equality, and justice; but after the war of independence the hope of this aim become lighter day by day; where the State itself promulgated an unjust, discriminatory framework against the minority Hindu community. According to Dr. Barkat, the law of vested property violates two traditional principles sanctioned by the law of the nations: (a) Every State should afford necessary protection to the property of an alien, (b) every State should grant to aliens equality before the law at per its citizen. The State of Bangladesh was bound to honor these principles by Article 25 (1) of the Constitution of Bangladesh.
HISTORICAL BACKGROUND: LAW AS A TOOL FOR REPRESSION
In Bengal, the environment of peaceful coexistence of both Muslims & Hindus started disappearing with the inception of the colonial ruler’s “division & rule” policy. What the Bangavanga occurred in 1905 was the very first initiative to divide the united India which laid down the foundation of religious identity issue as a political mean for the first time. Later on, the “Two Nation Theory” (on the basis of religion, there shall be two states) finally actively establish the religion identity issue as a political instrument in United India, which foundation was that stronger that still now three states (Bangladesh, India & Pakistan) could not able to overcome from this debauched policy’s shadow. According to Dr. Barkat, ‘the Muslims of East Bengal were misled by the active propaganda of Muslim league that by one’s religious belief, a Punjabi or an Uttar-Pradesh Muslim is closer to him than the next door neighbor who belonged to some other religion.’ During 1947, a huge migration of Muslims, from India to Pakistan and migration of Hindus, from Pakistan (especially from East Pakistan) to India could be observed. There are several factors for this massive out-migration of the Hindus such as Communal riots, Indo-Pak war of 1965 and Enemy/Vested Property Act. As mentioned by Dr. Barkat, ‘During Indo-Pak war of 1965, Government of Pakistan made an executive order named Enemy Property (Custody & Registration) Order II of 1965 following major parts, such as:
India was declared Enemy Country (In other sense, Hindus=Enemies)
All interests of the enemy, i.e., the national/citizens of India, those residing in the territory occupied/captured/controlled by India – in the firms, companies as well as in the lands and buildings situated in Pakistan – are to be taken over by the Custodian of Enemy Property for control or management.
The benefits arising out of the trade or business or lands and buildings should not go to the enemy, so that it may not affect the security of the state of Pakistan or impair its defense in any manner.’
The state of emergency was lifted throughout the country from 1965 till 1969, and it was expected that with the withdrawal of emergency, the Enemy Property Act would also be void. Sadly, the government promulgated a new ordinance called Enemy Property (Continuance of Emergency Provision) Ordinance 1969! On 1969, Yahya Khan declared Martial Law, and he canceled the Constitution of Pakistan. For maintaining the previous extension of that draconian Act, the previous Ordinance was incorporated with retrospective effect from 25 March 1969, and the discrimination against minority Hindu continued. On 1971, Proclamation of Independence was declared, and the so-called Enemy Property Ordinance was not fit with the spirit of proclamation thus hoped to be ineffective. But soon after the independence, Bangladesh Government promulgate Vesting of Property and Assets Order 1972 by which the properties left behind by Pakistanis and former enemy properties were combined into a single category. On 1974, Enemy Property (Continuance of) Emergency Provision (Repeal) Act (Act XLV of 1974) was promulgated and all the properties of enemies were vested in the Government of Bangladesh under the banner of Vested Property. Though the principal aim of this Act was to identify and take over the properties of those residents who left Bangladesh during/immediately after liberation war and took foreign citizenship. However, practically this act was used against the Hindu minorities mostly (Barkat, 2000).
It is important to note that until the promulgation of Ordinance No XCIII of 1976, the vested properties were temporarily vested in the Government for temporary protection. In November 1976, the Government of Bangladesh repealed previous Act No. XLVI of 1974 by Ordinance XCII of 1976 (Barkar, 1997). They also amended the Act XLV of 1974 by the Ordinance XCIII of 1976 with a retrospective effect. All the Acts before Ordinance XCIII of 1976 empowered the Government to become the custodian and to preserve the enemy properties in contemplation of arrangement to be made in the conclusion of peace with India. But the Ordinance XCIII of 1976 made the Government owner of vested properties instead of protector of the same! Thus, the government encroached the right of the ownership, which is a gross violation of the existing laws about the right to private property. It is crucial to note that on 23 May 1977, the Government issued some instructions by Circular No. 1 A-1/77/156 RL directing the concerned officials that enemy properties about lands and buildings vested in the Government shall be administrated, controlled, managed and disposed of in the manner as laid down therein. Moreover, tahsildars and other staff of state acquisition offices were even incentivized to find out new vested properties in the following words ‘on detection or furnishing any information leading to detection of any concealed vested property within their respective jurisdiction, may be suitably rewarded.’ (Instruction for Administration, Management, and Disposal of Vested Property, Circular NO. 1A-1/77/156-RL., Dated 23rd May 1977, para 34).
