Revisiting annulled land reforms
FORMER Prime Minister Mir Zafarullah Khan Jamali had once remarked that the issue of land reforms in Pakistan was dead for ever.
He was referring to the Supreme Court’s Sharia Appellate Bench’s 1990 decision which had declared land reforms ‘un-Islamic’.
The issue has now been revived by the Supreme Court on a petition filed by seven parties. The petitioners led by Abid Hassan Minto of the Workers Party are seeking a review of the same decision which had held land reforms of 1972 and 1977 and the related regulations as ‘un-Islamic’ in the Qazalbash Waqf case. The decision, which came as a relief to the rich landowning classes, has virtually blocked the possibility of any further land reforms in the country.
Interestingly, it came on an appeal after the Federal Sharia Court had declared the land reforms as Islamic. But the decision of the appellate bench was not a unanimous one; it was a split 3-2, a weak verdict. The petitioners claim that the decision was outside the mandate of the Appellate Bench.
The petition, filed on December 13, 2011, is being heard by a nine-member bench headed by Chief Justice Iftikhar Mohammed Chaudhry. During the February 23, 2013, hearing advocate Minto, taking a bold initiative, had pleaded before the bench to set aside the 1990 judgment.
But the Chief Justice remarked that the court was facing a dilemma on how it could set aside a concluded judgment. He noted that a review filed against the judgment was dismissed on technical grounds that it was time barred.
However, Minto is convinced that the Shariat Appellate Bench’s decision was not binding on the apex court and it can be reviewed even now. The decision required reconsideration on the merits for it appears to be a ‘reluctant’ judgment, because out of a total of five appeal judges, one dismissed the appeal, another expressed reservations on the assistance provided and the finality of the decision and only one judge declared a few provisions un-Islamic. Hence, the judgment must be revisited, he says.. The need to reconsider the judgment can hardly be over-emphasised. In fact, not doing so would mean giving up an important means of creating equity and social harmony.
During the hearings held on June 6 and 7, Justice Iftikhar Choudhry was of the view that “land beyond use should be considered land owned by the state.” This concept of ownership of land, he observed, is an Islamic concept. He was referring to thousands of acres of land in Balochistan which is owned by absentee landowners and is not cultivated though water is available. In order to save the lands, these are transferred in the names of persons ‘who are not born yet’ Similarly, to save property, the CJ said, it is transferred on false deeds to such persons ‘who are not born yet.’ He said that members of parliament need to be convinced about the need to legislate on the limits of land one can own.
The Chief Justice observed that the High Court has also mentioned in its decisions that land beyond use will be considered property of state. This principle, Minto noted, can lead to an end of feudal system and bring about prosperity in society. Meanwhile, the court has nominated four amacus curiaes, namely, Khawaja Haris from Punjab, Makhdoom Ali Khan from Sindh, Latif Afridi from Khyber Pakhtunkhwa and Shakil Hadi from Balochistan to assist the court in future hearings.
The Chief Justice is seeking the stance of the federation and law ministry about the status of land reforms after the 18th Amendment, whether it would be responsibility of the federal government or provinces. He made it clear that these are such questions whose reply should be provided by the federal government.
Land reforms in Pakistan have a long and somewhat complicated history. The British were not interested in such reforms as their major allies in running the administration were influential landlords. In the years after independence, major reforms in West Pakistan, however, came in three waves: the first during Ayub Khan’s martial law in 1959; the second and third during Zulfikar Ali Bhutto’s rule in the 1970s.
Usually ignored is the hard fact that it was East Pakistan which carried out land reforms just after the independence. The East Bengal Land Acquisition and Tenancy Act, 1950 abolished the practice of rent-seeking by landed interests from cultivating tenants, transformed tenants into owners, prohibited subletting and fixed the ceiling of self-cultivated land at 33 acres.
Moderate compensation was paid to the affected landowners. The land-owning class became extinct in East Pakistan within a few years.
It is amazing that most of the political parties no longer talk about the need for land reforms. They either ignored the issue in their pre-election manifestoes or made a lukewarm mention of it. What is more surprising is the attitude of the PPP whose founder had carried out the 1972 and 1977 land reforms.
The PML-N has focused only on computerisation and land consolidation. But the Pakistan Tehrik-i-Insaf , however, does promise in its manifesto to give state land to the poor. This, its manifesto says, can also bring them out of the poverty trap.
In the classical sense, land reforms are about redistributing the lands seized from big landowners among the landless tenants.
But in modern sense, it means opening up land markets so that individuals interested in farming can buy land. Similarly, one can sell land whenever he likes to do so.
Such a market can function smoothly only when deals made are fair and transparent. This is possible only when land records are not tampered with by greedy middlemen. In that sense, computerisation of land records is a progressive step and can be a harbinger of the land market era in the country.