The enemy property laws in Bangladesh: grabbing lands under the guise of legislation

ABSTRACT

The law of enemy property has a long and complex history in Bangladesh. Although it originated from the emergency laws promulgated during the India-Pakistan war in 1965, its legacy continued in independent Bangladesh till recent years. The law, however, did not itself encourage any encroachment of property rights; rather it has been misused by different political regimes, to legalise the unlawful benefits accrued to influential land grabbers under the pretext of enemy property. This study, through a historical review, draws a legal analysis of how the process of taking over enemy properties by the government authorities had no legal justification and was used merely as a technique to deprive religious and indigenous minorities, of their lawful property rights. The study also scrutinises the present law, which promises to return the properties and attempts to look into the reasons behind its failure to make effective returns to the lawful owners.

Acknowledgments

I am especially thankful to my father Md Abdul Hye, a retired government official, who had always been vocal against illegal usurpation of lands belonging to the Hindu community in the name of enemy property. He filed a writ petition in 2011 against this illegality to return the properties to their lawful owners which is pending in the High Court Division. The core idea of this article is inspired by his thoughts and advocacy on the issue. I am also thankful to Imtiaz Farooq for helping me access court documents and filing the writ petition on behalf of my father. I am grateful to all my fellow classmates from the University of Dhaka who are now serving as judges at the district level courts for assisting me by sharing their experiences as presiding judges in the Vested Property Tribunals. Also, I acknowledge the immense contribution of the civil society organisations in Bangladesh who have been tirelessly advocating for the rights of Hindu citizens over the so-called ‘enemy properties'.

Notes

1 Abul Barkat, ‘A Treatise on Political Economy of Unpeopling of Religious Minorities in Bangladesh through the Enemy Property Act and Vested Property Act’ (2014) 30 Bangladesh Journal of Political Economy 1, 14.

2 ibid 2.

3 After the independence of Bangladesh the term ‘enemy property’ had been given a new label of ‘vested property’. Details of this transformation are discussed in the later part of this study.

4 The official version of the Act is in Bengali, and this title is an unofficial translation of the Bengali title, commonly used in the relevant literature. This title has also been used for the purpose of this study.

5 This theory was propounded by the first Governor-General of Pakistan, Muhammad Ali Jinnah who is considered to be the founder leader of Pakistan. The theory had been strongly criticised for instigating anti-secularism ethos and Hindu-Muslim conflicts in the region. For detailed criticisms see, Verma K Anand, Reassessing Pakistan: Role of Two-Nation Theory (Lancer 2001).

6 There are extensive academic writings on the history of the emergence of Bangladesh as an independent state. For instance, see Rounaq Jahan, Pakistan: Failure in National Integration (Dhaka University Press 1972). For a recent work see Willem Van Schendel, A History of Bangladesh (Cambridge University Press 2009).

7 The party was renamed as Bangladesh Awami League (AL) on 5-6 July 1971.

8 Amena A Mohsin, ‘Religion, Politics and Security: The Case of Bangladesh’ in Satu P Limaye, Mohan Malik and Robert G Wirsing (eds), Religious Radicalism and Security in South Asia (Asia-Pacific Center for Security Studies 2004) 467.

9 Under the presidency of Justice Abu Sadat Mohammad Sayem.

10 ‘Former Presidents' <http://web.archive.org/web/20130605130743/http://www.bangabhaban.gov.bd/ziaur.html> accessed 02 September 2014.

11 Amena A Mohsin (n 8).

12 ibid 474. ‘Secularism’ however has been restored in Article 8, by the Constitution (Fifteenth Amendment) Act, 2011 (Act XIV of 2011).

13 Zia became the chief of his own political party — BNP ‘which comprised renegades from other fractious parties and a large number of ex-military personnel, professionals and technocrats': Habib Zafarullah and Muhammad Yeahia Akhter, ‘Military rule, civilianisation and electoral corruption: Pakistan and Bangladesh in perspective’ (2001) 25 Asian Studies Review 73.

