LAND reforms in Pakistan have a long and somewhat chequered history. The British had less of an interest in the matter as they relied on the support of several influential landlords. Although there had been some limited reforms in the years leading up to 1947, all major reforms date from the years after independence. Almost immediately the various provincial legislatures passed several statutes whereby the jagirdari systems were abolished and tenants protected. The major reforms, however, came in three stages: the first during Ayub Khan's martial law in 1959; the second and third during Zulfiqar Ali Bhutto's rule in the 1970s.

Ayub Khan's government passed the first major piece of legislation concerning land reforms in Pakistan. This legislation was the West Pakistan Land Reforms Regulation 1959 (Regulation 64 of 1959). The salient features of this regulation included a ceiling on individual holdings. No one individual could own more than 500 acres of irrigated and 1,000 acres of unirrigated land or a maximum of 36,000 Produce Index Units (PIU), whichever was greater. It further allowed that land be redistributed amongst tenants and others. In addition, the regulation contained provisions which provided for security of tenants as well as for preventing the subdivision of land holdings.

These land reforms stayed in force until 1972 and the next great wave of land reforms.

Bhutto, despite being a major landowner himself, was determined to institute reforms, having been a minister under Ayub Khan. Bhutto, seeing the former's land reforms as inadequate, was responsible for two major land reform regimes. The first was by way of a martial law regulation, the Land Reform Regulation 1972 by which the West Pakistan Land Reforms Regulation 1959 was repealed through paragraph 32.

As per paragraph 8(1) no individual holdings were to be in excess of 150 acres of irrigated land or 300 of unirrigated land, or irrigated and unirrigated land the aggregate area of which exceeded 150 acres of irrigated land (one acre of irrigated land being reckoned as the equivalent of two acres of unirrigated land), or an area equivalent to 15,000 PIU of land, whichever was greater. Paragraph 18(1) of the regulations also provided for excess land to be surrendered and utilised for the benefit of tenants shown to be in the process of cultivating it.

By 1977, the country had an elected parliament. It would be this body which passed the last major piece of legislation dealing with land reforms; the Law Reforms Act 1977 (Act II of 1977) and the only one ironically which came the way of a democratically elected legislature as opposed to a military junta. It did not repeal the 1972 regulations, but was designed to operate concurrently with the same.

The most important and relevant change it made was that individual holdings, including shares in shamilat , if any, in excess of 100 acres of irrigated land or 200 acres of unirrigated land, or irrigated and unirrigated land the aggregate of which exceeded 100 acres of irrigated land (again, one acre of irrigated land being reckoned as equivalent to two acres of unirrigated land). Furthermore, notwithstanding the above, no land holding could (per section 3) be greater than an area equivalent to 8,000 PIU of land calculated on the basis of classification of soil as entered in the revenue records for kharif.

The end of the Bhutto era also signalled the end of the era of statutory land reform in Pakistan.

During Ziaul Haq's reign only major new laws were passed. Only two amending ordinances came into being. The first in 1979 declared that where the provincial government had decided to lease out surrendered land, the person who surrendered it would have first priority, and the second allowed the federal government to exempt any educational institution or cooperative farming society from the operation of the 1977 act.

Land reforms were always controversial. It was alleged by opponents that they were un-Islamic and that they infringed on the right to own, use and enjoy property as protected by the constitution. Matters finally came to a head before the Supreme Court in the case of Qazalbash Waqf v Chief Land Commissioner in which both the 1972 regulations were attacked as being against Islamic injunctions and unconstitutional. The Supreme Court agreed.

Of the 1972 regulations, the Supreme Court declared that paragraphs 7, 8, 9, 10, 13 and 14 and thus consequently 18 were unconstitutional as being against Islamic injunctions. The striking down of paragraphs 8 and 18 overturned the main reforms achieved.

Similarly in the same case the Supreme Court overturned the entire sections — 3, 4, 5, 6, 7(5), 8, 9, 10 — and consequently sections 11-17 of the act as being unconstitutional and against Islamic injunctions. The striking down of sections 3 and 17 undid the main reforms promulgated in the act. The laws stated to be unconstitutional ceased to have effect on March 23, 1990 (the day the judgement was handed down).

The net result of the Qazalbash Waqf v Chief Land Commissioner is that land reforms in Pakistan are now at the same level as they were in 1947, as the 1972 regulations and the 1977 act have seen their main provisions being struck down and the 1959 regulations have been repealed.

To commence land reforms and to ensure they contain at least the same measure of reforms as the 1972 regulations and the 1977 act did will at the very least require a constitutional amendment which allows parliament to enact legislation regarding land reform notwithstanding the relevant constitutional provisions.

Failing the above, any proposed reforms would have to be more limited in their ambit than the previous reforms to avoid unconstitutionality or their lordships would have to overrule the judgment in the Qazalbash Waqf v Chief Land Commissioner in another case.

The writer is a barrister.