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Journal of Islamic Studies 4 1 (1993) pp.

71-83
ISLAMIZATION OF REAL ESTATE: PRE-
EMPTION AND LAND REFORMS IN
PAKISTAN, 1978-1992
1
CHARLES H. KENNEDY
Wake Forest University, Winston-Salem, North Carolina
Land reforms were at the centre of the plans of the People's Party
government (1971-7) to transform Pakistan into a 'democratic', 'Islamic
socialist' state. The Land Reform Regulation, 1972 (Martial Law Regu-
lationMLR 115), promulgated by Prime Minister Zulfiqar Ali Bhutto,
was designed to place ceilings on the agricultural holdings of Pakistan's
large landlords. Under the terms of MLR 115 land in excess of a ceiling
of 150 acres
2
was to be seized by the state without compensation and
distributed to the landless. Another provision of MLR 115, Section 25,
gave first right of pre-emption (right of first refusal to buy) to the
existing tenants. In 1977 Bhutto shepherded a bill through the National
Assembly, the Land Reform Act, 1977, which reduced the ceiling still
further, to 100 acres, although the latter act provided for compensation
to affected landlords.
The rationale for the adoption of such policies was threefold. First,
the redistribution of lands to the landless would alleviate poverty in
the state and would result in greater equality in the rural areas.
Second, such land reforms would weaken the power and dominance
of Pakistan's 'feudal class', the large landlords (zamtndars). Third,
the reforms were crafted to make Pakistan's agricultural production
more efficient. It was asserted that the dissolution of Pakistan's large
1
Support for researching and drafting this paper was provided by: Fulbnght Senior
Research Fellowships (1984-5,1990); the Pew Foundation International Teaching Award
(1990-1); the Archie Fund for Faculty Excellence, Wake Forest University; and the
Research and Publication Fund of the Graduate School of Wake Forest University.
1
The ceiling was set at 300 acres if the land was unirrigated, exceptions were granted
for landlords who bought tractors or installed tube wells. Bhutto's MLR 115 replaced
Ayub Khan's 1959 land reforms which had established a land ceiling of 500 acres. For
details see Ronald Herring, Land to the Tiller: The Political Economy of Agrarian
Reform in South Asia (New Haven: Yale University Press, 1983), 85-124.

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7Z CHARLES H. KENNEDY
agricultural holdings would foster a transformation from 'traditional,
inefficient absentee landlordism' to 'modern, efficient agricultural
entrepreneurship'.
3
Analysts agree that the implementation of Bhutto's land reforms left
much to be desired. The amount of land actually seized by the state
and redistributed to the peasants was modest.* Further, the reforms
were not administered equitably. There is compelling evidence to suggest
that the administration implemented the land reforms much more enthu-
siastically in the NWFP and Balochistan, the locus of opposition to
Bhutto and the Pakistan People's Party (PPP), than in the more politic-
ally friendly Sindh and Punjab.
5
The 1977 land reform, moreover, did
not have time to work, as the government was deposed by a military
coup in July 1977.
Despite such sketchy implementation, the introduction of land
reforms generated significant political opposition. Most notably, many
of Pakistan's large landlords perceived the reforms as a direct challenge
to their long-standing interest in maintaining political control in Pakis-
tan's rural areas. This was particularly true among relevant landlords
in the NWFP, a National Awami Party (NAP) stronghold, wherein
Bhutto had targeted his reforms. The newly installed military regime
was also eager to discredit the policies of its predecessor. Accordingly,
the White Papers, written in part to legitimize the military coup,
emphasized Bhutto's alleged cynical manipulation of the land reforms
which had been utilized ostensibly to punish his political enemies.
6
Such
attempts to discredit the previous regime dovetailed neatly with General
Zia's interest in Islamizing Pakistan's polity. Indeed, Bhutto's land
reforms 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 Islamic
order.
3
See ibid., esp. 100-7.
* Herring estimates that only 2.5 per cent of the total farm area was redistributed
during the Bhutto period. Ibid. 112.
3
Herring estimates that in the NWFP 12 per cent of the land was confiscated and
redistributed to one-third of the landless peasants in the province. In Balochistan 10 per
cent was confiscated and 36 per cent of the landless received land. Ibid. 114. Also see
Charles H. Kennedy, 'Rural Groups and the Stability of the Zia Regime', in Craig
Baxter, ed., Zia's Pakistan: Politics and Stability in a frontline State (Boulder, Colo.:
Westview Press, 1985), 23-46.
' See Government of Pakistan, White Paper on the Performance of the Bhutto Regime,
vol. 4 (Islamabad: Printing Corporation of Pakistan Press, 1979), 13-25.

