After the Qazalbash Waqf case, land reform in Pakistan is impossible. Discuss.
In this short essay, I wish to argue that 'land reform' in Pakistan remains possible, despite the decision of the Supreme Court in the Qazalbash Waqf case.
If 'land reform' is taken in its narrower, conventional meaning, it remains possible to strip current landholders of their land by establishing that their acquisition of the relevant land was ab initio illegal and against the principles of the Shari'ah. I also seek to establish that in the case of Pakistan, given the nature and history of many landholdings, this principle may have significant practical repercussions.
If 'land reform' is construed more broadly to include not just reform of land ownership but also reform of land usage, then, despite the Qazalbash waqf decision, the possibilities remain extensive. In fact, if anything, the very text of the Qazalbash case provides important cues in that direction. By the end of this essay, I hope to broach some of these open pathways to 'land reform' in Pakistan.
So help me God.
I
The Stories Behind the Case
Behind every case, the lawyers say, there is a story. Behind "PLD 1990 SC 99" there are many stories, each simply fascinating. The one story that I wish to narrate, before moving on the lawyerly talk(beginning Section IV), is the story of the Qazalbash Waqf, one of several appellants in the case by that name. It is a story that comprises many tales.
In the late 1960's and early 1970s, one Zulfiqar Ali Bhutto, scion of a landed Sindhi family, rose to power on the slogan of Islamic socialism (which he, probably, honestly believed was not an oxymoron). He promised that he would take land from the rich, using the power of state law, and give it to the poor. In 1972, soon after assuming the title of Chief Civilian Martial Law Administrator (another oxymoron?), he announced that under Martial Law Regulation No. 115, land would be taken from the rich and given to the poor. The state wouldn't buy land to give it to the poor. It would, as though, simply proclaim that land had never belonged to the rich; it had always been the poor's to take. In 1977, a little before announcing the general election, Z.A.Bhutto's government passed through the parliament another series of 'land reforms' through Land Reforms Act (2 of 1977).
Another of these tales is the tale of the Qazalbashes. The Qazalbash clan, with its roots in that mystical, world-unto-itself place called 'Turkistan', established its presence in the green plains of India, sometime in the last two or three centuries, certainly much, much before the Bhuttos established themselves in Sindh. Originally mercenaries, many members of the clan came to acquire large landholdings, and some even became saints of great repute. Someone from amongst them established a 'waqf'(variously translated as 'pious trust' or 'charitable endowment') that owned hundreds upon hundreds of acres of land, somewhere close to Lahore. The idea behind the waqf, as always, was simple: the good of the people, for the sake of Allah, as ordained by His law.
It so happened that while Bhutto was maneuvering the strings of state law to fulfill his promise of land reform, the net that he cast fell on, among other powerful entities(represented by lawyer-wizards), the Qazalbash Waqf. The Qazalbash Waqf, an institution protected for ages by God's law lost a lot of its land. The mutawalllis, of course, didn't like it at all.
Crying foul, they went to the state's courts. For many years, there was no relief available.
Later, however, like all powers mundane, Bhutto eclipsed. Islamic socialism gave way to cries for Nizam-e-Mustafa. General Zia ul Haque, having sent Z.A.Bhutto to where all men must in the end go, set out to Islamize the laws of Pakistan. For a start, he did two things: one, he inserted into the constitution an Article 2-A which commanded that no law in Pakistan may be repugnant to the Qur'an and the Sunnah – that is, un-Islamic; two, he set up, Shariat benches in the High Court of each province and, later, consolidated these in the form of one Federal Shariat Court.
The Federal Shariat Court turned out to be a fairly colourful jurisprudential experiment: it brought ulema from all different parts of the country to sit together with common law jurists so that, together, they may proclaim the meaning of God's law for the people of their own time. Later, when the Shariat Appellate Bench was created to sit in appeal upon FSC judgments, that court too had similar experiences.
Early in their lives, Muhammad Karam Shah and Muhammad Taqi Usmani, though both were scions of learned and pious families, had few things in common, except one very important one: a commitment to Islam, the way it has been understood traditionally. While Karam Shah was heir to a Punjabi sufi shrine in the foothills of the Salt Range, Taqi Usmani was an urbane and erudite Kararchiite, an aspiring heir to the juristic, textual legacy of Islam. Karam Shah had, among other accomplishments, a degree from Al-Azhar in Cairo – thus the prestigious title Al-Azhari, which the PLD editors seem to have somehow ignored entirely. Both men had a following. None liked socialism. When the Shariat Court brought them to sit together in judgment, they found themselves making history, often agreeing on how it should go.
