Our Politics of Dispossession

Naeem Mohaiemen

Amdadul Huq/ Driknews

When talking about human rights, complacent analysis comforts us with nostalgic notions like: "Bangalis have always been egalitarian/secular/(insert favourite value)." But in the context of life in a subcontinent with too many people fighting for too few resources, legal infrastructure is far more important than attitudes and social norms.

Within this context, there are certain laws that stubbornly stay in place. In some cases, this is because political parties consider them to be useful future tools (Special Powers Act). In other cases, it is because questions of patriotism and security are considered off limits to debate (anti-terrorism laws).

Then we come to a special case like the Vested or Enemy Property Act (VPA/EPA), which is always criticised in public forums, yet stays on the books because so many powerful forces have benefited from institutionalised land-grabbing from Hindu citizens.

When confronted with the continuing decline of Bangladesh's Hindu population, many respond that it is a "question of loyalty." In this sinister rhetoric, Hindus are leaving because they fail to integrate themselves with a "Bangladeshi" citizenship concept. This helps foster an attitude of permanent "outsider" status for the nation's minority communities, further weakening the Bangladeshi state's commitment to diversity.

What is largely missing in this discussion is quantitative analysis of the economic condition of the Hindu community, particularly in the context of VPA. Economist Professor Abul Barakat of Dhaka University has been looking at this area of analysis since the 1990s. Barakat and a large team of researchers have been applying the methods and tools of economic, statistics and survey research to compile the most comprehensive picture of Hindu community status since independence of Bangladesh, especially as it has been impacted by the black law known as Enemy Property Act, later Vested Property Act.

This work started with a 1997 book, Political Economy of Vested Property Act in Rural Bangladesh, and continued through the 2000 book An Inquiry into Causes and Consequences of Deprivation of Hindu Minorities in Bangladesh through the Vested Property Act. These two in-depth studies generated a national debate and resulted in the repeal of the Vested Property Act and passing of the Vested Property Repeal (Return) Act of 2001.

Shafiq Islam/ Driknews

Thus, we consider the most significant development in 2008 in the area of minority rights was the publication of Professor Barakat's new book, which is the result of a mammoth, multi-year study looking at the impact of VPA on Hindu property from 1965-2007. This study resulted in the February publication of Living With Vested Property. Professor Barakat was instrumental in the insertion of references to this issue in the Awami League's election manifesto. In view of the likely future legal, economic, political and social impact of his research, an in-depth look is required.

The missing Hindus
In order to quantify the total loss of Hindu population through forced migration, Barakat's study looks at official population statistics as well as Tahsil office records. Based on this analysis, Barakat and his team have concluded that the Hindu population, as share of total population, has dropped from 18% in 1961 to 12% in 1981, and finally to 9% in 2001.

The rate of decline was most pronounced in six districts: Chandpur, Feni, Jamalpur, Kishoreganj, Kushtia, Pabna and Narayanganj. In the districts which historically had high Hindu population (Khulna, Dinajpur, Faridpur, Sunamganj, Jhenaidah, Barisal), the average decline over forty years was 12%.

Looking at the absolute number of Hindu population over forty years is not enough to calculate how many of them have left the country. It is also necessary to factor in birth rates. Looking at historic data of lower birth rates among Hindus as compared to Muslims (something that, ironically, played into scare-mongering by the Hindu right during Partition riots), the study assumed 13% lower fertility rate for Hindus compared to Muslims.

Factoring this in, the Hindu population should have been 11.4 million in 1971, but it was reported as 9.6 million. In 1981 it should have been 14.3 million, but it was 10.6 million; in 1991 it should have been 16.5 million, it was 11.2 million; finally in 2001 it should have been 19.5 million, but it was 11.4 million. Therefore, Barakat estimates the total missing Hindu population from 1964-2001 as 8.1 million, i.e. 218,819 missing Hindus each year.

While there are many factors that may have contributed to this ongoing hemorrhaging of the Hindu population, including small-scale communal riots in the 1960s and again in the 1980s and 2001, and lack of opportunities in work and business. But above all else, the research team argues that the Vested Property Act is the singular factor that leads to minority departure from the country.

