islamization of real estate preemption and land reforms in pakistan, 1978-1992

8/12/2019 Islamization of Real Estate Preemption and Land Reforms in Pakistan, 1978-1992

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7Z CHA RLES H. KENNEDYagricultural holdings would foster a transformation from 'traditional,inefficient absentee landlordism' to 'modern, efficient agriculturalentrepreneurship'. 3

Analysts agree that the implementation of Bhutto's land reforms leftmuch to be desired. The amount of land actually seized by the stateand redistributed to the peasants was modest.* Further, the reformswere not administered equitab ly. There is compelling evidence to suggestthat the administration implemented the land reforms much more enthu-siastically in the NWFP and Balochistan, the locus of opposition toBhutto and the Pakistan People's Party (PPP), than in the more politic-ally friendly Sindh and Punjab.5 The 1977 land reform, moreover, didnot have time to work, as the government was deposed by a militarycoup in July 1977.Despite such sketchy implementation, the introduction of landreforms generated significant political opposition. Most notably, manyof Pakistan's large landlords perceived the reforms as a direct challengeto their long-standing interest in maintaining political control in Pakis-tan's rural areas. This was particularly true among relevant landlordsin the NWFP, a National Awami Party (NAP) stronghold, whereinBhutto had targeted his reforms. The newly installed military regimewas also eager to discredit the policies of its predecessor. Accordingly,the White Papers, writte n in part to legitimize the m ilitary c oup,emphasized Bhutto's alleged cynical manipulation of the land reformswhich had been utilized ostensibly to punish his political enemies. 6Suchattempts to discredit the previous regime dovetailed neatly with GeneralZia's interest in Islamizing Pakistan's polity. Indeed, Bhutto's landreforms were vulnerable from two directions: as unjustly administered;and as inherently un-Islamic.

This paper traces the fate of Bhutto's land reforms as they encoun-tered his successor's newly introduced and rapidly evolving Islamicorder.

3 See ibid., esp. 100-7.* Herring estimates that only 2.5 per cent of the total farm area was redistributedduring the Bhutto period. Ibid. 112.3 Herring estimates that in the NWFP 12 per cent of the land was confiscated andredistributed to one-third of the landless peasants in the province. In Balochistan 10 percent was confiscated and 36 per cent of the landless received land . Ibid. 114. Also seeCharles H. Kennedy, 'Rural Groups and the Stability of the Zia Regime', in CraigBaxter, ed., Zia's Pakistan : Politics and Stability in a frontline State (Boulder, Colo.:Westview Press, 1985), 23-46.' See Government of Pakistan,WhitePaperon thePerformanceof the Bhutto Regime,vol. 4 (Islamabad: Printing Corporation of Pakistan Press, 1979), 13-25.


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ISLAM IZATIO N OF REAL ESTATE 73THE FATE OF TENANTS' RIGHT TO PRE-EMPTION

In 1978 'Shariat Benches' were grafted on to Pakistan's four HighCourts.7 Their jurisdiction included hearing appeals against hudood(Islamic criminal law) convictions and they were granted original juris-diction to hear 'Sha riat petitio ns'. Accordingly, in early 1979, the Sha riatBench of the Peshawar High Court received a Shariat petition filed byHaji Niamatullah that challenged aspects of Pakistan's laws of pre-emption.8 Specifically, the petition challenged Section 25 of MLR 115that vested a right of pre-emption in tenants of agricultural lands. Thatis, the impugned law stipulated that tenants be given the right of firstrefusal to purchase land when offered for sale by the original landlord,or lands when resumed by the state. The Niamatullah petition con-tended that nowhere in the Holy Qur'an or Sunna was there mentionof a tenant's right to pre-emption. Further, ahadith (narrative reportsof the Prophet's sayings and actions) clearly established the right ofpre-emption according to the following order of priority: '(1) co-sharer;(2) participants in immunities and appendages; and (3) contiguousowners' . 'The Shariat Bench of the Peshawar High Court, in a decision renderedby Chief Justice Abdul Hakim Khan, fully accepted the contentions ofthe petitioner finding that Section 25 of MLR 115 was repugnant toIslam and hence void.10 The decision of the Court proved transitory,however, as did the existence of the Shariat Bench itself.By means ofa Presidential Ordinance,11 Chief Martial Law Administrator GeneralZia-ul-Haq dissolved the four Shariat benches of the high courts andestablished in their stead the Federal Shariat Court (FSC) in June 1980.

