Law Watch
Enemy in my own country
Nothing traumatises a man more than the piercing agony of manifest injustice. The abhorrent apparition of the enemy property laws has been incessantly afflicting the minority community like the sword of Damocles for the last 50 years. Recent statistics shows that 43 percent of total Hindu population has been badly affected by this monster. These inherently discriminatory laws accompanied by myriad discriminatory treatments by state- apparatus have caused a massive migration of Hindu community amounting to approximately 8.1 million from 1964 to 2007 [Living With Vested Property By Abul Barkat]. The Apex court therefore has urged, “Government should act in the benefit of the citizens not as the enemy of the citizens” [MD Hossain v. ADC 31 BLD 551].
The tragic history of Machiavellian exploitation of the minority community by the enemy property laws can be traced back to the Defense of Pakistan Ordinance 1965 promulgated in the wake of military escalation between India and Pakistan on the 6th September 1965. Under the aforesaid Ordinance, Defense of Pakistan Rules 1965 was framed. When emergency proclaimed on 6th September 1965 was withdrawn in 1969, the president of Pakistan promulgated Enemy Property (Continuance of Emergency Provisions) Ordinance 1969 [Ordinance No- I of 1969] continuing certain rules of Defense of Pakistan Rules 1965. After the independence of Bangladesh the parliament enacted The Enemy Property (Continuance of Emergency Provisions) (Repeal) Act 1974 [Act No- XLV of 1974] repealing the aforesaid Ordinance No- I of 1969 and with that enactment all enemy property vested in the government. Up to this enactment government was only entitled to the custody of the enemy properties but with the promulgation of the Ordinance No-XCIII of 1976 government transgressed upon the ownership of the enemy property.
International law approves the expropriation of property owned by aliens. But this expropriation must be for overriding public purposes and there shall be non-discrimination in the treatment of the aliens. After the friendship treaty with India in 1972 India has ceased to be enemy. Therefore any such expropriation of properties owned by Indian residents for security perspective does not serve any public purpose and is connately discriminatory.
A question arises whether The Ordinance No-I of 1969 has ceased to operate in Bangladesh due to the proclamation of independence accompanied by The Laws Continuance Enforcement Order 1971 which provides that all laws in force in East Pakistan on 25-03-1971 shall operate in Bangladesh subject to the proclamation of independence and the sovereign status of Bangladesh. The Proclamation of Independence and Laws Continuance Enforcement Order 1971 are the guiding star in the light of which the application of all Pakistani laws in Bangladesh shall be considered [Haji Azam v. Singleton Binda 27 DLR 583]. Therefore both legally and logically the aforesaid Ordinance No-I of 1969, off-shoot of India- Pakistan rivalry, should cease to operate in Bangladesh which is not successor of Pakistan. But the Apex court has approved the operation of this Ordinance in Bangladesh [Dulichand Omraolal v. Bangladesh 33 DLR (AD) 30].
The motto of the enemy property laws was that the control of the enemy properties should be with the government during the state of war so that the benefit out of those properties cannot enrich the enemy. Before any property is treated as enemy property, the authority must prove that the owner concerned migrated to India before the enemy property laws came into operation [Indu Moti v. ADC 50 DLR 444]. Mere claim of the custodian does not make a property enemy one [Laxmi Kanta Roy vs. UNO 46 DLR 136].The ownership of dedicated property goes to the Deity. Therefore the Apex court has observed that unless the Deity migrated to India during the state of war the property belonging to the Deity cannot be declared enemy property [Laxmi Janardhan Jew Thakur v. Bangladesh 50 DLR 273].
After the termination of the state of war no property can be declared enemy property. The Apex court has observed the revocation of state of war is a political question to be decided by the executive [Monsur Ali v. Ardhendu Shekhar 21 DLR]. In the absence of any formal declaration terminating the state of war, mere withdrawal of emergency in 1969 does not amount to the termination of the state of war [Abdul Majid v. East Pakistan 27 DLR 355]. But in a later decision the Apex court has observed that the state of war terminated on the withdrawal of emergency in 1969 [Omraolal Case 33 DLR (AD) 30].
The Apex court has observed in the Dulichand Omraolal Case that a property becomes enemy property by the operation of law and subsequent taking over of such property is permissible. With respect their lordship has made a serious blunder in the interpretation of Rule- 182 of the Defense of Pakistan Rules 1965 which clearly states a custodian acquires the right to take over a property only if there has been a previous order of vesting by the authority. The HCD has detected the blunder committed by the AD and observed, “what their lordship wanted to imply in the Omraolal Case is that if during the continuance of state of war there had been an order of vesting of a property and actual steps to take over such property had not been taken at that time, subsequent taking over of such property is permissible” [Sunil Kumar Ghose v. State 39 DLR 377]. However the Apex court has approved the subsequent taking over of the enemy property but the whole position changed after the enactment of Act No- XLV of 1974 which abrogated the Ordinance No-I of 1969. Therefore no such enemy property can be taken over by the state after the enactment of this repealing Act No-XLV of 1974 [Saju Hossain v. Bangladesh 58DLR (AD) 177]. The August court has clearly stated, “Enemy Property Laws died with the repeal of Ordinance No- I of 1969 on 23-03-1974 and thereafter no vested property case could be started”.
The writer is a student of Law, University of Dhaka.
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