4/10/2017 LUMSSTUDENTJOURNAL:LandReformandtheQazalbashWaqfcase

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LUMSSTUDENT
JOURNAL
P UB LI S HYO UR WO R K HER E!

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HOWTO
PUBLISHHERE
LandReformandtheQazalbashWaqfcase 1.Pasteyourpaperinthebodyof
anemail.
AftertheQazalbashWaqfcase,landreform 2.Formatitcorrectly.Writethe
inPakistanisimpossible.Discuss. paper'stitleinthemail'sSubject.
Includeyounameinthetextifyou
wantitdisplayed.
3.Mailitto
Inthisshortessay,Iwishtoarguethat'landreform'inPakistan umer.gilani@gmail.com
remainspossible,despitethedecisionoftheSupremeCourtinthe
QazalbashWaqfcase. TheEditorwiththenuploadyour
paperhere.
If 'land reform' is taken in its narrower, conventional
meaning,itremainspossibletostripcurrentlandholdersoftheir
landbyestablishingthattheiracquisitionoftherelevantlandwas
abinitio illegal and against the principles of the Shari'ah. I also
BLOG
seektoestablishthatinthecaseofPakistan,giventhenatureand
ARCHIVE

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historyofmanylandholdings,thisprinciplemayhavesignificant 2010(1)
practicalrepercussions. 2009(2)

If'landreform'isconstruedmorebroadlytoincludenot 2008(6)
justreformoflandownershipbutalsoreformoflandusage,then, November(3)
despite the Qazalbash waqf decision, the possibilities remain Review:TheRemainsofthe
extensive.Infact,ifanything,theverytextoftheQazalbashcase Day
providesimportantcuesinthatdirection.Bytheendofthisessay,
DevelopmentofDeveloped
Ihopetobroachsomeoftheseopenpathwaysto'landreform'in Nations:Europe,the
Pakistan. Unit...

SohelpmeGod. LandReformandthe
QazalbashWaqfcase
I
September(3)
TheStoriesBehindtheCase

Behindeverycase,thelawyerssay,thereisastory.Behind
"PLD1990SC99"therearemanystories,eachsimplyfascinating.
The one story that I wish to narrate, before moving on the R E L AT E D
lawyerlytalk(beginningSectionIV),isthestoryoftheQazalbash
LINKS
Waqf,oneofseveralappellantsinthecasebythatname.Itisa
storythatcomprisesmanytales. LUMSLawJournal
LUMSLibrary
Inthelate1960'sandearly1970s,oneZulfiqarAliBhutto,
scion of a landed Sindhi family, rose to power on the slogan of LUMSWebmail
Islamicsocialism(whichhe,probably,honestlybelievedwasnot LUMSWebsite
an oxymoron). He promised that he would take land from the
rich,usingthepowerofstatelaw,andgiveittothepoor.In1972,
soon after assuming the title of Chief Civilian Martial Law
Administrator (another oxymoron?), he announced that under
Martial Law Regulation No. 115, land would be taken from the
richandgiventothepoor.Thestatewouldn'tbuylandtogiveitto
thepoor.Itwould,asthough,simplyproclaimthatlandhadnever
belongedtotherichithadalwaysbeenthepoor'stotake.In1977,
a little before announcing the general election, Z.A.Bhutto's
governmentpassedthroughtheparliamentanotherseriesof'land
reforms'throughLandReformsAct(2of1977).

AnotherofthesetalesisthetaleoftheQazalbashes.The
Qazalbash clan, with its roots in that mystical, worlduntoitself
placecalled'Turkistan',establisheditspresenceinthegreenplains
of India, sometime in the last two or three centuries, certainly
much,muchbeforetheBhuttosestablishedthemselvesinSindh.
Originally mercenaries, many members of the clan came to
acquirelargelandholdings,andsomeevenbecamesaintsofgreat

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repute. Someone from amongst them established a

'waqf'(variously translated as 'pious trust' or 'charitable
endowment') that owned hundreds upon hundreds of acres of
land, somewhere close to Lahore. The idea behind the waqf, as
always,wassimple:thegoodofthepeople,forthesakeofAllah,
asordainedbyHislaw.

It so happened that while Bhutto was maneuvering the

stringsofstatelawtofulfillhispromiseoflandreform,thenet
thathecastfellon,amongotherpowerfulentities(representedby
lawyerwizards), the Qazalbash Waqf. The Qazalbash Waqf, an
institution protected for ages by God's law lost a lot of its land.
Themutawalllis,ofcourse,didn'tlikeitatall.

Crying foul, they went to the state's courts. For many

years,therewasnoreliefavailable.

