Of land expropriation

[Lahore_Real_Estate]

Saturday, January 16, 2010
By Babar Sattar
The writer is a lawyer based in Islamabad.

In declaring illegal the purported transfer of public land by the Ministry of Defence to the Army Welfare Trust at nominal prices, the Supreme Court in its recent Makro-Habib ruling elucidated the doctrine of public ownership of land pursuant to our Constitution. Rejecting the arguments of the AWT, the apex court held that "the submission on behalf of AWT based on legal title, is founded on private law concepts of right to property but ignores completely the notion of public ownership of the land, stemming from the Constitution. It also overlooks the fiduciary nature of the responsibilities of the government and its functionaries while dealing with valuable assets… Land which is privately owned can be dealt with by the owner in any manner he chooses... However, where land is owned publicly, that is, by the people of Pakistan, legal title may vest in the government, but such title, and the exercise of the power based thereon, are to be exercised in the public interest, in accordance with the Constitution and the laws framed there under."

Land as everyone understands is a limited resource and non-fungible. The paramount proprietary right in relation to land and property is one's ability to exclude others from using and exploiting it. Grant of rights in relation to public land collectively owned by the citizens of Pakistan to private interests or foreign powers without regard to public benefit or legal process amounts to the usurpation of our fundamental right to access and benefit from public property. If the people of Pakistan indeed have a collective right to protect, utilise and benefit from our public land assets, the following three instances establish that such right is being molested with impunity: the grant of use of airbases to the US forces by General Musharraf and the non-suspension of such permission by the ruling government; the decision of the Musharraf regime to lease or sell over 1.2 million acres of land to gulf countries in pursuance of its Corporate Farming Policy, which is now being implemented by the PPP-led government; and the decision to convert the Army Welfare Housing Authority into Defence Housing Authority Islamabad through an ordinance, which the PPP wishes to convert into permanent law.

In a report published on the US Central Command website in 2003 entitled "Effects of Operation Enduring Freedom on Economy of Pakistan", Centcom had revealed that General Musharraf had provided five airbases to US forces for purposes of Operation Enduring Freedom. Responding to the furore over US drone attacks in FATA (which included their denunciation by Prime Minister Gilani and President Zardari) the US Senate Intelligence Committee Chair, Senator Diana Feinstein, blurted that she couldn't comprehend such criticism given that drones were being flown from bases within Pakistan. In response our Defence Minister clarified that while drones might be utilising fuelling facilities in Pakistan, the attacks were certainly not being carried out of our soil. In early December, General Shahid Aziz disclosed that Musharraf had handed over airbases to the Americans even without consulting his corps commanders, and as CGS of the Pakistan army he found this out when Pakistani troops weren't being allowed into one such base by US forces.

This time our Defence Minister coyly acknowledged that the US forces continue to use airbases at Jacobabad and Pasni. In his defence he explained that the PPP-led government was not guilty of entering into any new agreement with the Americans. Theirs was the lesser crime of omission as the Americans were merely being allowed continuing enjoyment of prerogatives granted by General Musharraf. There is an entire framework of laws, rules and regulations in place in Pakistan that applies to the management and administration of military lands, properties and accommodations. Is it not incredible that General Musharraf as army chief or president, in utter disregard of all legal formalities and institutional norms, unilaterally decided to grant the armed troops of a foreign country the right and licence to be stationed in and operate from our soil? In which civilised country would a lone individual be able to pull off such an illegal and treacherous act and then get away with it? How can the present civilian government acquiesce in such blatant illegality? And are such crimes of commission and omission more shocking or the fact that despite their revelation we as a nation are not sufficiently outraged?

The Corporate Agriculture Farming (CAF) policy pursuant to which Pakistan government has decided to lease or sell at least 1.2 million acres of lush land to the UAE and Saudi Arabia is equally damning. Forget for a minute the injurious effect of foreign-owned high-tech, tax-exempt and subsidised large corporate farming estates on our small-time farmers. Amongst the 148 countries included in the Food Security Risk Index, Pakistan is the 11th most vulnerable state likely to be confronted with extreme food scarcity in the near future. Over the last year and a half we have already borne the brunt of sugar and wheat shortages. Is it not astounding then that the fiduciaries responsible for the life and food security of a steadily growing population (already touching the 180 million mark) are all eager to sell out fertile land for the exclusive use of much-smaller populations of oil-rich foreign countries in blithering disregard of domestic needs? In being blinded by the appeal of transient financial inflows is the government not encumbering our fundamental right to food and life together with our land assets?

As if enabling foreign interests to exploit public property rights was not enough, the PPP-led government seems hell-bent to further entrench the monopoly already enjoyed by the military in controlling public land and the real-estate sector. By proposing and supporting the Defence Housing Authority Ordinance, 2007 (DHAI Ordinance) the ruling government is in fact stepping into the shoes of General Musharraf who first promulgated this ordinance in 2007 pursuant to which the Army Welfare Housing Scheme was transformed into a statutory authority – the Defence Housing Authority Islamabad. The DHAI Ordinance vests in the management of a housing scheme the legal authority of the state to undertake municipal functions of government, apart from delegating to it the legislative authority to draft and impose its own rules and regulations. In other words, through this law parliament would be transforming a housing scheme into a local authority with all attendant legal rights and privileges.

Creating a statutory entitlement for a housing scheme managed by army personnel and not for those managed by other departments and institutions of the state or private citizens is thus discriminatory in essence. Pakistan has not raised armed forces to run housing schemes and other commercial enterprises. This is neither the core function of the military nor an ancillary responsibility. The grave internal and external security challenges confronting Pakistan are testing our resolve and capacity to protect the life and security of citizens. This is the core role of the military that needs to be supported and strengthened. Even otherwise the long and murky history of military rule in Pakistan has extended the interests of armed forces into areas that fall beyond their domain and competence. We must celebrate our law enforcement personnel and provide for their wellbeing through exclusive welfare schemes that are not conducive to abuse by vested interests. Let us not shame ourselves by indulging in histrionics and hypocrisy by developing money-minting private businesses under the garb of promoting the interests of our ghazis and shaheeds.

Instead of haggling over the no-good DHAI Ordinance, parliament should focus on drafting a Public Land Protection and Control law to thwart the ongoing abuse of our collective right to land and the defence committees of parliament should ask our defence minister if US forces still occupy airbases in Pakistan and under what authority.