MQM submits land reforms bill

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DAWN.COM | Editorial | MQM's land bill

The Muttahida finally submitted its land reform bill in the National Assembly on Tuesday, with Dr Farooq Sattar conceding it would be difficult to plough the bill through a parliament dominated by the agriculture lobby.

The MQM, which has been talking about such a bill for quite some time, seems to have done its homework, for the draft law suggests 36 and 54 acres of irrigated and rain-fed land respectively as the minimum cultivable unit that would be economic. A party with its base in Sindh's urban area, the MQM has nothing to lose if such a bill is passed, because nobody in this world legislates against one's class interests. The aim behind the proposed law is laudable: it seeks to break up large landholdings to give the tenant-farmer the land which he and his forefathers have tilled for centuries. The landless peasant toils in the burning sun and creates wealth out of which he himself gains nothing. He remains perpetually dependent on the feudal lord for his very survival.

Land reforms have been talked about in Pakistan since the latter's formation, and there has been no dearth of ideologues, firebrand leftists, drawing room revolutionaries and, undoubtedly, some sincere and dedicated activists who paid with their lives for their crusade. Nevertheless at least three serious attempts were made to reform the anachronistic pattern of landownership that has been the single biggest cause of the country's failure to develop a thriving middle class with a stake in the democratic process.

The land reform by Ayub Khan and the two bouts of it by Zulfikar Ali Bhutto had only a marginal impact on rural society because the feudal lobby, well-entrenched in state structure and society, managed to evade implementation. The scheming that went into evading the reforms is a story unto itself. Unfortunately, the reform was nullified, with the rich landowners continuing to control all levers of state power and society. The most obvious indication of the landowners' power and greed is their shamefaced refusal to pay tax on agricultural income, while making the middle and lower classes pay taxes through their noses. This lobby has a vested interest in a continuation of the socio-economic status quo.

The MQM will have to face the lawmakers of this class while piloting the bill through parliament. Theoretically, no one is likely to oppose the bill, for the MQM's pro-reform resolution was passed unanimously by the National Assembly on Sept 3. But the true face of Pakistan's Junker class will be seen when the two houses discuss a bill that strikes at the very basis of its power and privileges.

 

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MQM's Land Reforms Bill un-Islamic: JUP​

HYDERABAD: The Jamiat Ulema-e-Pakistan (JUP) on Wednesday rejected the Land Reforms Bill presented by the Muttahida Quami Movement (MQM), terming it un-Islamic.
In a statement, JUP Chief Dr Sahibzada Abul Khair Muhammad Zubair said, "Islam has not fixed any limit for holding land as personal property nor does it call for seizing land held by any person."
The JUP chief said the Land Reforms Bill of the MQM, which suggests landholding limit of 36 acres and 54 acres, was against the Shariah."The verdicts of Pakistan's Shariah Court on this issue too are very clear," he said.
Zubair urged the members of national assembly and the senate not to pass the bill, which according to him, was an attempt to introduce an un-Islamic system in the name of abolishing the feudal system.
"The JUP would not allow to impose any system in the country, which is against the basic principles of Islam," he vowed.
A day earlier the MQM had submitted a land reforms bill in the National Assembly secretariat proposing limits on land holdings.
The bill proposes that each family should be allowed to own a maximum of 30 acres irrigated or 54 acres arid (barani) land. The bill does not apply to the Federally Administered Tribal Areas.
The MQM said its draft legislation, titled "The Redistributive Land Reforms Bill, 2010," is aimed at the eradication of hereditary ownership of agricultural land and its redistribution among tillers.
The proposed bill says that land is a free bounty of nature and that the state has been recognised as its owner, both by the Muslim and Hindu jurists.

 

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Islam and the question of land reform​

By Izzud-Din Pal

ABUL A'LA Maudoodi was an uncompromising advocate of unlimited ownership of land. In his view, any expropriation of property in the name of land reform was un-Islamic. Syed Qutb, the current icon of political Islam, argued that social justice required that the state should control the economy when necessary, and to dispossess its citizens, when they were unreasonable (Al-Adalaha al ijtimaiyyah fi al- Islam). For him, "unreasonable" included concentration of ownership.

The two well-known scholars of Islam obviously held diametrically opposite views concerning the ownership of land. The explanation for this divergence in their interpretation of the scriptural statements should be sought in the social and political conditions of the times faced by the two scholars themselves, not in the scriptures. There is nothing in Islam that is fundamentally opposed to modern-day needs for bringing about reorganisation of agriculture. My objective in this article is to expound this theme with reference to Pakistan.

