Raising the Ceiung: Fate of Land Reforms

The other issues relevant to the FSC’s decision in the Ameen case (those relevant to land reform) were finally addressed on 10 August 1989 in Qazalbash Waqf and Others vs. Chief Land Commissioner, This case originated in 1979 as a Shariat petition before the FSC that had challenged the redistribution of waqf (Islamic charitable trust) holdings under the terms of MLR 115.* This petition had been combined with other “land cases” and was dismissed by the FSC on the grounds of lack of jurisdiction as per the Ameen case. It was subsequently appealed to the SAB.

Unanimously, employing the Said Kemal Shah doctrine, the SAB claimed jurisdiction to decide the case on its merits. There was also unanimous agreement that provisions of MLR 115 which allowed the state to confiscate lands without paying compensation were un-Islamic. But beyond that the court was bitterly divided on the validity of other provisions of the land reforms. The majority (Justice Afzal Zullah, Justice Maulana Taqi Usmani, and Justice Karam Ali Shah) ruled that several provisions of the Act were un-Islamic because: (1) waqf properties should be exempt from any provision of land reform or from state interference; (2) land ceilings of any type place an undue restriction on the rights of property holders; (3) provisions for resumption of lands for livestock, orchards, and stud-farms are not a valid exercise of state power; and (4) provisions prohibiting property owners from evicting tenants are an invalid intrusion upon property rights. The minority (Justice Nasim Hasan Shah and Justice Shafiur Rehman) dissented on all four points. The main difference between the two views was the reading of the trade-off between the conflicting rights of property owners versus the state's right to regulate such property for the purposes of promoting the public welfare. 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 levelling up with no mandatory levelling 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 Hasan Shah argues, the state has the responsibility to alleviate poverty even if it means reducing the holdings of the wealthy.

Unlike the Said Kemal Shah case, the Qazalbash Waqf decision has spawned little legal activity. The effect of the court’s ruling was prospective, providing no relief for those aggrieved by the land reforms. However, the decision proved very important politically, as it 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 the decision, therefore, heralded the independence of the courts, as well as underscoring the ineffectiveness of Benazir Bhutto’s administration to control the policy agenda during her government’s brief tenure.

Source: Islamization of Laws and Economy: Case Studies on Pakistan, Charles Kennedy. Republished with permission.