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ISLAMIZATION OF REAL ESTATE 73
THE FATE OF TENANTS' RIGHT TO PRE-
EMPTION
In 1978 'Shariat Benches' were grafted on to Pakistan's four High
Courts.
7
Their jurisdiction included hearing appeals against hudood
(Islamic criminal law) convictions and they were granted original juris-
diction 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.
8
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 con-
tended that nowhere in the Holy Qur'an or Sunna was there mention
of a tenant's right to pre-emption. Further, ahadith (narrative reports
of the Prophet's sayings and actions) clearly established the right of
pre-emption according to the following order of priority: '(1) co-sharer;
(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.
10
The decision of the Court proved transitory,
however, as did the existence of the Shariat Bench itself. By means of
a Presidential Ordinance,
11
Chief Martial Law Administrator General
Zia-ul-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.
12
Not surprisingly, given the large number
7
Via the Shariat Benches of Superior Courts Order, 1978 (President's Order no. 22
of 1978). 4 December 1978. PLD 1979 Central Statutes 6.
' Ha|i Niamatullah v. NWFP Government, Shariat petition ('SP'), no. 1, 1979.
' The plaint cites among other sources al-Bukhan, Book 8, chs. 1396-7, ahadith
2102-3, and Fatawa-i-Alamgin, ch. II, para. 29, to substantiate its claim.
10
Hap Niamatullah Khan v. Government of Pakistan PLD 1979 Pesh 104. The Court
cited the same ahadith as the Ha)i Niamatullah plaint to justify its findings. That is, the
Court found that tenants have no right to pre-emption.
" Presidential Ordinance no. 1, 1980, which established Chapter 3-A of the 1985
Constitution. It became effective on 25 June 1980.
12
1985 Constitution, Article 203-D.

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74 CHARLES H. KENNEDY
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 per cent 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 pre-
emption.
13
Additionally, the Court received numerous other petitions
challenging, on Islamic grounds, other provisions of the aforementioned
Land 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 petitions
challenging the right of the government to resume land for public
purposes.
15
The FSC chose to deal with such 'land cases' collectively in the Hafiz
Muhammad Ameen case.
16
Other than the merits of the petitions, the
Court confronted two thorny issues. First, did the FSC have the author-
ity to review the Haji Niamatullah case, a decision of a predecessor
courtthe 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,
17
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.
13
During 1979-80 approximately 70 Shariat petitions were filed in the FSC challenging
one 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 Haji
Niamatullah 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, and
Umar Din v. Federal Government SP 75/L/79.
14
Such petitions charged that such laws were un-Islamic because inter aha: (1) there
is no mandate for the redistribution of wealth in Islam, (2) no ceiling on wealth or
landholding is countenanced in Islam; (3) no specific rights are granted to tenants in
Islam; and (4) no provisions exist under Islam which allow the state to force an individual
to 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 Cities
Act, 1976; and the Colonization of Government Lands Act, 1912.
16
Hafiz Muhammad Ameen v. Islamic Republic of Pakistan PLD 1981 FSC 23.
17
Muhammad Riaz v Federal Government PLD 1980 FSC 1.

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ISLAMIZATION OF REAL ESTATE 75
SHARIAT PETITIONS DECIDED BY FSC, 1979-87"
Year
Subject: 79 80 81 82 83 84 85 86 87 Total
Land cases'"
Qisas + diyat
Civil service
Family laws
Social practice
Riba
Customary law
Ritual
Rajm
Hudood laws
Elections
Rent laws
Gender
Jurisdiction
Other
Withdrawn
56
9
0
6
5
2
1
0
4
0
7
0
0
0
1
0
27
4
7
5
7
2
1
3
0
0
0
0
0
0
0
4
17
4
1
3
3
1
1
1
1
2
0
0
0
3
8
5
4
1
0
0
0
1
0
0
0
0
0
1
1
0
5
0
0
3
4
0
1
2
0
2
0
5
0
0
1
2
2
2
5
7
6
0
0
1
2
4
0
0
0
4
2
0
5
3
2
0
1
2
0
3
3
0
1
1
0
1
2
0
0
2
3
1
2
2
0
1
5
0
1
0
0
0
0
0
0
5
8
0
0
0
0
2
0
0
1
0
0
0
0
0
0
4.
122
29
21
18
16
15
13
10
8
8
7
6
6
5
20
25
Totals 91 60 50 13 24 39 18 20 15 330
"Pennons read and codified by the author, 1984-7. All petitions submitted to the FSC
between 1979 and May 1987 and available in the FSC files were examined by the author.
There is a slight discrepancy between the total number of petitions cited here and the
aggregate figures provided by the FSC. The latter figures indicate that as of 31 May 1987
the Court had received 348 Shariat petitions and had disposed of 325. Such a discrepancy
can 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 eventually
considered by the FSC in Hafiz Muhammad Ameen v. Islamic Republic of Pakistan,
PLD 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 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 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 wealth
and property, Islam also recognizes the validity of state-imposed limits