Stubborn persistence of Vested Property Act
The transformation of "Enemy" to "Vested" is a circuitous one, and poorly understood outside the legal profession. What was first created to encourage and solidify the facts of the first Partition, has been systematically enhanced to become a tool of forced migration through the decades. The two major periods of forced migration of Hindu population from East Bengal were in 1947, and then again in 1965. But as we see, the laws that were formed around these periods continued to be used up to 2006, and beyond.

As over 2 million Hindus left for India, the new Pakistan government passed the "Requisition of Property Act" (Act XIII of 1948), which was supposed to last for three years. Giving the power for takeover of abandoned property "needful for the purposes of the state," this act has continued and evolved into something abused by citizens and state.

In the year of expiry, a new law "East Bengal Evacuees Act" (1951) was passed, that defined any resident of East Bengal who left for India due to "communal disturbance or fear thereof" as an "evacuee" whose land could be appropriated.

In 1964, the Hazrat Bal incident in Kashmir resulted in new communal disturbances in East Pakistan, which then led to "East Pakistan Disturbed Persons Rehabilitation Ordinance" (1964). This new ordinance restricted transfer of "immovable property of minority community" without permission of the authorities. This, in effect, meant that any Hindu person wishing to leave East Bengal for any reason would now face significant barriers to even the lawful sale of their property -- they would have no choice but to "abandon" their land.

So far, the laws passed were stop-gap measures, with the mass exodus of 1948 and the communal disturbance of 1964 as the stated rationale. The laws were presented as simply ratifying the ground reality. But the 1965 India-Pakistan war brought a frightening new dimension, with the equation of Hindu-Muslim/India-Pakistan/Enemy-Friend now being in the public space. The war ended in only 17 days, after the Tashkent Declaration, but the "Enemy Property Order" (1965) would continue for decades. The signal importance of this law, which continued the trajectory of various ordinances since 1947, is shown by the manner in which it has survived each change of governance. Pakistan was under a military state of emergency from 1965 to 1969. But on the day the emergency was lifted, the government passed "Enemy Property (Continuance of Emergency Provisions) Ordinance" (Ordinance 1 of 1969). Again, following the 1971 liberation of Bangladesh, this law miraculously survived via "Laws of Continuance Enforcement Order" (1971).

In 1972, "Bangladesh Vesting of Property and Assets Order" merged the abandoned property of those who had left for Pakistan with those who had left for India. This was further solidified in "Vested and Non-Resident Property Act" of 1974. This new development provided useful obfuscation and political cover. The newly independent nation's mood towards Pakistan was naturally hostile, and, therefore, the idea of seizing land abandoned by "Pakistanis" or "Biharis" was popular. However, as Barakat has shown, the vast majority of land appropriated under this act, as with previous versions, was and continues to be Hindu property. On March 23, 1974, the High Court ruled that no further property could be enlisted as Vested Property. However, this ruling continued to be ignored in practice for the next three decades.

Shahadat Parvez/ Driknews

As a result of the publication of Barakat's first two studies, and major campaigning around this issue, the 22nd session of the National Parliament passed the "Vested Property Return Act 2001." While this law was a milestone in beginning the return of Hindu owned property to their rightful owners, there were several key flaws: The act covered only land vested up to February 1969. This meant all Hindu land appropriated from 1969 to 2001 (and beyond) was not covered by this act. If the land had been permanently transferred to statutory or other organisation, and return of land was impossible, there was no provision for financial compensation. The original owner or heir is required to have "continuously" resided in Bangladesh, an absurd clause that allows many legal claimants to be excluded. The original owner also had to submit claims within 90 days of publication of the list of returnable properties. Finally, Hindu women heirs were excluded from inheritance in case of death of male owners, a convenient "accommodation" to "Hindu religious personal law."