During the early formative period of Pakistan, it became clear that the question of land reform was going to be dealt with differently in the two wings of the country. In East Pakistan, the East Bengal State Acquisition and Tenancy Act, 1950 was to bring radical change in land ownership and tenure system in that province. In West Pakistan, on the other hand, the mood was to defend the status quo of absentee landlordism and landed aristocracies. As Gunnar Myrdal says in his Asian Drama (1965) says that the political forces in the region consisted mainly of leaders related to hereditary landlords.

In addition, the religious factor emerged in West Pakistan, first in 1950 and then during the eighties which provided support to the landlord lobby in the region. There was no such development in East Pakistan. The landlords in that province happened to be Hindus, and many ulema in Pakistan had supported the actions of the East Pakistan government on this matter.

The issue continued, nevertheless, to persist in West Pakistan. The First Five Year Plan 1955-60, for example, devoted a chapter on the subject and suggested that it was one of the most urgent national problems facing the country. The aims of land reform, it emphasised, were economic, but in a still greater and more pressing degree, they were social and political.

The spirit of the Plan's message was echoed in the first draft bill of the 1956 Constitution. It was unacceptable to many members of the Constituent Assembly. An amendment was, therefore, successfully moved by Sir Feroze Khan Noon, supported by other members from the landed classes to defeat this recommendation in order to save Pakistan, as they claimed, from becoming a communist state.

It would be useful, therefore, to examine the question of property rights in Islam in order to throw some light on issues relating to land reform in the country.

Land ownership is a very complex issue, because it has been defined by Islamic scholars only indirectly, with an emphasis on the agricultural sector of the economy. Maulana Hifzur Rahman Sehwarvi, for example, in his Islam ka Iqdisadi Nizam (Delhi, 1939, rev. fourth ed. 1951) notes that ownership is a controversial issue: the Traditions of the Prophet are contradictory, some requiring possession in accordance with a person's ability to cultivate himself, and others allowing unlimited ownership, with a right to rent or sharecropping excess land. After a lengthy discussion, he concludes by saying that during the era of the Prophet and of the four pious Caliphs both the above methods seemed to have been in use. But the fact remains that the Prophet regarded these practices unfavourably.

Property rights in Arabia, on the advent of Islam, were determined by tribal and customary rules. They were influenced by the pattern of life of the people. As is well-known, there were two main sources of wealth creation: trade (especially caravan trade) and agriculture. It was in this milieu that the Prophetic Message from God was established — the Deen, the faith for the righteous path — being above everything else but providing the criteria for how human beings should conduct their political and economic affairs. It was not the Prophetic mission, however, to establish a detailed system.

The question about the size of one's property did come up from time to time during the early period of Islam, especially with reference to ownership of agricultural land. This is where the role of the Traditions becomes important. The people depended on the circulation of oral narratives as compilations such as Al-Bukhari and Al-Muslim became available only in the next generation. And several narratives were in circulation on this subject, as noted above with reference to Hifzur Rahman Sehwarvi.

One such narration is ascribed to Raafi bin Khadij, and it has played an important part in the history of this issue. Khadij, in this narrative, is reported to have said that giving one's land for rent or for sharecropping had been forbidden by the Prophet. In other words, if a person has agricultural land in his possession, he should either cultivate it himself or give it to someone else to cultivate free of charge. This narrative had influenced the opinions of the jurists on this matter ranging from Imam Abu Hanifa to Shah Walli Ullah.

It is on the basis of this narrative that Hifzur Rahman suggests that in Islam private ownership is permitted to a limited extent and under defined conditions. These conditions would include self-cultivation or partnership according to the rules of Islamic finance.

Abul A'la Maudoodi rejected these conditions as un-Islamic in his Mas'ala-i-Milkiyat-i-Zamin, first published in 1950, with several reprints in later years. He examined the question about the size of ownership of land in this small booklet.

He was aware of the importance of the hadith narrated by Raafi bin Khadij, and he devoted a lot of space to it in his monograph, invoking opinions of relatives and some contemporaries of Khadij to analyse the focal point of the narrative. His objective was to emphasise that several other narratives, equally reliable, pointing out that in fact the use of rent and sharecropping were prevalent and acceptable during that period.

