COMMENT: QAZALBASH WAQF V. CHIEF LAND COMMISSIONER (PLD 1990 SC 99)

I. INTRODUCTION

The Qazalbash Waqf v. Chief Land Commissioner[1] (PLD 1990 SC 99) judgment is one of the most important and influential court judgments ever passed by the superior court of Pakistan. Yet, for all its importance to our jurisprudence, it has not attracted much scholarly critique nor has it generated much public debate. In the few works that do make any mention of it, it has been briefly criticised as the judicial decision which shut the doors of ‘land reform’ in Pakistan.[2] At the most basic level, this description of the outcome of the case is not inaccurate and it is not the purpose of this comment to refute that. But this most basic description should not be treated as the end of the road for critical evaluation. Precedents as important and as complicated as the one being reviewed here deserve to be studied, described and debated again and again, in great detail and from a range of perspectives; only from such detailed, multi-faceted and vibrant legal discourse can better outcomes emerge. What this comment seeks to do is to view the judgment afresh, presenting to the readers a basic overview of this landmark case and its historical background, followed by a somewhat more imaginative interpretation of its possible implications.
The argument that I present here is that despite the decision of the Supreme Court in the Qazalbash Waqf case, certain forms of 'land reform' still remains possible. If 'land reform' is taken in its narrower, conventional meaning, it remains possible (theoretically, at least) to strip current landholders of their land if it is established that their acquisition of the relevant land was ab initio illegal and against the principles of the Shari'ah. Given the nature and history of many landholdings in Pakistan, this principle may also have some practical repercussions. If 'land reform' is, as it should be, construed more broadly to include not just redistribution 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 and context of the Qazalbash Waqf case provides important clues in that direction.

II. THE BACKGROUND OF THE CASE


In the late 1960s and early 1970s, Zulfiqar Ali Bhutto, scion of a prominent landed Sindhi family, rose to power on the slogan of Islamic socialism. His Pakistan People’s’ Party (PPP) galvanized the masses by promising that, once in power, it would appropriate land from the rich, using the power of state law, and redistribute it among the poor.[3] Although he was certainly not the first person to float this idea in the country[4], it was Mr. Bhutto who managed to convert this into a galvanizing political agenda. In 1972, soon after inheriting the throne of General Yahya Khan and assuming the title of Chief Martial Law Administrator, Mr. Bhutto enacted the Martial Law Regulation (M.L.R.) No. 115[5], which provided for land to be appropriated from the rich and distributed among the poor. The whole process was, in tune with the spirit of the times, to be mediated by the ‘almighty’ State, which the then Chief Martial Law Administrator, Mr. Bhutto, personified. MLR 115 did not provide for the payment of any compensation to those who were to lose their lands because of the land reform.[6] In 1977, in the wake of looming elections, on the last day before the National Assembly was dissolved, Mr. Bhutto’s government passed through the Parliament the Land Reforms Act 1977 (Act II of 1977),[7] which further decreased the maximum amount of land which could be lawfully possessed. This time around compensation was to be provided to those stripped of land; but the amount paid was nowhere near the market price.[8]

The Qazalbash Waqf case was among the many awqaf (singular: waqf; variously translated as 'pious trust' or 'charitable endowment') spread across the length and breadth of country. This Waqf comprised more than a thousand acres of irrigated land close to Lahore.[9] 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 Mr. Bhutto was maneuvering the strings of the State law to fulfill his promise of a land reform, the net that he cast fell on, among other powerful entities, the Qazalbash Waqf. The Qazalbash Waqf, an institution protected for ages by God's law now lost a lot of its land, ostensibly for redistribution among landless peasants.

Many who had lost their lands to the State, just like the mutawallis of the Qazalbash Waqf, knocked the doors of the courts seeking relief. But for many years, there was no relief available, as the land reform legislation was protected by the Constitution itself under various Articles that prohibited judicial review and counter-legislation in this area.[10] Later, however, like all powers mundane, Mr. Bhutto eclipsed. Islamic socialism gave way to cries for ‘Nizam-e-Mustafa’. General Zia ul Haque, having sent Z. A. Bhutto to the gallows, set out to ‘Islamize’ the laws of Pakistan. For a start, he set up Shariat benches in the High Court of each province which were given the task of “examin[ing] and decid[ing] the question whether or not any law or provision of law [was] repugnant to the injunctions of Islam.” [11] A little later, these provincial Benches were consolidated in the form of one ‘Federal Shariat Court’[12] (FSC). The FSC’s judgments could be appealed to the Supreme Court’s Shariat Appellate Bench (SAB).