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j6 CHARLES H. KENNEDY
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 Sunna, 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.
18
Into such confusing legal waters plunged the Council of Islamic
Ideology (CH). 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 1500... judges, advocates, uletna, and other members of the
public' the Council submitted its 'Draft Law of Pre-emption' in January
1982." The CH'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:
20
(a) first, in shafT shartk ('a person who is a co-owner in the corpus of
the undivided immovable property sold with other person or persons');
(b) secondly, in shaf? khaltt ('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');
(c) 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 Pre-emption 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
pre-emption (Article 13). If an individual fails to follow the above
11
Hafiz Muhammad Ameen v. Islamic Republic of Pakistan PLD 1981 FSC 23, esp.
pp. 38-51.
" Government of Pakistan, Council of Islamic Ideology (CII), Draft Law of Pre-
Emption (Islamabad- CII, 1982), 2.
20
CII, Draft Law of Pre-Emption (1982), Article 6.

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ISLAMIZATION OF REAL ESTATE 77
procedure, 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 govern-
ment 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.
21
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 Islamiz-
ation programme 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.
22
Perhaps inevitably the FSC's decision in the Ameen case was also
appealed to the newly established Shanat Appellate Bench of the
Supreme Court (SAB).
23
The latter Court decided to separate the appeal
into two issuespre-emption and land reform. After lengthy formalities
21
Presidential Ordinance no. 5 of 1982 as incorporated in the 1985 Constitution as
Article 203-GG.
" In a personal interview in June 1985 a lustice of the Lahore High Court told the
author 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 to
its jurisdiction were effected through various Presidential Ordinances promulgated in
1982 and 1983 and incorporated in the 1985 Constitution as Article 203-F.

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78 CHARLES H. KENNEDY
and procedural delays the first issue (pre-emption) was addressed, in
1986, by Government of NWFP v. 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
Sunna, therefore it is not 'repugnant' to Islam; (2) granting rights of
pre-emption to tenants is in the public interest; and (3) 'only the Hanafi
fiqh' 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 dom-
inated by landed interests, responded fairly quickly to the FSC's order
and passed the NWFP Pre-emption Act, 1987, on 28 April 1987.
27
This
act was substantively identical to the CII's 'Draft Law of Pre-emption,
1982'.
28
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 decision. The
Supreme Court was not co-operative.
2
' In the Punjab the provincial
24
Government of NWFP v. Said Kemal Shah PLD 1986 SC 360
25
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 Article
203-B's restriction on jurisdiction to exclude the 'constitution' should be more narrowly
interpreted to mean only the constitution and not laws protected or validated by it. This
is an important precedent in that it provides a vehicle to extend the jurisdiction of the
superior courts. For instance, the Said Kemal Shah doctrine was cited as justification to
claim jurisdiction in a challenge to Pakistan's regional quota system of recruitment to
the federal bureacucracy. See Nusrat Baig Mirza v. Government of Pakistan PLD 1991
SC 509.
" Government of NWFP v. Said Kemal Shah PLD 1986 SC 360, pp. 473-5. Neither
Justice Rehman nor Qureshi cites definitive sources to substantiate the latter contention.
27
NWFP Pre-emption Act, 1987 (Act X of 1987) PLD 1987 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 Shanat
Appellate Bench findings in Said Kemal Shah. But the Court refused to grant an injunction
against the implementation of its decision. Source: personal interviews with justices of
the Supreme Court, June 1987.

