In the annals of Pakistani history, August 10, 1989 is remembered as the day when the Shariat Appellate Bench of the Supreme Court declared land reforms in Pakistan as un-Islamic. The verdict was delivered nine years after it was first filed by the Qazalbash Waqf, a religious charity based nearby Lahore. It was a 3-2 split decision and was made effective from March 23, 1990.
Indeed, the question of land holdings even had the founding fathers perplexed. Soon after independence, a question that drew the attention of our lawmakers was whether land holdings could be restricted to a certain level or if no ceilings should be imposed. An attempt to legislate a law was made but subsequently failed. Meanwhile, on the other side of the border, India had begun abolishing the zamindari system (large landholdings) as early as 1948.
A law on land reforms was finally instituted by Ayub Khan in 1958 and his successor, Zulfikar Ali Bhutto, followed suit in 1972. Ayub eliminated big landholdings in 1959 and allowed a maximum land holding of 500 acres of irrigated and 1,000 acres of unirrigated land. His efforts came to naught as large landholders in cahoots with the bureaucracy managed to hoodwink the law and transferred land that was surplus under the new law to their heirs, some of whom were not even born.
Bhutto, who had attained power by popular vote on the slogan of roti, kapra aur makan announced land reforms on March 1, 1972 through Martial Law Regulation No.115. Land ceilings were further reduced to 150 acres of irrigated land and 300 acres of un-irrigated land. No compensation was paid for the recovered extra land. Orchards and stud farms were exempted, which in turn, left great room for the bureaucracy to manipulate land records for the benefit of large landholders.
Courts returned influence and control to landed aristocracy in a landmark 1989 judgment
But Bhutto believed with great conviction that his populist programme would leave a lasting legacy and hand his party a massive vote bank for times to come. He was mistaken. When he decided to opt for mid-term polls in early 1977, his delusion was that exploiting the government’s land policy would guarantee him success.
On January 5, 1977, he promulgated a new law, Land Reforms Ordinance, 1977, which further reduced the land ceiling to 100 acres of irrigated land and 300 acres for unirrigated land. During the mid-term electioneering of 1977, he claimed to have become a great reformer and a friend of landless and poor peasants. Ironically, the whole exercise proved a fiasco and Bhutto lost both power and his life.
In 1980, Gen Zia introduced the Federal Shariat Court (FSC) with the aim of reviewing all existing laws and to bring them in conformity with Islamic injunctions. In all, 67 petitions were filed against land reforms alone.
After 16 months, the FSC began hearing these cases. On Dec 13, 1980, in a petition filed by a man named Mohammad Ameen, the court held that it 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, the Peshawar High Court while hearing a similar petition filed by Haji Naimatullah had declared ceilings on landholdings as un-Islamic.
Amidst this backdrop, an appeal was filed in the Shariat Appellate Bench of the Supreme Court by the Qazalbash Waqf, a clientele religious institution, pleading that its possession of land was merely to serve humanity according to divine laws. The bench delivered its verdict after nine years, on August 10, 1989, and made it effective from March 23, 1990. The verdict was written by Mufti Taqi Usmani. From now on, land reforms were deemed “un-Islamic.”
The constitution of the Shariat Bench is such that it has five judges — three from 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 were Justice Nasim Hassan Shah, Justice Shafiur Rahman and Justice Afzal Zullah. Mufti Taqi Usmani and Pir Karam Shah arrived from the FSC.
The two ulema judges were of the opinion that the said reforms were un-Islamic. In his verdict, Mufti Usmani’s main thrust was on the argument that individual property rights in Islam are the same as rights over other categories such as goods. He wrote that everything belongs to Allah and he has granted humans the right to utilise them within the limits of divine laws. Limits have been detailed both on the acquisition and use of property. There are certain obligations on the person who uses the land but the right to property in Islam is absolute and even the state cannot interfere with it.
In Mufti Usmani’s opinion, Shariah law has imposed no quantitative limits on legitimate ownership, including land. On the contrary, claimed the mufti, Shariah law allows 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.
The two dissenting judges, Nasim Hassan Shah and Shafiur Rahman, recorded their arguments based their conception of social welfare and equality in an Islamic state. They argued that a limit on land holdings was necessary to reform society and alleviate poverty.
Historically, the landed aristocracy has played a decisive role in making major political decisions. The FSC’s verdict reinforced their position as a powerful political player which continues to derive power from land. The issue of land holdings appears to be a closed chapter until an attempt is made to reopen it with the aim of creating a just and equitable society.
Published in Dawn, Sunday Magazine, November 13th, 2016