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.
The Proclamation of Independence and formation of the provisional Government of Bangladesh took place at Mujibnagar on April 10, 1971. And the Laws Continuance Enforcement Order, 1971 was promulgated on the same date to keep in force all the Pakistani laws which were in force in the then East Pakistan on or before 25th March, 1971. The Ordinance of 1969, which does not fit with the spirit of Proclamation of Independence of Bangladesh, Automatically remained ineffective in the new state, Bangladesh was not a successor state of Pakistan. On the contrary Bangladesh Established its independence by waging war against Pakistan. Immediately after liberation, the Bangladesh Government enacted the Bangladesh Vesting of Property and Assets Order, 1972 on 26th March, 1972. By this Order, the properties left by Pakistanis and erstwhile ‘enemy properties’ were combined in a single category. However, in 1974 Parliament passed the Enemy Property (Continuance of Emergency Provisions) (Repeal) Act, 1974. But despite repealing the Ordinance of 1969, all the enemy properties and firms which were vested with the custodian of Enemy property of the then East Pakistan remained vested in the Government of Bangladesh under the banner of vested property. At the same time Government also enacted another law namely the Vested and Non-Resident Property (Administration) Act, 1974. Though the aim of this Act was to identify and take over the properties of those residents who left Bangladesh during/immediately after liberation was and/or took foreign citizenship, in practice this Act was also widely used against Hindu minorities who had no connection with Pakistan.
Immediately after liberation, the Government of Bangladesh enforced on March 26, 1972, the Bangladesh Vesting of Property and Assets Order, 1972 (Order 29 of 1972) By this order, the properties left behind by the Pakistanis and the erstwhile enemy properties were combined to a single category. However, in 1974 the Government of Bangladesh passed the Enemy Property (Continuance of) Emergency Provisions (Repeal) Act, Act XLV of 1974, repealing Ordinance I of 1969. But despite the fact of repealing Ordinance I of 1969 all enemy properties and firms which were vested with the custodian of enemy property in the then East Pakistan remained vested in the Government of Bangladesh under the banner of vested property. At the some time, Government also enacted another law namely the Vested and Non-resident Property (Administration) Act (Act XLVI) of 1974. This act was enacted to provide the management of certain properties and assets of the persons who are non-residents of Bangladesh or have acquired a foreign nationality. Though the principal aim of the Act XLVI of 1974 was to identify and take over the properties of those residents who left Bangladesh during/immediately after liberation war and/or took foreign citizenship, in practice this Act XLVI of 1974 was also widely used against Hindu minorities who had no connection with Pakistan for quite valid and obvious reasons.
In November 1976, the Government of Bangladesh repealed previous Act No. XLVI of 1974 by Ordinance XCII of 1976 and with a retrospective effect from the date of enactment amended the Act XCIII of 1976 empowered the Government not only to administer and manage the vested properties, but also to dispose of a transfer the same on long term basis. All the Acts prior to Ordinance XCIII of 1976 (including Ordinance I of 1969 empowered the Government only to become the custodian and to preserve enemy property in contemplation of arrangements to be made in the conclusion of peace with India. But the Ordinance XCII of 1976 made the Government owner of vested properties instead of protector of the same. Thus, the Government encroached the right of ownership, which is a gross violation of the existing laws pertaining to the right to private ownership. These steps undertaken by the military dictator had several dimensions all related to the strengthening of the political-base of the vested groups. First the military rulers wanted to accelerate the process of Islamization, and eliminate the spirit of Bengali nationalism built-upon secularism and developed and rooted through the war of independence of 1971. Second, the military dictators wanted to create a feeling of panic and insecurity among the 9.7 million Hindus (census 1974) as they were considered to be the bridge of Bengali nationalism, culture and spirit. Third the military wanted to establish a strong foothold of the ruling Government and the power mechanism with the local level power structure by providing them the right to acquire vested properties in exchange for collaboration with the Government. Fourth, the military ruler wanted to divert the attention of the economically rising strata of the society from the current socio-political development and by engaging them in the procurement of the property of the emigrant Hindus. It must be mentioned here that in a densely populated country like Bangladesh, getting a chance of acquiring real estate- the prime resource, is considered a great opportunity. All the above stated objectives of the military dictator were accomplished to a great extent.