II
The Federal Shariat Court Speaks
In 1979, with the establishment of the FSC, the Qazalbash Waqf, hitherto disappointed, saw a ray of hope. If someone could establish that land reforms were un-Islamic, they could retrieve the land that had been lost. They moved the court, arguing, inter alia, that Islamic socialism and its land reforms were, in reality, not Islamic at all. Much to their disappointment, when the court proclaimed its judgment in December 1980, it found nothing un-Islamic in land reforms. Only one judge expressed his opinion in favour of the Waqf; he did not however base his decision on the larger issue of land reform. He decided the case of a technicality: waqf was not a 'person' under the relevant provisions of the law.
The Qazalbash Waqf, which had survived the test of time, did not give up. They filed a review petition and then, like all tenacious and wise appellants, waited for the tide to turn. In the years to come, the Shariat Appellate Bench kept collecting appeals on similar questions of law, deferring its verdict, for reasons I am completely unaware of. May be, they too were waiting for the tide to turn.
III
The Tide Takes a Turn
By 1990, when the Shariat Appellate Bench finally proclaimed its judgment in the case of the Qazalbash Waqf, the world had changed. A wall had been pulled down somewhere in Berlin and in 1989 things was taking a strange turn, one after the other. Socialism became history. Its soldiers were retreating, if not deserting. Everyone was waking up to the new realities.
Muhammad Taqi Usmani, writing what appears to be the leading judgment, proclaimed that no one could be deprived of lawfully acquired property (including land) except in extremely limited circumstances – circumstances that did not include those leading to land reforms in the seventies in Pakistan. Taqi Usmani wrote one of the most well-argued judgments that I have yet come across amongst Pakistani superior court judgments. Explaining his answer and their legal-doctrinal bases in meticulous, almost pedantic, detail, he attacked every counter-argument presented by the lower court and the government's lawyers. More than once he exposed the spuriousness of argument thats deliberately sought to manipulate Islamic discourse to make room for socialist ideas.
Pir Karam Shah wrote a shorter judgment, essentially confirming and praising the finding of his "learned brother Allama Taqi Usmani". 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. It seemed somewhat natural that the two ulema on the bench would agree with each other.
Shafiur Rahman J. and Nasim Hasan Shah J., veteran Supreme Court judges and modernists in the outlook, upheld the FSC's judgment employing various arguments which do not, however, match the analytical rigour of Taqi Usmani's arguments.
The decisive vote, then, belonged to Afzal Zullah J. Somehow, something about Taqi Usmani, or the strength of his arguments, managed to sway him. It was his vote that ultimately decided the fate of 'land reforms' in Pakistan: they were declared un-Islamic and, thus, illegal.
It is important to note here that, in the case of the Qazalbash Waqf, the court could have arrived at the same verdict, on a simple technicality, just as the dissenting judge in the FSC did, by declaring that a waqf was not a 'person' under the land reform laws. The bigger issue could have been decided in some other case where doing so would be necessary. However, all except Pir Karam Shah chose to do otherwise. The Qazalbash Waqf had a destiny; and its destiny was to make history, and be remembered.
IV
The One Thing They Didn't Say
While declaring un-Islamic and thus illegal the expropriation of land, or any property, by the state without paying compensation, Maulana Taqi Usmani stated only one exception: "a state in which if one does not resort to unlawful means he will die or will get close to death." He concluded that the situation at hand could not fit the requirements of this exception. It is only too clear that if a situation arose which did fulfil any of these stated exceptions, then, the Qazalbash decision notwithstanding, land reform, if it can remedy the situation, would be legal. It is perhaps stating the obvious that in this case the extent of the land reforms should be proportionate to the need for them and no less, no more. In fact, according to Maulana Taqi Usmani's judgment, in such a situation it would be the state's responsibility to take every possible measure to remedy the situation.
` That said, considering the unlikeliness of such a situation, I feel that the more promising possibility of land reform lies elsewhere. In his judgment, Mualana Taqi Usmani repeatedly stresses that the broad protection from expropriation which property owners enjoy in Islam applies only if their property was acquired, in the first place, through legitimate means. If, however, the property was acquired through illegitimate means, it is the government's duty to take it back and give it to its original, legitimate owners; and, if that is not possible, then, just give it to the needy. Commentators of the Qazalbash case have been loathe to note the significance of this conditionality for the Pakistani situation perhaps only because, in the immediate case, this was not an issue. The conditionality can, I now argue, be significant given the shady origins of many large landholdings in Pakistan.
V
The Shady Origins of Landlordism in Pakistan
It is commonly known that in the times of the Mughal Empire, particularly since the administrative overhaul of Emperor Akbar, the King would appoint jagirdars and other nobles to collect revenue from certain tracts of land, a part of which they would keep to themselves, and the rest they would pass on to the King's treasury. These nobles would, in turn, grant the revenue collection rights over their parts land to others nobles. None of these nobles, however, owned the land. In short, while the king theoretically owned all the land, the peasants and tillers who has historically been on the land continued to possess it, as long as they ensured payment of their revenues.