As Maudoodi notes in his book, this conclusion is out of tune with the opinions of the jurists who were close enough to the Prophetic era, and were unable to arrive at a categorical consensus. Imam Abu Hanifa considers use of rent and sharecropping as unacceptable, though not the other two well-known Hanafi jurists, Imam Abu Yusuf and Imam Muhammad. Imam Shafi'i does not accept cropsharing. Similarly, Imam Malik had his reservations. Imam Hanbal, however, would accept cropsharing under defined conditions. It is obvious that the issue remains open to interpretation.

Maudoodi, however, proceeds to establish what he considers are the clear limits to land reform according to Islam: 1) state ownership of land is contrary to Islam; 2) land distribution should be fair but not necessarily equal; 3) there is no "uncontrolled" philosophy ["bag-tut"] in Islam which can be imposed on the people; and 4) within the framework of Islam, neither any limits can be imposed on the size of ownership, nor any "capricious" ["man-mani"] restriction can be enforced in the name of social justice.

This is a summary of Maudoodi's position which has left a strong impact on the question of land reform in Pakistan. He was a leader of an active political party in the country, and he must have been aware of the essential features of the plans for land reform which were floating around in the formative years of Pakistan. In Sindh, a Tenancy Laws Committee had reported on its findings in 1945 followed by the Hari Committee Report in 1948. And the Muslim League Agrarian Reform Committee had made several proposals in 1949.

The objectives of these reports were, inter alia, to put a ceiling on individual ownership and to distribute the land thus released among cultivators and tenants. The Agrarian Reform Committee had emphasized that landlordism in Pakistan was an historical accident. It nevertheless recommended a fairly heavy compensation for expropriation. The goal behind the objective was the same as in all other countries which had gone through stages of traditional agriculture, such as Japan, South Korea and Taiwan. And it was to abolish illegal exactions from tenants and to provide them with a security of tenure, thus improving efficiency in the areas remaining under control of landlords as well as those assigned to the cultivators.

The land reform proposals did not directly address the issue of rent or sharecropping which might be available to the landlord in his newly defined ceiling of his land holdings. The main focus was on reducing a high degree of concentration of ownership which was considered undesirable from economic and social point of view. Maudoodi did not touch upon this question at all.

Also, the report of the Land Reform Commission for West Pakistan, 1959, which had been commissioned by Ayub Khan, provided him with an opportunity to review his four-point limits to land reform, which he had established in the first edition of his booklet. But the next reprint of the booklet completely ignored the issue. On the question of state-ownership, he would have found a good discussion in the report about the relation between the state and the individual owner of land which was established through land revenue system, being the portion of the produce of the land for which proprietary right had gradually taken a definite shape.

The ceilings on holdings were recommended only to reduce sharp inequalities which existed in concentration of ownership, giving first option to tenants to buy the land thus released. Similar ceilings had also been implemented in other Muslim countries such as Egypt, Syria, Turkey an Iraq. There was no "uncontrolled" philosophy guiding the Commission, nor were the restrictions recommended "capriciously". It was all part of a reasoned discussion explaining and justifying the recommendations.

It would have been useful if Maudoodi had taken the trouble to offer comments on the report and suggest why and how its recommendations were contrary to Islam. As many of these recommendations remain controversial, his views on them would have been useful. This is where he represents the same dilemma and paradox as all other traditional ulema and their followers face: a dialogue of the deaf on social and economic issues. No common language is spoken, nor is an effort made to understand and evaluate issues discussed in the economic reports, which are produced for attention of the general public with a view to avoiding the technical jargon.

The land commission established by Ayub Khan, however, was able to acquire about five per cent of the cultivated area only. Also many tenants did not or could not exercise the first option to purchase the property.

With the land reforms introduced by Mr Z.A. Bhutto, the atmosphere had completely changed. These were part of his plan to introduce a democratic Islamic socialist state in the country, which had invoked a strong reaction against it among the opposition groups. First a land reform regulation was introduced in 1972. In 1977, a land reforms act was passed by the National Assembly. It seems that the focus of land reforms was put on the NWFP and Balochistan, than Sindh and the Punjab which were friendlier to the Pakistan People's Party. In July 1977, however, the Bhutto government was dismissed by a coup by General Ziaul Haq.