In November 2002, the new alliance government passed an amendment to the 2001 Act, which essentially gutted all enforcing power. Especially harmful was the clause that gave the government "unlimited time" in which to publish the list and enforce return of property. Since the passage of this amendment, not a single list has been published, nor any return process initiated in the last six years.

Quantification of impact
As part of the multi-year study that led to Professor Barakat and his team's new book, the following data collection instruments were used: primary data via panel studies of 16 districts, follow-up study on households surveyed in the 1997 study, Population Census, Land Survey, Bangladesh Bureau of Statistics logs, Tahsil and Thana land revenue records, etc. Below are some key findings of this research:

Kafkaesque legal nightmare
In the absence of a permanent legal solution to the issue of Enemy/Vested Property Act, individual plaintiffs suffer unimaginable hardship and legal delay in attempting to retrieve their land. In a majority of cases, the legal process itself bankrupts the Hindu family, while the land-grabbers, with collusion of the government land office, and usually with backing of the political party in power, maintain their decades long grip on the land. In an example of the exhausting time-span of such legal cases, we can look at Mehir Chandra Bhomick vs District Commissioner of Brahmanbaria under Justice Salma Masud Chowdhury.

The land in dispute originally belonged to Sharat Chandra and Tara Nath Chakraborty. After

Sarat's death, his sons Haridas and Krishna Kanto became heirs. Basanta Kumar and his two brothers purchased the property in 1968. After this, the land was purchased by Mehir Bhomick, but the DC of Brahmanbaria declared the land as "Vested" in 1984. The land occupants then filed a statement claiming that the original Hindu owner had left for India in 1965 and the land was "vested" from that time onwards. The trial court decreed the suit and Bhomick filed appeal, after which a retrial decided in his favour in 1995. The DC then filed another appeal in 1997, which resulted in a judgment in his favour in 2000. Bhomick now applied under section 115 of Code of Civil Procedure and received a judgment in his favour in 2007. However, the process is not resolved and one can imagine the DC again filing an appeal using the loopholes created by non-repeal of Vested Property Act. This entire legal procedure is over a land totaling 20 decimal. A legal layman may not comprehend all the legal routes via which such matters are resolved, but anyone can conclude that most Hindu families that have had their land grabbed in last five decades will not have either the resources or the stamina to pursue such an exhausting legal process.

The case of Jayanta Kumar Roy illustrates the dangerous role of local land offices and multiple historical ironies. Roy was killed in 1971 by the Pakistan army, but instead of receiving a posthumous "freedom fighter" certificate, his family's land was seized by local agents as "vested property." After campaigning on this issue for decades, his nephew Anjan Roy finally received an intervention from the chief advisor's office declaring that the land was not "vested property." In spite of this, the land occupant has continued to build a permanent structure on this land, with no effective action taken by the Pabna District administration.

Decoding communal intent
Many who wish to deny the existence of specific religious discrimination argue that incidents of harassment, looting, rape, etc. occur against all impoverished communities in Bangladesh. However, it is clear that even within a dire rights scenario, the religious minorities continue to be the most vulnerable. The challenge with decoding communal intent behind attacks is that press coverage is too meagre to draw a full picture. However, in cases where there is sustained reporting, it is often revealed that land-grabbing is a primary motive, and thus we return to Enemy/Vested Property Act as a root cause.

Attempts to grab land are usually accompanied by violence, as in the Ishyarganj case where the family of goldsmith Amal Roy was kept confined in their own home for almost a year by attacks from neighbours over a land dispute. In Rupganj, local thugs demanded Shadeb Roy sell his land to them and "move to India." The murder of a Buddhist nun in Rangamati in Chittagong Hill Tracts was also reported to be in connection with a land dispute.

Raj Aniket/ Driknews

In Ulipur, an acre of land belonging to the family of Upanendranath Sarkar was grabbed in defiance of a court order . Even media visibility was not sufficient protection, as attempts were made to grab land belonging to Janakantha journalist Niranjan Pal and famed columnist and economist Birupakkha Pal .