Later,however,likeallpowersmundane,Bhuttoeclipsed.
IslamicsocialismgavewaytocriesforNizameMustafa.General
ZiaulHaque,havingsentZ.A.Bhuttotowhereallmenmustinthe
endgo,setouttoIslamizethelawsofPakistan.Forastart,hedid
two things: one, he inserted into the constitution an Article 2A
whichcommandedthatnolawinPakistanmayberepugnantto
theQur'anandtheSunnahthatis,unIslamictwo,hesetup,
Shariat benches in the High Court of each province and, later,
consolidatedtheseintheformofoneFederalShariatCourt.

The Federal Shariat Court turned out to be a fairly

colourful jurisprudential experiment: it brought ulema from all
different parts of the country to sit together with common law
juristssothat,together,theymayproclaimthemeaningofGod's
law for the people of their own time. Later, when the Shariat
AppellateBenchwascreatedtositinappealuponFSCjudgments,
thatcourttoohadsimilarexperiences.

Early in their lives, Muhammad Karam Shah and

MuhammadTaqiUsmani,thoughbothwerescionsoflearnedand
pious families, had few things in common, except one very
important one: a commitment to Islam, the way it has been
understoodtraditionally.WhileKaramShahwasheirtoaPunjabi
sufishrineinthefoothillsoftheSaltRange,TaqiUsmaniwasan
urbane and erudite Kararchiite, an aspiring heir to the juristic,
textual legacy of Islam. Karam Shah had, among other
accomplishments, a degree from AlAzhar in Cairo thus the
prestigious title AlAzhari, which the PLD editors seem to have
somehowignoredentirely.Bothmenhadafollowing.Noneliked
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socialism.WhentheShariatCourtbroughtthemtosittogetherin
judgment,theyfoundthemselvesmakinghistory,oftenagreeing
onhowitshouldgo.

II

TheFederalShariatCourtSpeaks

In1979,withtheestablishmentoftheFSC,theQazalbash
Waqf,hithertodisappointed,sawarayofhope.Ifsomeonecould
establish that land reforms were unIslamic, they could retrieve
thelandthathadbeenlost.Theymovedthecourt,arguing,inter
alia,thatIslamicsocialismanditslandreformswere,inreality,
notIslamicatall.Muchtotheirdisappointment,whenthecourt
proclaimeditsjudgmentinDecember1980,itfoundnothingun
Islamicinlandreforms.Onlyonejudgeexpressedhisopinionin
favouroftheWaqfhedidnothoweverbasehisdecisiononthe
largerissueoflandreform.Hedecidedthecaseofatechnicality:
waqfwasnota'person'undertherelevantprovisionsofthelaw.

TheQazalbashWaqf,whichhadsurvivedthetestoftime,
did not give up. They filed a review petition and then, like all
tenaciousandwiseappellants,waitedforthetidetoturn.Inthe
yearstocome,theShariatAppellateBenchkeptcollectingappeals
onsimilarquestionsoflaw,deferringitsverdict,forreasonsIam
completelyunawareof.Maybe,theytoowerewaitingforthetide
toturn.

III

TheTideTakesaTurn

By 1990, when the Shariat Appellate Bench finally

proclaimed its judgment in the case of the Qazalbash Waqf, the
worldhadchanged.Awallhadbeenpulleddownsomewherein
Berlinandin1989thingswastakingastrangeturn,oneafterthe
other. Socialism became history. Its soldiers were retreating, if
notdeserting.Everyonewaswakinguptothenewrealities.

MuhammadTaqiUsmani,writingwhatappearstobethe
leading judgment, proclaimed that no one could be deprived of
lawfully acquired property (including land) except in extremely
limitedcircumstancescircumstancesthatdidnotincludethose
leadingtolandreformsintheseventiesinPakistan.TaqiUsmani
wrote one of the most wellargued judgments that I have yet
come across amongst Pakistani superior court judgments.
Explaining his answer and their legaldoctrinal bases in
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meticulous, almost pedantic, detail, he attacked every counter

argument presented by the lower court and the government's
lawyers. More than once he exposed the spuriousness of
argument thats deliberately sought to manipulate Islamic
discoursetomakeroomforsocialistideas.

PirKaramShahwroteashorterjudgment,essentially
confirmingandpraisingthefindingofhis"learnedbrotherAllama
Taqi Usmani". He seemed to take great comfort in announcing
that the days of socialism were over and that its false promises
stood exposed. There was no point in bending Islam out of
recognition to fit it in the socialist mould. It seemed somewhat
natural that the two ulema on the bench would agree with each
other.