The creation of the FSC and SAB turned out to be a fairly colorful jurisprudential experiment: these courts began to officially explore the meaning of God's law for the people of their own time. The experiment became even more interesting and discursively rich when, a few years later, ulema members from different parts of the country were also brought on the bench to sit along with regular judges coming from a traditional common law background.[13]

III. THE FEDERAL SHARIAT COURT SPEAKS

In 1979, with the establishment of Shariat Benches in the High Court, hitherto disappointed litigants, such as the Qazalbash Waqf, saw a new ray of hope. If someone could establish that land reforms were un-Islamic, they could retrieve the land they had lost. Litigants rushed to the courts, arguing, inter alia, that Islamic socialism and its land reforms were, in reality, not Islamic at all. The enthusiasm with which such litigants approached the newly established Shariat benches is hard to ignore. The very first such petition in the Peshawar High Court, Shariat Petition No. 1 of 1979, filed by Haji Niamatullah Khan, and decided on the 2nd of July, 1979, assailed clause (d) of sub para. (3) of paragraph 25 of M.L.R. 115. And the first one only set the trend. Records indicate that of the first 75 Shariat petitions filed in the Lahore Bench, no less than 33 concerned issues surrounding the land reforms.[14] The same appears to be the trend in the other High Courts that year, and it would remain so for many years to come.[15]

It must have been a moment of great excitement for all such litigants when, in its judgment in Niamatullah Khan’s case[16], the Shariat Bench of Peshawar High Court, struck Article 25 of the M.L.R. 115 down. Abdul Hakeem Khan, C.J, writing the Court’s judgment decided: “We will, therefore, declare that clause (d) of sub-para. (3) of paragraph 25 of the M.L.R. 115 is repugnant to the Injunctions of Islam and recommend that the aforesaid clause shall be deleted with immediate effect.” While the non-parallelism between the word ‘recommend’ and the imperative ‘shall’ is a little confusing, the fervor in the tone of this prompt order is unmistakable. The litigants certainly picked it up. The optimistic amongst them might have even been led to believe that the fall of Article 25 of M.L.R. was the beginning of a process; a process that would culminate in the total repeal of M.L.R. and all such expropriatory statutes.

In June 1980, the provincial Shariat Benches were all consolidated in one Federal Shariat Court (FSC). Now, it was the FSC which would sit in judgment over the host of petitions and decide the fate of land reforms. And much to the disappointment of the petitioners, when the court proclaimed its judgment in December 1980, a 4-1 majority found nothing un-Islamic in land reforms.[17]

The mainstay of the majority’s opinion was an issue which laymen will always treat as something of a technicality. Yet it is something which legal minds not only fully appreciate, but sometimes even obsessively admire. It is the issue of jurisdiction. In plain words, the Court majority argued that the Constitution itself protected these reforms and barred the courts from examining their vires; so, to test the validity of these reforms on the touchstone of Islam was to test the validity of the Constitution itself – something the Court was barred from doing by the same laws which otherwise granted it a general power to examine the compliance of laws with Islam.

Writing the lead judgment, Justice Aftab Hussain succinctly summarized the ‘…steps taken by the framers of the Constitution to protect the Regulation…” These are, namely, Articles 269, 268(2), 253(2), 8(3) and 24. He could not help but notice the “unusual, rather extraordinary pains” which “the framers of the Constitution ha[d] taken to plug all the loopholes of attack on the vires of the Regulation.” He added: “…the Court … cannot declare any provision of the Constitution as repugnant to Islamic Injunction[s].” He concluded this discussion, holding: “the provisions of the Regulation and other expropriatory laws regarding ceiling on ownership of land, acquisition of land for housing or other public purposes described in Article 24(3) and absence or inadequacy of compensation in the relevant statutes are not within the jurisdiction of this Court”[18] In brief, he held that Court simply could not look into the question of whether land reforms were un-Islamic.

What makes the judgment interesting, and of lasting relevance, is that it did not end here. Well aware of the possibility that the appeal court may not uphold this jurisdictional bar, and then send the case back for examination on merits, Justice Aftab Hussain proceeded to give his opinion on the merits of the case.[19] He opined that although Islam allows for a right to private property, it was deeply “opposed to a social fabric which may disintegrate by the ever growing gulf between the rich and poor, the haves and the have nots” – a situation which seemed to prevail in the country. Thereafter, he proceeded to summon a whole gamut of authorities from within the Islamic tradition to support his contention that state expropriation of private owned land for the purpose of redistribution, without payment of compensation, was not un-Islamic. On this basis, he dismissed the petitions on merit. Another two judges, Salahuddin Ahmed, J. and Agha Ali Hyder, J. fully agreed with him. Zakaullah Lodhi, J. also agreed with the order dismissing the petitions on the basis of the jurisdictional issue although, on substantive points, he clarified that he had “[a] different approach on the subject of economic system of Islam.”[20] He did not, however, find it necessary to elaborate this ‘different approach.’

