output 17-identification and assessment of pakistan’s ... · redress mechanism must analyse and...

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Output 17-Identification and Assessment of Pakistan’s Existing Feedback and Grievance Redressal Mechanisms (FGRM)

Preparing a FGRM for REDD+ after an Explicit Assessment of Existing Feedback and Grievance Redressal Mechanisms (FGRM) & Developing Safeguards Information System (SIS) and Social and Environmental Management Framework (ESMF) through Strategic Environmental and Social Assessment (SESA) April 2018

Ministry of Climate Change

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Introduction ............................................................................................................................... 4

Objectives, structure and scope of the report....................................................................... 5

I. Identification and Analysis of the Conflict Resolution Mechanisms Relevant to the

National REDD + Strategy........................................................................................................... 7

a) Identification of the potential conflicts that may arise in the implementation of the

National REDD + Strategy....................................................................................................... 7

b) Identification of existing and relevant complaint resolution mechanisms for the

National REDD + Strategy....................................................................................................... 9

c) Analysis of the Existing and Relevant Complaint Resolution Mechanisms for the

National REDD + Strategy..................................................................................................... 12

1. Forest Settlement Officer ........................................................................................ 12

2. Forest Settlement Board .......................................................................................... 15

3. Land Revenue Officer (Including Land Revenue Board) .......................................... 19

4. Jirga Courts............................................................................................................... 27

II. Recommendations ........................................................................................................... 29

a) Forest Settlement Board .............................................................................................. 29

b) Land Revenue Officer (Including Land Revenue Board) .............................................. 32

c) Jirga Courts................................................................................................................... 33

III. Land Tenure Conflicts .................................................................................................. 34

Land Tenure in Pakistan ....................................................................................................... 34

Tree and Forest Tenure.................................................................................................... 36

Types of Conflicts over Land in Pakistan.............................................................................. 39

Conflict between State and Citizens ................................................................................ 40

Conflicts due to Legal Pluralism ....................................................................................... 40

Boundary Disputes ........................................................................................................... 42

Violent Land Acquisitions................................................................................................. 45

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Expropriation by the State without Compensation ......................................................... 45

Conflicts due to Lack Land/Agrarian Reforms ................................................................. 46

Conflicts between Private Individuals.............................................................................. 46

Inheritance Conflicts ........................................................................................................ 46

Ownership Conflicts due to Lack of Land Registration .................................................... 47

Multiple Sales/Allocations of Land .................................................................................. 49

Limited access to Land Due to Discrimination by Law, Custom or Practise .................... 49

Evictions by Land Owners ................................................................................................ 50

Disputes over the Payment Distribution for Usage/Sale ................................................. 50

Disputes over the Value of Land ...................................................................................... 51

Sales of another’s Private Property ................................................................................. 51

Special Conflicts over Common and Collective Property ................................................. 52

Unauthorised Sales of Common or Collectively Owned Property ................................... 52

Disputes Over the Distribution of Revenue from Customary Land ................................. 53

Illegal/Improper Uses of State Land ................................................................................ 53

Land Grabbing by High-Ranking Public Officials .............................................................. 53

Illegal Leases of State Land .............................................................................................. 54

Conclusion ............................................................................................................................ 54

Methodology............................................................................................................................ 56

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Introduction

As part of the FCPF readiness requirements1 for Pakistan, a Feedback Grievance Redress Mechanism (FGRM) needs to be designed to enable the clear and effective handling of

complaints or conflicts arising from the implementation of REDD + activities. This is also strongly encouraged by the Carbon Fund methodological framework.2

According to the FCPF, a FGRM is an “organizational system and resource established by national government agencies (or, as appropriate, by regional or municipal agencies) to receive and address concerns about the impact of their policies, programs and operations on external stakeholders.” 3

GRMs are intended to be accessible, collaborative, expeditious, and effective in resolving concerns through non-adversarial means and negotiation. However, they may also include

the power to make judgments to resolve disputes, if participating stakeholders choose to submit to it.4 FGRMs are not intended to replace formal legal channels for managing

grievances (e.g. the court system), rather to complement them and serve as an initial ‘port of call’ for stakeholders to air their concerns.5