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ISLAMIZATION OF REAL ESTATE 79
government feared that the passage of a revised law of pre-emption
would provoke judicial chaos as over 5000 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 Shariah
bill (in any of its myriad versions) through the house.
30
Therefore, by default, responsibility for interpreting and imple-
menting the decision devolved upon the SAB. In a series of cases, the
Court 'clarified' and 'reclanfied' the meaning of the Said Kemal Shah
decision.
31
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'
(shafT shank) has first right of pre-emption,
32
followed by those sharing
special rights {shafT khalit) and neighbours (shafT 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 legaj environment
surrounding pre-emption remained confused and confusing. Suits con-
tinued 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.
33
This veil of confusion was partially lifted when the Governor of
Punjab promulgated the Punjab Pre-emption Ordinance, 1990, on 29
March 1990.
3
* In all substantive particulars this act was identical to the
NWFP 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; Safia
Begum 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 1989 PLD 1990 SC 865; and Aziz Begum
v. Federation of Pakistan PLD 1990 SC 889.
31
'Co-sharers' had been given the fourth priority of pre-emption according to the
various impugned pre-emption provisions.
33
See discussion in Ghulam Qadir v. Nawab Din PLD 1988 SC 701; and Bashir
Ahmed v. Lai Khan PLD 1991 SC 376.
34
Punjab Pre-emption Ordinance, 1990 (Ordinance V of 1990), 29 March 1990. PLD
1990 Punjab Statutes 8.

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80 CHARLES H. KENNEDY
bly 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 circum-
stances 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,
36
an act
which was substantively identical to the earlier Governor's ordinances.
In practical terms the combined legal effect of the Punjab Pre-emption
Act, 1991, the NWFP Pre-emption Act, 1987, and the various Punjab
ordinances (1990-1) when read in the context of the relevant case law
has made the implementation of the revised laws of pre-emption pro-
spective, 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-emptor 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 pre-existing laws of
pre-emption (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 laws have been adopted in the Sindh or Balochistan, nor
" Accordingly, the Punjab Pre-emption Ordinance, 1990 (Ordinance V of 1990), 29
March 1990 PLD 1990 Punjab Statutes 8 was replaced by Punjab Pre-emption Ordinance
(Ordinance XII of 1990), 29 May 1990 PLD 1990 Punjab Statutes 52, which in turn was
replaced by the Punjab Pre-emption Ordinance, 1990 (Ordinance XVIII of 1990), 27
August 1990 PLD Punjab Statutes 66, which in turn was replaced by Punjab Pre-emption
Ordinance (Ordinance XXVII), 26 November 1990 PLD 1991 Punjab Statutes 37, which
in turn was replaced by Punjab Pre-emption Ordinance (Ordinance IX of 1991), 25
February 1991 PLD Pun|ab Statutes 92. The substantive provisions of these ordinances
are identical.
" Punjab Pre-emption Act, 1991, PLD 1991 Punjab Statutes 47.

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ISLAMIZATION OF REAL ESTATE 8l
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 Ishmail Qureshi v. Government of Punjab.
37
The Court found that the two-week limit for filing a notice to the
vendee declaring intention to exercise the right of pre-emption (sec-
tion 13(3)) was 'too restrictive'. It also found that the government had
no right to exclude from pre-emption cantonment lands or other govern-
ment lands (sections 2(a) and 29) unless government had compelling
reasons relevant to the public good for undertaking such action.
38
Although 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 LAND
REFORMS
The other issues relevant to the FSC's decision in the Ameen case (those
relevant to land reform) were finally addressed on 10 August 1989 in
Qazalbash Waqf and others v. Chief Land Commissioner.
3
' This case
originated in 1979 as a Shariat petition before the FSC that had chal-
lenged the redistribution of waqf (Islamic charitable trust) holdings
under the terms of MLR 115.* This petition had been combined with
other 'land cases' and was dismissed by the FSC on the grounds of lack
of jurisdiction as per the Ameen case. It was subsequently appealed to
the SAB.
Unanimously, employing the Said Kemal Shah doctrine, the SAB
claimed jurisdiction to decide the case on its merits. There was also
unanimous agreement that provisions of MLR 115 which allowed the
state to confiscate lands without paying compensation were un-Islamic.
But beyond that the Court was bitterly divided on the validity of other
provisions of the land reforms. The majority (Justice Afzal Zullah,
" Muhammad Ismail Qureshi v. Government of Punjab PLD 1991 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, Justice
Tanzil-ur-Rehman in the Qureshi decision finds his own earlier work 'repugnant to
Islam'.
" Qazalbash Waqf and others v. Chief Land Commissioner PLD 1990 SC 99.
* Qazalbash Waqf v. Chief Land Commissioner SP 25/L/79.