Accordingly, the decisions of the erstwhile Shariat benches, includingthe Niamatullah decision, as well as all pending proceedings weretransferred to the FSC.Like its predecessor benches, the FSC was granted jurisdiction toentertain Shariat petitions.12 Not surprisingly, given the large number

7 Via the Shariat Benches of Superior Courts Order, 1978 (President's Order no. 22of 1978). 4 December 1978.PLD 1979 Central Statutes 6.' Ha|i N iamatullah v. NWFP G overnment, Shariat petition ('SP'), no. 1, 1979.' The plaint cites among other sources al-Bukhan, Book 8, chs. 1396-7, ahadith2102-3, andFatawa-i-Alamgin, ch. II, para. 29, to substantiate its claim.10 Hap Niamatullah Khan v. Government of Pakistan PL D1979 Pesh 104. The Courtcited the sameahadith as the Ha)i Niamatullah plaint to justify itsfindings.That is, theCourt found that tenants have no right to pre-emption." Presidential O rdinan ce no . 1, 1980, which established Chap ter 3-A of the 1985Constitution. It became effective on 25 June 1980.12 1985 Constitution, Article 203-D.


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74 CHARL ES H. KENNEDYof individuals aggrieved by provisions of laws that bestowed rights ontenants either through pre-emption or through other provisions of theland reforms, many of the early Shariat petitions submitted to the FSCdealt with such issues. Indeed, over 55 per cent of the Shariat petitionsfiled before the FSC in 1979 and 1980 (81 of 151) challenged provisionsthat dealt with land cases (see table below). Specifically, provisions ofMLR 115, the Land Reform Act, 1977, the Punjab Pre-emption Act,1913, and the NWFP Pre-emption Act, 1950, were each challenged onthe grounds that they departed from the Islamic criteria of pre-emption.13 Additionally, the Court received numerous other petitionschallenging, on Islamic grounds, other provisions of the aforementionedLand Reform Acts (1972, 1977), which had placed ceilings on agricul-tural holdings, and/or which had forced the sale of such 'excess holdings'to tenants.1* Also the FSC received a host of other related petitionschallenging the right of the government to resume land for publicpurposes.15

The FSC chose to deal with such 'land cases' collectively in the HafizMuhammad Ameen case.16 Other than the merits of the petitions, theCourt confronted two thorny issues. First, did the FSC have the autho r-ity to review the Haji Niamatullah case, a decision of a predecessorcourtthe Shariat Bench of the Peshawar High Court? Second, did theFSC have the authority to look into the merits of the petitions in thelight of Article 203-B of the Con stitution which h ad specifically excludedthe FSC's jurisdiction in 'constitutional matters'?The answer to the first question was found to be 'no'. As per itsearlier decision in the Muhammad Riaz case,17 the Court by a majorityof3 to 2 found that the decision of a Shariat bench of a high court wasbinding on the FSC. Therefore, the Niamatullah decision must stand.13

During 1979-80 approximately 70 Shariat petitions werefiledn theFSCchallengingone or more of these laws on the basis of violation of Islamic standards of pre-emption.The gist of such arguments and their textual justification follows closely the HajiNiamatullah plaint. That is, that tenants have no right to pre-emption. For example,see Faisal Haider and Ghulam Haider v. Islamic Republic of Pakistan SP 74/L/79, andUmar Din v. Federal Government SP 75/L/79.14 Such petitions charged that such laws were un-Islamic because interaha:(1) thereis no mandate for the redistribution of wealth in Islam, (2) no ceiling on wealth orlandholding is countenanced in Islam; (3) no specific rights are granted to tenants inIslam; and (4) no provisions exist under Islam which allow the state to force an individualto relinquish private property. See, for example, Amina Bibi v. Deputy Land Commis-sioner, Rahimyar Khan SP 58/L/79. Relevant laws challenged include the Capital Development Authority Ordinance,1960; the Punjab Acquisition of Housing Act, 1973; the Punjab Development of CitiesAct, 1976; and the Colonization of Government Lands Act, 1912.16 Hafiz Muhammad Ameen v. Islamic Republic of Pakistan PL D1981 FSC 23.17 Muhammad Riaz v Federal Government PL D1980 FSC 1.