Other incidents of land-grabbing were reported at Shahjadpur temple and against thirty bigha of land belonging to heirs of Uma Rani Sarkar in Ghatkoir village, Naogaon. In another incident in Naogaon, newspapers reported that the local Jamaat e Islami leader was attempting to grab the land of Ananda Kuma Sheel of Komorpur village, Badalgachi Upazila.

Again in Shahjahanpur Upazila under Bogra, Jamaat leader Azadur Rahman targeted the land of Swapan Kumar Kundu, at one point removing all fences around the property to begin a process of "land swallowing." However, as Barakat's research has shown, all political party affiliated local leaders, not just Jamaat-e-Islami, have benefited from Hindu land- grabbing.

The footprint of the VPA can be seen in targeting of Hindu land as more vulnerable to legal maneuvers. If a frightened family does flee to India (or anywhere else), the "continuous" living condition is broken, and the land can be grabbed (even under the Vested Property Repeal Act, which maintains this clause).

Thus, in Kaliakoir, land belonging to several Hindu families including Paritosh Chandra Sarkar were targeted by local leader Hazrat Ali, who threatened physical violence and ordered the families to again "go to India."

In Keraniganj, the remnant of a structure of a two hundred year old Parshanath temple was obliterated by what the newspapers described as "land pirates." Working over a period of few years, the miscreants have gradually removed bricks from the temple (which may even fetch a price in the stolen artifacts market) and have now started using Vested Property claims to occupy the land.

As a result of the publication of Barakat's book, and press reports on the startling numbers on "missing Hindus" and "lost land," there was also an increase in press reporting on minority land loss in 2008. A Prothom Alo investigation revealed that in the case of the three-acre water land belonging to the zamindar family of Pran Gobinda Chowdhury, the land has been illegally occupied since 2003 by local politicians, through forged documents prepared by land

Amirul Rajiv

administration officials with help of people in the zila administrative headquarters.

An Ittefaq investigation uncovered that over 11,300 acres of land in Jessore had been grabbed as vested property. Since 2002, a large amount of this land went under the control of a political family linked to a powerful minister in the BNP-Jamaat government. This individual political family had taken control of Sadar Police Fari, HMM Road's belt-bag corner, Modern Building, Laldighi Par Government Building, Jessore College building on RN Road, JP office Gohata Road, Daratana Siddik Bakery building, Jhinedar Beel, Ghop Nowapara Saline project, Shammiloli School Shaheed Minar square, a fifty year old gymnasium, etc.

In another investigation, Jugantor revealed that of 30,000 acres of land officially appropriated by the Chittagong land administration as "vested property" (not counting land privately grabbed by individuals), only 5,000 acres were actually under government control and rest had been occupied by "unknown parties." While media reporting still remains sporadic, these occasional news reports do begin to generate focus and mass awareness around these issues.

Looking ahead
Professor Abul Barakat assisted in drafting the economic recommendations of the Awami League's election manifesto. It appears that he is part of the "brains trust" that may be guiding the party's economic policy in the first hundred days of 2009. Given his past focus on VPA/EPA, and the reference to the matter in the AL manifesto, we hope for a quick resolution of this matter in 2009.

Not simply in enforcing the 2001 Repeal Act, but also in amending the key flaws in that act (continuous stay, post-1969 land, financial compensation for non-recuperable land, etc.).

Given the nature of the 2008 election, especially the defeat of the primary religion-based party, and election of fourteen MPs from minority community, there are progressive voices calling for steps to reinforce the secular concept of 1971. However, some of these steps will be challenging and complex.

By contrast, Vested Property Act is a situation where no one can deny the statistical evidence of economic damage, nor can any argument be marshaled for preventing redress. Immediate and full repeal of this black law, return of all vested land, and compensation to claimants can bring practical economic justice to 1.2 million affected households. Economic parity, rather than platitudes and slogans, is the priority for citizens of diverse ethno-religious backgrounds.

Naeem Mohaiemen (naeem. Mohaiemen@gmail.com) works on art, technology & activist projects. Excerpts from this essay appear in the 2008 Ain o Salish Kendra Annual Human Rights report (askbd.org).