14 In this election the BNP obtained 207 seats and the main opposition AL secured 39 seats. See Jalal Firoj, ‘Forty years of Bangladesh Parliament: Trends, achievements and challenges' (2013) 58 Journal of the Asiatic Society of Bangladesh 83, 85. However, there had been allegations from the opposition of large-scale vote rigging and other irregular practices manipulating the electoral result. See Zafarullah and Akhter (n 13) generally on the debates and discussions on the credibility of the 1979 election. See also, Talukder Maniruzzaman, The Bangladesh Revolution and its Aftermath (Bangladesh Books International 1980); Gowher Rizvi, Bangladesh: The Struggle for the Restoration of Democracy (Bangabandhu Society 1985); Habib Zafarullah, ‘Administration and bureaucracy: Restructured and revitalised’ in Habib Zafarullah (ed), The Zia episode in Bangladesh politics (South Asian Publishers 1996) 84–104.

15 See Banglapedia <http://www.banglapedia.org/HT/P_0234.htm> accessed 12 August 2014. For further reference on the chronological discussion, see Zafarullah and Akhter (n 13); Talukder Maniruzzaman, ‘The Fall of the Military Dictator: 1991 Elections and the Prospect of Civilian Rule in Bangladesh’ (1992) 65 Pacific Affairs 203; Mohsin (n 8); Moudud Ahmed, Bangladesh: A Study of the Democratic Regimes (The University Press Limited 2012).

16 ibid.

17 Mohsin (n 8) 475.

18 The Constitution of Bangladesh, 1974, art 2A.

19 See Banglapedia (n 15).

20 By the Constitution (Thirteenth Amendment) Act 1996, provision was made for a non-party caretaker government, a concept peculiar to the Bangladesh Constitution. This caretaker government was to be formed by neutral persons only during parliamentary elections in order to ensure a free and impartial election. For details see, Mahmudul Islam, Constitutional Law of Bangladesh (Mullick Brothers 2012) 443.

21 The Constitution (Fifteenth Amendment) Act, 2011 (Act XIV of 2011).

22 On the chronological description of the regime changes in Bangladesh since 1971, Abul Barkat gives the following detailed account which is reproduced here for a clearer understanding of the issue: ‘11 April 1971-12 January 1972 – First Independent Government with Father of the Nation Bangabandhu Sheikh Mujibur Rahman as President, Syed Nazrul Islam as Acting President and Tajuddin Ahmed as Prime Minister; 12 January 1972-25 January 1975 – Father of the Nation Bangabandhu Sheikh Mujibur Rahman as Prime Minister; 25 January 1975-15 August 1975 – Father of the Nation Bangabandhu Sheikh Mujibur Rahman as President (who was brutally assassinated by anti-secular forces using military aimed at establishing autocratic rule, reversal of secular and socialist ideology, and rehabilitation of anti-liberation forces); 15 August 1975-6 November 1975 – Khandaker Mostaq Ahmed as President; 6 November 1975- 21 April 1977 – Abu Sadat Mohammad Sayem as President; 21 April 1977-30 May 1981 – Ziaur Rahman, first as Chief Martial Law Administrator and then as President; 30 May 1981-24 March 1982 – Abdus Sattar as President; 24 March 1982-27 March 1982 — Hussain Muhammad Ershad as Chief Martial Law Administrator; 27 March 1982-10 December 1983 — Ahsanuddin Chowdhury as President; 11 December 1983-6 December 1990 — Hussain Muhammad Ershad, first as Chief Martial Law Administrator and then as President; 6 December 1990-09 October 1991 — Justice Shahabuddin Ahmed as Chief Advisor (of first) Caretaker Government; 20 March 1991-30 March 1996 — Kheleda Zia as Prime Minister; 30 March 1996-23 June 1996 — Justice Muhammad Habibur Rahman as Chief Advisor of Caretaker Government; 23 June 1996-15 July 2001 — Sheikh Hasina as Prime Minister; 15 July 2001-10 October 2001 — Justice Latifur Rahman as Chief Advisor of Caretaker Government; 10 October 2001-29 October 2006 — Khaleda Zia as Prime Minister; 29 October 2006-11 January 2007 — Iajuddin Ahmed, both as President and Chief Advisor of Caretaker Government; 11 January 2007-12 January 2007 — Iajuddin Ahmed as President and Fazlul Haque as Acting Chief Advisor of Caretaker Government; 12 January 2007-6 January 2009 —Iajuddin Ahmed as President and Fakhruddin Ahmed as Chief Advisor of Caretaker Government; 6 January 2009-6 January 2013 — Sheikh Hasina as Prime Minister; 6 January 2013-till date — Sheikh Hasina as Prime Minister.’ Barkat, ‘A Treatise on Political Economy of Unpeopling of Religious Minorities in Bangladesh through the Enemy Property Act and Vested Property Act’ (n 1) 24.

