•  Enemy defines

The encyclopedia defines an “enemy” is a “relativist” term for an entity that is seen as forcefully adverse or threatening. The term is usually used within the greater context of “war”, to denote an opposing group and the individuals within as threats to one's own “national”, “ethic”, or political group. To individuals within the threatened group, the "enemy" concept is an amorphous personification of both a threat to one's collective social group, as well as a personal threat to oneself. The term "enemy" serves the social function of designating a particular entity as a threat.

•  Who became Enemy of Pakistan

It has been told earlier at section A of this article how the 2-nation theory was planted upon arrangement of committing several bloody quarrels between two greater religious communities of Hindus and Muslims in the then India. This created the baseline to be “enemy” to each other community, which was officiated by the division of India . Thus the Citizens of Hindustan (which is the ancient name of India ) became enemy of Pakistan . The name Hindustan means the country of Hindus. Clearly Hindustan slevels to ‘Hindu' and ‘stan' where the meaning of ‘stan' is a Hindi word, is place. Thus finally the Hindus became enemy of Pakistan . On the other hand the first war was broken between India and Pakistan in October 1947 while the acceptance of the offer of accession made by Maharaja Hari Singh by the Government of India that the state of Kashmir would become as a whole an integral part of India . The applicability of the very word “enemy” became reality through this warfare first time. The second Indo-Pakistani conflict (1965) was also fought over Kashmir that began on September 6, 1965 and was ended on September 22, 1965 . Then the “enemy” took its shape of permanency between India and Pakistan .

•  How and why the Enemy Property Act came into picture

While the war was broken out between Pakistan and India in 1995, Ordinance xxiii of 1965 in the title of “Defense of Pakistan Ordinance” was promulgated. The objectives of the ordinance, as clarified by the government of the then Pakistan , were providing special measures to ensure the security, the public safety, interest and the defense of Pakistan . Emergency was also proclaimed throughout the country since it was war threatened by India .

On September 09, 1965 , the government of Pakistan passed an executive order titled “Enemy Property (Custody and Regulation) Order II of 1965” under the provisions of Emergency powers and the “Defense of Pakistan Rules”. Through this promulgation all the large establishments including industries, trading centers, land properties, buildings, place of worship & cremetion etc. belonged to the Hindu community who were bracketed as abandoned were nationalized. The law was directed primarily against the property of the Hindus who had fled to India in fear of their lives and became Indian nationals by dint of 2-ntion theory. Thus the state was empowered to take their properties into custody, with the rationale that a Hindu who went to India was an enemy. Because the government did not seize properties of other religious minorities like Christians and Buddhists at that time and also at no time.

Despite the Indo-Pak war came to an end after the Tashkent Declaration, the Enemy Property Order II remained alive. Moreover, the then East Pakistan Government made an order in 1966 under Rule 161 in the name of “East Pakistan Enemy Property (Lands and Building) Administration and Disposal Order” of 1966. This further strengthened the Enemy Property (Custody and Regulation) Order II of 1965” to take into custody the properties of Hindus who migrated to India , or of Hindu people who were heirs or co-sharers.

As such, the Tashkent Declaration could help ceasefire the Indo-Pak war 1965, however could not bring an end of war situation between Pakistan and India due to the absence of a formal Peace Treaty. Thus, the “enemy relationship” prevailed between them and the “Enemy Property Act (EPA)” also remained alive & active.

Irrespective of partial or full family migration of Hindus from the then East Pakistan to India, it created panic among them due to the fact that the historical family ties that still remained whatsoever the relationship step, close blood relations or else. Because relatives of Indian citizens who migrated there from the then East Pakistan were still residing in the East Pakistan as its citizens. This relationship directly effected Hindus of this part due to the reason of most of the immovable properties won by joint family members or relatives already living in two countries.