A new system of Islamic courts was introduced as part of Islamic Reform by Ziaul Haq. The landlords from the NWFP decided to take advantage of the new courts. A case was filed with the Shariat Bench of the Peshawar High Court on behalf of Haji Niamatullah, challenging various parts of the reforms, especially the tenants' right of pre-emption on sale of the acquired land. The court decided in favour of the petitioner.

With this case began a new era of judicial activism of Islamic courts. The hadith narrated by Khadij about self-cultivation had been replaced by the view in favour of unlimited right of ownership. In 1981, the Council of Islamic Ideology prepared a draft incorporating, as it claimed the views of 1,500 judges, advocates, ulema and others in favour of the decision of Peshawar High Court. In the meantime, several other cases were filed with the courts seeking redress against the land reforms.

Two of these cases are worth mentioning. They reached the Shariat Appellate Bench of the Supreme Court (SAB) for final judgment: Government of NWFP versus Said Kemal Shah in 1986; Qazalbash Waqf and others versus the Chief Land Commissioner in 1989. In the former appeal, the court upheld that the tenants' right of pre-emption was un-Islamic, and in the latter case, the issue of ceiling on landholdings proposed by the land reform was also declared un-Islamic.

The discussion which I began with the narration of the hadith by Khadij thus ends up in a maze of judicial opinions which, as demonstrated by the SAB judgments, were based on split decisions (3 to 2 in each case). The issue remains open to interpretation, therefore, as a challenge from the point of view of reconstruction of Islamic thought in modern times. It is also worth noting that the National Assembly has never formally repudiated its Bhutto-era land reform legislation.

The sentiment for a meaningful land reform in the country continues to be strong.

The writer taught economics at Pakistani and Canadian universities before his retirement. He is author of several books.
E-mail: [email protected]

 

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The (not-so) Islamic land reforms in Pakistan​

Filed under Politics6 comments
There is no doubt that Agriculture is the backbone of Pakistan. 43% of our labor force depends on it for its livelihood and it constitutes a sizeable portion of our GDP and exports. We have often heard and have been arguing for God knows how long that "Land Reforms" are desperately needed and how they hold the key to unleashing our agricultural potential hence will play an important role in raising the living standards of the poor of our Nation. The argument could not be more right.

The last time an effort was made to rock the boat was by Ayub Khan in 1959 and then by Zulfiqar Ali Bhutto in 1972 & 1977. The idea was simple; take the land from the rich and distribute it amongst the poor free of cost. This broad based "Land Reforms Act" affected one "Qazalbash Waqf" with large tracts of land near Lahore. The Waqf, which had been in place for centuries doing good for people in the name of God, approached the courts.

The Qazalbash Waqf argued that Islamic laws provide broad protection from expropriation to the property owners if their property was acquired, in the first place, through legitimate means. However, the courts in December 1980 found nothing un-Islamic in the case and ruled against the Waqf.

In the meanwhile, much was changing as Zia ul Haq had come into power in 1978 with his Islamization agenda. After coming to power, it was immediately announced that firstly no law in Pakistan may be repugnant to the Quran and the Sunnah and secondly Federal Sharia courts were to be established. In parallel, the martial law government picked up the heat and advised the deprived,"It is not for the employers to provide roti (bread), kapda (clothes) aur (and) makaan (homes). It was for God Almighty who is the provider of livelihood to his people. Trust in God and He will bestow upon you an abundance of good things in life".

The Waqf didn't give up and filed a review petition and decided to wait it out. During the next decade, 1980-1990, much changed on the political and societal front. Renowned Islamic scholars like Taqi Usmani and others argued the case on the premise that "the expropriation of land, or any property, by the state without paying compensation is Un-Islamic. It was finally in 1990 that he was able to swing the court's decision and the case was decided in favor of the Waqf. Whether it was strength of Taqi Usmani's argument or weakness of the opposition, Land reforms were declared as un-Islamic.

Fast forward 20 years from 1990, we are still there, not an inch forward. In the past half a century scholars have interpreted the Islamic law both for and against the Land reforms but the way forward remains in limbo with much to talk about but little to do. We have much to gain or to lose from an economic, social and humane perspective. What we choose to do with this will determine our future and will define our history.

 

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

September 23, 2010 by Shahid

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 – 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:-

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.
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.
Permanent proprietary rights for occupancy tenants.
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
Differences in land ceilings varying by region due to the concept of PIUs. Overall 500/100 acres vs. 150/300 vs. 100/200.
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
Beneficiaries to pay Rs. 8 per PIU vs. no charges vs. no charges
Exemptions for orchards, stud farms abolished by 1972 reforms and exemptions for religious holdings (waqf) abolished in 1977.
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.