The one judge who did express his opinion in favor of the petitioners was Karimullah Durrani, J. First, he endorsed a narrow construction of the jurisdictional bar that the Court faced. He took it to mean that while the FSC indeed could not examine the vires of articles of the Constitution, this immunity did not extend to laws protected by the Constitution, such as laws which brought about land reforms. Thus having gotten beyond the jurisdictional hurdle, he proceeded to examine the case on merits. But here, he did not take the general issue head on. Instead, of all the arguments, what caught his attention was the Waqf’s contention that “a waqf having been dedicated to God does not fall under any category of personal property of an individual land owner and as its ownership vests in God Almighty, its acquisition by the Government under any pretext, Law or Regulation, for any purpose whatsoever was repugnant to the Injunctions of Islam.’[21] He endorsed this contention and presented authorities from both Sunni and Shi‘a schools of thought to support it. In other words, he based his judgment on merits on a technicality - land reform may or may not be all fine, but it should not have touched a waqf which was sacrosanct; it was clear to him that this much was un-Islamic and therefore invalid. But, since he was in the minority, his opinion could not afford any relief to the Waqf or any other petitioner.

The Qazalbash Waqf, which had for long survived the test of time, did not give up. The mutawallis of the Waqf quickly filed their appeal[22] to the SAB, and then, perhaps, just sat, waiting, holding their breath, and hoping that their fate would take an unexpected twist at the appeal stage.

In 1982, the President who had earlier added ulema to the FSC now found it expedient to add ulema to Shariat Appelate Bench (SAB) of the Supreme Court, to which FSC judgments could be appealed. This meant that SAB which would hear appeal on the Muhammad Ameen judgment would be substantially different in composition than the bench which originally decided it. In the years to come, the Shariat Appellate Bench would keep collecting appeals on similar questions of law, deferring its verdict. In Said Kemal Shah’s case[23], the SAB dealt with the clauses of the land reform regulations which dealt with pre-emption, declaring those clauses un-Islamic. But they separated from this the issue of ceiling upon maximum holdings and state appropriation of the remainder. Maybe, they too were waiting for the tide to turn.

IV. THE TIDE TAKES A TURN

By 1989, when the Shariat Appellate Bench finally proclaimed its judgment in the appeal of the Qazalbash Waqf case[24], the world around it had changed. A wall had been pulled down somewhere in Berlin and strange events had just kept on happening, one after the other. Socialism, which had once caught the imagination of so many, was now becoming history. Its soldiers were retreating, if not deserting. Everyone, it seemed, was waking up to the new realities.

It was in this altogether changed context that Mawlana Muhammad Taqi Usmani wrote his forcefully argued judgments whereby the tables were turned for the Qazalbash Waqf. Writing the lead opinion, he proclaimed unequivocally that in the Islamic Republic, no one could be deprived of lawfully acquired property (including land) except in extremely limited circumstances – circumstances that did not include those which had led in the 1970s to land reforms in Pakistan. Explaining his answer and their legal-doctrinal bases in meticulous, almost pedantic, detail, he systematically attacked every counter-argument presented by the FSC majority and the government's lawyers; more sought to expose as spurious of arguments that deliberately sought to manipulate Islamic discourse to make room for socialist ideas.

Pir Karam Shah al-Azhari wrote a shorter judgment, essentially confirming and praising the finding of his "learned brother Allama Taqi Usmani"[25]. He seemed to take great comfort in announcing that the days of socialism were over and that its false promises stood exposed.[26] There was no point in bending Islam out of recognition to fit it in the socialist mould. It seems somewhat unsurprising that the two ulema on the bench would agree with each other because, notwithstanding the different theological schools they subscribed to, they hailed from similar discursive milieus.

Shafiur Rahman J. and Nasim Hasan Shah J., veteran Supreme Court judges and modernists in their outlook, upheld the FSC's judgment employing various arguments. Nasim Hasan Shan, J. defended state intervention in the form of land reforms on the basis of the Qur’anic injunction to uphold ‘Adl. He wrote: “In a society like Pakistan, which has been raised on feudalistic capitalistic principles for centuries, to reduce the gulf between the rich and the poor … it would be essential for the State to intervene ... Accordingly, even large scale State intervention to restrain individual greed cannot be declared to be against the injunctions of the Holy Quran. [Therefore, the] Islamic State is not prohibited from adopting such legal measures as contained in the Martial Law Regulations 115 of 1972 and Act II of 1977 in order to bring about ‘Adl (social equilibrium in the society).”