23 Abul Barkat, Shafique uz Zaman, Azizur Rahman and Avijit Poddar, Political Economy of the Vested Property Act in Rural Bangladesh (Association of Land Reform and Development 1997) 20.

24 According to Barkat's findings, during the last forty years since 1961, the relative share of Hindu population has declined from 18.4 per cent of the total population in 1961 to 12.1 per cent in 1981, to 10.5 per cent in 1991, and further down to 9.2 per cent in 2001. Thus, the research suggested that based on the trend in the religious composition of the population of Bangladesh, the Hindu population shows a falling trend towards near-extinction. See Abul Barkat, Deprivation of Hindu Minority in Bangladesh: Living with Vested Property (Pathak Shamabesh 2008) 62.

25 The 1947 partition, bringing an end to the British colonial legacy and thereby creating two new states — India and Pakistan.

26 East Bengal Act XIII of 1948.

27 Barkat, Zaman, Rahman and Poddar (n 23) 24.

28 East Bengal Act XXIV of 1951.

29 The first Act in the context of evacuee persons was enacted in 1949, the East Bengal Evacuees (Administration of Property) Act, 1949 (Act VIII of 1949). Subsequently a number of new relevant laws were promulgated on the same subject. For details see, Mridul Kanti Rakshit, The Law of Vested Properties in Bangladesh (Rakshit 1979) 7–9.

30 East Bengal Act of 1951, s 8.

31 Traditionally the term is used to refer to landlords in British India owning large areas of lands and having significant influence over the local community.

32 Barkat, Zaman, Rahman and Poddar (n 23) 26.

33 Ordinance 1 of 1964.

34 Ordinance 1 of 1964, the Preamble.

35 Barkat, Zaman, Rahman and Poddar (n 23) 28.

36 Ordinance 1 of 1964, s 4.

37 Barkat, Zaman, Rahman and Poddar (n 23) 49.

38 Ordinance No XXIII of 1965.

39 Ordinance No XXIII of 1965, the Preamble.

40 Barkat commented, ‘The simple de facto meaning of this act (the Enemy Property [Custody and Registration] Order, 1965) is, Hindustan = Enemystan (place of enemies), and Hindu (irrespective of geographic location of residence) = Enemy. And that was applied with a spiteful design to not only the Hindu minority, but also to all the religious and ethnic minorities': Barkat, Deprivation of Hindu Minority in Bangladesh (n 24) 6.

41 Details of these cases and administrative circulars are discussed in subsequent sections of the study.

42 Debesh Chandra Bhattacharya, Enemy (Vested) Property Laws in Bangladesh: Nature and Implications (1991) 39.

43 See Joseph Conrad Fehr, ‘Disposal of Enemy Property’ (1922) 216 North American Review 10; Julius Henry Cohen ‘The Obligation of the United States to Return Enemy Alien Property’ (1921) 21 Columbia Law Review 7, 666–679; EMB, ‘Confiscation of Enemy Private Property’ (1919) 28 Yale Law Journal 478. However, the law regarding right to confiscate enemy properties was not entirely unambiguous and a group of authors supported the right to retain seized enemy property as against making provisions for returning them. But considerable weight was given in favour of returning the enemy properties to the rightful owners. For more details on this discussion, see Charles Wesley Harris, ‘International Relations and the Disposition of Alien Enemy Property Seized by the United States during World War II: A Case Study on German Properties' (1961) 23 Journal of Politics 641.

44 Enemy Property (Custody and Registration) Order 1965, s 4(2)(vii).

45 Benoy Bhusan Bardhan v Sub-Divisional Officer, Brahmanbaria and others (1978) 30 DLR (HCD) 139, 149.

46 ibid.

47 ibid. A similar decision was taken during the Pakistan period in Ananda Mohan Kundu v Province of East Pakistan (1968) 20 DLR (HCD) 976, 980 (which was also cited in Benoy Bhusan) where it was observed that, ‘what the legislature intended is that all enemy property should vest in the custodian for the purpose mentioned in rule 182 of the Defence of Pakistan rules with a view to protecting the enemy properties from being utilized in any manner for the benefit of the enemy or in the interest of the enemy state and to the prejudice of Pakistan. Therefore it amounts to only a control over the enemy property by the custodian’.