 

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Question of land reforms in Pakistan​

By Zulfiqar Shah
Saturday, 02 Feb, 2008 | 02:05 AM PST |

THE rural society and agriculture sector of Pakistan is chained by feudal relationships which has given birth to an evil land-tenure system with a high degree of land concentration, absentee landlordism, insecurity of tenure for share-croppers and low agricultural productivity.

According to a report, around ten million children are doing labour in brick kilns, farms, carpet manufacturing workshops and restaurants and another twenty million workers engaged in agriculture and industry work as bonded labour. Feudalism is the real problem and all other problems strem from it. The feudal lords and their allies constitute only five per cent of our agricultural households and own 64 per cent of our farm land. The rest of the 95 per cent are only their political vote-bank.

The total land area of the country is about 803,940 square kilometres. About 48 million hectares, or 60 percent, is classified as unusable for forestry or agriculture and consists mostly of deserts, mountain and demographic settlements. About 21.9 million hectares is being cultivated. Nearly 65 per cent of the cropped area is in Punjab, perhaps 25 per cent in Sindh and 10 per cent in the NWFP and in Balochistan. Farming is Pakistan's largest economic activity.

In Punjab, tenancies are split more evenly between share and fixed rent contracts. Landlords in Punjab are much smaller than those in Sindh, with a median holding of only seven acres of land, and are more likely to be residing in the same village as their tenants. In Sindh, more than one third of the land is tenanted and about two-thirds of land is under sharecropping, a form of farming where output is shared between the landowner and tenant.

Sharecropping is the predominant form of tenancy in Sindh where the land ownership distribution is particularly skewed. According to a study, a median landlord in Sindh owns 28 acres of land, whereas nearly 80 per cent of the share-tenants are landless farmers. Big landlords in the province often employ kamdars to manage their tenants.

Unlike India, Pakistan did not carry out essential land reforms soon after independence and has, as a result, failed to facilitate the much-needed transition of productive relations from feudal-agrarian stage to industrial one. However, three isolated attempts were made to reduce landholdings at intervals but these could not bring feudal system to an end. In the early 1950s, provincial governments attempted to eliminate some of the absentee landlords or rent collectors, but they had little success in the face of strong opposition.

In January 1959, General Ayub Khan's government issued land reform regulations that aimed 'to boost agricultural output, promote social justice, and ensure security of tenure.' A ceiling of about 200 hectares of irrigated land and 400 hectares of non-irrigated land was placed on individual ownership; compensation was paid to owners for land surrendered. Numerous exemptions, including title transfers to family members, dampened the impact of the ceilings. Slightly fewer than one million hectares of land were surrendered, of which a little more than 250,000 hectares were sold to about 50,000 tenants. The land reforms failed to lessen the power or privileges of the landed elite.

In March 1972, the Z. A. Bhutto government announced further land reform measures, which went into effect in 1973. The landownership ceiling was lowered to about five hectares of irrigated land and about twelve hectares of non-irrigated land; exceptions were limited to an additional 20 per cent of land for owners having tractors and tube wells. The ceiling could also be extended for poor-quality land. The owners of confiscated land received no compensation, and beneficiaries were not charged for land distributed.

Official statistics showed that by 1977 only about 520,000 hectares had been surrendered, and nearly 285,000 hectares had been redistributed among about 71,000 farmers. The 1973 measure required landlords to pay all taxes, water charges, seed costs, and one-half of the cost of fertilizer and other inputs. It prohibited eviction of tenants as long as they cultivated the land, and it gave tenants first rights of purchase. Other regulations increased tenants' security of tenure and prescribed lower rent rates than had existed.

The ceilings on private ownership of farmland in 1977 were further reduced to about four hectares of irrigated land and about eight hectares of non-irrigated land. Besides, agricultural income became taxable but small farmers owning ten hectares or fewer were exempted. The military regime of Zia ul-Haq did not make efforts to implement these reforms. Governments in the 1980s and early 1990s avoided any significant attempt at strict implementation of the land reform measures, because they got much of their support from landed aristocracy of the country.