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ISLAM IZATION OF REAL ESTATE 75SHARIAT PETITIONS DECIDED BY FSC, 1979-87"

YearSubject: 79 80 81 82 83 84 85 86 87 TotalLand cases'"Qisas +diyatCivil serviceFamily lawsSocial practiceRibaCustomary lawRitualRajmHudood lawsElectionsRent lawsGenderJurisdictionOtherWithdrawn

56906521040700010

2747721300000004

17413311112000385

4100010000011050

0340120205001222

760012400042053

0103301101002

3122015010000005

8000020010000004 .

122292118161513108876652025

Tota ls 91 60 50 13 24 39 18 20 15 330"Pennons read and codified by the author, 1984-7. All petitions submitted to the FSCbetween 1979 and May 1987 and available in the FSC fileswere examined by the author.There is a slight discrepancy between the total number of petitions cited here and theaggregate figures provided by the FSC. The latter figures indicate that as of31May 1987the Court had received 348 Shariat petitions and had disposed of325.Such a discrepancycan be explained by the somewhat casual system of citation employed by the Court,particularly during 1979-80.Cases bearing upon pre-emption, land reform, and related matters that were eventuallyconsidered by the FSC in Hafiz Muhammad Ameen v. Islamic Republic of Pakistan,PL D 1981 FSC 23.Similarly, the answer to the second question was also found to be 'no'.Article 203-B exempted the FSC's jurisdiction from consideration of the'constitution', and some of the acts impugned were in turn specificallyprotected by the constitution.Nevertheless, in a carefully crafted argument Justice Aftab Hussain,for the majority, asserted that laws providing for the state's regulationof land, including pre-emption rights for tenants, ceilings on land-ownership, and the resumption of lands by the state for public use,were not wholly prohibited by Islam. Justice Hussain argued that,despite Islam's presumption in favour of the sanctity of personal wealthand property, Islam also recognizes the validity of state-imposed limits


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j6 CHARLES H. KENNEDYon wealth for the purpose of alleviating poverty or providing for thepublic good. Therefore, without a specific prohibition in the HolyQur'an or Sunna, it follows that the state can impose specific limits onthe rights of private prope rty including land reforms and it may establishpre-emption rights for tenants.18Into such confusing legal waters plunged the Council of IslamicIdeology (CH). In June 1980 the CII took up consideration of pre-emption and prepared a draft which was circulated for comments inthe G azette ofPakistan on 13 December. After incorporating the viewsof 'about 1500... judges, advocates, uletna, and other members of thepublic' the Council submitted its 'Draft Law of Pre-emption' in January1982."The CH's proposed law fully endorsed the position taken earlierby the Peshawar High Court in the Niamatullah decision. Article 6 ofthe proposed law stated that the right of pre-emption vests:20(a) first, in shafT shartk ('a person who is a co-owner in the corpus ofthe undivided immovable property sold with other person or persons');(b) secondly, inshaf? khaltt ('a pa rticipator in the special rights attachedto the immovable property sold, such as right of passage, right ofpassage of water, or right of irrigation');(c) thirdly, in shaft jar ('a person who has a right of pre-emptionbecause of owning an immovable property adjacent to the immovableproperty sold').Tenants have no right of pre-emption. Accordingly, the CII's proposedlaw (Article 37) would have had the legal effect of repealing the PunjabPre-emption Act, 1913, and the NWFP Pre-emption Act, 1950. It alsowould have amended Section 25 of MLR 115. Each of the foregoinghad 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 mustfile three sequential talabs (demands): (1) an 'immediate demand by apre-emptor in the sitting or meeting in which he has come to know ofthe 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 saleconfirming the intention to exercise the right of pre-emption; and (3) asuit before the court of competent jurisdiction to enforce the right ofpre-emption (Article 13). If an individual fails to follow the above11 Hafiz Muhammad Ameen v. Islamic Republic of Pakistan PL D1981 FSC 23, esp.pp . 38-51." Gov ernm ent of Pakistan, Council of Islamic Ideology (CII), Draft Law of Pre-Emption (Islamabad- CII, 1982), 2.20 CII,Draft Law ofPre-Emption (1982), Article 6.