48 Memo No. 55 (17)-IX-22/65-EP dated 14-03-1966.

49 No 1694-XIII-505/67-EP dated 26-06-1968.

50 Ordinance No 1 of 1969.

51 Ordinance No 1 of 1969, the Preamble.

52 The Supreme Court is the highest court of Bangladesh. Its two divisions are the High Court Division (HCD), which has both original and appellate jurisdiction (appeal from lower courts); and the Appellate Division (AD) having jurisdiction to hear appeals from the High Court Division.

53 27 DLR (AD) (1975) 52 (Appellate Division of the Supreme Court of Bangladesh (AD)).

54 33 DLR (AD) (1981) 30.

55 39 DLR (HCD) (1987) 377 (High Court Division of the Supreme Court of Bangladesh (HCD)).

56 Although answering this question was not warranted by the fact of the Dulichand case, as there was in fact a vesting order within the period of state of war with respect to the firm in dispute.

57 Sunil Kumar Ghosh (n 55). Although it could not have the effect of overruling the judgment of the AD, the decision is significant for academic discussion.

58 The Proclamation of Independence <http://www.docstrangelove.com/uploads/1971/sbbk/documents/Proclamation%201971_M_Dalil_Vol_03_MMR.pdf> accessed 21 May 2015.

59 This proposition also finds support in Bhattacharya (n 42) and Barkat, Zaman, Rahman and Poddar (n 23).

60 This letter referred to the returnees as ‘Hindus' instead of ‘enemy’ or ‘enemy subjects'. This general usage of the term Hindu indicates the reality that those who were victims of enemy property laws during the Pakistan period, mostly belonged to the Hindu minority population.

61 Memo No 74-EP-4/72.

62 Bhattacharya (n 42) 44.

63 PO 29 of 1972, s 2(1).

64 Memo No 1083/(18)-EP-165/72.

65 Act XLV of 1974 (hereinafter referred to as the Repeal Act).

66 Act XLVI of 1974 (hereinafter referred to as the Vested and Non-Resident Act).

67 Bhattacharya (n 42) 6.

68 Circular No VP-49/75-2 dated 12-02-75; Circular No VNR 29/75 dated 26-07-75.

69 Rahima Akhtar and others v Asim Kumar Bose and others 40 DLR (AD) (1988) 23.

70 Bhattacharya (n 42) 52.

71 For a detailed discussion, see Bhattacharya (n 42).

72 Memo No 667 (18)-VP-115/76.

73 27 DLR (AD) (1975) 52.

74 Circular No 1A-1/77/156-RL dated 03-05-1977.

75 Although the fact of out-migration and death of legal heirs was a reality. For reference see Abul Barkat, An Inquiry Into Causes and Consequences of Deprivation of Hindu Minorities in Bangladesh Through the Vested Property Act: Framework for a Realistic Solution (PRIP Trust 2001) 88.

76 For a general reading on the practice of land grabbing by influential elites in Bangladesh, see Shelley Feldman, ‘Land Expropriation and Displacement in Bangladesh’ (2012) 39 Journal of Peasant Studies 971.

77 31 DLR (HCD) (1979) 343.

78 Similar examples can be found in Al-Haj Md Hossain v Bangladesh 39 DLR (HCD) (1987) 265.

79 The Board of Land Administration, at that time was given the all-out authority to deal with vested properties by virtue of a government order issued from the Ministry of Law and Land Reforms, being order no. 2M-13/82/1042-Esst dated 05-07-1983.

80 Memo No. CMT 72/(2)/84-81(7) dated 06-08-84.

81 Memo No 5-23/83 (Part-1)/338(64).

82 Barkat, Deprivation of Hindu Minority in Bangladesh (n 24) 53.

83 For a similar discussion see, Human Rights Congress for Bangladesh Minorities, ‘Vested Property Act’ <http://www.hrcbm.org/genocide/vested_property.html> accessed 03 September 2014.

84 Barkat, ‘A Treatise on Political Economy of Unpeopling of Religious Minorities in Bangladesh through the Enemy Property Act and Vested Property Act’ (n 1) 8.