Agrarian reforms in Pakistan have never transformed rural society in the context of property structure and production re lations. The limits in reforms were fixed in terms of the individual but not family holdings, which resulted in transfer of land to family members and relatives. In times of the military rule, feudal lords support the ruling junta to protect their system. And the military badly needs them.

Even after three waves of land reforms, 3,529 zamindars have 5,13,114 holdings of more than 100 acres in the irrigated areas, and 3,32,273 holdings exceeding 100 acres in un-irrigated areas. Some 7,94,774 Khatedars have 54,64,771 land holdings of less than 12 acres in irrigated areas. In un-irrigated areas 1,44,098 are reported to have 16,28,826 holdings of less than 24 acres.

Land reforms play an important role in reducing poverty and empowering the poor farmers. In Pakistan, the power of landed aristocracy has acted as a barrier to social and economic progress of the rural society. Genuine land reform can help solve the problems caused by the fact that farmers often use relatively inefficient capital-intensive techniques due to distorted market prices and that small farmers do not have access to the liberal credit subsidies on imported machinery and capital equipment.

Under any scheme of serious reforms, the land ceiling should be fixed at 50 acres irrigated and 100 acres non-irrigated land. The necessary legislation should be done in favour of land reforms and Haq-e-Shifa. All laws and regulations regarding land developed under colonial era need to be abandoned and a judicial commission on land utilisation should be formed to check exceeding commercialization of land. Under Haq-e-shifa, the agriculture land of about 8 acres should be allotted to the landless agriculture workers and peasants families. The agriculture land occupied by or allotted to military forms and government departments should be revoked and distributed among the landless peasants under the principle of Haq-e-shifa.

Corporate forming should not be promoted. Allotment of forest land to the influential persons has to be revoked and re-allotted to the peasants on the condition of re-forestation. The occupied surveyed or un-surveyed lands in Kacho, Kaachho, Kohistan, Kach, Bailpat, Thar, Thal and elsewhere in the country must be re-surveyed and distributed among the landless peasants and agriculture workers families.

Equitable distribution at the tail-end is imperative. It is necessary that all disputed irrigation projects including Kalabagh dam are given up and water requirements of Indus Delta fully met. To avoid water logging and salinity, the canals, branches and watercourses should be lined. The government must draw up an agriculture policy with the consultation of agriculture scientists, peasants, agriculture workers and growers.

The parliament should be persuaded to pass a legislation for protection of the peasant's rights, allowing them to have their trade unions, ensuring social justice and providing old age benefits to them.

 

[ajtr]

Time for land reform​

By I.A. Rehman

THE chapter on agriculture in the latest Economic Survey begins with a plea to "developing countries like Pakistan to get their acts together and benefit from the current situation by giving more serious attention to agriculture".

The advice is especially relevant to Pakistan because "agriculture is still the single largest sector, contributing 21 per cent to GDP and employing 44 per cent of the workforce. More than two-thirds of Pakistan's population lives in rural areas and their livelihood continues to revolve around agriculture and allied activities".

This opening paragraph of the chapter takes note of poverty in Pakistan being largely a rural phenomenon; "and, therefore, development of agriculture will be a principal vehicle for alleviating rural poverty." (And, of course, the global food crisis is offering Pakistan opportunities to get richer by exporting more food).

What is to be done about agriculture and for the well-being of the 44 per cent of the workforce and the two-thirds of the population? While asserting that "agriculture will continue to acquire the highest priority from the government", the Survey merely advocates a shift towards yield enhancement and attention to farm needs. This analysis is characteristic of the policy various governments of Pakistan have followed, that is, to make agriculture more productive in the interest of the national economy. The interest of two-thirds of the population is not the focus of government thinking. It is assumed, despite evidence to the contrary, that if agriculture shows a good rate of growth the rural have-nots will automatically receive windfalls.

The most critical omission in official thinking was pointed out by a perceptive journalist in this daily: "The minister evaded the issue of land-holding structure in rural Pakistan that has been identified by economists and a report of the agricultural reform commission as the major hurdle to increasing agricultural productivity."

It is not surprising therefore to find the volatility in agricultural growth (1.5 per cent to 6.5 per cent over six years) attributed to vagaries of nature, losses caused by pests and use of adulterated pesticides, and that no reference is made to the plight of small cultivators and landless tenants. For promotion of agriculture reliance is placed on the inputs formula in vogue since the 1960s. Steps will be taken to ensure greater and better utilisation of fertilisers, improved seeds, machines, plant protection, better irrigation, and disbursal of larger amounts of credit to farmers. Again, no mention is made of the millions of men and women who toil against heavy odds except for a reference to an initiative for "upgradation of socio-economic conditions of the fishermen's community".

