Adjudicating the Illegal Dispossession Act, 2005: The Methodology and Quality of Reasoning

ADJUDICATING THE ILLEGAL DISPOSSESSION ACT, 2005: THE METHODOLOGY AND QUALITY OF REASONING

By

Kamran Adil,

Police Service of Pakistan

CONSPECTUS

Pakistan's legal system is modeled on the Common Law; its lawyers and judges. are trained in the tradition. They are familiar to the doctrine of Stare decisis, et non movers quieta^1^ .The origin of the doctrine is not known; one of its earliest statements is, however, found in Croke's Reports, which, in 1584, stated it as:

"Wherefore, upon the first argument it was adjudged for the defendant, for they said that those things which have been so often adjudicated ought to rest in peace."^2^

The doctrine is accorded technical significance in the field of jurisprudence, and is more often than not, related to the continuity and certainty of the adjudication in a legal system. A brief survey of the case law (2005 to 2016) related to the Illegal Dispossession Act, 2005^3^ in Pakistan may be used as a random example to examine the adherence to the doctrine by the judiciary in Pakistan. Simultaneously, the survey may also help in analyzing the methodology and the quality of reasoning employed by the judiciary in its judgements to enforce fundamental constitutional rights of people.

To contextualize the discussion, it may be advantageous to note that the Constitution of Pakistan defines property^4^ and provides for its protection^5^. The constitutional protection has been translated into civil and criminal legislation to ensure protection of property rights. Despite the constitutional protection, the state of protection of the right to immovable property and its enjoyment are not ideal^6^; the enjoyment of right to property is not only cardinal to the Constitution of Pakistan, 1973 and the rule of law in the country, but has bearing on the human rights as well^7^. In this backdrop, the need for a law to help protect the constitutional right to property was felt acutely at all levels for quite some time^8^ and the federal legislature responded to the need by promulgating the Illegal Dispossession Act, 2005. The new law was essentially penal in nature. This article proposes to present the material in an organized manner by explaining briefly the law followed by conceptual survey of the case law, and finally, brief analysis of the methodology and quality of adjudication.

I- THE ILLEGAL DISPOSSESSION ACT, 2005

A glimpse of the outline of the Illegal Dispossession Act, 2005 will show that it is a short legislation comprising nine provisions. The recital that forms the preamble reads:

"Whereas, it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom the property grabbers".

The law applies to the whole of Pakistan^9^. The law provides for a penal remedy by criminalizing the act of illegal dispossession. The procedure vests the Court of Session^10^ with power to take cognizance of the offence on a complaint^11^ filed to it. Though the matter is criminal in nature, but its control is with the court, and therefore, the power of arrest of accused is linked with the direction of the court^12^. The investigation of the case is to be carried out by the police^13^. The law provides for attachment of property^14^ and eviction from property^15^ (as an interim measure) and delivery of property to owner^16^ as reliefs to the aggrieved parties.

II- CASE LAW

One the conceptual side, since the law is penal in its nature, therefore, the first question that comes up before the court is to determine the scope of its applicability. There are two approaches about its applicability: first approach applies it to all types of cases, whereas the second approach opines that it is only applicable against 'property grabbers'. The root of the difference between the two approaches lies in locating the locus of interpretation that controls the legislation: the first approach pegs its opinion in the language of section 3 that criminalizes the act of illegal dispossession, whereas the second approach hinges on the preamble and the intent of the legislature behind the law. Succinctly, section 3 of the law has two clauses that define and provide penalty for the offence: both the clauses use general terms of 'no one' and 'whoever' to import in the generality into the application of the law. On the other hand, the term 'property grabbers' has been used in the preamble of the law and placing the locus of interpretation in the preamble restricts the application of the law to 'property grabbers' only.

The survey of the case law on the law shows that the first approach was followed in the cases of Rahim Tahir^17^, Muhammd Akram^18^, Mumtaz Hussain^19^ and Shahbuddin^20^. Contrarily, the second approach was endorsed in Zahoor Ahmad^21^, Bashir Ahmad^22^ and Habibullah^23^ . Different judges authored the judgements enunciating the first approach, whereas, invariably, the judgements related to the second approach were authored by Justice Asif Saeed Khan Khosa. Interestingly, the two approaches co-existed in the Supreme Court of Pakistan for more than five years, until in the latest case of Gulshan Bibi^24^, the first approach was preferred over the second approach. Later Gulshan Bibi was reaffirmed in the case of Shaikh Muhammad Naseem^25^. The common point of the two latest judgements is that both have been authored by Justice Faisal Arab, and have been rendered by five member benches of the Supreme Court.

After highlighting the conceptual and record aspects of the interpretation of the law by the judiciary, it will be apposite to present some thematic issues:

A-ADHERENCE TO THE DOCTRINE OF STARE DECISIS:

Plain reading of the reported case law evinces that the doctrine of stare decisis is not loyally followed. First and foremost requirement of the doctrine is that it lays a duty on a judge to discover the existence of a decision on a cognate law point. This discovery is pivotal to the development of law in the Common Law countries: that is the reason that the law reports are so immaculately maintained, and in the age of information technology, all the possible tools of search are utilized to ensure that no judgement on the point under adjudication is left out of the compass of a judge. The second requirement is to categorize the discovered judgement in the hierarchy of the court system: thus a judgement of a lower court, no matter how sound, will not be binding on a superior court. The survey of the case law shows that cases were cross-referred, but the reasoning of the two approaches were not distinguished to each other resulting in co-existence of the two approaches on the scope of applicability of the law. Likewise, the non-uniformity of interpretative techniques brought about different outcomes, which resulted in minimizing the certainty and increasing the discretion of judges. In Bashir Ahmad and Habibullah cases, earlier cases of Rahim Tahir, Muhammad Akram, Mumtaz Hussain and Shahbuddin have not been distinguished, and had the cases been distinguished then, the matter could have been settled then.