Therefore, even though he agreed, “FSC and SAB … has the jurisdiction … to examine [these laws,] on the merits of the case…”, on merits he held that “the impugned laws are not repugnant to the Injunctions of Islam…”

The decisive vote, then, belonged to Afzal Zullah J. Somehow, something about Taqi Usmani, or the strength of his arguments, managed to sway him. He seemed somewhat uncertain and defensive about the verdict and he complained: “…concrete alternatives with elaborate frameworks have not been proposed...” and “…enough proper assistance was not rendered on the difficult issues relating to the provision for the Islamic alternatives.” Nonetheless, in the end, it was his vote that ultimately decided the fate of 'land reforms' in Pakistan: they were declared un-Islamic and the land reform legislations of the 1970s were declared null and void.

Kennedy describes the difference between the minority and the majority opinion thus: “The majority view was that Islam does not countenance compulsory redistribution of wealth or land for the purpose of alleviating poverty, however laudable the latter goal or, as Justice Afzal Zullah succinctly states, Islam requires “mandatory leveling up with not mandatory leveling down.” The minority was of the view, rather, that the rights of property holders must be balanced by the needs of the community. That is, as Justice Nasim Hassan Shah argues, the state has the responsibility to alleviate poverty even if it means reducing the holdings of the wealthy.”[27]

It is important to note here that, in the case of the Qazalbash Waqf case itself, the Court could have arrived at the same verdict, on a simple technicality, just as the Karimullah Durrani, J in the FSC did, by declaring that land reform or no land reform, the government should have kept its hands off waqf land. The broader issues could have been separately dealt with in other appeals. But the Court chose to go all the way, and to make the case of this very historical waqf, a landmark in our legal history.[28] It is also somewhat ironic, and from the Waqf’s perspective, tragic, that the Court decided to apply its decision only prospectively. The Chairman of the SAB stated: “I am of the view that the decision of this Court shall not affect those cases in which any decisive step has been or is now taken in the ordinary course at any stage of the proceedings ...”[29] Thereby, waqf which had lost its land more than a decade ago did not stand to benefit from this historic verdict with which its name will long be associated.

V. THE LAW AND LOOKING BEYOND

On account of its sheer political importance, the decision is likely to remain a subject of debate.[30] Indeed, judgments such as this should be subjected to an informed critique and the doctrine of stare decisis notwithstanding, such critique should guide courts when they decide the future course of the law. This comment, however, does not provide such a critique nor does it prescribe any particular course of action for the courts if they ever choose to re-examine the doctrine laid down so far.[31] Instead, what this comment tries is to explore in the next few pages the various avenues for action which remain possible in the current state of the law.

While declaring un-Islamic and thus illegal the expropriation of land, or any property, by the State without paying compensation, Mawlana Taqi Usmani stated only one exception – “where someone reaches such a state that if he doesn’t commit the illegal act, he will get killed, or will get close to getting killed. For instance, someone who is so deprived of food and cloth that if he is not fed or clothed, he will die, or lose an organ. In such a case, the use of the forbidden is permissible.”[32] He concluded that the situation at hand could not fit the requirements of this exception. It is very clear that if a situation arose which did fulfill any of these stated exceptions, then the Qazalbash Waqf decision notwithstanding, the land reform, if it can remedy the situation, would be legal.[33] 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 Mawlana Taqi Usmani's judgment, in such a situation it would be the State's responsibility to take ‘every possible measure’ to remedy the situation.

However, that said, considering the un-likeliness of such a situation, I feel that the more promising possibility of land reform lies elsewhere. In his judgment, Mawlana 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.[34] If, however, the property had been acquired through illegitimate means, it is the government's duty to take it back and return it to its original, legitimate owners; and, if that is not possible, then, just give it to the needy. Commentators of the Qazalbash Waqf case have been unable to note the significance of this conditionality for the Pakistani situation perhaps only because, in the immediate case, this was not an issue. This conditionality can, however, be significant given the shady origins of many large landholdings in Pakistan.

VI. 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 to other nobles. None of these nobles, however, ‘owned’ the land. Theoretically, it was the King who owned all the land, while the peasants and tillers who had historically been on the land continued to possess it, as long as they ensured payment of their revenues. Therefore, in theory, while property rights rested with the kings, usufructry rights rested with the common people, and the nobles had only revenue-collection rights.

