Why the court must pursue the petition on land reforms
The promise of democracy is larger than the simple idea of ‘one man one vote’. The true spirit of democracy embodies the right of equal participation in all facets of the governance structure. It entails not only the right to have an opinion, but also to have the opinion to be counted; not just the right to speak, but also to be heard; not only the right to vote, but the right to be counted; and, perhaps most importantly, not only the right to elect, but also (an equal) right to have a chance of being elected.
And at the end of the current parliamentary term, as we turn the reigns over to an interim setup in order to graduate to the electoral process, this debate – of having an equal opportunity of being elected – must take centre stage.
An appropriate place to start will be by asking the following questions: should the opportunity to contest for public office be the birthright of only the very affluent and privileged? Or should the contours of democracy be extended to incorporate in its fold, those whose voices have been muted under the weight of their unfortunate circumstances? What prohibits, or serves as an impediment for, the common (non-affluent) individual to contest for and get elected to public office?
Regardless of what side of the partisan divide one belongs to, most, if not all, people would agree that the doors of the electoral process must be opened to invite a larger fraction of the populous. And almost everyone would also concur that the greatest impediment in this regard are the forces of status quo.
The next question then becomes: what are the forces of status quo, and how can we counter them?
The answer, to this relatively straightforward question, is tricky. And frequently, it is couched in slogans of ‘real democracy’ being possible only after the ‘education of masses’ and ‘economic empowerment of the middle-class’. All that is true. But the pertinent issue for now is: where do we start from? What is the first step in challenging the status quo?
Answer: Land reforms, and a breaking of the landed-junta’s hegemony in our politics. In a country still reeling from its history of colonial rule (through a system of land revenues), hereditary power centres, and primarily an agro-based economy, the gates of democracy shall stay shut to the people at large so long as a few select families and individuals continue to own and control majority of the land.
An attempt to break this hegemony was made through Land Reform Regulation, 1972, and the Land Reforms Act, 1977, which introduced maximum caps on individual and family land-holdings. These reforms were challenged before the Federal Shariat Court (FSC) on the touchstone of being unIslamic (in the case of Hafiz Muhammad Ameen case, PLD 1981 FSC 23), but the court dismissed the petition, holding that 1) the land reforms were not unIslamic, and 2) the FSC did not have jurisdiction to examine the validity of the land reforms, the same being protected under Article 24 (Protection of Property Rights) and 253 (Maximum Limits as to Property) of the Constitution.
This judgment of the FSC was appealed before the Shariat Appellate Bench of the Supreme Court in the (in)famous Qazalbash Waqf case (PLD 1990 SC 99), in which a bench comprising three Supreme Court judges and two ulema accepted the appeals, declaring the land reforms to be unIslamic (despite the fact that the same, in effect, nullified otherwise substantial provisions of the constitution).
And that is how the law currently stands.
Recently, however, as part of the larger electoral reforms challenge in the Workers Party Pakistan case, the great Abid Hassan Minto, assisted by Bilal Minto, has challenged the decision of the Qazalbash Waqf case, and asked for reinstitution of land reforms, as an imperative precondition to the holding of free and fair elections. The petition argues, inter alia, that that land reforms must be introduced (and upheld as constitutional), not only as part of the constitutional mandate of article 253 and 24 of the constitution, but also as a necessary part of a democratic dispensation that requires a ‘level playing field’ in the electoral process.
Away from the technical challenges concerning jurisdiction of the Shariat Appellat Bench, and the issue of impliedly striking down article 24 and 253 of the constitution, the petition emphasises how the existing feudal landholdings act as an instrument of subjugation, and affect the right to life (or the right to a ‘better life’) of a large proportion of our population. The petition correctly points out that those subjugated by large landowners, depend on such landowners for their livelihood and (frequently) for their security. In such circumstances, these citizens cannot participate in the political process, as voters or candidates, in accordance with their own free will (per the spirit of article 17 of the constitution).
For now, in the mix of sensationalised political cases, the honourable Supreme Court has not pursued this petition with much zest. Though notice has been issued to the Attorney General, no urgency seems to be prevailing in hearing and disposing of this matter in accordance with the constitutional mandate. Any other time, the idea that urgent sometimes crowd out the important, could be employed to justify the cavalier timing of the honourable court.
However, this is not just any time. The elections are upon us. And, assuming continuity in the democratic process, what happens in the next 60 days will determine the course of our nation for at least five years to follow. This, here and now, is the time to take up the issue of reviewing the court’s decision in regards to land reforms. Not only because land reforms are important in themselves, as mandated explicitly by the constitution, but also because the issue rests at the heart of our electoral process and democratic paradigm.
The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: [email protected]