B- METHODOLOGY OF REASONING:

The methodology applied by the judges was not uniform as it transpires from the analysis of the reasoning of the case law. In the first set of cases, the premium has been attached to section 3 of the law, which forms the part of the body of the statute; the second set of cases, focused on the preamble and extra-statutory material like the Report of the Standing Committee on the Law, Justice and Human Rights and the Officer Report pertaining to the debate in the National Assembly (the way it happened in the Zahoor Ahmad case).

C- QUALITY OF REASONING:

The primary thrust in the reported cases is on determining the scope of applicability of the law. Mindful of the abuse of the law, in Zahoor Ahmad case, three member bench of the Lahore High Court passed peculiar directions^26^ to all the Courts of Session in the Punjab. Justice Asif Saeed Khan Khosa (when his Lordship was at the Lahore High Court) authored the judgement and was pleased to hold:

i. The Illegal Dispossession Act, 2005 applies to dispossession from immovable property only by property grabbers/Qabza Group/land mafia. A complaint under the Illegal Dispossession Act, 2005 can be entertained by a Court of Session only if some material exists showing involvement of the persons complained against in some previous activity connected with illegal dispossession from the immovable property or the complaint demonstrates an organized or calculated effort by some persons operating individually or in groups ++to grab by force or deceit++ property to which they have ++no lawful, ostensible or justifiable claim.++ In the case of an individual it must be the ++manner++ of execution of his design which may expose him as property grabber.

ii. The Illegal Dispossession Act, 2005 does not apply to run of the mill cases of alleged dispossession from immovable properties by ordinary persons having no credentials or antecedents of being property grabbers/Qabza Group/land mafia, i.e. ++cases of disputes over possession of immovable properties between co-owners or co-sharers, between landlords and tenants, between persons claiming possession on the basis of inheritance, between persons vying fory possession on the basis of competing title documents, contractual agreements or revenue record or cases with a back-ground of an on-going private dispute over the relevant property++.

iii. A complaint under the Illegal Dispossession Act, 2005 cannot be entertained where the matter of possession of the relevant property is being ++regulated++ by a civil or revenue Court. (emphasis added)

The directions contain the categories of cases in which the application of the law was restricted. The subsequent judgements of the Supreme Court in Rahim Tahir, Muhammad Akram, Mumtaz Hussain and Shahbuddin did not address the issue of abuse and the categories excluded by the judgement. There was no obligation on the Supreme Court to address to these issues as far as doctrine of stare decisis is concerned, but there surely was a need to address the issues for the larger interest of the public at large and the judicature including police and prosecution. The directions passed in the Zahoor Ahmad case, inter alia, had implications for police investigations and for the working of the legal system. For example, the investigation officer was obliged to look into competing title claims to finalize his investigations; collection of evidence on factum of 'illegal dispossession' could not make his full case. Likewise, the relationship of the civil and revenue courts and the processes of civil litigation were not clearly laid down. On the other hand, Justice Rehmat Hussain Jafri, in Mumtaz Hussain case, interpreted section 3 literally to widen the scope of the application of the law. He commented on ancillary issues of title of property, the jurisdiction of civil courts in determining the title of a property and the effect of pending civil litigation on the proceedings under the law. He also examined the implications of retrospective effect of the law as there was possibility that some old dispossession might become subject of proceedings under the law. Accordingly, he discussed backdated or retroactive application of the law in the light of Article 12 of the Constitution of Pakistan that prohibits the retrospective applicability of the criminal laws. Another point that Mumtaz Hussain case attended to was the interaction of the Pakistan Penal Code, 1860^27^ (P.P.C.) with the new Illegal Dispossession Act, 2005. He noted that the criminalization of illegal dispossession was not new and such an illegal act was already covered under section 441 of the Pakistan Penal Code, 1860. Both the judges Asif Saeed Khan Khosa and Rehmat Hussain Jafri alluded to section 145 of the Criminal Procedure Code, 1898^28^ (Cr.P.C.) that aims at preventing breach of peace due to property disputes; the relationship of section 145 Cr.P.C qua the new law, however, was not authoritatively decided. Conversely, all these qualitative points discussed in Mumtaz Hussain and Zahoor Ahmad do not, at all, find any mention in the latest Gulshan Bibi and Shaikh Muhammad Naseem cases. Barring their numerical strength of the two latest cases, the sustainability of the judgements will, at best, be tenuous. Likewise, the relationship of the law with general criminal law especially vis- -vis section 441, P.P.C. though alluded to by Justice Rehmat Hussain Jafri, but not dealt authoritatively in the judgements.

III- FINAL REMARKS

No legal system is perfect; in order to make it functional, it is imperative to follow it completely. Pakistan's judicature has to apply the doctrine of stare decisis in full, and has to instill within its organization and culture, the discipline of applying uniform interpretative methodology and qualitative reasoning to make the enforcement certain and predictable through authoritative and consistent judgements that will ultimately contribute towards the rule of law, which is, at the end, a subset of the constitutionalism in a country.

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