ShafiurRahmanJ.andNasimHasanShahJ.,veteran
SupremeCourtjudgesandmodernistsintheoutlook,upheldthe
FSC's judgment employing various arguments which do not,
however,matchtheanalyticalrigourofTaqiUsmani'sarguments.

The decisive vote, then, belonged to Afzal Zullah J.

Somehow,somethingaboutTaqiUsmani,orthestrengthofhis
arguments,managedtoswayhim.Itwashisvotethatultimately
decidedthefateof'landreforms'inPakistan:theyweredeclared
unIslamicand,thus,illegal.

It is important to note here that, in the case of the

QazalbashWaqf,thecourtcouldhavearrivedatthesameverdict,
on a simple technicality, just as the dissenting judge in the FSC
did, by declaring that a waqf was not a 'person' under the land
reform laws. The bigger issue could have been decided in some
other case where doing so would be necessary. However, all
except Pir Karam Shah chose to do otherwise. The Qazalbash
Waqfhadadestinyanditsdestinywastomakehistory,andbe
remembered.

IV

TheOneThingTheyDidn'tSay

While declaring unIslamic and thus illegal the

expropriationofland,oranyproperty,bythestatewithoutpaying
compensation, Maulana Taqi Usmani stated only one exception:
"astateinwhichifonedoesnotresorttounlawfulmeanshewill
dieorwillgetclosetodeath."Heconcludedthatthesituationat
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handcouldnotfittherequirementsofthisexception.Itisonlytoo
clearthatifasituationarosewhichdidfulfilanyofthesestated
exceptions, then, the Qazalbash decision notwithstanding, land
reform,ifitcanremedythesituation,wouldbelegal.Itisperhaps
statingtheobviousthatinthiscasetheextentofthelandreforms
should be proportionate to the need for them and no less, no
more.Infact,accordingtoMaulanaTaqiUsmani'sjudgment,in
suchasituationitwouldbethestate'sresponsibilitytotakeevery
possiblemeasuretoremedythesituation.

`Thatsaid,consideringtheunlikelinessofsuchasituation,
I feel that the more promising possibility of land reform lies
elsewhere. In his judgment, Mualana Taqi Usmani repeatedly
stresses that the broad protection from expropriation which
propertyownersenjoyinIslamappliesonlyiftheirpropertywas
acquired,inthefirstplace,throughlegitimatemeans.If,however,
the property was acquired through illegitimate means, it is the
government's duty to take it back and give it to its original,
legitimateownersand,ifthatisnotpossible,then,justgiveitto
theneedy.CommentatorsoftheQazalbashcasehavebeenloathe
to note the significance of this conditionality for the Pakistani
situation perhaps only because, in the immediate case, this was
not an issue. The conditionality can, I now argue, be significant
giventheshadyoriginsofmanylargelandholdingsinPakistan.

TheShadyOriginsofLandlordisminPakistan

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
passontotheKing'streasury.Thesenobleswould,inturn,grant
the revenue collection rights over their parts land to others
nobles.Noneofthesenobles,however,ownedtheland.Inshort,
whilethekingtheoreticallyownedalltheland,thepeasantsand
tillerswhohashistoricallybeenonthelandcontinuedtopossess
it,aslongastheyensuredpaymentoftheirrevenues.

WhentheBritishconqueredthelandsthattheMughals
hasonceruled,theygraduallytransformedthewholeconceptof
landownership.Moderncapitalisticformsofpropertyownership,
developed in England, were gradually replicated in the colonies.
Lands that had long been communally 'owned' and exploited
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gradually became the property of private individuals. Not

unexpectedly,intheensuingscrambleforland,localinfluentials,
particularly those who collaborated with the British, got much
morethantheirshare.Ultimately,afewgotall.Mostgotnothing.

Itcanbeargued,aspeopleonthestreetoftenstilldo,that
through manipulation of land rights, the colonizers deprived
many families of rights over land that these families had
traditionallyenjoyed.Instead,quiteunjustly,andquiteagainstthe
principlesoftheShari'ah,landholdingswerearbitrarilymadethe
exclusivepossessionofaselectfewfamilies.Manyofthese
families still own the land. The history of this land scam dates
backtonomorethanahundredandfiftyyears,giventhatPunjab
andSindhwereannexedonlyaslateasthe1840's. In terms of
history,that'sonlyrecent.

Insum,despitetheQazalbashWaqfcase,ifthestate
wishestodeprivelandownersoftheirlandsothatthelandmaybe
redistributed, it can do so by first establishing the ab initio
illegalityoftitletotheland.This,ascontendedabove,maynotbe
impossible in the case of various large land owners in Pakistan
becauseoftheshadyoriginsoftheirtitletotheland.

