Land Reforms – History, Legal challenges and how Shariat Courts abolished them

by Shahid Saeed Khan

The politics of land reform have always been tenuous in this country, the populist rhetoric very much opposed to the reality. It has the support of a large segment of the public who view abolition of large land holdings as a big step towards social progress. Land Reform has always been a very popular slogan, especially amongst the urban upper middle and middle classes in whose view feudalism alone is the biggest problem that this country faces; but while advocating for such a change, they ignore the historical realities and legal problems that land reforms face.

The MQM, it says, has now set up a “think tank” that will table a legislation to implement land reforms in Pakistan. Little care has been taken to address the complex legal and socio-political problems that have risen in implementing land reforms. Therefore, this is merely populist rhetoric that aims to please the urban masses who already have a skewed and outdated view of what defines feudalism and how it should be appropriately tackled and ignores the bigger legal problems that challenge land reforms.

As I shall prove, land reform, as it has been classically understood in Pakistan is very much a complex legal issue that faces innumerable legal challenfes, the most important of which is the fact that ceiling on land holdings and various other land reform measures have been declared un-Islamic and therefore unconstitutional by the Shariat Appellate Bench of the Supreme Court of Pakistan in the famous Qazalbash Waqf case. The court termed the imposition of any ceiling on land holdings as repugnant to the injunctions of Islam and declared previous legislations as bad law. Moreover, it is necessary to look at the history of land reforms and see that Ayub Khan’s reforms were not the first and not revolutionary at all. One must also realize that East Pakistan, where landlords were historically weak in comparison to Weak Pakistan, pursued land tenure and tenancy reforms soon after Independence and empowered the peasants. In light of history, political realities and judicial decisions, the future of land reforms looks weak.

Popular view about Land Reforms and Feudalism in the urban context

In the classical definition, land reform remains the re-distribution of land amongst small land owners by expropriating land from large land owners. In short, land reform has usually meant breaking up large land holdings and thereby changing the pattern of ownership of land in the country to prevent concentration of land – and ultimately wealth – in a select few hands.

Concentration of land holdings in the hands of a select few creates a society where there are peculiar social economic and political consequences due to the institutional monopolization – more so in a primarily agrarian society like ours. Society becomes stratified, with inferior and superior strata on the basis of land ownership. By and large, the existence of such a system hampers social progress and landless peasants remain politically weak – therefore unable to seek solutions to the problems facing their existence. The concept of land reform arises from the fact that concentration of land is deemed as an undesirable to social and economic equality. For the purpose of brevity – a tenuous issue while dealing with such a big question – I shall leave the debate over productivity in large landholdings vs small holding. I am assuming that a large segment of readers are convinced that even higher productivity in large land holdings (mostly a mechanized agrarian result by the way) is not enough to allow concentration of land in a few hands.

Anybody born in an urban middle class family is both ideologically and vocally opposed to feudalism. Feudalism, in the views of this select urban elite, is the single biggest problems that plagues social progress in this country. From illiteracy, to lack of healthcare to absence of social welfare and lack of rule of law, everything comes down to feudalism. While not necessarily wrong on certain issues, this is an extreme simplification that ignores changes in patterns of land holdings in the country and what feudalism means in an era of urbanization and modernity. In fact, the contract between the feudal (or landlord) and the peasant/tenant/share-cropper has evolved over the past 63 years and continues to change. Add to this the fact that we’re the most urbanized country in South Asia and we’re looking at a society very much different from that of the ‘50s and ‘60s. Contrary to popular perception, landlords cannot continue to suppress their subjects and still expect to remain politically popular

Feudalism, in the form of large land holders having social, political and often local legal and religious power is a tribal notion that must be tackled appropriately. However, the power of the feudal has constantly withered away in a modernizing society[i] – even if it has remained comparatively powerful in our country as compared to others.