When the British conquered the lands that the Mughals has once ruled, they gradually transformed the whole concept of land ownership. Modern capitalistic forms of property ownership, developed in England, were gradually replicated in the colonies. Lands that had long been communally 'owned' and exploited gradually became the property of private individuals. Not unexpectedly, in the ensuing scramble for land, local influentials, particularly those who collaborated with the British, got much more than their share. Ultimately, a few got all. Most got nothing.
It can be argued, as people on the street often still do, that through manipulation of land rights, the colonizers deprived many families of rights over land that these families had traditionally enjoyed. Instead, quite unjustly, and quite against the principles of the Shari'ah, landholdings were arbitrarily made the exclusive possession of a select few families. Many of these families still own the land. The history of this land scam dates back to no more than a hundred and fifty years, given that Punjab and Sindh were annexed only as late as the 1840's. In terms of history, that's only recent.
In sum, despite the Qazalbash Waqf case, if the state wishes to deprive landowners of their land so that the land may be redistributed, it can do so by first establishing the ab initio illegality of title to the land. This, as contended above, may not be impossible in the case of various large land owners in Pakistan because of the shady origins of their title to the land.
VI
Thinking out of the Box
In this section, I hope to examine a broader, less conventional conception of land inform. I contend that the possibilities of such 'land reform' remain extensive. In fact, the Qazalbash case itself offers important cues that can spark one's imagination and provoke one to think of creative solutions to the problems that first gave rise to the narrower conception of land reform.
Land reform has generally tended to focus on land ownership rights – that is on land itself. Ultimately, however, this focus on land itself seems misplaced considering that land is only as good as what it can be used for and who it can be used for. If land usage is reformed in such a manner that it caters to get of all and not just the good of a few, then, to some extent, the need for redistributing land ownership may be obviated. That seems to be solution indicated in Maulana Taqi Usmani's leading judgment.
He repeatedly emphasizes this point: the economic teachings of Islam may not be looked at in isolation. The broad protection enjoyed by property owners must never be looked at in isolation from the duties they have to God and to their own communities. While on the one hand the state may not expropriate land, land owners are also not totally free to use their land as they please: they may not produce anything that is illegal or harmful to the community on their land; they must pay zakat and usher upon their produce; they must take care of anyone in their community who slides down to dire poverty, such that no one goes hungry or naked; they are responsible for ensuring the well-being of their extended family, from whom they inherit and to whom they must leave their property behind; in times of scarcity, they may not hoard, nor gamble or speculate, nor may they charge interest on the capital that they possess. Furthermore, one who 'brings life' to a 'dead' land may own it, while one lets a land go to waste for a certain number of years loses title. All of these conditions, among others, constitute significant reforms to land usage. Few, if any, of these rules of land usage are currently being followed in Pakistan.
If the state plays a role in ensuring that these conditions of land usage are closely adhered to, these "reforms" are quite enough to bring about much good.
The strength of Maulana Taqi Usmani's judgment depends, in part, on his ability to muster up precedents from Muslim history along with contextual explanations from the Islamic scholarly tradition. His view, it appears, is that which enjoys the support of centuries of scholarly consensus. On the contrary, the dissenting views of Nasim Hassan Shah and Shafi ur Rahman, in support of the Islamic-legality of land reforms, are remarkably abrupt and ahistoric. Nasim Hassan Shah, for instance, simply ignores the argument that anything which the Qur'an or the Sunnah do not forbid, cannot then be forbidden forever by anyone else. Furthermore, he comes up with his own precedented definition of 'darurah' or necessity – a concept with which constitutional jurists in Pakistan are only too familiar, although in a rather sinister context. By alluding to Muslim history, Taqi Usmani also points out where it is that we need to be looking for, to find creative and well-grounded solutions to the problems that gave rise to the need for 'land reform'.
At one point, Pir Karam Shah comments on the irony of this misplaced focus on land ownership rather its usage. He points out that the institution of Waqf itself was developed to increase public welfare – for centuries, that is precisely what many auqaf were doing. In the case at bar, a waqf had been stripped of its land, in the very name of public welfare. The state, in the name of public welfare, found itself destroying age-old institutions which Muslim society had nurtured for the same purpose. The modern, colonial and postcolonial state, right at a time when it proclaims its mission of public welfare, has long maintained policies that discourage and damage the institution of waqf. The Qazalbash Waqf case not only allows but encourages the state to protect and promote this institution – the essence of which is the reform of land usage. The establishment of auqaf offers the prospect of converting lands previously utilized for private good into lands utilized for the good of the public. This process is required to be voluntary, not motivated by the love of God and not by coercion of state law. Yet, there is no reason to conclude that auqaf cannot come to play a significant role in the provision of welfare to the public – indeed, history indicates that with the right amount of push from both state and society, they can. That too is a pathway of 'land reform' which remains possible in Pakistan.
The End!
