Laws

Presentation on the Discipline of Law & Islamic Juriprudence

The recommendations are:

  1. Scholars should continue to study Islamic law to understand its nature and scope and to enquire into the applicability of Islamic law in modern era.
  2. Education system is to be reviewed to incorporate in to the curriculum Islamic values and norms suited for the present day needs of the society.
  3. Educating the Muslim society on their rights and obligations should be promoted. It should be encouraged through a campaign of awareness in electronic and print media.
  4. A lot of research and development activities in such areas as judiciary, finance, political thought, administration etc should be carried out. 
  5. All universities and institutes of higher learning should include teachings of Islam, in general, and Islamic law and jurisprudence, in particular, in the syllabus of the Faculty of Law.
  6. Diploma and some short courses on Islamic Law and Jurisprudence can be introduced in universities and recognized research organizations. Some of these courses can be conducted for the Judges, lawyers, law teachers and other faculties.
  7. Subjects of Islamic law, taught in Islamic educational institutes like Alia and Qawmi Madrasha and Islamic Centers, should be reviewed and all modern researches and books in this regard should be taught in the Madrasha.
  8. The government may constitute an Islamic Law Commission to review the existing laws in the light of Islam and amend those as soon as possible.
  9. Muslim community needs many more scholars having expertise in the nusus (the texts) of the Holy Qur’an and Sunnah as well as the waqaa (context) to meet the challenges of our time and those of the coming phases. Ijtihad should be made applicable in the practical and modern issues. If individual efforts of Ijtihad fail to meet the needs of ummah, then collective Ijtihad should be made where several scholars from various disciplines will take part with a view to reaching a good, authentic and successful result.
  10. Human rights should be fully ensured in all respects in the light of Qur’an and Sunnah.
  11. In framing any law the objectives of Islamic Shariah should be taken into consideration.
  12. In the context of Bangladesh an Islamic Fiqh Academy may be established to cater to the needs of various contemporary issues.  

 


Presentation on the Discipline of Law & Islamic Juriprudence
Md. Azharul Habib

Existing Syllabus on Land Law :
q History of Land Laws
q General Concepts about Land Administration in Bangladesh


Existing Syllabus on Land Law :
• The State Acquisition and Tenancy Act, 1950.
• The Non-Agricultural Tenancy Act, 1949.
• The Land Reform Ordinance, 1984.
• The Restoration of Vested Properties Act, 2001.
• The Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972.


Contents of the Law of Land in Islam:
• Ownership of Land
• Pre-emption


Contents of the Law of Land in Islam:
• Waqf
• Abandoned Property
• Settlement of Khas Land
• Ushr
• Khiraj
• Land Rent
• Barga ( Muzara'a)
• Inheritance
• Enemy Property/Vested Property
• Concluding Remarks


Integration of the Islamic Law of Land with existing Syllabus of Land Law:


  1. History of Land Law:

  • The present syllabus focuses on the land administration in Bengal during Hindu, Muslim, British, Pakistani and Bangladeshi Periods.
    • This discussion, to a certain extent covers certain historical issues relating to land administration during Muslim Regime. 


2.Concept of Land:


No separate definition of land.  
 Islamic property rights framework conceives of land as a sacred trust but promotes individual ownership with a redistributive ethos. The state is mandated to administer land efficiently and fairly in accordance with God's laws and ethical and moral principles. Land is seen as a sacred trust for human beings and should be put to continuous productive use.


Classification of Land:
• Land in Bangladesh is divided into agricultural & non-agricultural land.
• After conquering a state its lands are divided into two classes
• Ownerless Land &
• Lands, which have owners.


On the basis of special circumstance and quality the land is divided into two groups:
• Ushri Land
• Khiraji Land 
• There are widely thought to be three broad types of land and land tenure in Islamic theory, which continue as categories into modern Muslim societies. These are 
• Mulk or land in full ownership
• State-owned land and
• waqf land.


Ownership of Land:
• In Bangladesh 3 types of ownership is recognised.
• State Ownership;
• Co-operative Ownership;
• Private Ownership;
• In the Qur'an, Allah clearly ordained:
• "For the earth is God's. To give as a heritage to such of His servants as He pleaseth.”(Al- A'raf 7:128)
• However, this has not precluded either the individual ownership of land or the legal protection of individual property rights, albeit subject to an overall social responsibility.