This is not a defence of feudalism, but rather a statement that it is a concept and problem skewed in the understanding of the urbaniites whose short term-ism and lack of intellectual rigor concerning social problems leads to redundant views that are distant from reality.

History

There is no need to go into the historical perspective of how the landed aristocracy was solidified by the British Raj in order to cement its control in the region and rule the canal colonies. The system existed since the Mughal Era, however the nature of the contract between the state and the zamindar was much different. Skipping major portions of what happened and how it happened, the landed aristocracy practiced executive, judicial and revenue duties for the colonial government in exchange for land grants and its right to rule the people.

At the time of Independence, the first government review of land and tenure reforms was tackled in the province of Sind. Constituted by the Government of Sind in March 1947, the Government Hari Enquiry Committee (1947-48) declared that the problems of Haris were of the their own creation or natural problems or government neglect, the landlord (jagirdar, zamindar, sardar, etc) was in fact a friend of the hari and land reforms were deemed undesirable and even a loss for the hari. One member of the committee however dissented with the majority opinion and his minute of dissent was not published until April, 1949. The dissenter, Muhammad Masud an ICS officer wrote that the condition of haris was deplorable, the differences between the landlord and the hari too severe and unfair and therefore land reforms were necessary. In his notice of dissent, he recommended abolishment of zamindari system, expropriation of land from landlords with minimum compensation, and that absolute ownership of land be vested in the State.

The Pakistan Muslim League constituted a five member committee, headed by Mian Mumtaz Khan Daultana, in February 1949 to recommend necessary actions that must be taken in order to bring drastic changes to the existing system of land tenure. The committee presented its report in June 1949, often called the Agrarian Reforms Committee. It proposed short term measures ranging from security of tenure, aboliton of jagir and inam, reduced share of owner from share croppers and abolition of occupancy tenancies. The long term measures proposed included restriction on large land ownership and expropriation of excess land to cultivating tenants – with compensation. The report suggested “seek adjustments of the social structure in an evolutionary rather than violent manner” – in other words, ceiling on land holdings was too drastic and should be avoided, a classic attempt at trying to appease both the masses and its party members from West Pakistan – most of whom had large land holdings. The recommendation on land holdings – to be implemented at a later time – was 150 acres for irrigated and 450 acres for un-irrigated land and the committee was undecided on the issue of land redistribution, proposing three alternatives.

Keeping in line with the short term measures proposed, The Provincial Tenancy Acts (1950) were implemented in Sind, Punjab and NWFP between 1950 and 1952 – although did very little to alleviate the problems of the farmers. Note that nothing was done to help the farmers of Balochistan and the princely states (Bahawalpur, Khairpur,  etc.). Later, the First Five Year Plan of 1955-1960 proposed similar land holding ceilings, again never to see the light of day.

East Bengal and the extinction of the landed aristocracy

In East Begal (later East Pakistan) however, land reforms were taken to task just after independence in contrast to West Pakistan. The East Bengal Land Acquisition and Tenancy Act, 1950 abolished rent receiving interests between cultivating tenants and the state, transformed tenants into owners, forbade subletting and fixed the ceiling of self-cultivated land at 33 acres. Moderate compensation was paid to the landowners. Armed with a ruling class of mostly urban professionals and a very much progressive political environment in contrast to West Pakistan, not surprisingly the landed class became extinct in East Bengal within a few years.

Not surprisingly then, in the Second Constituent Assembly (1954-56), none of the 40 East Pakistan representatives were landlords compare to 28 from West Pakistan (70 percent).

Ayub Khan’s reforms

The first of our self-styled saviour generals also disliked the notion of feudalism. A commission was set up present recommendations and it presented its report within three months of the military takeover in January, 1959. Deemed “radical” by the then military junta, it side stepped the issue of ceilings on land holdings by proposing a fairly liberal one and was in its own words “pragmatic” and “middle-of-the-road” – an often abused set of terms used to represent anything that cannot be handled appropriately due to political realities. In reality, it was far from revolutionary.