During 1975-90 in Bangladesh, we can see some common characteristics of the military rulers. None of them has any political base, none of them was politically and ideologically committed to the nation, and they have used Hindus as a trump card in politics. India was always portrayed as a potential threat to Bangladeshi economy and culture and the religious faith of the majority Muslims (Barkat, 2000). The honest and inherently secular feeling of the majority Muslims was exploited through using “Indian Aggression Card” and by using the slogan “Islam is in Danger.” To non-Muslims, especially the majority within the minority – the Hindus were treated synonymously with “Hindustani Citizen” (Citizen of India), as was the case throughout the Pakistan period. Thus, the Act was used as an effective instrument towards the forced migration and extermination of the Bangladeshi Hindus.
During 1996-2001, Awami League was in power, but they did not take any proper measure relating to giving the (vested) property back to its owners. Finally in 2001, as the national election was there and AL need the support of the Hindu population to vote them, thus they promulgated the Vested Property Return (Repeal) Act 2001 at the last day of their government to justify their position that they are Hindu-friendly people and holds the idea of secularism still. Moreover, the Act was criticized for several arguable terms; such as there was argument relating to the term “Continuous resident of Bangladesh”; whether this vague term has any legal basis or not; and whether the essence of the phrase ‘continuous resident of Bangladesh’ and ‘permanent citizen of Bangladesh’ are the same or not. Firstly, the person, who holds the permanent citizenship of Bangladesh can reside in USA/UK/India for any purpose (work/study, etc.), but still s/he is the citizen of Bangladesh, and the Government cannot snatch away his/her right by arguing that s/he is not the continuous citizen of Bangladesh. Moreover, the term ‘Resident of Bangladesh’ or ‘Citizen of Bangladesh’ has complete meaning, so it is unnecessary to put any adjective/adverb before those words to make them perfect. Nevertheless, our ancestors have done it several times such as Ayub Khan’s Moulik Gonotontro (Basic Democracy), JASOD’s Boigganic Somajtontro (Scientific Socialism). Therefore AL carried out the practice as well.
On November 26, 2002, BNP came into the power and amended the Act. In the previous Act, there was a limited time (90 days) for announcing the vested properties but after the amendment Government allowed unlimited time for publishing the list. Moreover, Government included the ‘Co-Sharer’ as the claimant party and replaced ‘Continuous resident’ term by ‘citizen of the country’ but introduced two Schedules/Tafshils (Ka Schedule & Kha Schedule). Ka Schedule means which is declared as vested property and Government holds the possession, and Kha Schedule means which claimed as vested property, but Government does not have the possession. Regarding Kha Schedule, it was completely inconsistent with the Ain of 1974. However, in 2012 & 2013, the government amended the Act twice, and under pressure by the civil society, Kha Schedule was repealed in 2013 (by Ditiyo Songsodhoni). In 2011, the Act was amended to solve the issues, and that time, in Government possession (according to Ka Tafshil), there was One Lac Eighty-Nine Thousand Acre (189000 Acre) land, but that amount becomes greater in 2014 (almost 215000 Acre). How the numbers become higher, it is a mystic issue, because the property was in possession of the Government. Moreover, according to Kha Tafshil, the estimated property was 442000 Acres; but in 2014 the amount was almost 700000 acre (Haq, 2014)! Furthermore, it was mentioned in the previous Act that if there is any dispute relating to Ka Scheduled property, the matter shall be solved by the Court (Tribunal) but regarding Kha Scheduled property, the matter shall be solved politically (through union Parishad committee).