The FCPF’s guidelines provide that an FGRM should, where possible, be based upon existing institutions (including their existing legal mandates).6 According to the guidance, the

development of an FGRM is done in three stages: first, it is essential to understand historical patterns of grievances in the national forest sector, second, we must identify and assess what

mechanisms are currently used to resolve those grievances, and how effective those processes are. Finally, a proposal for an FGRM for REDD+ can be put forward, including an

action plan to strengthen existing mechanisms, where appropriate. 7

The first exercise of examining the historical grievances in the national forest sector has been completed and the findings are presented in the document “understanding tenure related

conflicts in Pakistan.” The present document is concerned with the second step, identifying

1 FCPF (2013) A guide to the FCPF Readiness Assessment Framework 2 FCPF (2016) Revised Final Carbon Fund Methodological Framework 3 FCPF/UN REDD Programme (2015) Joint Guidance note for REDD+ countries: Establishing and Strengthening Grievance Redress Mechanisms 4 Ibid 5 Though there is no obligation to use GRMs before seeking redress through the courts or other formal dispute resolution mechanisms. This will largely depend on the type of grievance. For instance, grievances that allege corruption, coercion, or major and systematic violations of rights and/ or policies should generally be referred to organizational accountability mechanisms or administrative or judicial bodies for formal investigation, rather than to GRMs for collaborative problem solving. FCPF/UN REDD Programme (2015) Joint Guidance note for REDD+ countries: Establishing and Strengthening Grievance Redress Mechanisms

6 Ibid 7 Ibid

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and analysing relevant existing FGRMs in Pakistan, including informal or customary ones. The

findings of this evaluation must be publicly disseminated.

Objectives, structure and scope of the report

The objective of this report is to present an identification and analysis of existing conflict

resolution mechanisms and identify current institutional strengths and capacity gaps for grievance resolution. This corresponds to the following aspects of the ToR:

• Desk Review Report on existing formal and informal feedback and grievance redressal mechanisms at local, district, regional and national level;

• Desk Review Report on identified current institutional strengths and capacity gaps for grievance resolution; and

• Desk review of land tenure and national resource rights conflicts.

The analysis includes detailing who are the institutions responsible for these platforms and

mechanisms, their jurisdiction and competence, and a diagnosis of their capacity to respond to potential conflicts during the implementation of the National REDD + Strategy.

We note that because FGRMs are not intended to replace formal legal channels for managing grievances (e.g. the court system), rather to complement them and serve as an initial ‘port of

call’ for stakeholders to air their concerns8, elements such as general protections under the constitution, have not been included.

It is also important to note that this work focuses on the grievance redressal mechanisms which are both applicable and unique to the type of conflicts common and associated with potential REDD+ activities in the country in question. The base assumption of this work is that the country in question has a functioning judicial system, and that the Framework Grievance

Redress Mechanism must analyse and enhance dedicated elements, and not the judicial system in general. Where REDD+ activities are implemented an effective grievance redressal mechanism must be both dedicated and localised, able to resolve conflict in an alternative

way.

To this end two types of mechanism have been analysed:

1) dedicated mechanisms- either limited in time, such as the forest settlement board/officer, associated with the declaration of a reserve forest, or the revenue mechanism, which has almost complete autonomy with regard to land disputes. 2) Alternative conflict resolution: this refers to a mechanism more accessible to, and less

formal than, courts, such as the Jirga courts and their equivalents throughout the provinces.

8 Though there is no obligation to use GRMs before seeking redress through the courts or other formal dispute resolution mechanisms. This will largely depend on the type of grievance. For instance, grievances that allege corruption, coercion, or major and systematic violations of rights and/ or policies should generally be referred to organizational accountability mechanisms or administrative or judicial bodies for formal investigation, rather than to GRMs for collaborative problem solving. FCPF/UN REDD Programme (2015) Joint Guidance note for REDD+ countries: Establishing and Strengthening Grievance Redress Mechanisms

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Completely judicial processes such as the civil courts and the forest magistrate are therefore

beyond the scope of a REDD+ framework analysis.

The report is structured as follows:

• Section I presents a synthesis of the identification and analysis of the conflict resolution mechanisms relevant to the National REDD + Strategy;

• Section II presents recommendations for addressing identified weaknesses and gaps; and

• Section III presents review of land tenure and national resource rights conflicts.