Recommendations included:-

1. A ceiling of 500 acres for irrigated and 1000 acres for un-irrigated land be imposed with due compensation to owners (the complex issue of Produce Index Unit has been left in this essay). Land was to be redistributed amongst to tenants already cultivating the land.
2. Abolition of Jagirs which had already been abolished in Punjab and NWFP in 1950. However, the 1.1 million acres of Jagirs in Sind were abolished alongwith 150 and 258 acres in Bahawalpur and Balochistan respectively.
3. Permanent proprietary rights for occupancy tenants.
4. Idea of “economic holdings” and “subsistence holdings” of no less than 50 acres was proposed in order to consolidate holdings (in reality economic holdings was supposed to create a middle class amongst the peasantry and to attract private investment in agriculture).

One person however dissented with the majority opinion on the land ceiling recommended and his name was Ghulam Ishaq Khan, later to become the serial 58-2(b) user. GIK viewed the imposed limit as way too liberal and he thought that “the net effect of the proposed measures … [will leave] the concentration of land in families instead of individuals”. Therefore, he proposed the ceiling of 150 acres and 450 acres for irrigated/un-irrigated land alongwith a 300/900 acres limit for families to own land (irrigated/un-irrigated). He also dissented on a number of other issues (exemptions for orchards, transfer of land by gift, etc.). Clearly, GIK was the “revolutionary” amongst the committee members.

Effect of 1959 reforms

The recommendations were put into force through the Martial Law Regulation No. 64 on February 7, 1959. 2.5 million acres of land was resumed, 2.3 million of it distributed amongst 183,271 tenants and small owners. The land resumed constituted around 4.5 percent of the total cultivable land in Pakistan, the share of beneficiaries being even smaller. Even these figures were an eye-wash since the number of beneficiaries who had holdings below subsistence level (12.5 acres) was only 59, 906 and just 0.65 million acres was distributed amongst them. By another account, the government overtook only 35% of the holdings that exceeded the ceiling. Clearly, this was no revolution or big achievement. As calculated by a book published by the PIDE, had GIK’s recommendations been put into place, it they would have yielded four times the land that was resumed under the 1959 recommendations.

In 1947, Less than 1 percent of farm owners control more than 25 percent of agricultural land. After the 1959 reforms, less than 8.5 percent of farm owners control more than 42 percent of agricultural land. Average holding per landlord however was still 7,208 acres in Pakistan and 11,810 acres in Punjab due to the state’s inefficiency (read alliance with landlords) to implement the legislation on many large holdings.

Zulfiqar Ali Bhutto and Land Reforms

Riding a wave of socialism, a feudal lord from Sind came into power after the country split into two. As the Civilian Martial Law Administrator (CMLA) and then President, he promulgated on March 1, 1972, Martial Law Regulation No. 115 of 1972, often called Land Reforms Regulation 1972. The ceiling on land holdings was lowered to 150 and 300 acres from irrigated an un-irrigated land respectively, down from the 500 and 1000 imposed earlier. No compensation was to be given to the land owners. Exemptions for orchards, stud farms, etc. were abolished. The concept of PIUs however meant that ceiling was different in different areas depending on productivity.

The reforms failed to produce the expected results and a second wave of reforms were introduced through the Land Reforms Ordinance, 1977 (Ordinance II of 1977) on January 5, 1977. Ceiling on land holdings was reduced to 100 acres for irrigated land and 200 acres for un-irrigated land, this time compensation was to be given to the landowners.