When the British conquered the lands that the Mughals had once ruled, they gradually transformed the whole concept of land ownership. Modern capitalistic forms of property ownership, developed earlier 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,[35] got much more than their share. Ultimately, a few got all. Most got nothing.[36]

Through manipulation of land rights, the colonizers deprived many families of usufructory 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 no more than a hundred and fifty years, given that the areas which now constitute Pakistan were annexed by the British only as late as the 1840's. In terms of history, that is only recent.

As a result, despite the Qazalbash Waqf case, today 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 is admittedly a daunting task, which would require a detailed exploration of the rights to property in the period predating the British and a close look at the series of steps whereby the British manipulated it, leading ultimately to the current regime of property. Nonetheless, for many, many cases, if not all, this should not be impossible in the case of various large landowners in Pakistan because of the shady origins of their title to the land.

VII. CONCLUSION: THINKING OUT OF THE BOX

In this section, I hope to examine a broader, less conventional conception of ‘land reform’. I contend that the possibilities of such 'land reform' remain extensive. In fact, the Qazalbash Waqf case itself offers important clues 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, rights 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 by whom it can be used. If land ‘usage’ is reformed in such a manner that it caters to the good of all and not just the good of a few, then, to some extent, the need for redistributing land ‘ownership’ may be obviated. Assuming that he was not utterly oblivious to the problem of poverty and inequity in Pakistan, that seems to be the solution indicated in Mawlana Taqi Usmani's judgment.

He repeatedly emphasizes this point: the 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 towards God and towards 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; they may not hoard, nor gamble or speculate, nor may they charge interest on the capital that they possess. [37] Furthermore, one who 'brings life' to a 'dead' land may own it, while one who lets a land go to waste for a certain number of years loses title.[38] 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" can go a long way to improve conditions.

At one point, Pir Karam Shah comments on the irony of this misplaced focus on land ownership rather than its usage.[39] He points out that the institution of waqf itself was developed to increase public welfare – for centuries that is precisely what many awqaf were doing, and at a very large scale.[40] In the case at bar, a waqf had been stripped of its land, in the very name of public welfare.[41] The State, in the name of public welfare, found itself destroying age-old institutions which the 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.[42] The Qazalbash Waqf judgment not only allows but also encourages the State to protect and promote this institution – the essence of which is the reform of land usage. The establishment and support of awqaf 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, motivated by the love of God and not by coercion of State law. Yet, there is no reason to conclude that awqaf 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 is a pathway to a different type of 'land reform', which remains possible in Pakistan.

ENDNOTES

[1] Qazalbash Waqf and Others versus Chief Land Commissioner and Others (PLD 1990 SC 99)

[2] See for instance: Raja, S. A. “Islamisation of Laws in Pakistan.” Journal of South Asia. 2003. [[[Please mention the publisher and the volume number etc.]]]Raja has a particularly harsh critique to offer: “With the declaration that land reforms were prohibited by Islam, the Shariat Court had, in effect, declared the heart of the political agenda of the left in Pakistan to be un-Islamic.”

[3] The Pakistan People’s Party’s Manifesto for 1970 promised: “The size of the agricultural estate will be limited by the ceiling, the norm being the ownership of a maximum of 50 to 150 acres of irrigated land, the maximum varying from tract to tract and being determined on the basis of quality of soil, present productivity and the availability of irrigation facilities.” Available at: http://www.ppp.org.pk/manifestos/1970.html#p6

[4] See Government of Sind. Hari Enquiry Committee: Minute of Dissent by M.Masud I.C.S.(Pak). Karachi. April 1949. A 4-1 majority of the Hari Enquiry Committee which was formed soon after independence to look into the matter of land and tenure system in Sind did not advocate any significant land reforms. However, the minority Member Mukhtar Masood wrote an incisive dissent. He contended inter alia that the current system of land tenure was un-Islamic since in the Islamic worldview land is viewed as a sacred trust which is for the use and enjoyment of “all peoples” and is to be shared “equally by all”. The solution he proposed was not putting a ceiling on land ownership but to abolish private property altogether.

[5] Land Reform Regulation, No. 15 of 115. PLD 1972 Statutes 388. It is important to note that the MLR seeks to justify itself not just with reference to national interest but also, and primarily so, in terms of compliance with the injunctions of Islam. Notice the Preamble: “Whereas Islam enjoins equitable distribution of wealth and economic power and abhors their concentration in a few hands; And whereas it is in the supreme national interest to improve the economic well-being of the peasantry, by making agriculture a profitable vocation; Now, therefore, the Chief Martial Law Administrator is pleased to make the following Regulation.” (italics supplied).