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I. Identification and Analysis of the Conflict Resolution Mechanisms Relevant to the National REDD + Strategy

The following section presents a synthesis of the identification and analysis of the existing and relevant complaint response mechanisms for the National REDD + Strategy. This section is structured as follows:

a) Identification of the potential conflicts that may arise in the implementation of the National REDD + Strategy;

b) Identification of existing and relevant complaint resolution mechanisms for the National REDD + Strategy; and

c) Analysis of the existing and relevant complaint resolution mechanisms for the National REDD + Strategy.

a) Identification of the potential conflicts that may arise in the implementation of the National REDD + Strategy

The following table (1) outlines the potential complaints and conflicts that could result from the implementation of the REDD + strategic options that were identified through the SESA

process. These potential conflicts were considered in the process of identifying what are the existing conflict resolution mechanisms in the country which would be relevant for the

purposes of the FGRM.

Table 1: Potential Conflicts and Grievances associated with the Strategic Options of the National REDD+ Strategy

REDD+ Strategy

Options

Potential Conflicts and Grievances associated with the Strategic Option

Option 1: Restoration, reforestation and afforestation

1) Exacerbation of land conflicts if restoration, reforestation and afforestation policies/programs do not deal with historical challenges on land registration, related to faulty land records, non-transparent terms of tenancy, defective sale or purchase deeds, and arbitration in revenues sale, among others.9

2) Likewise, it may be that restoration, reforestation and afforestation policies/programs do not encourage all the people or organizations that depend and protect the forests, which could generate discontent and conflicts (inequity).

3) More distance of communities/stakeholders from the forests will lead to

grievances and complaints due to less access to forest resources.

9 The USAID Country Profile of Pakistan on Land Tenure and Property Rights has calculated that 50 to 75 percent of cases in civ il courts at lower and High Court levels are related to land disputes. The same report claims that over a million land cases are pending in various courts all over the country.

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4) Between communities, nomads and other stakeholders (governments,

contractors, etc.) due to different interests and priorities over the use of forest resources.

Option 2: Sustainable Forest Management

1) Social conflict by resistance to proposed changes;

2) Claims or conflicts for resistance to the change from traditional to sustainable use;

3) Claims and conflicts for discrepancies or inequalities in the distribution of

benefits;

4) Complaints from communities about the impacts of reforestation and / or plantation management on water availability and / or changes in water quality; and

5) Disinterest/clash of interests due to delayed carbon finance/benefits.

Option 3: Payment for Ecosystem Services (PES)

1) Limitation / exclusion of certain right holders to access incentives and financial mechanisms, if existing deficiencies are not addressed successfully.

2) Possibility that the payments do not encourage all the people or organizations that protect the natural forest, which could generate discontent and conflicts (inequity).

3) Complaints or claims over the maldistribution of incentives.

4) Situations in which rights holders are not recognized (in particular, the communities) that were in the area before PES scheme commences.

5) Some members of the community do not want to protect the forest and

conflicts arise to receive the benefits.

6) Conflicts between families because they do not agree on the protection of the forest and other members of the family want to use another use.

7) Conflicts between government and communities over PES design and

implementation.

8) Misinterpretation and unfamiliarity with PLRs dealing with PES.

Option 4: Introduction of Efficient Alternative Energy Sources (solar, wind, biogas and efficient cook stoves and kilns)

1) Conflict and resistance from the community towards new energy sources.

2) Social conflicts due to displacement of indigenous peoples and local communities in their territories due to the restriction on forest resources.

3) Conflicts between communities benefiting from REDD+ for the use and

sustainable production of firewood.

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4) Conflicts concerning the maintenance of these technologies/new energy

sources.

Option 5: Silvopastoral practices and sustainable grazing

1) Conflict and resistance from the local and native community;

2) Grievances from loss of income and livelihood for groups excluded or

restricted from grazing;

3) Conflict between native communities and pastoral nomads on sharing resources for grazing;

4) Conflict between native communities, nomads and forest department on

use and exploitation of natural flora (for instance collection of medicinal plants).

Option 6: Agroforestry

1) Conflict and resistance from the community.

2) Situations in which rights holders are not recognized (in particular, the

local communities) and restrictions are imposed on their lands.

3) Some members of the community do not want to protect the forest and conflicts arise to receive the benefit.

4) Conflicts between tenant and land owner on planting/protecting the

trees on their land.

