Rights of property in Bangladesh
What is Property?
Before knowing about the property and its rights in aspects of Bangladesh first we need to know what exactly the property is, how can we identify it and what is its nature and characteristics. In a simple language we can say anything that is owned by someone is a property. But in a broader sense “Property is any physical or intangible entity that is owned by a person or jointly by a group of people. Depending on the nature of the property, an owner of property has the right to consume, sell, rent, mortgage, transfer, exchange or destroy their property, and/or to exclude others from doing these things.”[1] “It is surely undeniable that, when a man engages in remunerative labor, the impelling reason and motive of his work is to obtain property, and thereafter to hold it as his very own.”[2]
All things are not the subject of property the sea, the air, and the like, cannot be appropriated; every one may enjoy them, but he has no exclusive right in them. When things are fully our own, or when all others are excluded from meddling with them, or from interfering about them, it is plain that no person besides the proprietor, who has this exclusive right, can have any, claim either to use them, or to hinder him from disposing of them as, he pleases; so that property, considered as an exclusive right to things, contains not only a right to use those things, but a right to dispose of them, either by exchanging them for other things, or by giving them away to any other person, without any consideration, or even throwing them away.
Types of Property:
There are many kinds of property and most of us are not aware about those types of properties, like-
Abandoned property, absolute property, accretions to property, acquisition of property, after required property, assessable property, assessed valuation of taxable property, base property, commercial property, community property, corporate property, damage to property, devising property, distributable property, estate, execution against property, freehold, homestead, individual property, joint property, lien on property, market value, property tax, public property, purchase of property, separate and distinct properties, similar property, special property, specific property, suit affecting property, suit concerning property, taking of property for private purposes, taking of property for public use without just compensation, taxable property, title to real property, transfer of interest in property, transfer of property intended to take effect at death, un platted land, urban property, value of the property etc.[3]
Property rights:
Laws created by governments in regards to how individuals can control, benefit from and transfer property. Economic theory contends that government enforcement of strong property rights is a determinant regarding the level of economic success seen in the area. Individuals will create new forms of property to generate wealth, only when they are assured that their rights to their property will protect them against unjust and/or unlawful actions by other parties.
Property and its law: Now we know that there are several kinds of property and obviously there are some laws for those. In this research paper I’ll go through two controversial property laws & acts in Bangladesh. They are-
- INTELLECTUAL PROPERTY LAWS IN BANGLADESH
- · VESTED PROPERTY ACT/ ENEMY PROPERTY ACT.
INTELLECTUAL PROPERTY LAWS IN BANGLADESH
The word ‘intellectual property’ has come to be internationally recognized as covering mainly two branches, namely; ‘industrial property’ and ‘copyright’. Patents, industrial designs and trade marks used to be considered as different kinds of industrial property. In Bangladesh the first legislation of its kind, on copyright was introduced in 1914, which was mainly based on the British Copyright law of 1911. After the independence from Britain new law on copyright was promulgated in 1962. The Copyright Ordinance 1962 has been replaced by the new copyright act of 2000. Now in our country, Copyright law is regulated by the Copyright Act 2000. This is done because of the prevailing situation in Bangladesh and around the world.
In case of patent and designs we have law which we inherited from our Colonial ruler. Patent rights are created by statute and governed by the Patent and Designs Act 1911. We have also law related to trademarks and it is regulated by the Trademarks Act 1940.
Intellectual property has acquired an internationally recognized character. Now it is regarded as “one of the most important sectors” of international law, having its source in various international conventions. At present, each and every country is trying to shape or reshape their legislature, relating to intellectual property; in the light of those international conventions
The convention establishing the World Intellectual Property Organization (WIPO), concluded in Stockholm on July 14th, 1967, provides that, ‘intellectual property’ shall include rights relating to:[4]
1. Literary, artistic and scientific works,
2. Performances of performing artists, phonograms and broadcasts,
3. Inventions in all fields of human endeavor,
4. Scientific discoveries,
5. Industrial designs,
6. Trade marks, service marks and commercial names and designations,
7. Protection against unfair competition,
Bangladesh, as a least developed country, has also enacted intellectual property law in its national legislature.
The Trade Related aspects of Intellectual Property rights (TRIPs) were included as integral part of World Trade Organization (WTO) due to pressure and interest of basically transnational companies and developed countries to ensure maximum profit or interest out of intellectual property in international trade. The TRIPs Agreement has been called the most ambitious international intellectual property convention ever attempted. TRIPs agreement has established the protection of intellectual property as a major part of the multinational trading system embodied in the WTO. As one commentator observer, intellectual property is now a key component of this trading system, “the protection of intellectual property is one of the three pillars of the WTO”.
