How imposition of Sharia outlawed land reforms and strengthened feudal lords in Pakistan

When there was a need to bring in more rigorous land reforms, any such possibility was dealt a death blow when General Zia created the Federal Shariat Court

2016-04-19T18:43:19+05:00 Aamir Butt

One of the biggest reasons for the success of Pakistan movement was the fact that the big landlords in Punjab who had always supported the Unionist party switched over to Muslim League. Similarly the landlords in Sindh supported the Pakistan movement as well. Perhaps the reason for this was the fear they had from the socialist policies of Congress. Such fears were quite justified as feudalism was indeed abolished in India while it still flourishes in Pakistan. As a result there are number of large landholding families who pay no tax on agricultural income and dominate national politics and economy.

Some believe that this feudalism is the most important cause for Pakistan's problems. While this can be debated, it being one of the most important hurdles for progress cannot be denied. So why have we not been able to abolish feudalism? Let us have a look at the efforts made for land reforms and the reasons why they failed.

The feudal system was initially established in India by the Mughals. However, it was the British colonial rulers who expanded and systemized it on a large scale. In a nutshell, the landed aristocracy practiced executive, judicial and revenue duties for the colonial government in exchange for land grants and the right to rule the people. Shortly after independence the ruling Muslim League formed an agriculture reform committee headed by Mumtaz Doltana (himself the son of a landlord and leading unionist Nawab Ahmed Yar Khan Doltana!) that presented its report in June 1949. It proposed various short-term measures aimed at improving the conditions for existing tenants and long-term measures asking for a restriction on land holding putting a cap at 150 acres, with the excess land to be re-distributed to the tenants.

There was wide variation in how these recommendations were implemented. In Baluchistan they were completely ignored; in Punjab, Sind and the then NWFP only the short-term measures were implemented and mostly on paper with no real improvement in the condition for the tenants/haris/muzaras); while in East Pakistan large land holdings were abolished and the ceiling for land ownership was put at 33 acres! As a result within a few years, feudalism disappeared in East Pakistan.

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

In January 1959, soon after imposing the first martial law, Ayub Khan set up a land reform commission that presented a report within 3 months. It recommended land redistribution with an upper limit of 500 acres for irrigated and 1000 acres for un-irrigated land. The implementation through ML regulation 64 was inefficient. Landholders distributed land in names of various family members (some of whom did not even exist) and even after the reforms the average landlord still had 7,000 acres across West Pakistan (11,000 acres in Punjab!)

ZA Bhutto came into power after the East Pakistan debacle with socialist slogans of roti, kapra aur makan (bread, clothing and shelter). As the Civilian Martial Law Administrator (CMLA) and then President, he promulgated on March 1, 1972, Martial Law Regulation No. 115 often called Land Reforms Regulation 1972. The ceiling on land holdings was lowered to 150 and 300 acres for irrigated and 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 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. By the end of the 1970s Ayub Khan and Bhutto’s measures had benefited only 272,000 out of the total 10 million eligible from the rural population, and only 4.5 million acres of cultivated land (less than 10% of the total) was redistributed.

The state, even with absolute and dictatorial 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. Therefore it is obvious that the land reforms had achieved only very limited results and there was a need to bring in more rigorous reforms or to put in measures to at least implement the reforms already in place.

However, any such possibilities were dealt a death blow when General Zia created the Federal Shariat Court (FSC) for the first time in June 1980; 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, except the Constitution, on the criteria of repugnance to the injunctions of Islam’ under Article 203D.

As it so happened, a waqf (charitable endowment) near Lahore had 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 according to the laws made by the divine.

Qazalbash Waqf banged the doors of the then created Shariat Benches in the High Courts and Supreme Court. In total, 67 Shariat petitions were filed in various courts challenging the land reform legislations as un-Islamic and after nine years, the final decision was delivered.

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 – Justice Afzal Zullah agreed with them to make it a majority decision, the other two judges dissented with the majority opinion.

Justice Afzal Zullah, was a highly religious man who would later lead the vocal tirade against the first government of Benazir Bhutto to implement Qisas and Diyat Laws.

This was eventually implemented by an interim government after Ghulam Isaac Khan 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.

And thus legal history was made with the ultimate and landmark judgment of the Shariat Appellate Bench of the Supreme Court of Pakistan in the Qazalbash Waqf v. Chief Land Commissioner, Punjab case on August 10, 1989 (made effective from March 23, 1990) and by a 3-2 vote the land reforms were declared un-Islamic and repugnant to injunctions of Islam.

The lead judgment was penned down by Mufti Muhammad Taqi Usmani.

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.

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.”

And so through the above judgment, which joins Qisas and Diyat, Blasphemy and rape laws as the black laws of Pakistan any possibility of further or effective land reforms has been permanently blocked. And since Islamic laws cannot be challenged the position of feudal lords has been secured under the banner of Islam. 


(With thanks to Shahid Saeed Khan whose paper provided much of the material presented here.)

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