In 1984 the then president of Bangladesh Lt General Hossain Mohammad Ershad and Chief Martial Law Administrator announced in a conference with the representatives of the Hindu community that henceforth no new property would be declared as vested property and the properties already enlisted as vested would not be disposed off any more. He also pledged that unless there was any legal bar, the enlisted property would be managed in accordance with the existing Hindu Law of Inheritance. Furthermore the pledge included the declaration that no deity property (i.e. property under Hindu temples and other institutions), property dedicated by Hindu families to Brahmins and the property belonging to the Hindu cremation places would not be disposed off or leased out without the concurrence of the Government. The circular directed the Deputy Commissioners to implement the presidential pledge with effect from 21-6-1990 in the sample unions. The total instances of dispossession related to the Enemy or Vested Property Act among 161 sample respondents during the year 1965-1995 were 179. Over 15 per cent of the total instances that took place during 1982-90 period proved that the above stated pledges and circulars were of declaratory nature only. Furthermore, during the field exploration, a big category of affected persons was found to have not been included in the Vested Property list prepared earlier. The respondents of this category were enjoying their property without any hindrance from the Government till late 1980’s and were paying relevant taxes to the Government. However, in early 1990’s, they were informed that as their properties belong to the category of ‘Vested Property’, no taxes could be received from them against those properties. From the Government side, no notice was served to the owners of this category of property. Moreover, these properties were also not leased out. It has been identified that such strange inclusion of property in the vested category, commonly known as ‘red marked’ properties, started taking place since late 1980’s and was practiced all over the country. For obvious reasons, it would have been difficult for the district administration all over Bangladesh to violate the Government circulars at a time without proper knowledge of the then Government and/or instructions from the some.”
Two paradoxes related to the law of vested enemy properties
“Paradox-I: It may be recalled from my previous analyses that the term ‘enemy’ here related has its root in the Defense of Pakistan Rule of 1965 and in the East Pakistan Enemy Property (Lands and Buildings) Administration and Disposal Order of 1966.
On March 23, 1974 the Government of Bangladesh passed two acts in this connection. The first of these two repealed (abolished) the relevant “Enemy Property Ordinance” of Pakistan and vested the properties already enlisted as ‘enemy properties’ in the Government i.e., the management and administration of previous ‘enemy properties’ were entrusted with the government of Bangladesh. The second act, on the other hand, brought the properties of non-residents under the vested category. The second act created scope for fresh enlistment of some properties, including the properties of religious minorities residing in India (no matter whether they were residing on permanent or temporary basis), though this act was not intended exclusively for the religious minorities.
The analysis presented above implies that (a) legally, there can be no new enlistment of properties under the enemy/vested/non-resident category after March 23, 1974. But in spite of this fact, fresh enlistment is still continuing through various government circulars issued from time to time thereafter, (b) the government became the owner of already vested (enemy) properties which is questionable from legal perspective.
Paradox-2: Bangladesh is supposed to be at war with India since 1965: The People’s Republic of Bangladesh is neither a part nor a successor of Pakistan. It severed its ties with Pakistan through its heroic liberation struggle and achieved independence 29 years back, neither Bangladesh nor India waged/declared war against each other. So logically the enemy of Pakistan (i.e. India) cannot be an enemy of Bangladesh. But by virtue of the continuance enforcement order promulgated on 10th of April 1971 all the laws operative in the then Pakistan on or before March 25, 1971 remained valid in the People’s Republic of Bangladesh. Though the Enemy Property Act of Pakistan was repealed/amended through various acts/ordinances enacted or promulgated after the Independence of Bangladesh, no government of Bangladesh so far repealed the effectiveness of the Defense of Pakistan Ordinance (XXIII of 1965) of 1965. As a result Bangladesh still remains at a state of war with India. Unless the Enemy/Vested Property Acts are abolished, the harassment of Hindu citizens of Bangladesh would be a never ending process.