Bangladesh is now enjoying the transitional period that has been fixed by WTO under the light of TRIPs. So, we do not have a clear idea about the relation between intellectual property rights and economical development. But, it is certain that after the expiration of transitional period, Bangladesh will have to face a serious and severe situation because of the weak legal framework relating to intellectual property.
PROBLEMES AND INSUFFICIENCY OF THE EXISTING INTELLECTUAL PROPERTY LAWS:
PATENTS AND DESIGNS ACT:-
The defects are;-
- Like any other national patent system, novelty is an essential requirement of an invention to be patentable under the existing law of our country. But it is clear from the definition of ‘invention’ in section-2(8) of the 1911 Act; the invention to be patentable need not have a commercial pecuniary success. In other words, utility of an invention is not required by this definition. Although lack of utility is a ground for revocation of a patent under section-26(f) of the Act, till now this has not been included in the definition of invention.
- The 1911 Act makes no difference between patentable and non patentable inventions. Considering the public interest certain items should be kept outside the domain of patent protection. Since under the existing law no item has been excluded from the domain of patent protection, any type of new invention may obtain patent protection although it should not be patentable for the greater interest of the public at large.
- Under the existing law, the application for a patent must contain a declaration that the applicant is the true and first inventor or the assignor or legal representative of such inventor. But the term, “true and first inventor” is left undefined. Thus any person importing an invention for the first time into Bangladesh or any person to whom an invention is first communicated from outside Bangladesh can claim to be the “true and first inventor” of that invention and thus, can take the advantage of the vagueness of the term. Here; a fact should be added that, such practice already has begun. Some pharmaceutical companies don’t having any research and develop cell, importing some drugs, and by claiming patent, under the ambiguity of the Act, getting patent. A statistic says that, at the 1st and 2nd week of March, 2006; on an average, 40 patents were granted by the patent office, in each week. Thus, the local producers are forced to remain non productive on that particular patented items.
- The standard of examination varies from country to country. In some countries like Netherlands, Germany, U.S.A. and Japan it is rigorously involving an extensive search for both novelty and obviousness among documents published in many countries, over a period of many years. But according to our existing patent law; examination is less rigorous involving for novelty only, and the extent of search is restricted.
- Term of patent protection shall, as laid down in section-14, be sixteen years from its date. But the term is not sufficient enough for the exploitation of the patent right.
- What constitutes infringement of patent isn’t defined in the Patents and Designs Act, 1911. Section-29(1) of the Act only says that, the patentee has a right to sue against the infringer during the continuance of the patent acquired by him.
- Section-30 of the Act says that, a patentee shall not be entitled to damages against an innocent infringer. But, ignorance of law is no defense. The infringer should pay for the project as compensation of damages.
- Under the existing law any process or manner of producing, preparing or making an article in patentable as appears from section-2 (8) read with section-2(16). But, the 1911 Act does not confer upon the patentee the exclusive right to exercise the process.
- The 1911 Act contains provisions regarding compulsory licenses of patent rights but the terms and conditions of conditions of compulsory licenses are not detailed in the Act.
TRADE MARKS ACT:-
1. Section-22(3) of Trade Marks Act defined infringement in a very narrow sense though the act has provisions against infringement.
2. Although Chapter X of the Act, describes about offences and restrictions of use of Royal Arms and state probmblems but this chapter does not extends to the infringement of any registered trademark. Any deceptive use of any registered trademark; is not also included in this chapter.
3. There is no provision for protection of internationally recognized trademark in our existing Trademark Act 1940.
COPYRIGHT ACT:-
Our existing copyright law has been enacted in line with the copyright law of India. It has been enacted to cope with the prevailing international set up of copyright system. So, preventive measures have been adopted to tackle the future complications in copyright sector.
NECESSARY PROPOSAL FOR REFORMATIONS:
The term ‘intellectual property’ is still at its nascent stage in our country and people are not aware of the concept and importance of intellectual property. But, in international arena, the concept and coverage of intellectual property is growing so fast than any other brunches of law. We have intellectual property laws but these laws are not sufficient to tackle the challenges that are imminent and threatening us.