There were debates why the Hindus residing in Pakistan should be effected by the “Enemy Property Act” though they are citizen of Pakistan , and how the citizens of a country could be its “enemy”. Thus, at one stage, the Supreme Court of Pakistan considering as it a complete political issue asked the Government of Pakistan to explain their viewpoint on the said act in 1968 [21 DLR (SC) page – 20]. Nevertheless, the Government of Pakistan did not feel to opine or clarify their position on the issue till their tenure ended in this part through the emergence of Bangladesh .

On the other hand, the Pakistan state emergency declared in 1965 was withdrawn on 16 February 1969 while it was also expected that with this withdrawal of emergency, the Enemy Property Law should no more remain valid. In addition, on the very day of the lifting of Emergency, the Government of Pakistan promulgated a new Ordinance named the Enemy Property (Continuance of Emergency Provision) Ordinance 1969 (Ordinance No. I of 1969).

In the meanwhile, the movement for the independence of Bangladesh got momentum and huge turmoil had been ongoing everyday in the then East Pakistan . Field Martial Ayub Khan was descended through mass upsurge and handed over power to the Pakistan Army Chief General Yahya Khan who promulgated Martial Law on 25 March 1969 and cancelled the then existing constitution of Pakistan on April 1, 1969. Notwithstanding cancellation of the constitution, in order to prevail the Enemy Property Ordinance, a new Ordinance was incorporated retro-effective from March 25, 1969 . Thus the most discriminatory law against the Hindus in this part remained alive and active till the formal declaration of Bangladesh on March 26, 1971 while the war of liberation came into the real field.

•  How Enemy Property Act turned to Vested Property Act

Though the declaration of independence came on March 26, 1971 , the proclamation of independence and formation of a provisional government of Bangladesh took place on April 10, 1971 in the Mujibnagar – the temporary capital of the newly borne country at its time of calamity. On the same day the order in the name of “Laws of Continuance Enforcement Order, 1971” was promulgated purporting to keep in force all the Pakistani laws that were in force in the then East Pakistan till March 25, 1971. This means the Ordinance No. I of 1969, which did not fit at all to the spirit of proclamation of independence of Bangladesh , automatically remained in effect in the newly borne country. The people of Bangladesh of all religions and communities established their country through a bloody war of independence against Pakistan . Thus in no way Bangladesh could be a successor of Pakistan and / or any of its laws – black or white whatsoever could be in force in effect. However, unfortunately the successor-ship became an integral part of “Laws of Continuance Enforcement Order, 1971” and that might be due to the prevailing emergency situation of war of independence. But that was not the end. Immediate after the war was over and while it became an independent country, Government of Bangladesh on March 26, 1972 enforced the “Vesting of Property and Assets Order, 1972” through the Order No. 29 of 1972. This order brought together the properties left behind by the Pakistanis in Bangladesh and the erstwhile enemy properties of Pakistan to a single category. Nevertheless, the Government of Bangladesh on March 23, 1974 passed the Enemy Property (Continuance of) Emergency Provisions (Repeal) Act, Act XLV of 1974, repealing the Ordinance I of 1969. The irony is that in spite of the fact of repealing Ordinance I of 1969 (Exhibit-II) all enemy properties and firms that 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”. Also at the same time, the Government of Bangladesh enacted another law in the name of “Vested and Non-resident Property (Administration) Act” (Act XLVI of 1974). The purpose of enacting this act was to provide the management of certain properties and assets of the persons who are non-residents of Bangladesh or had acquired foreign nationality after the independence. Despite the fact that the principal aim of this act was to identify and to take over the properties of those residents who left Bangladesh during and/or immediate after the independence and/or took foreign citizenship, this (Act XLVI of 1974) was also widely used in practical against the Hindus in Bangladesh who had no connection or relation with Pakistan for purely valid and obvious reasons. Unfortunately all these happened during the period of a secularist government.

