The Fate of Tenants' Right to Pre-emption: Pakistan

In 1978 Shariat benches were grafted on to Pakistan’s four High Courts. Their jurisdiction included hearing appeals against Hudood convictions and they were granted original jurisdiction to hear Shariat petitions. Accordingly, in early 1979, the Shariat Bench of the Peshawar High Court received a Shariat petition filed by Haji Niamatullah that challenged aspects of Pakistan’s laws of pre-emption. Specifically, the petition challenged Section 25 of MLR 115 that vested a right of pre-emption in tenants of agricultural lands. That is, the impugned law stipulated that tenants be given the right of first refusal to purchase land when offered for sale by the original landlord, or lands when resumed by the state. The Niamatullah petition contended that nowhere in the Holy Qur’an or Sunnah was there mention of a tenant’s right to pre-emption. Further, ahadilh (narrative reports of the Prophet’s sayings and actions) clearly established the right of pre-emption according to the following order of priority: “(1) cosharer; (2) participants in immunities and appendages; and (3) contiguous owners.”

The Shariat Bench of the Peshawar High Court, in a decision rendered by Chief Justice Abdul Hakim Khan, fully accepted the contentions of the petitioner finding that Section 25 of MLR 115 was repugnant to Islam and hence void. The decision of the court proved transitory, however, as did the existence of the Shariat Bench itself. By means of a Presidential Ordinance, Chief Martial Law Administrator General Ziaul Haq dissolved the four Shariat benches of the high courts and established in their stead the Federal Shariat Court (FSC) in June 1980. Accordingly, the decisions of the erstwhile Shariat benches, including the Niamatullah decision, as well as all pending proceedings were transferred to the FSC.

Like its predecessor benches, the FSC was granted jurisdiction to entertain Shariat petitions. Not surprisingly, given the large number of individuals aggrieved by provisions of laws that bestowed rights on tenants either through pre-emption or through other provisions of the land reforms, many of the early Shariat petitions submitted to the FSC dealt with such issues. Indeed, over 55 percent of the Shariat petitions filed before the FSC in 1979 and 1980 (81 of 151) challenged provisions that dealt with land cases (see table below). Specifically, provisions of MLR 115, the Land Reform Act, 1977, the Punjab Pre-emption Act, 1913, and the NWFP Pre-emption Act, 1950, were each challenged on the grounds that they departed from the Islamic criteria of preemption. Additionally, the court received numerous other petitions challenging, on Islamic grounds, other provisions of the aforementioned Land Reform Act (1972, 1977), which had placed ceilings on agricultural holdings, and/or which had forced the sale of such “excess holdings” to tenants. Also the FSC received a host of other related petitions challenging the right of the government to resume land for public purposes.

The FSC chose to deal with such “land cases" collectively in the Hafiz Muhammad Ameen case. Other than the merits of the petitions, the court confronted two thorny issues. First, did the FSC have the authority to review the Haji Niamatullah case, a decision of a predecessor court - the Shariat Bench of the Peshawar High Court’ Second, did the FSC have the authority to look into the merits of the petitions in the light of Article 203-B of the Constitution which had specifically excluded the FSC’s jurisdiction in “constitutional matters”?

The answer to the first question was found to be “no.” As per its earlier decision in the Muhammad Riaz case, the court by a majority of 3 to 2 found that the decision of a Shariat Bench of a high court was binding on the FSC. Therefore, the Niamatullah decision must stand.

Similarly, the answer to the second question was also found to be “no.” Article 203-B excepted the FSC’s jurisdiction from consideration of the “constitution,” and some of the acts impugned were in turn specifically protected by the constitution.

Nevertheless, in a carefully crafted argument Justice Aftab Hussain, for the majority, asserted that laws providing for the state’s regulation of land, including pre-emption rights for tenants, ceilings on land-ownership, and the resumption of lands by

(Shariat Petitions Decided by FSC, 1979-87)

the state for public use, were not wholly prohibited by Islam. Justice Hussain argued that, despite Islam’s presumption in favor of the sanctity of personal wealth and property, Islam also recognizes the validity of state-imposed limits on wealth for the purpose of alleviating poverty or providing for the public good. Therefore, without a specific prohibition in the Holy Qur’an or Sunnah, it follows that the state can impose specific limits on the rights of private property including land reforms and it may establish pre-emption rights for tenants.