Vested Property Act or Enemy Property Act
Vested Property known in Pakistan as ‘enemy property’ during 1965-71. On 6 September 1965, Pakistan proclaimed a state of emergency by the Defense of Pakistan Ordinance at the outbreak of war with India. In exercise of the powers conferred by the ordinance, the central government of Pakistan promulgated on the same day the Defense of Pakistan Rules. According to the rules, the Governor of East Pakistan passed an order on 3 December 1965 regarding enemy property, which included all lands or buildings and all moveable properties defined as per the Defense of Pakistan Rules, exclusive of those managed by the Court of Wards, and those in respect of which transaction for exchange as contemplated in the Transfer Property Act 1882 was made before 3 December 1965. Permission for such exchange was granted by the appropriate authority under the East Pakistan Disturbed Persons (Rehabilitation) Ordinance 1964. Properties not connected with any ‘enemy firm’ as defined in that rule, were to be vested in the deputy custodian of Enemy Property (Lands and Buildings) with effect from the date of this order. No person could transfer any land, building or movable property so vested in the deputy custodian, by sale, exchange, gift, will, mortgage, lease, sub-lease or any other manner or transfer land, building or movable property from this date.[5]
The main source of production in this part of the world is land. After the
birth of Pakistan on two nation theory, the rulers used land to oppress the
religious minorities. The promulgation of enemy property act gave legal basis
to use this weapon against religious minorities. All democratic parties and
people call it a black law and promise to abolish it, yet it has never been
done. The attitude of the government in power is disheartening not only to the
religious minorities but also the democratic and progressive force of the
country.
This Enemy Property Act is one of the cruelest laws which Bangladesh had
inherited from Pakistan Government. Although there were other laws which were
systematically employed during Pakistan period to persecute and discriminate
Hindu minorities, the Enemy Property Act was the most frequently used legal
procedures to evict and disinherit the Hindus from their lands, homesteads,
ancestral homes and shops.
The sufferings of minorities in Bangladesh have multiple dimensions such as
economic, political, constitutional and socio-cultural. Their sufferings have
multiplied due to the promulgation of the various black ordinances and laws in
the last fifty years during both Pakistan and Bangladesh period.
In Last March 1996 Professor Abul Barkat and Shafiq Uzzaman showed in a
seminar that the approximate number of families victimised under the enemy
property act. is 10, 48, 390 and the total area of land lost is not less than
10 lakh acres.
Government’s & Court’s Action:
The Ain O Salish Kendra (Law and Arbitration Centre), a Bangladeshi NGO, in its report, ‘Power, Safety and the Minorities: A Brief Report,’ in May 2000 stated:
“In 1999, about 29 cases of forceful occupation of land and property of the Hindu community have been reported in different newspapers. These include their homesteads, farmlands and religious places. Influential political forces and their goons have also occupied many of the properties listed as vested property. In 1999 in the Sunamgonj district out of 21,000 acres of vested property land 16,000 acres have been illegally occupied[6]; likewise in the Mymensingh district out of 29,722 acres of vested property land, 28,000 acres of land and 300 houses (vested property) have been occupied by one influential person[7]. Statistics as cited in the ASK Human Rights Report (p.193-194) show that in 1995, 72 per cent of all vested property was acquired by members of Bangladesh National Party (BNP); and in 1998, 44 per cent was acquired by the Awami League and 32 per cent by the BNP.”[8] Getting the facts is not easy but the calculation is that the total number of Hindu households affected by EPA/VPA (Enemy Property Act & Vested Property Act) is 1,048,390.
On 9 April 2001, the Parliament of Bangladesh passed the Vested Properties Return Act, 2001. However, this law has never been implemented nor there is a sign of returning the properties to bonafied owner (mostly Hindu minorities). The Vested Properties Return Act, 2001 is not only tokenism. It may well be the beginning of legalizing the omissions and commissions committed under a patently discriminatory law.
On November 6, 2008, the High Court division of the Supreme Court of Bangladesh delivered its Rule Nisi upon the Government on the Enemy Property (Continuance of Emergency Provision) (Repeal) Act 1974 and subsequently promulgated Arpita Sampatty Protapyan Ain 2001 and cicular, administrative orders.
It is time now and here to scrap the illegitimate, unfair, inhumane and
indecent Enemy Property Act. Let this shame be wiped out of our law books.
Let the present Government dismantle this uncivilized Apartheid Law from
Bangladesh. No one with an iota of conscience or sediments of human decency
should support the continuation of Enemy Prperty Act. Instead of preaching or
spreading gospel of religious revivalism or fundamentalism, let us speak and
write against the absurdity and illegitimacy of the Enemy Prperty Act.
Holding elections is not the only yardstick of measuring democracy or health of a society. If gross violation of the economic rights of the Hindu minority is a yardstick, oppression of the majority rules resting in Bangladesh. Any society, which claims it self to be civil and democratic, should have no place for such a discriminatory Act.
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[1] http://en.wikipedia.org/wiki/Property
[2] RERUM NOVARUM, Pope Leo XIII wrote
[3] http://legal-dictionary.thefreedictionary.com/property
[4] http://www.wipo.int/portal/index.html.en
[5] http://www.banglapedia.org/httpdocs/HT/V_0035.HTM
[6] (Bhorer Kagoj, May 17, 1999)
[7] (Bhorer Kagoj, May 12,1999)
[8] (Daily Star, May 26, 2000)