For the chosen few

Legal eye

The proponents and propagandists for General Raheel Sharif are right. He is being singled out in the matter of allotment (90 acres?) of ‘border land’. We don’t know for example how much land General Kayani was allotted and where. But then the PR machine working for Gen K never portrayed him as a messiah. The PR machine for Gen RS did. Remember #ThankYouRaheelSharif? The image of Gen RS being infallible was painstakingly and deliberately crafted. Should he now complain for being judged by a higher standard?

We were told that General RS sold prime land allotted to him as army chief and donated the money to martyrs’ fund. We wouldn’t have found out had his PR machine not publicised this noble act. But what was implicit in the disclosure was that there is something rotten about allotment of prime land to the high and mighty. And this general, not cut out of ordinary cloth, has donated the allotted public land to be used for a higher public purpose instead of making private gain from it like everyone else. Was that allotment not his entitlement as per law?

The ‘legacy’ of Gen R crumbled with news of him chasing a security job in Riyadh. Many who saw him as one who wanted to do the right thing and walk into the sunset had to eat their words. This is a strange country where discussion about land allotted to an ex-chief is a matter of national security but news of an ex-chief seeking to head a military coalition cobbled to promote military designs of a foreign state isn’t. Was he negotiating this next job while being on the most powerful job in a country that refused to join the Saudi war in Yemen?

The debate that this ‘routine’ allotment of expensive land to Gen RS should trigger isn’t about whether he was what he was made out to be by ISPR. The debate must be about (i) land as a finite resource and the effect of its allotment to members of the power elite in an overpopulated country, (ii) the character of our state that dispenses largess and patronage selectively to those who control it and its impact on economic and power relations in society, and (iii) the predatory nature of our power elite that defends self-dealing and feeding off the poor.

To state the obvious, when humans started out no one possessed title to any land anywhere. It was through adverse possession and ability to oust others from the land you occupied by force that you established rights over such land. In times when the monarch was believed to possess divine right to rule, he was the lord and master of the state and ownership of state land vested in him. As sovereign, he could distribute land at his whim to whoever pleased him. This was a time when the sovereign’s word was law and everyone served at his pleasure.

We argue that rule of men has been replaced by rule of law. We now say that people are sovereign. Through a system of self-governance they delegate their power to govern themselves to their chosen representatives who exercise such delegated authority as trust in the best interest of the people. Within this model, those who administer the state in the name of the people are to exercise its sovereign power as fiduciaries in the best interest of the people. They are not free to distribute its largess (ie jobs, contracts, land etc) as they wish or please.

So how in a country of 200 million where public land is the most prized asset, being finite and irreplaceable, does it get converted from a public resource to private property and distributed to the chosen few? The elites who control the state have crafted laws to legitimise daylight robbery. The infrastructure of loot includes legal instruments like the Land Acquisition Act, Border Area Regulations and plot allotment schemes for babus, khakis, judges and those professional elites (like lawyers and journalists) who have nuisance.

Did the ISPR get carried away when it asserted that allotment of land to khakis is pursuant to a constitutional provision? The constitution makes no allowance for distributing agriculture land to a select group of citizens. Is such land allotted under the West Pakistan Border Area Regulation (the Martial Law Administration Zone ‘B’ Regulation No. 9 of 1959) that provides for allotment of land to officers, servicemen and refugees? Under this law the original allowance for an officer was 50 acres. Later they added the words “or more subject to availability of land.”

The conditions for allotment include that an allottee “must be able-bodied and between the age of 18 to 55 years”, “must reside in the estate in which he holds allotment” unless in service, “must cultivate the land himself”, “must not allow the land allotted to him to remain uncultivated for two successive harvests”, and that if he “fails to acquire a house in the village abadi, he should build one within a year of the allotment of plot of land for the purpose.” Would it be too much to ask the ISPR to tweet photos of Gen RS’s village hut and him cultivating the land?

Would it tantamount to maligning the army if one sought details of the total land distributed so far, the part that has been sold to others at market rate and the part currently being cultivated by officers themselves? If allotment of land is to provide financial benefit to khakis on retirement, why introduce hypocrisy and package it as a border control issue? And why allot agricultural land to khakis only? Do professors not perform useful service? Why discriminate between salaried classes in the service of state if monetary compensation is the aim?

And why distribute land at all? Land is a common public asset. The state should determine in monetary terms what it can pay those in its service, and announce salaries, pensions, bonuses and retirement packages etc so a taxpayer knows the true monetised cost of a public servant that he bears. Where does the authority to distribute plots as perks to those who climb highest within the echelons of power emanate from? In a country as poor as ours, why should the common man struggling to make ends meet subsidise perks?

What is worse than conversion of public land into private property is conversion of private property of ordinary citizens into public property and its reconversion into private property of the entitled. The constitution allows compulsory acquisition of land by state. The Land Acquisition Act states that private property can be expropriated for public purpose. Upon acquiring such property the state pays compensation to the owner on DC rate, which is around one-third the market value of such property.

So unrealistic is the DC rate that for purposes of transfer fees and withholding tax this government has introduced a change in tax laws to empower the FBR to determine the market value of property itself. But to compensate for forcefully acquired land, the DC rate remains in field. And what is the public purpose for which private land is predominantly acquired in urban areas? To build housing schemes and distribute plots amongst members of power elite as part of their entitlement package.

We have become so accustomed to highway robbery that those whose land is forcefully acquired by a DHA or a CDA consider themselves lucky. As opposed to the godforsaken DC rate, these bodies take four kanals of land and give back a one-kanal plot to the owner as compensation. The other three go to members of the entitled elite, who sell them in the market at ten times the price paid to the original owner. Property changes hands. The poor get ripped off. The powerful get richer. And it is all legal. So hold those maligning thoughts.

Email: sattar@post.harvard.edu

The writer is a lawyer based in Islamabad.