VI

ThinkingoutoftheBox

In this section, I hope to examine a broader, less

conventional conception of land inform. I contend that the
possibilities of such 'land reform' remain extensive. In fact, the
Qazalbash case itself offers important cues that can spark one's
imaginationandprovokeonetothinkofcreativesolutionstothe
problemsthatfirstgaverisetothenarrowerconceptionofland
reform.

Land reform has generally tended to focus on land

ownershiprightsthatisonlanditself.Ultimately,however,this
focusonlanditselfseemsmisplacedconsideringthatlandisonly
asgoodaswhatitcanbeusedforandwhoitcanbeusedfor.If
landusageisreformedinsuchamannerthatitcaterstogetofall
andnotjustthegoodofafew,then,tosomeextent,theneedfor
redistributinglandownershipmaybeobviated.Thatseemstobe
solutionindicatedinMaulanaTaqiUsmani'sleadingjudgment.

He repeatedly emphasizes this point: the economic

teachings of Islam may not be looked at in isolation. The broad

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protectionenjoyedbypropertyownersmustneverbelookedatin
isolation from the duties they have to God and to their own
communities. While on the one hand the state may not
expropriateland,landownersarealsonottotallyfreetousetheir
landastheyplease:theymaynotproduceanythingthatisillegal
orharmfultothecommunityontheirlandtheymustpayzakat
andusherupontheirproducetheymusttakecareofanyonein
their community who slides down to dire poverty, such that no
onegoeshungryornakedtheyareresponsibleforensuringthe
wellbeingoftheirextendedfamily,fromwhomtheyinheritand
to whom they must leave their property behind in times of
scarcity, they may not hoard, nor gamble or speculate, nor may
they charge interest on the capital that they possess.
Furthermore, one who 'brings life' to a 'dead' land may own it,
while one lets a land go to waste for a certain number of years
loses title. All of these conditions, among others, constitute
significant reforms to land usage. Few, if any, of these rules of
landusagearecurrentlybeingfollowedinPakistan.

Ifthestateplaysaroleinensuringthattheseconditionsof
land usage are closely adhered to, these "reforms" are quite
enoughtobringaboutmuchgood.

The strength of Maulana Taqi Usmani's judgment

depends, in part, on his ability to muster up precedents from
Muslim history along with contextual explanations from the
Islamic scholarly tradition. His view, it appears, is that which
enjoys the support of centuries of scholarly consensus. On the
contrary,thedissentingviewsofNasimHassanShahandShafiur
Rahman, in support of the Islamiclegality of land reforms, are
remarkably abrupt and ahistoric. Nasim Hassan Shah, for
instance, simply ignores the argument that anything which the
Qur'an or the Sunnah do not forbid, cannot then be forbidden
foreverbyanyoneelse.Furthermore,hecomesupwithhisown
precedenteddefinitionof'darurah'ornecessityaconceptwith
which constitutional jurists in Pakistan are only too familiar,
although in a rather sinister context. By alluding to Muslim
history,TaqiUsmanialsopointsoutwhereitisthatweneedtobe
looking for, to find creative and wellgrounded solutions to the
problemsthatgaverisetotheneedfor'landreform'.

Atonepoint,PirKaramShahcommentsontheironyof
thismisplacedfocusonlandownershipratheritsusage.Hepoints
out that the institution of Waqf itself was developed to increase
publicwelfareforcenturies,thatispreciselywhatmanyauqaf

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were doing. In the case at bar, a waqf had been stripped of its
land,intheverynameofpublicwelfare.Thestate,inthenameof
publicwelfare,founditselfdestroyingageoldinstitutionswhich
Muslimsocietyhadnurturedforthesamepurpose.Themodern,
colonialandpostcolonialstate,rightatatimewhenitproclaims
its mission of public welfare, has long maintained policies that
discourage and damage the institution of waqf. The Qazalbash
Waqfcasenotonlyallowsbutencouragesthestatetoprotectand
promotethisinstitutiontheessenceofwhichisthereformof
land usage. The establishment of auqaf offers the prospect of
converting lands previously utilized for private good into lands
utilizedforthegoodofthepublic.Thisprocessisrequiredtobe
voluntary,notmotivatedbytheloveofGodandnotbycoercionof
state law. Yet, there is no reason to conclude that auqaf cannot
cometoplayasignificantroleintheprovisionofwelfaretothe
public indeed, history indicates that with the right amount of
pushfrombothstateandsociety,theycan.Thattooisapathway
of'landreform'whichremainspossibleinPakistan.

TheEnd!

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