Into such confusing legal waters plunged the Council of Islamic Ideology (CII). In June 1980 the CII took up consideration of pre-emption and prepared a draft which was circulated for comments in the Gazette of Pakistan on 13 December. After incorporating the views of “about 1,500 judges, advocates, ulema, and other members of the public,” the council submitted its “Draft Law of Pre-emption” in January 1982. The CII’s proposed law fully endorsed the position taken earlier by the Peshawar High Court in the Niamatullah decision. Article 6 of the proposed law stated that the right of pre-emption vests:

1. first, in shaft sharik (“a person who is a co-owner in the corpus of the undivided immovable property sold with other person or persons”);
2. secondly, in shaft khalit (“a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water, or right of irrigation”);
3. thirdly, in shaft jar (“a person who has a right of pre-emption because of owning an immovable property adjacent to the immovable property sold”).

Tenants have no right of pre-emption. Accordingly, the CII’s proposed law (Article 37) would have had the legal effect of repealing the Punjab Pre-emption Act, 1913, and the NWFP Preemption Act, 1950. It also would have amended Section 25 of MLR 115. Each of the foregoing had vested rights of pre-emption with tenants.

The CII also proposed procedures through which claims of pre-emption were to be filed. To succeed, any would-be pre- emptor must file three sequential talabs (demands): (1) an “immediate demand by a pre-emptor in the sitting or meeting in which he has come to know of the sale declaring his intention to exercise the right of pre-emption”; (2) a notice in writing to the vendee within two weeks of the notice of sale confirming the intention to exercise the right of pre-emption; and (3) a suit before the court of competent jurisdiction to enforce the right of preemption (Article 13). If an individual fails to follow the above procedures, it amounts to a waiver of the right of pre-emption (Article 15).

However, the Council’s draft law generated little active support from among relevant members of President Zia’s administration. First, the Ministry of Law and the Attorney-General’s Office were none too keen to promulgate a law which would perhaps run foul of the majority opinion of the FSC as per the Ameen case. Second, no one in Zia’s administration was eager to reactivate the files of the thousands of “land cases” currently pending before district and high courts, some of which had been filed before Partition! Understandably, therefore, the government adopted a strategy of delay, an exercise at which it proved quite adept. We recall that in the Hafiz Muhammad Ameen case (discussed above) the FSC had dismissed numerous petitions challenging pre-emption on the grounds of: (a) lack of authority to review decisions of the high courts; and (b) lack of jurisdiction under Article 203-B to consider “constitutional” matters. The net legal effect of the Ameen decision, therefore, left the decision rendered in the Niamatullah case standing, i.e. the government was under a legal obligation to amend laws relating to pre-emption. In early 1982, through deft use of the Presidential Ordinance, President Zia remedied this awkward situation by expanding the jurisdiction of the FSC, so that its decisions became binding upon the high courts. Therefore, the Niamatullah decision, although never reversed, was consigned to a judicial limbo, as the FSC had earlier held in the Ameen case that it had no jurisdiction to consider pre-emption on its merits.

Nevertheless, the publicity generated by the government’s Islamization program and the continued uncertainty about the status of pre-emption encouraged the additional filing of law suits by tenants and non-tenants alike seeking remedy against the application of the impugned laws. Indeed, during the 1980s thousands of such petitions were filed which further clogged Pakistan’s already none too efficient and overburdened judicial system.

Perhaps inevitably the FSC’s decision in the Ameen case was also appealed to the newly-established Shariat Appellate Bench of the Supreme Court (SAB). The latter court decided to separate the appeal into two issues - pre-emption and land reform. After lengthy formalities and procedural delays the first issue (pre-emption) was addressed, in 1986, by Government of NWFP vs. Said Kemal Shah? In the 3-to-2 majority decision the court claimed jurisdiction, and ruling on the merits of the case decided that the findings of the Haji Niamatullah case should stand. Accordingly, it ruled that the Punjab Pre-emption Act, the NWFP Pre-emption Act, and Section 25 of MLR 115 were bad law and “would cease to have legal effect” on 31 July 1986. The court was also divided 3 to 2 on the merits of the case. In dissent Justice Shafiur Rehman and MSH Qureshi took a stance that was reminiscent of Justice Aftab Hussain’s in the Ameen case: (1) since a tenant’s right of pre-emption is not expressly prohibited in the Holy Qur’an and Sunnah, therefore it is not ‘repugnant’ to Islam; (2) granting rights of pre-emption to tenants is in the public interest; and (3) “only the Ilanafi fiqbt' is insistent on denying the right of pre-emption to a tenant.

The responsibility for implementing this decision was transferred, therefore, to the provincial administrations of the NWFP and Punjab and to the weakly institutionalized government of Muhammad Khan Junejo. The NWFP Provincial Assembly, whose membership was dominated by landed interests, responded fairly quickly to the FSC’s order and passed the NWFP Pre-emption Act, 1987, on 28 April 1987. This act was substantively identical to the CII’s “Draft Law of Pre-emption, 1982.”