Major Differences between 1959 Reforms, 1972 Reforms and 1977 reforms

1. Differences in land ceilings varying by region due to the concept of PIUs. Overall 500/100 acres vs. 150/300 vs. 100/200.
2. Owners of expropriated excess land received compensation through non-negotiable, non-transferable but heritable bonds vs. no compensation vs. compensation in the form of bonds
3. Beneficiaries to pay Rs. 8 per PIU vs. no charges vs. no charges
4. Exemptions for orchards, stud farms abolished by 1972 reforms and exemptions for religious holdings (waqf) abolished in 1977.
5. Income tax on agriculture was introduced in 1977 (exemptions for small holdings)

Effect of the 1972 and 1977 reforms

Under the 1973 reform, 1.3 million acres of land was resumed and 0.9 million of that was distributed amongst 76,000 beneficiaries. Under the 1977 reform, another 1.8 million acres of land was resumed of which 0.9 million acres was distributed amongst 13,143 beneficiaries.

“By the end of the 1970s Ayub Khan and Bhutto’s measures had benefited only 272,000 out of the total 10 million eligible rural population, and only 4.5 million acres of cultivated land (less than 10% of the total) were redistributed. The state, even at the heights of its power, proved incapable of reigning in the landed elite. The two land reforms at best clipped their wings, but they remained the most powerful force in rural Pakistan.”[ii]

The reforms did not yield the expected results due to a variety of reasons which I cannot go into due to the paucity of space. However, the commonly held view that it somehow “failed” merely due to the lack of  application of the law (accompanied by lack of enthusiasm for it) is not necessarily wrong but is a very big simplification that ignores other causes (benchmark used being 1940 productivity, etc.) and is aimed at vilifying the intentions of the people who brought them forward. The lack of meaningful reform in Sind affirms this viewpoint (average land holding in Punjab had come down to 466 acres compared to 566 acres in Sind – both in violation of the ceiling imposed). In Punjab, only 42% of the holdings in excess of the ceilings were taken over compared to 59% in Sind. However, still 30% of the nation’s farm lands were owned by less than 0.5% percent of the population. Meanwhile, wage labourers in rural areas had become a burning socio-economic issue. Needless to say, the reforms did not radically change the nature of land tenure in the Pakistan in practice, however it infuriated the landed aristocracy who were up in arms over the issue and the 1977 abolition of exemption to religious holdings sent the religio-political groups running around with their slogans against land reforms.

Legal Problems and the fate of Land Reforms

On 5 July 1977, the third of our martial saviours, Muhammad Zia ul Haq overthrew the government of Zulfiqar Ali Bhutto. He brought with him the notion of Islamization and pursued his goal of Islamization of the countries laws. Muhammad Zia ul Haq’s Islamization created the Federal Shariat Court (FSC) for the first time, its aim being to review whether a law is repugnant to the injunctions of Islam. The Federal Shariat Court was vested with ‘specific authority to carry out judicial review of all laws, not including the Constitution itself, on the touchstone of repugnance to the injunctions of Islam’ under Article 203D.

As it so happened, a waqf (charitable endowment) near Lahore lost much of its land in the land reforms. Its name was Qazalbash Waqf and like all other religious landholdings, it claimed that its possession of hundreds upon hundreds of acres of land was merely to serve humanity in view of the Laws ordained by the Divine entity.

Qazalbash Waqf banged the doors of the then created Shariat Benches in the High Courts and Supreme Court (FSC was constituted on June 26, 1980). In total, 67 Shariat petitions were filed in various courts challenging the land reform legislations and after a delay of nearly 16 months, the FSC started hearing the cases in August, 1980 and delivered its judgment on December 13, 1980 in the case of Muhammad Ameen v. Islamic Republic of Pakistan (reported as P.L.D. 1981 F.S.C. 23). The court held that courts did not have the power to declare anything declared valid by the constitution as invalid or repugnant to the injunctions of Islam. Even then, the majority judgment held that fixing a ceiling on land holdings was not contrary to Islamic law. Earlier In Haji Niamatullah v. NWFP Government – Shariat Petition No. 1, 1979 – the Peshawar High Court had declared ceiling on land holdings as un-Islamic. Writing the majority judgment, Justice Aftab Hussain “asserted that laws providing for the state’s regulation of land, including pre-emption rights for tenants, ceilings on landownership, and the resumption of lands by the state for public use, were not wholly prohibited by Islam. Justice Hussain argued that, despite Islam’s presumption in favour of the sanctity of personal wealth and property, Islam also recognizes the validity of state-imposed limits on wealth for the purpose of alleviating poverty or providing for the public good.”[iii] Later in 1986, pre-emption claims were deemed un-Islamic in Government of NWFP v. Said Kemal Shah (reported as PLD 1986 SC 360), Punjab Pre-emption Act, 1913 the NWFP Pre-emption Act, 1950 and Section 25 of MLR 115 were declared un-Islamic and “would cease to have legal effect” on 31 July 1986.

