The past, present and future of land reforms
Land reforms and bringing down feudalism are popular ideas, but very few understand the legal hurdles the state must overcome to implement change.
The politics of land reform have always been tenuous in this country, with the populist rhetoric very much opposed to the reality.
Land reform has always been a very popular slogan among those who view feudalism as the biggest problem that this country faces, but it is important to keep in mind the historical realities and legal problems reforms would face.
Popular views about land reforms, feudalism
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.
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.
Anybody born in an urban middle class family is ideologically opposed to feudalism. From illiteracy, to lack of healthcare to absence of social welfare and lack of rule of law, everything is attributed to feudalism. While not necessarily incorrect, this view 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.
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.
At the time of Independence, the first government review of land and tenure reforms was tackled in the province of Sindh. Constituted by the Government of Sindh 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 Sindh, 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.
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. 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
- By another account, the government overtook only 35% of the holdings that exceeded the ceiling.
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 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.
Effects of 1972 and 1977 reforms
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.
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
Muhammad Ziaul Haq’s Islamisation 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 and a judgment was delivered on December 13, 1980 in the case of Muhammad Ameen v. Islamic Republic of Pakistan. 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.
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:
- Individual property rights in Islam are the same as rights over other categories.
- Islam has imposed no quantitative limit (ceiling) on land or any other commodity that can be owned by a person.
- 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.
- 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.
- 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 and b) the compensation must be equal to the market value of the property.
- The order to spend surplus on the poor is not a mandatory order which could be normally enforced by the state.
- 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.
An ill-informed middle class
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 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. 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.
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.
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.
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 closed, yet, but there are huge challenges in pursuing such an agenda.