VPA: The profile of a black law

As citizens of an independent and sovereign state, we have the authority to make our own laws. We also have the authority to nullify any law which we think is against our interests. Unfortunately, we have been unable to invalidate such a law which is called the Vested and Non-Resident Property (Administration) Act, 1974. Because of this black law, many of us have lost their lawfully earned properties. Their only fault was that their property was owned by a Hindu person during the period of 1965-1969. Now is the time to get rid of this black law. The Vested Property Act is a controversial law in Bangladesh that allowed the government to confiscate property from individuals it deemed as an enemy of the state. Before the independence of Bangladesh in 1971, it was known as the Enemy Property Act and is still referred to as such in common parlance. On September 6, 1965, Pakistan proclaimed a state of emergency under the Defence 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 Defence of Pakistan Rules. Under the rules, the Governor of East Pakistan passed an Order on December 03, 1965 regarding enemy property by which the property of the minorities was declared "Enemy Property". After independence from Pakistan, the President of Bangladesh, in Order No. 29 of 1972, changed the nomenclature of the law from the Enemy Properties Act (EPA) to the Vested Property Act. (VPA) Clause 2 of the Order further stated: "Nothing contained in this Order shall be called in [to] question in any court". The Order of the President was subsequently not subject to any judicial review. The circular of May 23, 1977 by the Ministry of Lands of the Government of Bangladesh empowered the Tehsildars to find out the lands suitable for enlisting as enemy property. Since there was a provision for rewarding the successful Tehsildars they felt encouraged to bring many undisputed properties of the Hindus under this list. Hindu peasants were thus left with no alternative but to migrate, as they could not expect any remedy from the additional deputy commissioner, the subdivisional officer, or the circle officer who, like the Tehsildar, were similarly entrusted with the responsibility and similarly promised reward. Many Hindus sold their lands to Muslims after 1970 as usual. In many cases the Tehsildars enlisted any land as vested property only, if it was owned by a Hindu during the period of 1965-1969 even if that owner never left East Pakistan or Bangladesh and even if that land was owned by a Muslim at the time of enlistment. Thus, a large number of Muslims have lost their lawfully earned land and could not find any legal way to get it back. The Sayeem government cancelled the provision for selling vested properties by the subdivisional committee. The government of President Ershad passed an order for selling the vested properties (land and buildings), 'the dilapidated and kutcha houses' not required by the government, to the existing lessees and if the lessees were unwilling or unable to purchase, through public auction. Subsequently, President Ershad passed an order for selling all vested properties by December 1983, but on an appeal made to him by a conference of the representatives of the Hindu community on July 31, 1984, General Ershad scrapped the order and also stopped the enlisting of new vested properties. He further offered that vested properties would be governed according to the Hindu law of inheritance. The policy of the government of Begum Khaleda Zia was to sell vested properties to those occupants who could pay 10 per cent higher than the prevailing market price and not sell any vested property below the market price. Moreover, the government of Begum Khaleda Zia passed an order for the release of the vested property in land up to eight bighas outside the 'Pourasabha'. According to a report of the Land Ministry in October, 2004, submitted to a parliamentary standing committee, "445,726 acres of vested property out of 643,140 acres ended up in encroachment across the country. Grabbers gabbled up more than two thirds of vested property as the government lost control over the lands as the custodian and its longtime dithering blocked anti-encroachment efforts." It may be recalled that "Transfer of Property Act" is ignored in case of the Hindus by keeping the Enemy Property Act as The Vested Property Act. So the property-based crisis deepened and disturbed society at the roots. Justice Debesh Bhattacharjya (1914-2004) was the founder President of Bangladesh Enemy Property Act Repeal Committee and some of his verdicts have been historically precedent-setting judgments. Earlier, Justice Abdur Rahman Choudhury and Justice ATM Afzal in their judgements (31 DLR, p 343) opined: "Such high handedness, if over- looked and allowed to go unchecked, might undermine confidence of the citizens in the administration and bring a slur on the fair name of the Government." Former Chief Justice Syed Kamal Uddin Hossain also opined: "The laws on abandoned property, non-resident's property and the like, although enacted as temporary laws to meet peculiar and emergency situations, had been continuing for indefinite time in one form or another causing untold sufferings to honest citizens and burdening the courts with unnecessary cases." Here are two judgments of the High Court: 1) Custodian of enemy property, treating a property as being a vested property without lawful basis for treating it as vested property and leasing out the same to another, is unauthorised and illegal. [31 D L R (HR) 359]. 