Appeals were filed and after nine years, the final decision was delivered. The legal history concluded with the ultimate and landmark judgment of the Shariat Appellate Bench of the Supreme Court of Pakistan in the Qazalbash Waqf case (Qazalbash Waqf v. Chief Land Commissioner, Punjab and others – reported as PLD 1990 SC 99) on August 10, 1989 (made effective from March 23, 1990). The judgment was split 3-2 in favour of declaring the various questions raised on land reforms as un-Islamic.

The composition of the Shariat Appellate Bench is such that it has five judges, three from amongst the Judges of the Supreme court and two ulema judges from the Federal Shariat Court (or as nominated by the President). The three SC judges on the bench that heard the Qazalbash Waqf case were Justice Nasim Hasan Shah, Justice Shafi-ur-Rehman (who had earlier dissented in the Said Kemal case) and Justice Afzal Zullah. The ulema judges on the bench were Mufti Muhammad Taqi Usmani and Pir Karam Shah (Mufti Muhammad Karam Shah). The two ulema judges were of the opinion that the said reforms were un-Islamic. Of the three “classically” trained judges – classically as in trained in common law – two dissented with the majority opinion. The “classical” judge who concurred with the majority opinion was Justice Afzal Zullah, a highly religious man who would later lead the vocal tirade against the first government of Benazir Bhutto to implement Qisas and Diyat Laws (which would be implemented by an interim government after GIK dissolved assemblies under 58-2(b) and by all accounts GIK and Justice Zullah did a tit-for-tat i.e. you give me Qisas Laws and I’ll approve of the dissolution of assemblies on flimsy grounds).

The lead judgment has been penned down by Mufti Muhammad Taqi Usmani. Arguing that the land reform legislations were repugnant to the injunctions of Islam, he states:-

1.    Individual property rights in Islam are the same as rights over other categories like goods, etc. Everything in the world actually belongs to Allah and he has granted humans the right to utilize them within the limits of divine laws. Limits have been prescribed both on the acquisition and use of property. There are certain obligations on the person who uses the land. The right to property in Islam is absolute, and not even the state can interfere with this right.

2.    Islam has imposed no quantitative limit (ceiling) on land or any other commodity that can be owned by a person. Any such limits are prohibited. The limits imposed by Islam are in the form of halal and haram and obligations. But if a property is acquired in a way that the rights of others are violated, or the doors of earning a legitimate income are closed on others, or the limits of halal and haram are transgressed in the process, then such a property acquired through illegitimate means is also illegitimate. Similarly, if the owner of the property fails to fulfill the obligations imposed by Shariah, then the use of that property is illegitimate.

3.    If the state imposes a permanent limit on the amount of land which can be owned by its citizen, and legally prohibits them from acquiring any property beyond that prescribed limit, then such an imposition of limit is completely prohibited by the Shariah. The Shariah has imposed no quantitative limits on legitimate ownership. Shariah has allowed individuals to acquire as much property as they can, as long as it is acquired through legitimate means. An Islamic state does not have the right to prohibit something permanently which has been expressly allowed by the Shariah. What has been declared as haram cannot be turned into halal, and what has been declared as halal cannot be turned into haram.