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ISLAMIZATIO N OF REAL ESTATE 77procedure, it amounts to a waiver of the right of pre-emption (Article15).However, the Council's draft law generated little active support fromamong relevant members of President Zia's administration. First, theMinistry of Law and the Attorney General's Office were none too keento promulgate a law which would perhaps run foul of the majorityopinion of the FSC as per the Ameen case. Second, no one in Zia'sadministration was eager to reactivate the filesof the thousands of 'landcases' currently pending before district and high courts, some of whichhad been filed before Partition Understandably , therefore, the govern-ment adopted a strategy of delay, an exercise at which it proved quiteadept. We recall that in the Hafiz Muhammad Ameen case (discussedabove) the FSC had dismissed numerous petitions challenging pre-emption on the grounds of: (a) lack of authority to review decisions ofthe high courts; and (b) lack of jurisdiction under Article 203-B toconsider 'constitutional' matters. The net legal effect of the Ameendecision, therefore, left the decision rendered in the Niamatullah casestanding, i.e. the government was under a legal obligation to amendlaws relating to pre-emption. In early 1982, through deft use of thePresidential Ordinance, President Zia remedied this awk ward situationby expanding the jurisdiction of the FSC, so that its decisions becamebinding upon the high courts.21 Therefore, the Niamatullah decision,although never reversed, was consigned to a judicial limbo, as the FSChad earlier held in the Ameen case that it had no jurisdiction to considerpre-em ption on its merits. '

Nevertheless, the publicity generated by the government's Islamiz-ation programm e and the continued uncertainty abou t the status of pre-emption encouraged the additional filing of law suits by tenants andnon-tenants alike seeking remedy against the application of theimpugned laws. Indeed, during the 1980s thousands of such petitionswere filed which further clogged Pakistan's already none too efficientand overburdened judicial system.22

Perhaps inevitably the FSC's decision in the Ameen case was alsoappealed to the newly established Shanat Appellate Bench of theSupreme Court (SAB).23The latter Court decided to sep arate the appealinto two issuespre-emption and land reform. After lengthy formalities21 Presidential Ordinance no. 5 of 1982 as incorporated in the 1985 Constitution asArticle 203-GG." In a personal interview in June 1985 a lustice of the Lahore High Court told theauthor that rhere were over 5000 such cases pending decision in the Punjab alone.23 The establishment of the Shanat Appellate Bench and the procedures relevant toits jurisdiction were effected through various Presidential Ordinances promulgated in1982 and 1983 and incorporated in the 1985 Constitution as Article 203-F.


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78 CHARLES H. KENNEDYand procedural delays the first issue (pre-emption) wasaddressed, in1986, by Government of NWFP v. Said Kemal Shah." In the 3-to-2majority decision the Court claimed jurisdiction," and rulingon themerits of the case decided that the findings of the Haji Niamatullahcase should stand. Accordingly, it ruled that the Punjab Pre-emptionAct,theNWFP Pre-emptionAct, andSection 25ofMLR 115 werebadlaw and 'would ceasetohave legal effect' on 31 July 1986.TheCourtwas also divided 3 to 2 on the merits of the case. In dissent JusticeShafiur Rehman and MSHQureshi took a stance thatwasreminiscentof Justice Aftab Hussain'sin theAmeen case:(1)sincea tenant's rightof pre-emption is not expressly prohibited in the Holy Qur'an andSunna, therefore it is not 'repugnant' to Islam; (2) granting rightsofpre-emption totenantsis in thepublic interest;and (3)'onlytheHanafifiqh' is insistent ondenying therightofpre-emption to a tenant ."