The passage of comparable legislation proved far more difficult in the Punjab Provincial Assembly and in the National Assembly. Indeed, both governments sought delay, and to reverse the deci- sion. The Supreme Court was not co-operative. In the Punjab, the provincial government feared that the passage of a revised law of pre-emption would provoke judicial chaos as over 5,000 cases were pending before the provincial courts. Moreover, the Punjab Provincial Assembly was less dominated by landed interests than was the NWFP Provincial Assembly. Prime Minister Junejo’s government, at the federal level, was also unwilling or unable to press for the passage of a revised law of pre-emption, particularly in the light of its inability to move a Shari'ah bill (in any of its myriad versions) through the house.

Therefore, by default, responsibility for interpreting and implementing the decision devolved upon the SAB. In a series of cases, the court “clarified” and “reclarified” the meaning of the Said Kemal Shah decision. It ruled that subsequent to 1 August 1986: (a) tenants or heirs of tenants have no right of pre-emption; and (b) a “co-sharer” (shafi sharik) has first right of preemption, followed by those sharing special rights (shafi khalit) and neighbors (shafi jar). Nevertheless, decrees based upon the laws prevailing prior to 1 August 1986 remained valid if they were issued prior to that date. Further, pending legal proceedings which were based upon such decrees remained valid even if such proceedings were based upon “old law.” However, if such pending legal proceedings had not reached the stage of a final decree, they would be decided prospectively according to the Said Kemal Shah decision. In any case, no new suits based on “old law” filed after 1 August 1986 would be entertained. Despite such “clarification” the legal environment surrounding pre-emption remained confused and confusing. Suits continued to be filed, some claiming the existence of bogus decrees, others inspired by greedy or ill-informed legal counsel, and still others by “misplaced” religious zeal.

This veil of confusion was partially lifted when the Governor of Punjab promulgated the Punjab Pre-emption Ordinance, 1990, on 29 March 1990. In all substantive particulars this act was identical to the NWFP Pre-emption Act, 1987. However, the Punjab Provincial Assembly remained unable to agree on the formal adoption of a pre-emption act until March 1991. Accordingly, during the interim the Governor of Punjab renewed his earlier promulgation four times under the terms of Article 128 of the 1985 Constitution. This clause stipulates that the Governor may, when the Provincial Assembly is not in session, and if “satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an ordinance as the circumstances may require.” Ordinances so promulgated by the Governor stand repealed after three months unless the ordinance is passed by the Assembly. Of course, from the perspective of the superior courts, this situation was far from ideal since pending legal proceedings were in a state of continual flux as the Punjab laws of pre-emption were rapidly repealed and reformulated. Finally, on 21 March 1991 the Punjab Provincial Assembly passed the Punjab Pre-emption Act, 1991, an act which was substantively identical to the earlier Governor’s ordinances.

In practical terms the combined legal effect of the Punjab Preemption Act, 1991, the NWFP Pre-emption Act, 1987, and the various Punjab ordinances (1990-91) when read in the context of the relevant case law has made the implementation of the revised laws of pre-emption prospective, at least in the Punjab and the NWFP. Like the CII's “Draft Law of Pre-emption, 1982,” all of the foregoing legal instruments require that a would-be pre-emp- tor must file three sequential talabs in a timely fashion or waive his right to pre-emption. Since the procedures for the issuing of such talabs were not part of any of the preexisting laws of preemption (before 1986), and since such procedures were not suggested by the SAB in Said Kemal Shah (1986), it follows that such requirements would rarely, if ever, have been met in practice. That is, all pending suits in which requisite talabs have not been filed (effectively all suits filed before 1986) immediately fail on procedural grounds. For this reason Pakistan’s superior courts have dismissed hundreds, perhaps thousands, of pre-emption suits since 1986.

Nevertheless, the legal environment surrounding the status of pre-emption remains fluid and murky. Unlike the Punjab and NWFP, no pre-emption law£ have been adopted in the Sindh or Balochistan, nor has the federal government deigned to draft a consolidated law of pre-emption for Pakistan. In the absence of such actions pre-emption is governed by the vagaries of case law decided by the relevant superior courts. It is also important to note that even in the Punjab the status of pre-emption legislation has not been finalized. In autumn 1991 the FSC declared sections of the Punjab Pre-emption Act, 1991, repugnant to Islam in Muhammad Ismail Qureshi vs. Government of Punjab * The court found that the two-week limit for filing a notice to the vendee declaring intention to exercise the right of pre-emption (section 13(3)) was “too restrictive.” It also found that the government had no right to exclude from pre-emption cantonment lands or other government lands (Sections 2(a) and 29) unless government had compelling reasons relevant to the public good for undertaking such action.57 Although it was not challenged in the petitions brought before the FSC, the NWFP Pre-emption Act, 1987, suffers from the same “legal deficiencies.” The Punjab government has appealed the decision.

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