Pre-emption: In Bangladesh the provisions regarding Pre-emption are provided in the following Acts:
•  The State Acquisition and Tenancy Act, 1950.
• The Non-Agricultural Tenancy Act, 1949.
• The Partition Act &
• Muslim Law
• Pre-emption: Islamic Law also recognizes in connection with immovable property a certain right in restraint of the power of alienation of the owner called the right of shufa' which is usually translated as pre-emption.
• Waqf: Waqf in Bangladesh is regulated under the Waqfs Ordinance 1962. The SAT Act 1950 also deals with the waqf.
• The waqf is a highly significant legal mechanism and a key Islamic institution. It has been recognized and developed under the Shari'a for more than a millenn¬ium. 
• Abandoned Property: Abandoned property means any property movable or immovable owned by any non-muslim who is not present in the Islamic State or whose whereabouts are not known or who has ceased to occupy, supervise or management in person his property.
• Distinction regarding definition exists.
• In Bangladesh The Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972 is the parent Act dealing with the matter. 
• Abandoned Property: Movable Property:
• If any non-muslim sells or gifts his movable property to anyone before leaving the state the buyer or the donee of that property will be the owner.
• If there is no evidence of sale or gift the property shall vest in the Bait al Mal .
• The same principles shall apply to the Immovable Property.
• Khas Land: In Bangladesh the SAT Act, 1950 & certain guidelines deal with the matter.
• Ownerless land was divided into two groups:
• Mewat-dead or empty land, which can be reclaimed or revived.
• Khalisa-khas land.Govt. ownership was declared on such lands. The following types of land were included in this category.
• Abandonment of land by its owner in favour of the state;
• Declaring certain lands khas by dispossessing their owners;
• Lands of the conquered territory, which was declared khas. 
• Settlement Policy of Khas Land: Bangladesh Govt. has adopted certain policies to settle the khas land( agricultural & non-agricultural).
• The Prophet (PBUH) gifted many mewat & khas lands to people.
• Alcama bin Wael described from his father Hazrat Wael bin Huzar ( R ) that  the Prophet (PBUH) gifted a piece of land in Hadarmouth. (Reported by Abu Daud & Tirmidhi) 
• Ushr: In Bangladesh there is no law, guideline regarding this.
• It is an obligatory charge. It is also known as 'Zakat-ul-Ard' or the Zakat of land. 
• The owner must be muslim.


Khiraj: It is defined as land under state control upon which a tax is paid by those in possession; it describes both the land itself and the tax. This is charged on the land of non-muslims. 
• Kinds of Khiraj: It is of two kinds:
– Khiraj-e-Mukasima- determination of half or one-third yield as khiraj.
– Khiraj-e-Mauzifa- cash money as Khiraj.
- The govt. will determine the amount of Khiraj. 
• Land Rent: Certain laws regulate this issue in Bangladesh.
• A larger group of Islamic scholars hold that the tradition prohibits only the payment of rent on land which has not been improved in some way. In this case rent is a rightful return on the inputs into the land in terms of labour and capital.
• Barga (Muzara'a): The Land Reforms Ordinance 1984 focuses on this matter.
• Excepting six companions all other companions of the Prophet supported barga.
• Hazrat Abu Hurairah (R) described that Muhajir accepted the proposal of Ansar to take the share of harvest of the date gardens in exchange of providing labour.(Reported by Saheeh Bukhari).
• The families of Abu Bakr (R), Umar (R), and Ali (R) cultivated land through the contract of barga. 
• Each School of Islamic Jurisprudence consider cultivation of land through barga valid though the differ in forms. 
• Inheritance: Muslim Law basically sheds light on this topic.
• Inheritance is one of the commonest ways of acquiring land or access to land, particularly in the Muslim world. 
• Enemy Property:  The Restoration of Vested Properties Act, 2001 is now the regulating Act.
• There are divergent views regarding lands, which are conquered during war. 
• Some jurists opined that the conquered land shall be divided into five shares. 
• Some other jurists held that the govt. of the Islamic state has the absolute discretion to adopt any measures regarding this type of land but after taking into consideration the interests of the community


Concluding Remarks:


• From the above discussion, it is obvious that Islam provides an appropriate system of land management. 
• It contains explicit provisions regarding private and national ownership of land and proper classification of land from different dimensions. 
• It lays emphasis on the proper disposal of land through the institution of waqf, pre-emption and inheritance, which not only serve spiritual interest but also establishes a proper land tenure system.. 
• In order to eradicate grievances of people and to facilitate proper utilization of land it also supports the system of barga. In order to ensure social and economic justice it prescribes a proper settlement of khas land. It encompasses in its orbit appropriate principles for smooth dealings of abandoned and enemy property. The imposition of land tax and zakat on the produce of land plays a vital role in shaping an efficient economy of the state. In order to face intricate problems of modern times regarding land management we can exploit the tool of Ijtihad as evidences for the change of rulings according to the circumstances are also evident from the Qur'an and the Sunnah. Omar's decision not to distribute the newly acquired land in Sawad was based on his understanding of the aims of the Sharia. He did not feel obliged to do what the Prophet (PBUH) had done, simply because the situation was similar.

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