Option 7: Sustainable Tourism

1) Social conflicts over the control of the resources that are to be linked to ecotourism, as ecotourism may not be a viable alternative for the rural populations.

2) Cultural conflicts, as local communities may complain about the absence of viable alternatives and livelihoods (e.g. the cultivation of a variety of fruits as a suitable alternative to current agricultural practices).

3) Land conflicts, as it might occur that tourism destinations are increasingly

being occupied by immigrants. They buy (might even result in displacement) houses from locals, usually in order to convert them into tourism facilities.

b) Identification of existing and relevant complaint resolution mechanisms for the National REDD + Strategy

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As examined above, through the SESA process, potential complaints and conflicts that could

result from the implementation of the REDD + strategic options were identified. The following table identifies the mechanisms and platforms and mechanisms for addressing existing claims

and disputes relevant to the REDD + Strategy.

However, we must note that Pakistan has a limited number of complaint resolution

mechanisms. There are several platforms and procedures that are not 'complaint mechanisms per se', but rather have an element of appeal or complaint resolution directly linked to the

process in question. These platforms and procedures we not considered as indirectly relevant for purposes of the FGRM design.

Table 2: Identified mechanisms and relevance to Strategic Option

The table below associates each mechanism with the strategic threats elaborated above. For each of these mechanisms, general restrictions in dealing with these potential conflicts, apply.

We note that where several mechanisms could deal with identical options, their path to doing so- standing, access point and mandate, may differ.

Each of the mechanisms has the following, very general traits which delineate their capacity

to deal with each option as follows:

Both Forest Settlement Officer and Board are triggered to function, and depend upon, the

government declaring and area to be a ‘reserve forest’. Within the confounds of that limited time period, of approximately six months, their power of inquiry and dispute resolution are

vast- under the temporal and geographical limitations. Each strategic option relevant to them must come within the context of these limitations, one of which is in conflict in authority, in

certain cases, with the revenue mechanism charged with keeping records, below.

The Revenue Mechanism has broad geographic and subject ambit. It depends, for purposes of dispute on being triggered by a dispute associated with an estate, a change of land designation or an issue with the Record of Rights. Any dispute brought before it needs to be coached in those term- option 2, for example, disputes about forest management, can only be brought through conflict over designation of land or over registered land use rights or change. Conflict in joint ownership, or arising from difference of approach are, in theory, beyond the scope of this mechanism.

Last are the collective mechanisms known as ‘Jirga Courts’. These are traditional tribunals with no legal binding force, other than two exceptions below, and even they are broad. To

this end Jirga courts will rarely be involved in conflicts regarding record keeping or any official department of the government, and its decisions. This all needs to be taken in the broadest strokes, as certain occasions will see government departments accepting the decision of the

Jirga as arbitrators in case of a specific conflict. This raised further issues as it can mean a conflict of mechanisms- between the Jirga and the FSO, for example, regarding an inquiry into the recording of a joint grazing right to be retained after the declaration of a reserve forest. Such cases can be rare or common and require the position of specific knowledge.

In general, the table must be treated as a guidance to the general capacity of each mechanism, with a note that each subject will be stated and dealt with differently though

each body.

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Mechanism Relevant Strategic Option

1. Forest Settlement Officer

1.1, 1.2,1.4 2.1-3 3.1,3.2-3, 3.4, 3.7,3.8 4.2-3 5 Passim 7.1-2

2. The Forest Settlement Board 1.1, 1.2,1.4 2.1-3 3.1,3.2-3, 3.4,3.7,3.8 4.2-3 5 Passim 7.1-2

3. Land Revenue Officer (Including Land Revenue Board)

1.1,1.2,1.3,1.4 2 passim

3.1, 3.2-3, 3.4,3.7

4 passim 5 Passim

6.1-6.4 7.3

4. Jirga Courts 1.2,1.3,1.4 Potentially 2 passim 3.1-3, 3.5,3.6 4.2-4 5 Passim 6.1, 6.3,6.4 7 passim

We note that a forest Magistrate is a post unique to the KP province and is created on the basis of the Khyber Pakhtunkhwa Forest Ordinance of 2002 and given power in accordance with subsection 15 of section 2. This same section defines the role of a Forest Magistrate as charged with the offence under the ordinance. To a certain extent, where reading sections 92-3, a forest magistrate serves as the lowest civil court with a jurisdiction of the offences under the act, as opposed to conflicts regarding claims, changes and resource administration. As such, it is not certain that this is a valid redress mechanism. Thus, the post and associated descriptions of a forest magistrate are not herein described as they are beyond the remit of

this paper.

