The Shariat Appellate Bench of the Supreme Court of Pakistan through its judgment (1989) in the case of Qazalbash Waqaf and others had declared certain provisions of land reforms laws, both Martial Law Regulation - 115 of 1972 and Act - II of 1977 repugnant to injunctions of Islam, particularly those relating to fixed ceilings on individual land holding.
The judgment had the effect of rendering 17 sections of the Act of 1977 and similar number of paragraphs of MLR 115 redundant and ineffective. The government of Pakistan filed a review petition in the Supreme Court of Pakistan, which by its order dated 14th December, 1991 (1993 SCMR 1697) upheld the earlier order.
According to the ministry of law, the judgment has become operative w.e.f. From 23 March 1990. It advised the Federal Land Commission (FLC) to take up necessary legislative measures for imposition of fresh ceiling under Article 253 of the Constitution. And there the matter rests for more than a decade. Why are people getting annoyed with the PM’s declaration of a self-evident truth.
The Shariat Bench had, while deciding the case, upheld the powers of the government to fix a fresh ceiling on land holding, but subject to two important limitations. The first that it could not be applied retrospectively and second no limit could be placed even prospectively if the excess land had been acquired involuntarily, say through inheritance.
Thus all lands acquired by the feudals in return for their services rendered to the British Imperial power in 1857 or after until independence will stand completely protected from the mischief of land reforms. Forfeiting under the land reforms any land acquired in the past and involuntarily were characterized as vicious and repugnant to the injunctions of Islam.
Fixation of ceiling in the abstract and prospectively was, however, not considered repugnant to the injunctions of Islam. Therefore, the legislature can set a limit in future on the ceiling of land that can be acquired through purchase. But inherited lands will continue to be exempt. Thus introducing equity in ownership of land is un-Islamic, because involuntary accretions are kosher. The two judgments while declaring certain provisions of the land reforms repugnant to the injunctions of Islam, exempted pending cases from its effects. There are about 600 cases pending adjudication either with the High Courts or the Supreme Court, some for over a decade.The FLC, comprising a chairman of the status of a federal minister, a senior member of the status of the federal secretary and two or three other members, wastes its time and public money in trying to play games with about 60 - odd cases, which keep coming back to it. The moment the FLC decides a case, the affected land owner rushes in a writ to the High Court and the wheels of justice start grinding again.
There was an interesting case typical of all land reform cases, which was quoted by this writer in his earlier article under the heading ‘Monumental Failure of Land Reforms’ which appeared in Dawn on 24th March 2001. In that case after exhausting all the venues of appeal, the landowner lost his final appeal in the Supreme Court in 1992. When tehsildar office forfeited the land in compliance with the order of the highest court in the land, the landowner went in appeal against the entry before the deputy commissioner, Attock, and then onwards to the commissioner, the Provincial Board of Revenue and the FLC, etc. The case must be even now awaiting disposal in some judicial forum or another.
With that kind of treatment of the cases that have already come within the ambit of the land reforms, only the naive would harbour a notion that land reforms are taking place.
There is such a large number of loop holes in the law, and the people mandated to implement them are so incompetent, dishonest or both, that nothing ever happened except in the initial period; and that too applied selectively against the opponents of Mr. Bhutto’s government. His own CMs got busy to doctor the revenue record to escape the effects of land reforms.
Since the decision by the Supreme Court declaring land reforms un-Islamic, the FLC has been going through the motions of framing a law to provide for land reforms, that do not offend the Islamic provisions. Experience indicates that no further legislation on land reforms is likely and no progress on pending land reform cases is to materialize. What is possible is to agree with the Prime Minister and forget about land reforms in this country. The PM is to be complemented for his forthright approach to the problem.
The FLC, which never employed a person on merit because the chairman had/has the powers to appoint employees from Grade 1 to 20, and which has a former clerk serving as one of the honourable members, should be abolished so that the false impression of ongoing land reforms is neutralized and public expenditure on huge bureaucratic edifice saved.
In the review, the court held that, notwithstanding the provision contained in Article 253 of the Constitution, the court was possessed of the jurisdiction to hold the fixation of ceiling on land holdings to be repugnant to the injunctions of Islam.
It was contended on behalf of the government of Pakistan that Article 203-B (c) of the Constitution barred the jurisdiction of the Court, as the land reforms did not fall under the definition of ‘law’.
Article 268 of the Constitution specifies laws in the 6th Schedule of the Constitution, which ‘shall not be altered, repealed or amended without the previous sanction of the President’.
The schedule contains laws on land reforms. It was also contended that Article 253 of the Constitution gives parliament the power to prescribe the maximum limit as to property.
The review petition was dismissed as being barred by 144 days. It was also held that no case for review was made out on merits.
The first martial law government of General Muhammad Ayub Khan had appointed the Land Reforms Commission for West Pakistan which was headed by Mr. Akhtar Hussain who was then governor of West Pakistan and included six civil servants.
How could a bunch of civil servants come up with a radical solution to one of our basic problems? They went into the question of land holding.
They submitted their recommendations in 1959. Land ownership pattern in West Pakistan was as follows. 3.3 million owners owned 7.4 million acres. Their holdings were less than 5 acres. 6000 owners owned land in excess of 500 acres and their total land holding exceeded the holdings of 3.3 m small owners.
According to Agricultural Statistics of Pakistan (1999-00), data for number and area of farms by size presents a very sad picture. Thirteen per cent13 of the farms or 679,000 farms are below 0.5 hectares; 14 per cent farms are between 0.5 to 1.0 hectares; 20 per cent, or one million farms, are between 1.0 to under 2.0 hectares; 46 per cent farms are between 2.0 to 10.0 hectares;and only 7 per cent are above 10.0 hectares. In terms of area, the last group owns 40 per cent of the total area and 27 per cent own 1 per cent of the total farm area.
Balochistan presents a case of the highest level of un-equal distribution. People owning 60 hectares and above are 2 per cent and their average size of farms is 155 hectares.
Since the land in Balochistan is not half as fertile as in Punjab or Sindh, the situation is not as alarming as it may appear.
Punjab and Sindh have almost similar situation: 37 per cent own 10.0 hectares and above in Punjab and 36 per cent in Sindh. Comparable figures for Balochistan is 71 per cent.