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82. CHARLES H. KENNEDY
Justice Maulana Taqi Usmani, and Justice Karam Ah Shah) ruled that
several provisions of the Act were un-lslamic because: (1) waqf proper-
ties should be exempt from any provision of land reform or from state
interference; (2) land ceilings of any type place an undue restriction on
the rights of property holders; (3) provisions for resumption of lands
for livestock, orchards, and stud-farms are not a valid exercise of state
power; and (4) provisions prohibiting property owners from evicting
tenants are an invalid intrusion upon property rights. The minority
(Justice Nasim Hasan Shah and Justice Shafiur Rehman) dissented on
all four points. The main difference between the two views was the
reading of the trade-off between the conflicting rights of property owners
versus the state's right to regulate such property for the purposes of
promoting the public welfare. The majority view was that Islam does
not countenance compulsory redistribution of wealth or land for the
purpose of alleviating poverty, however laudable the latter goal. Or, as
Justice Afzal Zullah succinctly states, Islam requires 'mandatory level-
ling up with no mandatory levelling down'. The minority was of the
view, rather, that the rights of property holders must be balanced by
the needs of the community. That is, as Justice Nasim Hasan Shah
argues, the state has the responsibility to alleviate poverty even if it
means reducing the holdings of the wealthy.*
1
Unlike the Said Kemal Shah case, the Qazalbash Waqf decision has
spawned little legal activity. The effect of the Court's ruling was pro-
spective, providing no relief for those aggrieved by the land reforms.
However, the decision proved very important politically, as it repudiated
a 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 of
Benazir Bhutto's administration to control the policy agenda during her
government's brief tenure.
CONCLUSION
The prognosis for Bhutto's land reforms seems bleak. Tenant's right to
pre-emption has been suspended and has been declared un-lslamic by
both the FSC and the SAB. Similarly, ceilings on landholdings, the other
main provision of the land reforms, have been lifted and they too have
been declared repugnant to Islam by the SAB.
41
The majority opinion of Md. Afzal Zullah and the dissent of Nasim Hassan Shah
provide an extraordinary discussion of economic issues and economic |ustice in Islam.
Qazalbash Waqf and others v. Chief Land Commissioner PLD 1990 SC 99, pp. 102-32.

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ISLAMIZAT1ON OF REAL ESTATE 83
But, however frail, the patient still breathes. First, the National
Assembly has never formally repudiated its Bhutto-era land reform
legislation and considerable sentiment still remains in the legislature
which favours restoring some version of land reforms. Such sentiment
enjoys widespread, probably majority, support from the general public
as is reflected in the numerous demands found in the press for instituting
an agricultural land tax or for curbing the 'excessive' powers of land-
lords. Benazir Bhutto tapped into this reservoir of support during her
successful candidacy for the prime ministership in 1988, and during her
narrow defeat in 1990.
Support for the restoration of land reforms has also been voiced by
Pakistan's judiciary. It is very important to remember that the SAB split
3 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 reforms
would have been declared Islamic, as an expression of Islam's abiding
concern with promoting social justice. Moreover, a majority of judges
in Pakistan's superior courts clearly favour the proposition that Pakis-
tan's constitutional system should allow the legislature to exercise its
authority in such matters as land reforms.
42
Finally, it must be noted that our discussion of the fate of Bhutto's
land reforms provides an example of the growing importance of Pakis-
tan's judiciary, and particularly the SAB and FSC, in that country's
policy process.
43
Functionally speaking, Pakistan's 'Islamic courts' sus-
pended implementation of the land reforms, repealed them, drafted new
legislation, and then interpreted the new laws' meaning. Throughout
this process Pakistan's legislative and executive institutions remained
largely irrelevant. Indeed, the court's role in the land reform issue is
symptomatic of the vacuum created by Pakistan's extraordinarily weak
legislature and of the plight of successive prime ministers hampered by
the operation of the 1985 constitution.
42
From the author's interviews with relevant justices. Typical of such views is that
of Justice Rustam Sidwa of the Supreme Court- 'The right of pre-emption under
Section 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, the
first 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, if
meaningful land reforms are to be re-instated.' Malhi Khan v. Member (Revenue) BOR
PLD 1991 SC 824, p. 835.
" See, for example, Charles H. Kennedy, 'Repugnancy'; and Charles H. Kennedy,
'Judicial Activism and Islamization after Zia. Toward the Prohibition of Riba', in
Charles H. Kennedy, ed., Pakistan: 1992 (Boulder, Colo.: Westview Press, 1992), 57-74.

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