4.    However, if the state imposes a temporary limit on the amount of land which can be owned by its citizens, then different opinions may arise depending upon the nature of the limit imposed. The situation considered relevant to the issue of the land reforms was the one in which the state imposes a limit on property such that the property held in excess of that limit shall be acquired by the state. In such a situation, there could be the following possibilities: If the property being acquired by the state had been legitimately acquired by the original owner, then the State has no right to forcibly acquire such property without paying compensation. If the property being acquired by the state is such that it had been illegitimately acquired by the so called owner, then the state is allowed to seize that property without paying compensation.

5.    Although the state may acquire legitimately acquired property by paying compensation, such an acquisition must fulfill two criteria: a) the acquisition of land must not be forceful; rather there should be mutual agreement between the state and the original owner. In case the original owner does not agree, the state cannot, generally, force him to give up his property in return for compensation. b) the compensation must be equal to the market value of the property. Forceful acquisition of legitimately owned property is allowed only in very extreme circumstances, such as war or famine, in which the death of the whole or portions of the population is imminent. However, compensation must still be paid, although it can be deferred until the extreme circumstances have ceded to exist.

6.    The order to spend surplus on the poor is not a mandatory order which could be normally enforced by the state. However, in case of necessity, provisions can be made by the state in this regard, because mubah (neutral provision) and mustahib (recommendatory provision) can be made wajib (obligatory provision) by the ruler, provided the requirements of Quran and Sunnah are not violated. As steps like permanent limit on acquisition of legitimate property and forceful seizure of legitimately acquired property are against the provisions of the Quran and the Sunnah, therefore such steps cannot be taken.

7.    The objective of the Islamic welfare system is the sustenance of the poor. The state’s welfare role is limited, while a larger amount of responsibility is placed on the individuals through the imposition of legal obligations with regards to the sustenance of the poor. The state can force individuals to fulfill these obligations through frameworks for enforcement e.g. Zakat and Ushar collection system. However, its role does not exceed to granting property rights to individuals over such property which has been legitimately acquired by others.

8.    A waqf involves the permanent dedication of property to Allah. As the property is vested in Allah, the state has no right to interfere with that property, let alone to forcibly acquire it without compensation.

(Much of these arguments in relation to Pakistan were essentially put forward by Abul A’la Maudoodi in his 1950 booklet Mas’ala e Milkiyat e Zamin. For a critical viewpoint on the religious arguments in brief – divergent arguments included – please see this publication[iv] by Justice (R) Dr. Tanzeel ur Rehman)

A concurring opinion was written by Pir Karam Shah and he “seemed to take great comfort in announcing that the days of socialism were over and that its false promises stood exposed. There was no point in bending Islam out of recognition to fit it in the socialist mould.” [v]

The dissenters on the bench, Nasim Hasan Shah and Shafi ur Rehman, based their opinion on the concept of social welfare and equality in the Islamic state and declared that such a limit on land holdings was necessary to reform the society and alleviate property, much like Justice Aftab Hussain’s arguments.

(Later In Maqbool Ahmad v. Government of Pakistan (reported as 1991 SCMR 2063), Limitation Act 1908 was declared un-Islamic as well.)’

Reasons for the lack of knowledge about the legal problems

A fairly high percentage of the “educated” urban middle class proponents of land reform are ignorant about the history of land reform and especially the legal problems associated in its implementation. Clearly, the ignorance is more than mere lack of knowledge about the issue – since anybody who labels feudalism as the sole problem and land reform as the best solution must have had some knowledge about the issue. Debating land reform while ignoring the legal problems that have risen in the wake of the Qazalbash Waqf case is tantamount to ignoring the biggest hurdle in the application of the said solution – something that should not be expected from the “educated” proponents. The urban middle class narrative vilifies and demonizes feudalism (not necessarily wrong) as the only hindrance in national progress while conveniently ignoring how land reforms were legislated and how they were struck done by an “Islamic” court (the SAB).