[6] Section 13 reads: “(1) Land in excess of the area permissible for retention under Part III shall vest absolutely in Government free from any encumbrance or charge and without payment of any compensation.” (italics supplied.)

[7] The text of the Act says that it received the President’s assent on 9th January, 1977. Historical sources indicate that it was announced on 5th January, 1977, while the elections were announced just two days later on 7th January, 1977.

[8] Although Bhutto’s land reforms created a massive political and, subsequently, legal controversy, researchers have estimated that the net percentage of farm land that eventually got redistributed was not very large. According to one estimate: “Even using the Census estimate of operated farm area, which is certainly an understatement, the area redistributed during the Bhutto regime came to only 2.5 percent of the total farm area.”

[9] The Waqf was created almost a century earlier, in 1892, by Nawab Nasir Ali Khan Qizilbash. The present “Mutawalli, Nawab Muzaffar Ali Khan Qizilbash was the former’s grandson. The professed object of the Waqf was ‘arranging mo[u]rning and taking out processions in memory of Hazrat Aimmah according to Shi’ah rites and also for other religious and educational needs of Ithna ‘ashariah community.’ It was endowed with an enormous estate of 40 squares or 1,020 acres of irrigated land situated in Lahore and in its suburbs as well some urban property in Lahore.” For an account of the very interesting and eventful history of the Qizilbash chiefs, see L.H.Griffin’s classic work: The Punjab Chiefs (1865) now available online: http://www.apnaorg.com/books/punjab-chiefs/. Colonial historiography has been much criticized by scholars and such critique must be borne in mind. In the context of this article it is perhaps more than sufficient to quote to the adulatory conclusion of the chapter on Ali Raza Khan Kizilbash, Nasir Ali’s father: “… Ali Raza Khan [Qizilbash] and his family have served the British Government with a devotion which has been as perfect as it has been disinterested… As long as the sorrows and the glories of 1857 are household words amongst us; so long should the name of Ali Raza Khan and his gallant family , be remembered by all true Englishmen with gratitude and esteem.”

[10] In Mehreen Zaibunnissa v. The Land Commissioner of Multan and others PLD 1975 SC 397 the Court held: “…all amendments made to Martial Law Regulation 115 were given protection from the Fundamental Rights, and saved from repeal…” (p. 422) One such article, Article 253, says: Maximum limits as to property, etc.: “(1) [Majlis-e-Shoora (Parliament)] may by law(s) prescribe the maximum limits as to property or any class thereof which may be owned, held, possessed or controlled by any person…” Also: Article 24 which otherwise gives an assurance against compulsory deprivation of property contains the following disclaimer: “Nothing in this Article shall affect the validity of … any existing law or any law made in pursuance of Article 253.”

[11] The power of such review was vested first in the High Courts by Constitution (Amendment) Order, 1979 (P.O.No.3 of 1979) . Section 2 of the said Order read: “A High Court may, on the petition of a citizen of the Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam…” Later this power was transferred to “Federal Shariat Court”(FSC) a court specifically created for this purpose - by Constitution (Amendment) Order 1980, (P.O.No, 1 of 1980). There was no mention of ulema on the bench. It was only later, after the controversy following the … case (see footnote 10) that “not more than three …Ulema who are well-versed in Islamic Law" were required to be present on the bench of the FSC. Constitution (Third Amendment) Order 1985, President's Order 24 of 1985, Section 4.

[12] Articles 203A to 203E.

[13] Initially neither the FSC nor the SAB contained any ulema. The FSC initially consisted of “five members, including the Chairman, to be appointed by the President”, while the SAB was supposed to consist of “three Muslim Judges of the Supreme Court.” There was no mention of ulema in it. In March 1981, the FSC thus constituted gave a judgment in Hazoor Bakhsh v. Federation of Pakistan (PLD 1981 FSC 145) in which it, among other things, struck down as unIslamic the orthodox Sunni law about the crime of zina and the punishment of rajm. . In the wake of that controversial decision and concern amongst certain sections of public about the judges being unqualified for solely shouldering this onerous responsibility, on 13th April the same year, the President decided to induct into the FSC three or less “ulema who are well-versed in Islamic law”. Constitution (Amendment) Order, 1981. P.O. 5 of 1981. The FSC was also given the power to review its judgments. When the re-constituted FSC sat in review over its judgment in the Hazoor Bakhsh case, it decided differently. Federation of Pakistan v. Hazoor Bakhsh (PLD 1983 FSC 255). Similary, the SAB was also amended so that now it too would contain “not more than two Ulema”. Constitution (Third Amendment) Order, 1982 (P.O.No 12 of 1982) . Nonetheless, the Shariat Appellate Bench, just like the FSC before it, has proven more intractable than what governments might have wished for, or even imagined. See for instance the Aslam Khaki’s case where the Court declared all interest as unIslamic. The government of General Musharaf then had to go to the extent of sacking one of the ulema on the Bench, Mufti Taqi Usmani, before it could obtain a favourable judgment in review.