The responsibility for implementing this decision was transferred,therefore, to the provincial administrations of theNWFP and Punjaband to the weakly institutionalized government of Muhammad KhanJunejo.TheNWFP Provincial Assembly, whose membershipwas dom-inated by landed interests, responded fairly quicklyto theFSC's orderand passed theNWFP Pre-emptionAct,1987,on 28April 1987.27Thisactwassubstantively identicalto theCII's 'Draft Law ofPre-emption,1982'.28The passage of comparable legislation proved far more difficult inthe Punjab Provincial Assembly and in the National Assembly. Indeed,both governments sought delay, and to reverse the decision. TheSupreme Court was not co-operative.2 ' In the Punjab the provincial

24 Government of NWFP v. Said Kemal Shah PLD1986 SC 36025 Justices Afzal Zullah, Pir Karam Shah, and Maulana Taqi Usmani in the majority;Justices Shafiur Rehman and MSH Qureshi in the minority. The Court ruled that Article203-B s restriction on jurisdiction to exclude the constitution should be more narrowlyinterpreted to mean only the constitution and not laws protected or validated by it. Thisis an important precedent in that it provides a vehicle to extend the jurisdiction of thesuperior courts. For instance, the Said Kemal Shah doctrine was cited as justification toclaim jurisdiction in a challenge to Pakistan s regional quota system of recruitment tothe federal bureacucracy. See Nusrat Baig Mirza v. Government of Pakistan PLD 1991SC 509.

" Government of NWFP v. Said Kemal Shah PLD1986 SC 360, pp. 473-5. NeitherJustice Rehman nor Qureshi cites definitive sources to substantiate the latter contention.

27 NWFP Pre-emption Act, 1987 (Act X of 1987) PLD1987 NWFP Statutes 27.28 Author s comparison of the two acts.25 The federal government and the Government of Punjab submitted review petitions

to the Supreme Court during the summer of 1986 seeking to challenge the ShanatAppellate Bench findings in Said Kemal Shah. But the Court refused to grant an injunctionagainst the implementation of its decision. Source: personal interviews with justices ofthe Supreme Court, June 1987.


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ISLAMIZATION OF REAL ESTATE 79government feared that the passage of a revised law of pre-emptionwould provoke judicial chaos as over 5000 cases were pending beforethe provincial courts. Moreover, the Punjab Provincial Assemblywasless dominated by landed interests than was the NWFP ProvincialAssembly. Prime Minister Junejo's government,at thefederal level,wasalso unwilling or unable to press for the passage of a revised law ofpre-emption, particularly in the lightof its inability to movea Shariahbill(in any of its myriad versions) through thehouse.30Therefore, by default, responsibility for interpreting and imple-menting the decision devolved upon theSAB.In a seriesof cases,theCourt 'clarified' and 'reclanfied' themeaningof the Said Kemal Shahdecision.31 It ruled that subsequent to 1August 1986: (a) tenants orheirs of tenants have no right of pre-emption; and (b) a 'co-sharer'shafTshank)hasfirst rightofpre-emption,32 followedbythose sharingspecial rights {shafT khalit) andneighbours (shafT jar). Nevertheless,decrees based upon thelaws prevailing priorto 1August 1986 remainedvalid if they were issued prior to that date. Further, pending legalproceedings which were based upon such decrees remained valid evenif such proceedings were based upon oldlaw'. However,ifsuch pendinglegal proceed ingshad notreachedthestageof afinal decree, they wouldbe decided prospectively according to theSaid Kemal Shah decision.Inany case, no new suits based on old law filed after 1 August1986wouldbe entertained. Despite such 'clarification' the legaj environmentsurrounding pre-emption remained confused and confusing. Suitscon-tinuedto befiled, some claimingtheexistenceof bogus decrees, othersinspired by greedy or ill-informed legal counsel, and still others by'misplaced' religious zeal.33

This veil of confusion was partially lifted when the Governor ofPunjab promulgated the Punjab Pre-emption Ordinance, 1990, on 29March 1990.3* In allsubstantive particulars thisact wasidenticalto theNWFP Pre-emption Act,1987. However,the Punjab Provincial Assem-30 For details see Charles H. Kennedy, Repugnancy to IslamWho Decides? Islam

and Legal Reform in Pakistan , International and Comparative Law Quarterly, vol. 41,no. 4 (October 1992).