There is need to seriously ponder the contribution to stagnation and reverses in agriculture made by the cultivators' lack of ownership of the means of production. The fact is that small landowners, tenant-cultivators and the voiceless haris have been abandoned to adjust themselves to the vagaries of the market, deadlier than the vagaries of nature. Largely denied the guidance of the once efficient extension services, the under-privileged farmer is changing crop patterns, in panic, that produces results such as replacement of wheat cultivation with sugarcane, unions or tomatoes. It is time the impossibility of moving forward without raising the status of the cultivator was duly appreciated. That will lead to the urgency of land reform, which was high on the national agenda for decades till the Zia-created religious courts issued the incredible verdict that land reform is un-Islamic (because one of the regular judges of the Shariat Appellate Bench joined the two ulema-judges to produce a retrogressive decision by majority). The way peasants were subsequently forced to give up lands acquired under land reforms — by force in Pakhtunkhwa and by legal chicanery in Punjab and Sindh — is a matter of abiding shame for all conscious citizens of Pakistan.

Land reform was always advocated on two premises — one economic and the other social. The economic argument was that smaller owner-cultivated farms achieved higher productivity than large farms operated by absentee landlords. This view has been challenged by advocates of mechanised, capital-intensive farming on huge tracts, (including corporate farming). They are not concerned with the consequences of displacement of hundreds of thousands of tenants without any prospects of alternative employment (decent and gainful). However, one may concede that the economic grounds for land reform can be re-examined. But, nothing has happened to reduce the force of the social argument for land reform. A system of self-cultivated farms is required to break the suffocating rule of feudals who prefer dictatorship to democracy, obscurantism to ijtihad, and rule by force to supremacy of reason. Land reform is also necessary to pull a large body of citizens out of medieval bondage, help them realise themselves, and thus avoid the huge loss of human capital Pakistan incurs year after year by denying the people their basic right to land. The case for land reform is as strong as ever. The food crisis lends the matter greater urgency.

That something can be done to alleviate the misery of tillers of the soil short of an over-arching land reform cannot be denied. The many sound proposals in this area include a plan to abolish bonded labour in agriculture not only in Sindh but also in Punjab, the International Labour Organisation — supported move to settle homeless haris in new villages, settlement of cultivators' claims on military farms in Okara and elsewhere, creation of education and skill-development facilities for hari/kisan children; unionisation of agricultural labour, et al. While such measures are welcome, they will only ease the rigours of the archaic land ownership pattern Pakistan has maintained at a terrible cost to the present and future generations. They cannot be a substitute for land reform.

Perhaps this is an appropriate time to plan land reform, not merely in terms of revision of land ownership pattern but also, and more essentially, in terms of land utilisation practices and social justice to a large mass of people. There may still be in the PPP some who could own the legacy of Zulfikar Ali Bhutto. Nawaz Sharif and Shahbaz Sharif also have been known to favour land reform. At least they did so a few years ago when they asked the World Bank to present the case for land reform before the members of the Punjab Assembly.

 

[ajtr]

Much ado about feudalism —Shahid Saeed​

It is very difficult for people to reconcile to 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, Islam is very much pro-capitalistic and opposes ceilings on wealth accumulation

The politics of land reform have always been tenuous in this country, the populist rhetoric very much opposed to the reality. In the latest series of mere rhetoric on the issue, the MQM has set up a 'think tank' that will table parliamentary legislation for land reforms in the country. However, these statements of ending feudalism and bringing land reforms not only ignore the legal challenges that such reforms face — in the wake of the Qazalbash Waqf case that declared a ceiling on landholdings as opposed to shariah — but also serve nothing but the appetites of the urban middle class masses who are too keen to blame feudalism for all ills. Needless to say, land reforms are very much supported by the masses but their vocal proponents amongst the urban middle classes fail to understand the history, politics and legal perspective associated with such a change.

The basis of land reform has always been to abolish the stratification of society based on the concentration of land in the hands of a select few. This monopolisation of landholdings leads to the denial of political rights to a large percentage of the population in an agrarian economy like ours.