When the Government repealed Kha Tafshil, it was predicted that the people would get their properties whose properties was enlisted in Kha Tafshil and Government instructed to mutate the land in their names just like as the normal proceeding, but while doing so, people have faced many artificial difficulties from the Land Officials. Also, according to the Act, if any party is aggrieved by the decision of the Tribunal (dispute relating to Ka Tafshil), they can apply to the Appellate Tribunal and its decision would be final and Deputy Commissioner (DC) shall deliver the property. But even after getting the Judgment from the Appellate Tribunal for the claimant, while applying before DC, he could not be able to offer the property! Moreover, several DC made application to the Land Ministry to know their opinion whether they shall release the properties or not. The Land Ministry directed them by mentioning that if there is no bar to the law, the DC can release the property. The question comes, whereas the Appellate Tribunal’s Judgment would be final as per the Act, even after that why the executives such as DC has to check whether there is any bar to the law or not to release such? It is entirely a matter of Contempt of the Court. When the ministry has been informed about this mistake, they corrected their position and instructed DCs to release the properties. Again, after getting the instruction, DCs made an application to the Law Ministry and the law minister suggested that there is no option to apply for Civil Revision but if the concerned executive (DC) is aggrieved; they can file a Writ Petition (Daily Prothom-Alo)! The question may arise that, who will file the writ petition against whom? So while questing on this matter, the Law Minister said it is not an instruction/order, but merely an advice (onusason)! However, all the DC has considered this onusason as an (unofficial) order, and for this Onusason, they are not releasing any property, and the deprivation continued.
Any kinds of drastic change to resolve the matter could create more problem than the actual problem itself thus the solution has to be formulated based on the actual understanding of the historically formed sociocultural values and mindset of the people. Currently, the religious issues become a very hot topic in Bangladesh. Radical groups are attacking the minority groups frequently and the law enforcing agencies could not even trace anything correctly. The unstable situation relating to religion stated from the recent High Court’s decision regarding the State Religion Petition and somehow anti-Hindu and anti-Indian slogans become very much familiar within this time-frame. Therefore, if the government has to do something, they have to understand the current status of the people’s mindset so that the minority community does not trap once again due to the initiative of returning their properties. However, we have still some of the specific, feasible, realistic solutions after several analyses of the present socio-cultural values and political aspects as suggested by Dr. Barkat. They are:
The amendments held in 2002 was contradictory to the spirit of returning the property to the affected Hindu minority. Thus the Act should be reformed accordingly.
All the properties vested after the promulgation of the Vested Property Repeal Act 2001 has to be declared unlawful and has to be returned to the original owner without any delay.
In 2007, the government identified 0.7 million acres of vested lands 61 out of the 64 districts, although designated land is four times less than the study done by Dr. Barkat. So the government in compliance with the non-government organizations has to prepare a proper list of the vested property. By this time, whatever they have identified, they have to publish this into Gazette. Furthermore, a full-furnished list with details of the property, location, name of the party, address, the amount of land, year of dispossession has to be published by the list.
All the properties under the custody of the government, which are identified as vested, should be leased out to the real owner or their legal heirs and it has to be done by the law of inheritance.
Properties fall under section 6.3 of the Act has to be repealed, and all the permanent leasing out of vested properties has to be declared as unlawful and void. If the property is acquired for the public interest, the owner should be given proper, prompt and adequate compensation.
If the male heirs of the property are absent, the property has to be returned to its female heirs who are permanently residing in the country.
The state can think about some compensation payment to the affected families due to the Act.
Section 14 of the Act should be reformed by giving DC the only power to keep the property until disposing of. They should not be given the power to provide a permanent lease; the government has to limit their power by mentioning that they only can give short lease.
The government has to follow the Judgment of the Supreme Court accordingly, and all the artificial difficulties have to be sort-out to make a solution. The government needs to focus more on implementing the laws & orders, rather amending the Act.
The Vested Property Act is an anti-constitutional, discriminatory, barbarian and in evident a black law, which is certainly evident through its conduct and application over the minority Hindus. Two things we have to remember that ‘Absence of arbitrary power is the first essential of the rule of law upon which our constitution system is based, and the law does not mean anything that Parliament may pass (Islam, 2012). Thus, the law must be non-discriminatory, it has to be reasonable and uphold the liberty and equality of the people. The state itself cannot discriminate any of its minority groups through any Act like VPA as the law contradicted with the underlying intention of the Constitution. Therefore, there must not be any further ambiguity relating to the return of the vested properties to its original owner and the government has to take necessary steps through providing a practical procedural framework where people can get the availability of justice.