The most important were. Sardar Ah v. Muhammad Ah PLD 1988 SC 287; SafiaBegum v. Ibrahim PLD 1989 SC 314, Ahmed v. Abdul Aziz PLD 1989 SC 771; In re:Suo Motu Shariat Review Petition, no. 1-R of 1989PLD1990 SC 865; and Aziz Begumv. Federation of Pakistan PLD 1990 SC 889.

31 Co-sharers had been given the fourth priority of pre-emption according to thevarious impugned pre-emption provisions.

33 See discussion in Ghulam Qadir v. Nawab Din PLD 1988 SC 701; and BashirAhmed v. Lai Khan PLD1991 SC 376.

34 Punjab Pre-emption Ordinance, 1990 (Ordinance V of 1990), 29 March 1990.PLD1990 Punjab Statutes 8.


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80 CHARLES H. KENNEDYbly remained unable to agree on the formal adoption of a pre-emptionact until M arch 1991. Accordingly, during the interim the Gove rnor ofPunjab renewed his earlier promulgation four times under the terms ofArticle 128 of the 1985 Constitution. This clause stipulates that theGovernor may, when the Provincial Assembly is not in session, and if'satisfied that circumstances exist which render it necessary to takeimmediate action, make and promulgate an ordinance as the circum-stances may require'. Ordinances so promulgated by the Governor standrepealed after three months unless the ordinance is passed by theAssembly. Of course, from the perspective of the superior courts, thissituation was far from ideal since pending legal proceedings were in astate of continual flux as the Punjab laws of pre-emption were rapidlyrepealed and reformulated." Finally, on 21 March 1991 the PunjabProvincial Assembly passed the Punjab Pre-emption Act, 1991,36an actwhich was substantively identical to the earlier Governor's ordinances.

In practical terms the combined legal effect of the Punjab Pre-emptionAct, 1991, the NWFP Pre-emption Act, 1987, and the various Punjabordinances (1990-1) when read in the context of the relevant case lawhas made the implementation of the revised laws of pre-emption pro-spective, at least in the Punjab and the NWFP. Like the CII's 'DraftLaw of Pre-em ption, 1982', all of the foregoing legal instruments requirethat a would-be pre-emptor must file three sequential talabsin a timelyfashion or waive his right to pre-emption. Since the procedures for theissuing of such talabswere no t pa rt of any of the pre-existing laws ofpre-em ption (before 1986), and since such procedures were not suggestedby the SAB in Said Kemal Shah (1986), it follows that such requirementswould rarely, if ever, have been met in practice. That is, all pendingsuits in which requisite talabshave no t been filed (effectively all suitsfiled before 1986) immediately fail on procedural grounds. For thisreason Pakistan's superior courts have dismissed hundreds, perhapsthousands, 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, nopre-emption laws have been adopted in the Sindh or Balochistan, nor

" Acco rdingly, the Punjab Pre-emption O rdinan ce, 1990 (Ordina nce V of 1990), 29March 1990PLD1990 Punjab Statutes 8 was replaced by Punjab Pre-emption Ordinance(Ordinance XII of 1990), 29 May 1990 PLD1990 Punjab Statutes 52, which in turn wasreplaced by the Punjab Pre-emption Ordinance, 1990 (Ordinance XVIII of 1990), 27August 1990PLDPunjab Statutes 66, which in turn was replaced by Punjab Pre-emptionOrdinance (Ordinance XXVII), 26 November 1990 PLD1991 Punjab Statutes 37, whichin turn was replaced by Punjab Pre-emption Ordinance (Ordinance IX of 1991), 25February 1991P LDPun|ab Statutes 92. The substantive provisions of these ordinancesare identical." Punjab Pre-emption Act, 1991,PL D1991 Punjab Statutes 47.