Then, after the assassination of the founder of Bangladesh Sheikh Mujibur Rahman in August 1975, the military dictators took over the charges of the country. They chalked out plots of several dimensions for the purpose of strengthening the political base of certain vested groups. They also took initiatives to revive the principles alias ideology of Pakistan . On their way, they firstly accelerated the process of Islamization eliminating the spirit of Bengali nationalism and secularism that were established through the war of independence in 1971. Secondly the military dictators deliberately created panic and insecurity among around 10 million Hindus at that time in Bangladesh due to the reason that they were considered the bridge of secularism and Bengali nationalism, culture and heritage. Thirdly the military junta wanted establishing a strong foothold for establishing a pro-Pakistani and cantonment-based power mechanism starting from the local level power structure to the top through providing them the right to acquire vested properties in exchange for collaboration with the Government. Fourthly, the military ruler deliberately allured a section of economically rising strata of the society all of whom belong to the Muslim community in the procurement of the property of the emigrant Hindus rather than involving them in the process of socio-political development of the country. In doing this, the objectives of the military dictator could be accomplished to a wider spectrum. Because getting a chance of acquiring real estate that is the prime resource in a densely populated country like Bangladesh is obviously great opportunity.

To materialize plots of grabbing the lands of Hindus by Muslims, in November 1976, the Government of Bangladesh repealed previous Act No. XLVI of 1974 by Ordinance XCII of 1976 with retro-effect from the date of enactment amended of the Act XCIII of 1976. This empowered the Government not only to administer and manage the vested properties, but also to dispose of transferring the same on long-term basis. All Acts prior to Ordinance XCIII of 1976 including Ordinance I of 1969 absolutely empowered the Government to become the only custodian and to preserve enemy property in contemplation of arrangements to be made in the conclusion of peace with India . Nevertheless, the Ordinance XCII of 1976 enabled the Government to be the owner of vested properties instead of being protector of the same. This intruded the government in taking the ownership directly violating the laws pertaining to the right of private ownership.

One military dictator Gen. Ziaur Rahman departed then the other Gen. Hossain Mohammad Ershad came into the picture as the Chief Martial Law Administrator cum President of the country. He announced in a conference with the representatives of the Hindus in 1984 that henceforth no property newly would be declared as vested property and the properties already enlisted as vested would be no more disposed off. General Ershad also pledged that the enlisted property would be managed according to the existing Hindu Law of Inheritance of properties unless there was any legal bar. The pledge moreover included that no deity property, meaning the property under Hindu temples and other likewise institutions, property dedicated by Hindu families to the Brahmins and the property belonging to the cremation places of Hindus would not be disposed off or leased without the concurrence of the Government. Through this circular the Deputy Commissioners (District Administrators) were directed implementing the presidential pledge effective from June 21, 1990 in few selected sample unions (the lowest level of local government structure in Bangladesh ). Among such 161 sample respondents, the total number of instances of dispossession related to the Enemy or Vested Property Act (VPA) during the year 1965-1995 was 179. It is important to point out that over 15% of the total instances (i.e. 27 out of 179) took place during the 8-year period of 1982-90, which was the regime of the declarer of pledges, and circulars stated hereinabove. This proves that those were only of declaratory in nature, but not in practice. In addition, a large group of effected Hindu families and persons were not found included during the filed exploration while the Vested Property list was prepared earlier. Thus, the respondents from this omitted group were enjoying their properties having no hindrance from the Government till late 1980s and were paying relevant taxes to the Government. Nonetheless, all on a sudden in early 1990s, these families and people were informed since their properties belonged to the category of ‘Vested Property', no taxes could be received from them against those properties. But interestingly the Government did not serve any formal notice to the owners of this category of property.

In addition, these properties were also not leased out. As such, absence of clear ideas among the public regarding the vested properties, incompleteness in the rules and lack of directions and policies have made the issue further complicated and has created confusion amongst the public. However, the Government was active still to identify that such strange inclusion of property in the vested category, commonly known as ‘red marked' properties, started taking place since late 1980s and was started practicing across the country. Thus, it was difficult for the district administration throughout Bangladesh to violate the Government circulars at a time without bringing it to the knowledge of the then Government and/or instructions from some higher authority.

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