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Umer Gilani, - Land Reforms and Qazalbash Waqf Case, Lums Student Journal (9B)
Umer Gilani, - Land Reforms and Qazalbash Waqf Case, Lums Student Journal (9B)
Umer Gilani, - Land Reforms and Qazalbash Waqf Case, Lums Student Journal (9B)
In this short essay, I wish to argue that 'land reform' in Pakistan remains
possible, despite the decision of the Supreme Court in the Qazalbash
Waqf case.
So help me God.
Behind every case, the lawyers say, there is a story. Behind "PLD 1990 SC
99" there are many stories, each simply fascinating. The one story that I
wish to narrate, before moving on the lawyerly talk(beginning Section IV),
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is the story of the Qazalbash Waqf, one of several appellants in the case
by that name. It is a story that comprises many tales.
In the late 1960's and early 1970s, one Zulfiqar Ali Bhutto, scion of a
landed Sindhi family, rose to power on the slogan of Islamic socialism
(which he, probably, honestly believed was not an oxymoron). He
promised that he would take land from the rich, using the power of state
law, and give it to the poor. In 1972, 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
rich and given to the poor. The state wouldn't buy land to give it to the
poor. It would, as though, simply proclaim that land had never belonged to
the rich; it had always been the poor's to take. In 1977, a little before
announcing the general election, Z.A.Bhutto's government passed
through the parliament another series of 'land reforms' through Land
Reforms Act (2 of 1977).
Another of these tales is the tale of the Qazalbashes. The Qazalbash clan,
with its roots in that mystical, world-unto-itself place called 'Turkistan',
established its presence in the green plains of India, sometime in the last
two or three centuries, certainly much, much before the Bhuttos
established themselves in Sindh. Originally mercenaries, many members
of the clan came to acquire large landholdings, and some even became
saints of great 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, was simple: the good of the
people, for the sake of Allah, as ordained by His law.
It so happened that while Bhutto was maneuvering the strings of state law
to fulfill his promise of land reform, the net that he cast fell on, among
other powerful entities(represented by lawyer-wizards), the Qazalbash
Waqf. The Qazalbash Waqf, an institution protected for ages by God's law
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lost a lot of its land. The mutawalllis, of course, didn't like it at all.
Crying foul, they went to the state's courts. For many years, there was no
relief available.
Early in their lives, Muhammad Karam Shah and Muhammad Taqi Usmani,
though both were scions of learned and pious families, had few things in
common, except one very important one: a commitment to Islam, the way
it has been understood traditionally. While Karam Shah was heir to a
Punjabi sufi shrine in the foothills of the Salt Range, Taqi Usmani was an
urbane and erudite Kararchiite, an aspiring heir to the juristic, textual
legacy of Islam. Karam Shah had, among other accomplishments, a
degree from Al-Azhar in Cairo – thus the prestigious title Al-Azhari, which
the PLD editors seem to have somehow ignored entirely. Both men had a
following. None liked socialism. When the Shariat Court brought them to
sit together in judgment, they found themselves making history, often
agreeing on how it should go.
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II
In 1979, with the establishment of the FSC, the Qazalbash Waqf, hitherto
disappointed, saw a ray of hope. If someone could establish that land
reforms were un-Islamic, they could retrieve the land that had been lost.
They moved the court, arguing, inter alia, that Islamic socialism and its
land reforms were, in reality, not Islamic at all. Much to their
disappointment, when the court proclaimed its judgment in December
1980, it found nothing un-Islamic in land reforms. Only one judge
expressed his opinion in favour of the Waqf; he did not however base his
decision on the larger issue of land reform. He decided the case of a
technicality: waqf was not a 'person' under the relevant provisions of the
law.
The Qazalbash Waqf, which had survived the test of time, did not give up.
They filed a review petition and then, like all tenacious and wise
appellants, waited for the tide to turn. In the years to come, the Shariat
Appellate Bench kept collecting appeals on similar questions of law,
deferring its verdict, for reasons I am completely unaware of. May be, they
too were waiting for the tide to turn.
III
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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 Waqf had a destiny; and its destiny was to make history, and
be remembered.
IV
When the British conquered the lands that the Mughals has once
ruled, they gradually transformed the whole concept of land ownership.
Modern capitalistic forms of property ownership, developed 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, got
much more than their share. Ultimately, a few got all. Most got nothing.
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given that Punjab and Sindh were annexed only as late as the 1840's. In
terms of history, that's only recent.
VI
Land reform has generally tended to focus on land ownership rights – that
is 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 who it can be used for. If land usage is reformed in such a manner
that it caters to get of all and not just the good of a few, then, to some
extent, the need for redistributing land ownership may be obviated. That
seems to be solution indicated in Maulana Taqi Usmani's leading
judgment.
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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; 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 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" are quite enough to bring about much
good.
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At one point, Pir Karam Shah comments on the irony of this misplaced
focus on land ownership rather its usage. He points out that the institution
of Waqf itself was developed to increase public welfare – for centuries,
that is precisely what many auqaf were doing. In the case at bar, a waqf
had been stripped of its land, in the very name of public welfare. The
state, in the name of public welfare, found itself destroying age-old
institutions which 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. The Qazalbash Waqf case not only
allows but encourages the state to protect and promote this institution –
the essence of which is the reform of land usage. The establishment of
auqaf 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, not motivated by the love of God and not by
coercion of state law. Yet, there is no reason to conclude that auqaf
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 too is a pathway of 'land reform'
which remains possible in Pakistan.
The End!
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