OPINION (Spotlight Weekly)

Revolutionary Land Reforms: New Seeds on Old Ground?

By BIPIN ADHIKARI

The willingness of Prime Minister Sher Bahadur Deuba to consider revolutionary land-reform initiatives including the redistribution of land in the country through comprehensive agrarian reform is a basic prerequisite for the kind of inclusive, broad-based development that the people of Nepal have been calling for since long.

For a majority of Nepalis, property means rights in land and resources associated with it. Access to farmland is considered basic to the sustainability of life and various socio-economic and cultural values.

Initial Attempts

The land-reform programme in Nepal that started with the Land Reform Act of 1964 has yet to reach the point where it can make a substantial contribution to the growth and development of the economy as a whole. Obstacles to land reform are, to a great extent, those that inhibit agricultural and rural development. Much of the problems in the beginning in Nepal related with scientific survey of the land, its classification, legalisation of possessory rights, the recognition of tenancy claims, landlessness, and similar issues.

In this context, Prime Minister Deuba’s move should start a process that is very long and calls for sincere endeavours. The first policy issue to be decided in advance is the question of beneficiary of the land reform initiatives. Are the perceived beneficiaries the citizens of Nepal or all those from Nepal's neighbourhood for which Nepal has become a comfortable residential sanctuary? What is then the limit of the problem? Secondly, the concept of the land to the tiller looks like a viable political concept, but it is not necessarily a complete solution to the problem of mass poverty in the country. It is the traders, unscrupulous industrialists, foreigners, and the politicians who have contributed more to the problem of poverty in this country than the landlords of the hills and Terai.

We are concentrating on land partly also because we failed to create an alternative visible economy for the people. There are definitely good reasons for land reform initiatives. But what next? If the issue is only limited to the distribution of land among 22 million people of the country, then it is exclusively the issue of dividing poverty equally among all Nepalese. Many families who were provided with land under the resettlement schemes in the past, for example, came back to the pool of landless people within a very short span of time. That explains that the distribution of land alone is not the solution. Providing land to the landless and the tenants does not automatically ensure success. Thus, the third important fact is that the land reform beneficiaries need economically efficient production mix with a market and accessible supporting services.

Ambit of Executive Power

Assuming that Prime Minister Deuba has strategies to deal with these issues, the rationale behind the decision to stop all activities leading to change in land title records or affecting ownership status until new land reform measures are declared becomes adequately clear. It was necessary to maintain the status quo until the measures are finalised, and legal provisions to support these measures are created, so that landlords or people possessing land beyond the approved ceilings do not have the opportunity to sell excess land or dispose them off in other ways to evade or otherwise defeat the purpose of land reforms.

Under the existing legal framework, it will be too much to argue that the government does not have the power to issue an order like this on the strength of the general ambit of its executive power. However, this restraining order can neither be prolonged for an indefinite period nor be continued with legitimacy without an enabling legislation. The whole nation is reaching out for change. Obviously, the Supreme Court, which has been asked to judge the constitutionality of the government’s move, knows the significance of the land-reform movement in the context of social justice.

The right to property is not only a fundamental right under the Constitution, but also a primary right under the existing civil laws of the country. Article 17 of the Constitution categorically states that "all citizens, subject to the existing laws, have the right to acquire, own, sell and otherwise dispose of, property." None of the existing laws prohibit the government to come forward with this type of order, although inconvenience caused by such order to the common people is not negligible. It must have been equally irritating to the financial and banking companies and those who deal with real estate. But the power of the state to requisition, acquire or create any encumbrance on the property of any citizen is recognised in cases of public interest.

The public interest may involve nationalisation or redistributing property for the benefit of the common people. It may also involve land-reform initiatives provided it does not go beyond the government's margin of discretion in balancing the conflicting interests. As a matter of rule, the court reserves the right to intervene on the question of whether there is a public necessity that justifies infringement of the right to property.

Meanwhile, some people have already started floating all kinds of speculation about the land-reform issues. Smaller political parties like Nepal Sadbhavana Party and Rastriya Prajatantra Party have shown their willingness to own up to such propaganda. Rumours have been put out that the fundamental right to property is under attack. The landlords in the Terai belt of Nepal do not want the government to get away with land reforms. There are vested political interests as well.

All these critics have to know that property does not have rights. Our Constitution does not entertain any such theory. It is the people, individual as well as groups, who have rights. The rights of the people must be protected at any cost. There are two important overriding considerations. The first is of course that any limitations must not be so great as to take away the essential content of the right. The second is that to avoid arbitrary action by governments which would enable them to withhold the human rights whenever and wherever they chose, any permitted limitation should normally only be allowed to take effect by means of the law. This will ensure that any limitations will be brought into existence by a legislative process; of general application; and known and ascertainable by the public at large. There are presumptions in Nepalese legal regime that statutes do not interfere with private property rights; and that property rights will not be taken away without due course. These principles are enough to deal with the cases being heard at the Supreme Court.

Due Process Requirements

Finally, in land redistribution works such as this, the government will constantly face with the task of offering a sufficient price of land to the owners and, at the same time, ensuring that the land reform beneficiaries have the proven ability to repay. This may prove increasingly self-defeating as the process goes. The importance of a promise from the beneficiary to pay back the price of the land within, for example, 15 or 20 years, and a process to collect it by civil machinery cannot be overemphasised.

Consideration instead should be given to the possibility of reducing speculative elements to a minimum so that the value of the land does reflect mostly agricultural users. Apart from fiscal measures like imposition of higher land taxes, zoning etc, government subsidy toward the price of land at which the land reform beneficiaries have to pay might also be considered. In addition, land acquisition can be facilitated at a faster rate, if the government makes it clear that it would be ready to seek expropriation of land from the absentee owners as the last resort.

(Adhikari is a lawyer.)