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The Politics of Land Law: Poverty and Land Legislation in Bangladesh

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The Politics of Land Law: Poverty and Land Legislation in Bangladesh THE POLITICS OF LAND LAW: POVERTY AND LAND LEGISLATION IN BANGLADESH BY S M MASUM BILLAH A thesis submitted to the Victoria University of Wellington in fulfilment of the requirements for the degree of Doctor of Philosophy in Law Victoria University of Wellington (2017) Abstract This thesis examines the major colonial and post-colonial land laws of Bangladesh and their relationship with poverty. It interprets them in the light of historical developments and social realties. The thesis argues that land laws in Bangladesh are essentially anti-poor. They contribute to the perpetuation of poverty. At present, two-thirds of the poor in Bangladesh are land-related poor. The land system that prevailed in colonial Bengal during the British period deprived the peasants of their land rights. This situation demanded a radical land reform based on a distributive approach upon decolonisation in 1947. Unfortunately, in the post-colonial political and legal settings of Bangladesh, land distribution has been unequal. Such inequality coupled with a weak land tenure system and fragile institutional reform created widespread poverty. The Bangladeshi land laws are complex and vague and dominated by politics. Its land law regime has structural loopholes and ideological drawbacks, which are enough to make reform attempts dysfunctional. Poverty in Bangladesh is a result of cumulative and mutually reinforcing deprivations. Land law is a major participant in it. Poverty will persist unless law addresses the true reasons of the poverty and a pro-poor approach to land reform is pursued. The gap between “law” and “land” is exposed and a distributive land law reform model is proposed. iii Acknowledgements Knowledge derives from acknowledgement. Bryant McGill metaphorically says that nothing grows in the shadow of want without the sunlight of acknowledging one’s fullness. I, therefore, have always looked forward to the opportunity of duly thanking each person who inspired me in writing this thesis. I am grateful to my supervisors Professor Richard Boast QC and Professor Sekhar Bandyopadhyay. Without their thoughtful encouragement and careful supervision, this thesis would never have seen the light of the day. Professor Boast was very accommodating and always encouraged me to develop my own intellectual engagements and style. Professor Bandyopadhyay directed me to sources including materials from his own research; my discussions with him helped me improve and shape my arguments. My debt to Professor Tony Angelo is equally profound. Professor Angelo read the chapters of my thesis before I could send them off to my supervisors. His comments required me to clarify my thinking and correct errors. I am grateful to Dr Caroline Sawyer for her contributions to the direction of this research. Caroline’s immense interest in my project encouraged me to choose New Zealand for undertaking my doctoral study. This thesis would not have emerged at all had the Victoria University of Wellington (VUW) not offered me a scholarship. So, I would like to express my gratitude to the Scholarship Office of the VUW. I enjoyed the research environment of VUW’s Faculty of Law very much. I recall the motivation I got from a Maori adage for studying at this Faculty: He aha te mea nui o te ao [What is the most important thing in the world?] He tangata, he tangata, he tangata [It is the people, it is the people, it is the people!] v I thank the LAW SCHOOL, VUW for imbuing in me a deep sense of pro-people legal study. I thank our post-graduate administrator Jonathan Dempsey, School Administrators Pauline Castle and Elizabeth Cherry for being nice in their help, approach and humility. Access to literature posed many problems. The subject librarians and the dedicated team at the VUW Law Library spared no pains in making available a rich variety of materials from other parts of the globe. I also used the Bangladesh Jatiyo Sangsad Library to obtain parliamentary proceedings and governmental reports. The Dhaka based BUBT Library and ALRD Library permitted me to use their library resources. I acknowledge their help with appreciation. I thank Jagannath University Dhaka for granting me study leave and bearing with my absence from the academic scene of its Faculty of Law. Professor Mizanur Rahman and Professor Rahmat Ullah of Dhaka University taught me to see land law through the lens of the disadvantaged. I owe them for being what I am today. I would also like to thank my family back in Bangladesh, in particular my maa, my elder sister Manjila and younger brother Kafi, for always believing in me and encouraging me to follow my dreams. I will be less than fair if I do not acknowledge the support I got from Shafiqur Rahman Khan, Arpeeta Mizan, Golam Sarwar, Md Alamgir, Priyanka Bose, Shat Shamim, Zelina Sultana, Nurunnahar Mazumder, Ameha Wondirad, Martin Vize, Marcin Betkier and Emrul Hossain throughout my PhD life and beyond. I thank my wife Irany for her love, prodding, patience and understanding. The completion of the thesis owed much to the small Bangladeshi community living in Wellington who offered me a sense of Bengali social life, which I often missed while being away from Bangladesh. In particular, I thank Jakir Hossain for becoming a constant source of inspiration for me. Wellington offered me a lot. I record my thanks for this beautiful city. I dedicate this thesis to the loving memory of my father. vi Contents Abstract..................................................................................................................... iii Acknowledgements .................................................................................................... v Glossary ................................................................................................................. xvii List of Abbreviations ............................................................................................. xxiii Chapter 1 ................................................................................................................... 1 Introduction................................................................................................................ 1 I Prologue .............................................................................................................. 1 II Context ................................................................................................................ 2 III The Scope of the Thesis and Clarification of Leading Terms ............................... 6 A Law and Poverty .............................................................................................. 7 B Land and Land Law ......................................................................................... 8 C Land Reform .................................................................................................. 10 D Limitation ...................................................................................................... 11 E Contribution ................................................................................................... 11 IV The Significance of the Research ....................................................................... 12 V Comments on Relevant Literature ...................................................................... 12 VI Research Questions ........................................................................................... 16 VII Methodology .................................................................................................. 18 VIII Chapter Overview .......................................................................................... 18 A Chapter 1 ....................................................................................................... 19 B Chapter 2 ....................................................................................................... 19 C Chapter 3 ....................................................................................................... 19 D Chapters 4 to 7 ............................................................................................... 19 ix E Chapter 8 ....................................................................................................... 19 F Chapter 9 ....................................................................................................... 20 IX Epilogue ............................................................................................................ 20 Chapter 2 ................................................................................................................. 21 The Legacy of Land Law in Bengal and Colonial Poverty ........................................ 21 I Introduction ....................................................................................................... 21 II Pre-Colonial Bengal and the Land Question ...................................................... 22 III Company Land Policy from 1757-1793 ............................................................. 24 IV The Landed Society ........................................................................................... 27 V Permanent Settlement Regulation 1793.............................................................. 29 A The Change .................................................................................................... 29 B The Wisdom of the Cornwallis Reform .......................................................... 31 C The Private Rights Debate .............................................................................
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