As far as I see, there are two reasons for this ignorance. Firstly, knowledge about law, legislation and respect of the rule itself is far from the reality in our country and the urban middle and upper middle classes are no exception (if not even bigger violators of the law thanks to their access to the state apparatus by virtue of being part of it or mere access).  A very large percentage of the “educated” class also suffers from the man on the horse-back problem, hero worshipping a person and ignoring the fact that structural problems demand structural solutions (Imran Khan and Pervez Musharraf will fix it all being common slogans). In such hero worship, people don’t give any regard to law and legal problems to what they perceive as major goals, but are fixated with how the man on the horse back will fix it all with his actions and his magic including the use force to implement his great reforms – visible in the slogans of (“jagirdaar ko ulta latka do”, etc).

Secondly and more importantly, the fact that Islamic law led to the declaration of land reforms as unconstitutional remains an issue that a fairly large segment of society cannot reconcile itself with. As with Nasim Hasan Shah and Shafi ur Rehman arguments, the common notion is that social welfare is the biggest of Islamic principles of economics in contrast to the (largely Hanafi) opinion that Islam is very much capitalistic with small obligations for social welfare and large rewards for personal action in this area. It is very difficult for people to reconcile the fact that the dose of ‘Islamic welfare’ that they have been taught largely ends at zakat and while there are promises of huge rewards on helping the needy — an obligation defined by Islam as social responsibility — Islam is very much pro-capitalistic and opposes ceilings on wealth accumulation. Reflective of the inner contradictions of our society is the fact that secular ideals of socialism and reform brought forward land reforms (even if supported by Islamic rhetoric) and were thrown into the dustbin of history on the basis of religion.

With increasing religiosity part of urbanization, and in our case strongly linked with an urban middle class identity, it becomes laughable that the demon of ‘feudalism’ that should be tackled through the populist argument of ‘land reforms’ is not being tackled because of ‘Islamic laws’, which are the slogan of a large percentage of disillusioned, apoliticised urban middle class youth today. Demonization of feudalism — not necessarily wrong — but ignoring the legal realities, especially how they were struck down by an ‘Islamic’ court, is convenient and tailor-made to satisfy the conscience of a society that seems to find it difficult to balance religion, its role in society, its role in politics and its intrusion into governing laws.

The future of land reforms

In the mode of the classical application of land reforms vis a vis ceiling on land holdings, the door for reform is pretty much closed unless the state wishes to undertake the thorny issue of the nature of land ownership at the time of Independence. Fact is that the use of Islamic notion of social welfare no longer is applicable in order to justify state intervention in property rights of individuals. Justice (R) Dr. Tanzilur-Rahman, ex-Chief Justice of the Federal Shariat Court had proposed “setting up a high powered National Commission for Lands… to make country-wide inquiries and investigations as to the mode of acquisition of the lands by the landlords and their predecessors-in-interest, and to determine whether they are valid or not in the eye of Shari‘ah.”[vi]

Given the colonial history of the region, it is a known fact that modern property laws were introduced and recognized in this region by the British by virtue of the capacity of the local individuals to extract revenue for the colonial state. Some of these individuals had already been collecting revenues for the Mughal state as jagirdars, but their rights over the land were not recognized in manner as they were recognized by the British (the exclusive right of enjoyment etc., for example). Many, who acquired title through settlements, did so for the first time by virtue of their ability to coerce the local population and collect revenue. In such a historical background, it is contended that, regardless of the prohibitions imposed by the Qazalbash Waqf Case, land reforms based on ascertaining the legality of title through the formation of a National Commission as mentioned above, and requiring the acquisition of property without compensation in case of an illegitimate title, holds great promise in furthering the cause of re-distributing land among landless tenants and farm laborers of the country.