85 Barkat, Deprivation of Hindu Minority in Bangladesh (n 24) 53.

86 Samir Kalra and Arvind Chandrakantan, ‘A Legal Analysis of the Enemy Property Act of Bangladesh’ <http://hafsite.org/sites/default/files/Legal_Analysis_Enemy_Property_Act_Bangladesh.pdf> accessed 11 August 2014.

87 The Act was amended six times in 2002, 2011, 2012 (twice), and 2013 (twice). As Barkat rightly noted, these amendments were made ‘without consulting any affected persons' or victims' representatives with clear ulterior motive of retarding the process of implementation of the law … it was done to ensure that the affected persons do not get any relief from the legal process at all’: Barkat, ‘A Treatise on Political Economy of Unpeopling of Religious Minorities in Bangladesh through the Enemy Property Act and Vested Property Act’ (n 1) 9.

88 There had been a public interest litigation case filed in 2011 challenging the legality of section 6 of the Act and the High Court Division had issued an order asking the relevant authorities to show cause as to why this section should not be declared illegal. However this rule is still pending and there has not been any further development on this issue. See, ‘Vested Property Law: HC asks why two clauses not illegal’ <http://bdnews24.com/bangladesh/2011/10/23/vested-property-law-hc-asks-why-two-clauses-not-illegal> accessed 17 August 2014.

89 Vested Property (Second Amendment) Act, 2012 (Act No 39 of 2012).

90 As Barkat pointed out, ‘When a major amendment of Vested Property Return Act 2001 was done in 2011, the total amount of vested land (as reported by the Land bureaucracy of Land Ministry) according to ‘Ka Schedule’ was 189,000 acres, which, for unknown reasons, now stands at 215,000 acres; similarly during the same little span of time, the total amount of land under ‘Kha Schedule’ has been increased from 442,000 acres (in 2011) to about 700,000 acres (in 2014)’: Barkat, ‘A Treatise on Political Economy of Unpeopling of Religious Minorities in Bangladesh through the Enemy Property Act and Vested Property Act’ (n 1) 11.

91 Vested Property (Second Amendment) Act, 2013 (Act No 46 of 2013).

92 As per official sources, the amount of land under ‘Ka schedule’ and ‘Kha schedule’ together was 915,000 acres (215,000 acres + 700,000 acres). However, Barkat rightly argues that a re-estimation is necessary as the amount of lands does not count for the ‘missing lands' belonging to the religious and ethnic minorities before 1961 (the year of Pakistan Population Census 1961) or before 1965 (the year of Indo-Pak War): Barkat, ‘A Treatise on Political Economy of Unpeopling of Religious Minorities in Bangladesh through the Enemy Property Act and Vested Property Act’ (n 1) 11.

93 Memo No 31.00.0000.045.53.065.12-615 dated 21-11-2013.

94 Vested Property Return Act 2001, s 16–25.

95 Vested Property Return Act 2001, s 18.

96 Vested Property Return Act 2001, s 11.

97 Except when the property had fallen within the criteria of non-returnable properties as given in section 6, in case of which a scope for application for release of the property from schedule A has been given in section 10 of the Act.

98 Ain O Shalish Kendro (ASK) Bulletin, June 2013 <http://www.askbd.org/Bulletin_Jun_13/Ain_adalot.php> accessed 21 August 2013.

99 ibid.

100 The recent judgments considered the 1974 repeal Act to be the threshold after which a new vesting order would become illegal. However, with due respect to the judgments, the study contends that the appropriate threshold should have been the day from which Bangladesh had declared its independence, as the 1969 Ordinance had automatically become inoperative in the independent Bangladesh since its birth. This view also finds support in MI Farooqi, ‘Validity and Scope of Law Concerning Vested Property in Bangladesh’ <http://www.mifarooqui.com/validity-and-scope-of-law-concerning-vested-property-2/> accessed 04 August 2014.

101 56 DLR (AD) (2004) 73.

102 58 DLR (AD) (2006) 177. Also earlier High Court Division Judgments have pronounced similar decisions clothed in almost identical languages. See for instance, Laxmi Kanta Roy v Upazila Nirbahi Officer 46 DLR (HCD) (1994) 136; Indu Moti Howlader v ADC 50 DLR (HCD) (1998) 444; Rahmat-e-Alam v Shafiqul Huq 10 BLC (HCD) (2005) 449.