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ISLAMIZA TION OF REAL ESTATE 8lhas the federal government deigned to draft a consolidated law of pre-emption for Pakistan. In the absence of such actions pre-emption isgoverned by the vagaries of case law decided by the relevant superiorcourts. It is also important to note that even in the Punjab the statusof pre-emption legislation has not been finalized. In autumn 1991 theFSC declared sections of the Punjab Pre-emption Act, 1991, repugnantto Islam in Muhammad Ishmail Qureshi v. Government of Punjab.37The Court found that the two-week limit for filing a notice to thevendee declaring intention to exercise the right of pre-emption (sec-tion 13(3)) was 'too restrictive'. It also found that the government hadno right to exclude from pre-emption cantonm ent lands or oth er govern-ment lands (sections 2(a) and 29) unless government had compellingreasons relevant to the public good for undertaking such action.38Although it was not challenged in the petitions brought before the FSC,the NWFP Pre-emption Act, 1987, suffers from the same 'legal deficien-cies'. The Punjab government has appealed the decision.

RAISING THE CEILING: THE FATE OF LANDREFORMSThe other issues relevant to the FSC's decision in the Ameen case (thoserelevant to land reform) were finally addressed on 10 August 1989 inQazalbash Waqf and others v. Chief Land Commissioner.3' This caseoriginated in 1979 as a Shariat petition before the FSC that had chal-lenged the redistribution of waqf (Islamic charitable trust) holdingsunder the terms of MLR 115.* This petition had been combined withother 'land cases' and was dismissed by the FSC on the grounds of lackof jurisdiction as per the Ameen case. It was subsequently appealed tothe SAB.Unanimously, employing the Said Kemal Shah doctrine, the SABclaimed jurisdiction to decide the case on its merits. There was alsounanimous agreement that provisions of MLR 115 which allowed thestate to confiscate lands without paying compensation were un-Islamic.But beyond that the Court was bitterly divided on the validity of otherprovisions of the land reforms. The majority (Justice Afzal Zullah,

" Muhamm ad Ismail Qureshi v. Government of Punjab PL D1991 FSC 80.35 It is ironic to note that the Qureshi |udgement was written by Justice Tanzil-ur-Rehman, the author of the CH's 'Draft Law of Pre-emption, 1982'. That is, JusticeTanzil-ur-Rehman in the Qureshi decision finds his own earlier work 'repugnant toIslam'." Qazalbash W aqf and others v. Chief Land Commissioner PL D1990 SC 99.* Qazalbash Waqf v. Chief Land Commissioner SP 25/L/79.


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82. C H A R L E S H . K E N N E D YJustice Maulana Taqi Usmani, and Justice Karam Ah Shah) ruled thatseveral provisions of the Act were un-lslamic because: (1)waqf proper-ties should be exempt from any provision of land reform or from stateinterference; (2) land ceilings of any type place an undue restriction onthe rights of property holders; (3) provisions for resumption of landsfor livestock, orchards, and stud-farms are not a valid exercise of statepower; and (4) provisions prohibiting property owners from evictingtenants are an invalid intrusion upon property rights. The minority(Justice Nasim Hasan Shah and Justice Shafiur Rehman) dissented onall four points. The main difference between the two views was thereading of the trade-off between the conflicting rights of property o wn ersversus the state's right to regulate such property for the purposes ofpromoting the public welfare. The majority view was that Islam doesnot countenance compulsory redistribution of wealth or land for thepurpose of alleviating poverty, however laudable the latter goal. Or, asJustice Afzal Zullah succinctly states, Islam requires 'mandatory level-ling up with no mandatory levelling down'. The minority was of theview, rather, that the rights of property holders must be balanced bythe needs of the community. That is, as Justice Nasim Hasan Shahargues, the state has the responsibility to alleviate poverty even if itmeans reducing the holdings of the wealthy.*1