Feudalism is a tribal notion that hampers social progress and is combined with the fact that landlords have social, political and often religious and legal power in their regions. However, urban upper middle and middle classes have crafted a narrative that blames all national problems on feudalism. This notion is devoid of reality since feudalism has transformed over the past 63 years and, contrary to popular perception, landlords cannot continue to suppress their subjects and still expect to remain politically popular. An oversimplification of the reality that ignores changes in patterns of landholdings — and associated socio-political power — in the country and what feudalism means in an era of urbanisation and modernity hampers intellectual progress itself.

The history of land reforms in this country started in 1949 with the Agrarian Reforms Committee of the Muslim League proposing short- and long-term measures to address the issue. The short-term measures were incorporated in the Tenancy Acts that were promulgated in Punjab, Sindh and NWFP between 1950 and 1952. The long-term goal of imposing a ceiling on landholdings never saw the light. Meanwhile, the East Bengal Land Acquisition and Tenancy Act of 1950 transformed the eastern wing of the country and imposed a 33-acre ceiling on landholding. Never a strongly feudal society, by 1954 the situation was such that none of the East Bengal Constituent Assembly representatives was a landlord compared to the 70 percent landlord-legislators from West Pakistan.

The martial law government of Ayub Khan brought forward the country's first major land reforms in 1959. The ceiling on landholdings was imposed at 500 acres for irrigated and 1,000 acres for un-irrigated land. 2.5 million acres of land was resumed, 2.3 million was distributed amongst 183,271 tenants (in reality the distribution was skewed and only 59,906 tenants below the subsistence level of 12.5 acres received any benefit). Only 35 percent of the holdings that exceeded the ceiling were taken over.

Zulfikar Ali Bhutto had promised land reforms under his Islamic socialism agenda and, in 1972, a stricter ceiling was imposed at 150/300 acres for irrigated/un-irrigated lands and land was resumed without any compensation. In 1977, it was further lowered to 100/200 acres. In total, 3.1 million acres of land was resumed and 1.8 million was distributed amongst 89,143 beneficiaries. Due to various reasons, only 42 percent of the holdings in excess of the ceilings were taken over in Punjab and 59 percent in Sindh. The reforms failed to bring the expected results.

Ziaul Haq's Islamisation and creation of shariat courts gave the opponents of land reforms — including the religious establishment — a golden opportunity to challenge them. In Haji Niamatullah v. NWFP government, the imposition of a ceiling on landholdings was declared un-Islamic. In December 1980 the Federal Shariat Court decided petitions against land reforms in Muhammad Ameen v. Islamic Republic of Pakistan (PLD 1981 FSC 23). It declared that it did not have the sufficient rights to declare it unconstitutional and even then it was not un-Islamic in any way to impose a ceiling on landholdings.

Appeals were filed and the Shariat Appellate Bench of the Supreme Court delivered its final judgment on the issue on August 10, 1989 in Qazalbash Waqf v. Chief Land Commissioner (PLD 1990 SC 99). The lead judgment, written by Mufti Taqi Usmani, held that the right to land in Islam is absolute, that Islam has imposed no quantitative ceiling on land or any other commodity that can be owned by a person, that any such limits are prohibited by shariah, that a temporary limit may be imposed in times of emergency, that illegitimately acquired land is illegitimate and that forceful acquisition of land is haram. In short, ceilings on landholdings imposed by the Land Reforms Regulation, 1972 and Land Reforms Ordinance, 1977 were un-Islamic and acquisition of land under the said laws was ab initio illegal.

With this case, the classic definition of land reforms in the form of ceilings on landholdings came falling down and the doors for reform were closed forever. The judges who dissented with the majority opinion based their opinion on the Islamic notion of social welfare and necessity to alleviate poverty.

While the future of land reforms looks bleak, it is certainly not unrealisable. One option lies in the form of analysing the shady origins of landholdings and land grants given by the colonialists as illegitimately acquired. However, not only is this tenuous and complex, it must therefore be extended to the vast urban and agricultural lands acquired largely by the military, but also by other state functionaries. The other option remains the very abolition of the Federal Shariat Court and the associated 'Islamic' provisions from the constitution, paving way for the old-style reforms again — also unrealisable and politically unfeasible.

With increasing religiosity part of urbanisation, 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. 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 social reform brought forward land reforms (even if supported by Islamic rhetoric) and were thrown into the dustbin of history on the basis of religion. Demonisation 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.