2) It appears from order sheet of vested Property Miscellaneous Case that even before the property in question was declared as vested property, the third party applied for lease and succeeded in obtaining a favourable report from local Tahsilder. Thereafter, it was apparent from the records that the Tahsilder and the interested party acted in collusion with each other in securing the impugned order and throwing the real owner out of their possession. It is our considered opinion; it would be just to award exemplary cost against the Tahsilder and Sona Meah, who are responsible for harassing a helpless widow and her son and depriving them of their lawful right to enjoy their own property.[31 D L R (HR) 343]. Here is an another Judgment of the Appellate Division (civil) dated August 14, 2004 on Saju Hossain Vs Bangladesh (58DLR (AD) (2006) Enemy Property (continuance of Emergency Provisions) Ordinance (1of 1969) Section 2. " Since the law of enemy property itself died with the repeal Ordinance No 1 of 1969 on March 23, 1974 no further vested property case can be started thereafter on the basis of the law which is already dead." So, we need not to produce more evidences, rather looking forward the needful action from the non-party caretaker government led by Dr Fakhruddin Ahmed. It is needless to say that the Vested Property Act is a law against the spirit of the Constitution of Bangladesh. The Act has violated the fundamental rights of the people guaranteed in the Constitution of Bangladesh: viz. Article27, that states, "All citizens are equal before the law and are entitled to equal protection of law." Article 28 (1), "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, or place of birth.", Article 29(1), "There shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic" and Article 29(2), "No citizen shall, on grounds only of religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect of, any employment or office in the service of the Republic." Part II of the Constitution: "Fundamental Principles of State Policy" Article 11 states! "The Republic shall be democracy in which fundamental human rights and freedoms and respect for dignity and worth of the human person shall be guaranteed*** [, and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured]." "This is a manmade problem contrary to the spirit of humanity. We have to get rid of this uncivilised state of affairs to establish a civilised society. Otherwise, we have to face a bigger historic catastrophe," Professor Abdul Barkat, who teaches economics, insists in his research paper, 'Deprivation of affected million families: Living with Vested Property in Bangladesh'. Some 1.2 million or 44 per cent of the 2.7 million Hindu households in the country were affected by the Enemy Property Act 1965 and its post-independence version, the Vested Property Act 1974. Barkat points out that 53 per cent of the family displacement and 74 per cent of the land grabbing occurred before the country's independence in 1971 after the then Pakistan government, following the India-Pakistan War in 1965, introduced the Enemy Property (Custody and Registration) Order II, which was widely criticised as a tool for appropriating the lands of the minority population. In the above mentioned research papers, the researchers were reluctant to find out the plight of the Muslims who have lost their valuable lands because of this Vested Property Act 1974. The government led by Sheikh Hasina annulled this Act in 2001. It wanted to return the 'vested' property to their original owners. The move was criticised as a 'political tokenism' aimed to appease minority voters, prior to the general elections. But in reality, any piece of land that was owned by a Hindu person during the period of 1965-1969 has been listed as a vested property till date. The Tehsildars and other officers of the land administration did not care about whether the Hindu owner did flee to India during 1965-1969 or not. So many Muslim land owners are now suffering from the irresponsible activities of those land officials, but the main reason of their suffering is the black law called the Vested Property Act 1974. Political elements, locally influential people in collaboration with the land administration, trickery by land officials and employees themselves, use of force and crookedness, fake documentation, contracted farmers and death or exile of original owners have contributed to the phenomenon, according to Professor Barkat's study covering six districts across the country. The Professor does not think the land grab was a problem of 'Hindu versus Muslim' polarisation. "Criminals do not bother whether a piece of land is owned by a Hindu, a Muslim or a Santal and they simply loot property. The problem highlights the 'inability' and 'weaknesses' of the majority people to raise protests though they are non-communal." Now is the time to get rid of that black law. We hope that the present government will free us from such a black law. Many people have been waiting for a long time to see the victory of justice over the law. The government of Bangladesh has been playing 'hide-and-seek' game with the victims of that black law which is a violation of human rights. The writer can be reached at email: shapla23@yahoo.com