[14] Shariat Petitions Nos. 2, 5, 7, 8, 9, 10, 12, 14, 15, 16, 39, 40, 44, 54, 55, 56, 57, 58, 46, 47, 48, 49, 51, 61, 63, 64, 65, 72, 45, 73, 74, 75, 27 [all of 1979(Lahore)] Ref: Hafiz Muhammad Amin and others v. Islamic Republic of Pakistan and others PLD 1981 FSC 23

[15] Charles Kennedy has estimated that in the period 1979 to 1987, out of the 330 petitions received by the FSC, no less than 122 concerned land cases. These petitions were received mostly in the period 1979-81, the period before the decision in Muhammand Amin’s case. In these three years, out of 201 petitions, 100 concerned matters arising out of land reform. See: Kenedy, C. (1996) Islamization of Law and Economy: Case Studies on Pakistan (Institute of Policy Studies: Islamabad) p. 113. Needless to add that these figures do say something about the rather narrow and peculiar form that ‘Islamization of the law’ assumed in the Pakistani context.

[16] Haji Niamatullah vs. NWFP Government of Pakistan, PLD 1979, Pesh 104.

[17] Hafiz Muhammad Amin and others v. Islamic Republic of Pakistan and others PLD 1981 FSC 23. Salman Raja’s account of this episode is unfortunately not accurate. He states: “In 1981 in the case of M. Ameen vs. Pakistan,45 the Federal Shariat Court held that Islam disallowed the forcible acquisition by the state of any property, including land for the purpose of redistribution. As a result the provisions of the Land Reforms Regulation of 1972 empowering the state to acquire land were held to be repugnant to the injunctions of Islam.” The reality is quite the opposite: the FSC upheld land reforms in 1981, both on jurisdictional grounds and on merits. It was the Shariat Appellate Bench which would, much later, overrule the FSC’s judgment and strike land reform down. This error does, however, undermine Raja’s key thesis in the above-mentioned article. What it does gloss over is irony of it all: Bhutto’s land reforms received a confirmation from the FSC in Zia’s era, but were struck down by the Shariat Appellate Bench during the era of his daughter. Kennedy (1996) notes this: “…the decision … repudiated a major feature of Zulfikar Ali Bhutto’s domestic policies, such repudiation taking place during the regime of his daughter, Benazir Bhutto. The content and timing of this decision , therefore, heralded the independence of the courts …” p. 120

[18] p. 47, PLD 1981 FSC 23,

[19] p.49, ibid.

[20] p. 87, 88, ibid.

[21] p. 102, ibid.

[22] Shariat Appeal No. 1/1981

[23] Government of NWFP vs. Said Kemal Shah, PLD 1986, SC 360

[24] Qazalbash Waqf and Others versus Chief Land Commissioner and Others (PLD 1990 SC 99)

[25] P. 152, PLD 1990 SC 99

[26] While highlighting the short comings of communism, Pir Karam Shah’s judgment refers, at one point to the “Reader’s Digest”(p. 160, ibid) a popular literary magazine that carries little academic weight, and is particularly unreliable as a source for the clam at hand, since it is well-known that the Digest had a strong anti-communist bias.

[27] Kennedy, C. (11996) Islamization of Laws and Economy. p. 120

[28] It is also somewhat ironic and, at times, misleading that the case has come to be known as the case of the Waqf; actually, it was the only one amongst seven appellants which was a waqf; the other six were all private landowners.

[29] P.103. Given the importance of this declaration about the prospective, not retrospective effect of the judgment, there is surprisingly little mention of the point in the judgment, nor is there much of an effort to justify it.

[30] Kennedy acknowledges the extra-ordinary discursive richness of this controversial judgment: “The majority opinion of Muhammad Afzal Zullah and the dissent of Nasim Hassan Shah provide an extraordinary discussion of economic issues and economic justice in Islam. Qazalbash Waqf and Others vs. Chief Land Commissioner, PLD 1990, SC 99, pp. 102-32,” Islamization of Laws and Economy, Footnote 40.