If we are to review that situation and perhaps deem land granted by British (for services to the crown) as illegitimately acquired owing to their shady origins, then we are looking at a wholly different scenario. That will also raise questions as to whether land grants post-Independence in the form of huge agricultural and urban land grants  largely to military officers, but to bureaucrats and other state functionaries as well are illegitimately acquired. Certainly, this is far from realizable. However, it still remains a possibility for future legislators.

Another possibility that lays at the doors of the legislators, is to review the existence of the Federal Shariat Court (and the Shariat Appellate Bench) itself and there-after re-introduce legislation along the lines of the ’72 and ’77 reforms. Certainly, this too is a non-realizable one – at least in the short term – considering the power of the religious groups and the right wing, both street power and their vocal power. If such a radical step were to be taken, it would not be surprising that the legislators would be declared enemies of Islam, traitors, agents and the usual labels.

The door for land reforms is not close, yet, but there are huge challenges in pursuing such an agenda.

With special thanks to my friend Haider Imtiaz for his help and contribution.

A highly abridged version appeared as an op-ed in Daily Times

Citations

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[i] (http://www.nytimes.com/2010/08/29/world/asia/29feudal.html)

[ii] Nasr, S.V.R. “Pakistan: State, Agrarian Reform and Islamization” International Journal of Politics, Culture and Society 10: 2 (1996)

S. V. R. Nasr. Web.

[iii] Kennedy, Charles. “Islamization of Real Estate: Preemption and Land Reforms in Pakistan, 1978-1992”. Journal of Islamic Studies 4:1 (1972). Web.

[iv] Land Reforms & Absentee Landlordism. Justice (R) Dr . Tanzeel ur Rehman. Available at http://data.quranacademy.com/QA_Publications/ariticles/English/Misc/LandReformsAndAbsenteeLandlordism.pdf

[v] http://webcache.googleusercontent.com/search?q=cache:KEXftSRRqaIJ:lumslaw.blogspot.com/2008/11/land-reform-and-qazalbash-waqf-case.html+qazalbash+waqf+case&cd=1&hl=en&ct=clnk&gl=us&client=firefox-a

[vi] Justice (Rt.) Dr. Tanzilur-Rahman,. “Land Reforms & Absentee Landlordism.” DAWN Aug 15 1998. Print.

Generalized References:

1.    Naqvi, Syed Nawab Haider, Mahmood Hasan Khan and M. Ghaffar Chaudhary. Land Reforms in Pakistan : A Historical Perspective. Islamabad : Pakistan Institute of Development Economics. 1987. Print.

2.    Khan, Akhtar Hameed. Land Reforms in Pakistan 1947-72. Karachi : National Institue of Social and Economic Research. 1972. Print.

3.    Land Reforms & Absentee Landlordism. Justice (R) Dr . Tanzeel ur Rehman. Print.

4.    Pal, Izzud-Din. “Islam and the question of Land Reform” Dawn 9 Septemeber 2006. Web.

5.    Alam, Ahmed Rafay. “Land-locked: An Examination of Some of the Inefficiencies Affecting Transactions Involving Immovable Property.” The Pakistan Development Review 45.4 (2006): 1323. Web.

6.      Lau, Martin. The Role of Islam in the Legal System of Pakistan. Leiden: Brill, 2006. Print.

7.    Government of Sind. Hari Enquiry Commitee : Minute of Dissent by M. Masud, I.C.S. (Pak.). Karachi. 1949. Print.

8.    Pakistan Muslim League. Report of the Agrarian Commitee appointed by the Working Committee of the Pakistan Muslim League. Karachi. 1949. Print.

9.    Government of Pakistan. Report of the Land Reforms Commission for West Pakistan. Lahore. 1959. Print.

In the classical definition, land reform remains the re-distribution of land amongst small land owners by expropriating land from large land owners. In short, land reform has usually meant breaking up large land holdings and thereby changing the pattern of ownership of land in the country to prevent concentration of land – and ultimately wealth – in a select few hands.

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