Unlike the Said Kemal Shah case, the Qazalbash Waqf decision hasspawned little legal activity. The effect of the Court's ruling was pro-spective, providing no relief for those aggrieved by the land reforms.How ever, the decision proved very im portant p olitically, as it repudiateda major feature of Zulfiqar Ah Bhutto's domestic policies, such repudi-ation taking place during the regime of his daughter, Benazir Bhutto.The content and timing of the decision, therefore, heralded the inde-pendence of the courts, as well as underscoring the ineffectiveness ofBenazir Bhutto's administration to control the policy agenda during hergovernment's brief tenure.

CONCLUSIONThe prognosis for Bhutto's land reforms seems bleak. Tenant's right topre-emption has been suspended and has been declared un-lslamic byboth the FSC and the SAB. Similarly, ceilings on landholdings, the othermain provision of the land reforms, have been lifted and they too havebeen declared repugnant to Islam by the SAB.

41 The majority opinion of Md. Afzal Zullah and the dissent of Nasim Hassan Shahprovide an extraordinary discussion of economic issues and economic |ustice in Islam.Qazalbash Waqf and others v . Chief Land Commissioner PL D 1990 SC 99, pp. 102-32.


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ISLAMIZAT1ON OF REAL ESTATE 83But, however frail, the patient still breathes. First, the NationalAssembly has never formally repudiated its Bhutto-era land reformlegislation and considerable sentiment still remains in the legislaturewhich favours restoring some version of land reforms. Such sentimentenjoys widespread, probably majority, support from the general publicas is reflected in the numerous d ema nds found in the press for institutingan agricultural land tax or for curbing the 'excessive' powers of land-lords. Benazir Bhutto tapped into this reservoir of support during hersuccessful candidacy for the prime ministership in 1988, and during hernarrow defeat in 1990.Support for the restoration of land reforms has also been voiced byPakistan's judiciary. It is very important to remember that the SAB split3 to 2 in both the Said Kemal Shah and Qazalbash Waqf decisions.That is, if one justice had voted the other way, Bhutto's land reformswould have been declared Islamic, as an expression of Islam's abidingconcern with promoting social justice. Moreover, a majority of judgesin Pakistan's superior courts clearly favour the proposition that Pakis-tan's constitutional system should allow the legislature to exercise itsauthority in such matters as land reforms.42Finally, it must be noted that our discussion of the fate of Bhutto'sland reforms provides an example of the growing importance of Pakis-tan's judiciary, and particularly the SAB and FSC, in that country'spolicy process.43 Functionally speaking, Pakistan's 'Islamic courts' sus-pended implementation of the land reforms, repealed them, drafted newlegislation, and then interpreted the new laws' meaning. Throughoutthis process Pakistan's legislative and executive institutions remainedlargely irrelevant. Indeed, the court's role in the land reform issue issymptomatic of the vacuum created by Pakistan's extraordinarily weaklegislature and of the plight of successive prime ministers hampered bythe operation of the 1985 constitution.

42 From the author's interviews with relevant justices. Typical of such views is thatof Justice Rustam Sidwa of the Supreme Court- 'The right of pre-emption underSection 25(3) of MLR 115 [tenants] is not a piratical right, but one founded in socio-economic reform to give the tenant, who has put his blood and sweat into the land, thefirst right to purchase the same. Though this right has now been declared un-Islamic,the future Islamic jurists shall have to resort to ijtihad to bring this right back, ifmeaningful land reforms are to be re-instated.' Malhi Khan v. Member (Revenue) BORPL D 1991 SC 824, p. 835." See, for example, Charles H. Kennedy, 'Repugnancy'; and C harles H. Kennedy,'Judicial Activism and Islamization after Zia. Toward the Prohibition of Riba', inCharles H. Kennedy, ed.,Pakistan:1992 (Boulder, Colo.: Westview Press, 1992), 57-74.

islamization of real estate preemption and land reforms in pakistan, 1978-1992

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