[31] While this paper was being re-edited, the possibility that the Supreme Court may choose to re-visit the doctrine laid out in the Qazalbash Waqf has arisen again, as indicated by the in-court comments of certain judges. In such a scenario, it would be very relent to academically and critically re-examine the whole gamut of arguments for or against the validity of land reforms which can be found in the relevant petitions and judgments. Such a re-examination, which is very well worth conducting, is best left to a separate article.

[32] P.258. Qazalbash Waqf v. Chief Commissioner Land. Quoted from al-Zarakshi, Al-manshoor fi al-Qawa’id, p.319)

[33] It must be noted here that the likelihood of such a possibility is close to nothing and therefore this is more a legal hypothetical than a real possibility.

[34] He writes: “…all our (fore-going) discussion is based on two a assumptions: one, that the owner’s rights over property and legal in terms of the Shariah; and two, that he pays out of his property all Shariah dues.”(p.214) and “If someone has acquire some wealth through illegal means, then it is not really his property, therefore, this whole illegally acquired wealth should be taken from him and returned to the original owner or, if for some reason it is not possible to return it to the original owner, then distributing it amongst the common needy is not only permissible for the Islamic State but also necessary. ”(para 144, page 262)

[35] A good case study of this process are the Noon-Tiwanas. See their history in the relevant period as recorded in “The Punjab Chiefs”. Pointing out this case does not, by any means, mean that theirs is the only case. There is only an illustrative case and it is one of thousands.

[36] The First Five Year Plan, for instance, describes landlordism as an "historical accident" in which most landlords acquired their properties "by dubious means" or had them "conferred by British rulers for loyal assistance given in establishing and consolidating their hold on this country."' Government of Pakistan, Planning Board, First Five Year Plan (Karachi: 1956) p. 129.

[37] For a more exhaustive list of such rules, see p. 262, , PLD 1990 SC 99

[38] For more, see the theory of Ihya mewat-al-ard in Islamic law. Here’s how one commentator describes it: “ There are special rules under Islamic law relating to mewat/mewat land, so-called dead land which not used or owned by anyone. This can be redistributed to those who use the land through Ihya’ al-Mawat, an established Islamic economic and legal principle for the revival of dead land.” (p.170) Land, law and Islam: property and human rights in the Muslim world, Volume 1 by Siraj Sait, Hilary Lim.”

[39] P. 161 , PLD 1990 SC 99. He writes: “Furthermore, it is worth pondering that the purpose of these Martial Law reforms is economic betterment of the people. Waqf properties are already rendering a range of services to members of society. Through its revenue are established many schools, religious madrassas, religious gatherings, hospitals and soup-kitchens. And these things play a very effective role in raising the general intellectual, ethical and economic level. Destroyiing it’s organizational set-up and grabbing the properties of the waqf is grabbing what one already possesses (tehsil-e-hasil). It is possible that the civil servant appointed by the Government would be unable to accomplish the ends and objectives of the Waqf with same zeal and ardour which the waqif or his appointed mutawalli brings to the task.” (translation mine.)

[40] For more about the extensive role played by the awqaf in Islamic societies, see: Baer, Gabriel. The Waqf as a Prop for the Social System (Sixteenth-Twentieth Centuries) Islamic Law and Society, Vol. 4, No. 3, Islamic Law and Society (1997), pp. 264-297. It is also worth noting that, at least in the early modern period, the awqaf, both public and private, had achieved very extensive proportions. According to one estimate: “At the beginning of the nineteenth century, from one-half to two-thirds of the landed property in the Ottoman Empire had reportedly been sequestered as endowment land.” John Robert Barnes. An Introduction to Religious Endowments in the Ottoman Empire (Leiden: E. J. Brill, 1986): 43-44, 83.

[41] Shafi ur Rahman, J. also acknowledged this irony, noting: “… the public Wakf with which we are dealing in the case is already directed towards the objects which are professed objects of the Regulation ....”

[42] For the deterioration of the awqaf in post-colonial Pakistan, see: S. Jamal Malik (1990) Waqf in Pakistan: Change in Traditional Institutions Die Welt des Islams, New Series, Bd. 30, Nr. 1/4 (1990), pp. 63-97. This study concludes: “ the State nationalized (profitable) endowments in order to further its interests… One can say that the colonial sector successfully absorbs autonomous institutions … traditional organizational structures are dissolved without being adequately replaced.” The impact of the state’s acquisition of the awqaf in Pakistan has undoubtedly been very adverse to the long-run sustainability of this institutional arrangement. Severed from its roots in society, the institution of waqf has lost all the dynamism which was once its core strength. One major indication of its decay is its complete absence from public discourse.

1 comment:

  1. Nice article. LUMS Student Law Review is a positive step in developing open-access scholarship on law in Pakistan.

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