Bangladesh inserted a property clause in its 1972 Constitution as one of the fundamental rights for the citizens, which is supposed to serve achieving the purposes of social justice. However, after forty five years of such incorporation, it appears that Bangladesh has, possibly failed to create a just property regime in the post-independence setting irrespective of its social and inspirational egalitarian ethos.
On Saturday, January 20, 2018, Bangladesh Institute of Law and International Affairs (BILIA) organised a symposium “Constitutional Property Clause and Land Reform in Bangladesh: Lessons from India and South Africa” with an aim to see how the dichotomy between the private right to property and the demands for it can best be accommodated in constitutional thinking. Dr. S. M. Masum Billah, Assistant Professor, Department of Law, Jagannath University presented the keynote paper. Mr. Justice Md. Nizamul Huq, Former Justice of the Appellate Division of the Supreme Court of Bangladesh presided over the symposium. Mr. Shamsul Huda, Executive Director, Association for Land Reform and Development (ALRD) was the designated discussant on the paper at the symposium. The welcome address was given by Dr. Rumana Islam, Associate Professor, Department of Law, University of Dhaka and Assistant Director for Research (Law) at BILIA.
Dr. Billah began his presentation by unfolding the loopholes in the Bangladeshi land reform laws. He continued that the land distribution in the country is grossly unequal; the tenurial security of the marginal peasants in their cultivated land is fragile and in many ways undefined. As a result, the promise of land reform remained as a political rhetoric.
Dr. Billah presented his evaluations on the constitutional protection of property right in Bangladesh. He emphasised on the lack of debate on constitutionalisation of the right to property. The Bangladeshi land system is deeply rooted in its two hundred years colonial past (1757-1947). In the post-colonial setting, the issue of redistributive land reform came to the forefront to undo the historical wrongs and establish agrarian egalitarianism. Hence, a constitutional debate was necessary, but unfortunately we do not find any such debate to take place. He further mentioned that property rights have been equated with first-order values (life, liberty, equality, freedom of speech). Property is a means to attain these values, not one of the values itself. Hence, he said that the property clause of the Bangladesh Constitution upsets the order of fundamental rights. Dr. Billah said that there is ambiguity in the notion of property itself. There is a grey area in identifying the type of property referred to in the property clause in Bangladesh Constitution. Dr. Billah identified that the difference between the two types of property, public and private; is largely conditioned by the emergence of corporate culture, development of consumerism and demands for legal curtailment of unaccountable public power. Dr. Billah also highlighted that there is limited scope of judicial review in Bangladesh. As land reform is a constitutionally forgotten issue, he stressed that rereading of Article 42 of the Constitution is necessary due to the reason that a meaningful land reform depends upon the constitutional nature of a country. He concluded that land reform laws and policies made out of this fragile constitutional property law could not ensure a fairer distribution of land resources in Bangladesh. The constitutional stand on land reform, thus, fell short of creating an environment to satisfy the conditions of redistributive justice. In Bangladesh, the constitutional nature of property, pro-rich ceiling laws, and problematic khas land settlement and management policy all together came to generate a polarisation in the rural economy that acts against the interest of the landless and poor peasants.
Before concluding, he also briefly discussed the South African Approach and the Indian experience that may help us in creating coherent property law jurisprudence in Bangladesh.
The designated discussant Mr. Shamsul Huda observed that the improper implementation of existing laws by the government is the main reason behind this failure. The laws relating to land ceiling are not being equally applied on every citizen. And without addressing these issues Bangladesh is focusing on attaining the Sustainable Development Goals (SDGs), which does not make sense to him.
The presentations and comments by the discussant and chair were followed by a lively open discussion where questions were posed to the panelists from members of the audience, which included legal practitioners, researchers, academics, economists, development workers. Barrister M Amir-ul Islam, Senior Advocate, Bangladesh Supreme Court; enlightened the audience with his speech on his experience in drafting the Constitution. He invited the presenter and other experts in this area to conduct a study work for bringing the desired land law reform in Bangladesh.
Dr. Zafarullah Chowdhury, Bangladeshi public health activist, said that the government’s over interference in deciding what constitutes a public purpose for a land to be used sometimes causes problem in the development works.
THE EVENT REPORT WAS PREPARED BY ADVOCATE TASMIAH NUHIYA AHMED, RESEARCH ASSISTANT (LAW), BANGLADESH INSTITUTE OF LAW AND INTERNATIONAL AFFAIRS (BILIA).