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c) Analysis of the Existing and Relevant Complaint Resolution Mechanisms for the National REDD + Strategy

1. Forest Settlement Officer

Institutional commitment and capacity

The Forest Settlement Officer is appointed by the Provincial Government following its

decision to reserve land for a ‘reserve forest’10 and draws his powers and mandate from the Forest Act, 192711. In relation to conflict resolution, the forest settlement officer has the power to:

Survey and demarcate the boundaries of a reserve forest established by the provincial government12

Log, investigate and recognize the different tenure claims to the forest.13 Adjudicate tenure claims (including ownership, access and use rights) with the powers

of a Civil court14

In terms of capacity the Forest Settlement Officer must be a person distinct from any other forest related position holder15. However, in some provinces it is possible for the FSO to have

the powers of a collector and to permit certain practices 16.

Furthermore, opportunities for professional development and further learning are limited,

and reviews of performance are rare.

Transparency

Information on the mandate and procedure of the mechanism are readily available in that they are contained in the Forest Act 1927, however, there is no publicly available data regarding the number of grievances received or accepted, or their outcomes. In addition, the capacity of the forest officer, the mandate and procedure are often either not elaborated upon or interlinked with other, more general, rules, whose interpretation would require legal knowledge and background17.

Accessibility

According to the letter of the law, there are no restrictions on who may make a claim or lodge a complaint under the mechanism.18 Furthermore, notifications of a decision to declare an

area of land as a forest reserve needs to be made in the local language,19 which suggests that

10 Pakistan Forest Act 1927, section. 4 (c). 11 As defined in Pakistan Forest Act 1927, section 2(i) 12 Pakistan Forest Act 1927 Section 8 13 Within a 3-month timeframe following the proclamation of a forest area as reserve forest. Pakistan Forest Act 1927 Section 6 14 Ibid 15 Pakistan Forest Act 1927, Art. 4 section B of the explanation 16 See, for example, Punjab 2010 amendment, article 10.3a 17 See, for example, section 73 of the Act. 18 Pakistan Forest Act 1927 Sections 6 and 8 19 Pakistan Forest Act 1927 section 6

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language or illiteracy is not a barrier for lodging a complaint. The decision must be recorded,

though it is unclear in which format, where, and how accessible it is. Additionally, given the concentration of powers within the hands of the FSO, as well as the local context within which

they are often elected, fear of reprisals could be a concern.

Predictability

The Forest Settlement Officer’s powers are far reaching and grants a large amount of discretion to the forest settlement officer (lack of clear procedures for decision-making), a concern that has already been raised in past studies.20 There is the possibility of appealing the decision of a forest settlement officer to the local Revenue Department, however, there is only a 3-month window following the passing of an order or decision.21 In addition, while a forest settlement officer does come under section 73, constituting them as civil servants, their duties in the forestry context do not come under more than the most general of rules.

Legitimacy and equity

Forest settlement officers are deemed to have all the duties and rights of civil servants22, as

well as other capacities and limitations enumerated through Chapter XII of the Forest Act. Given their temporary association with a specific incidence by the government (the

declaration of a reserve forest), and the unusual position of authority (above forest officer, but not precisely the office of a court), their legitimacy and trust are not guaranteed.

Monitoring & Evaluation

While forest settlement officers are obligated to make notes and take record23 of decisions, as well as appeals, there is no duty to record reasoning, oversight which either reviews or

collates any of this information for further learning, policy or legislation. As record keeping has been identified in other papers and sections as an issue in Pakistan, the simple

requirement ‘to record’, with no template or link to a location where, could be identified as a potential gap. This is also true in terms of the capacity to evolve.

Inclusiveness

While several articles in the ordinances do stress the use of vernacular and the accessibility of claims and appeals24- explaining the declaration, as well as its consequences, requiring an inquiry25, and hearing the sides26, and hearing appeals, as described above, there is no further

involvement of stakeholders in the deliberative or decision-making process of the officer once

20 Historical assessment of social and environmental issues in Pakistan 21 Pakistan Forest Act 1927 Section 17 22 Ibid, Section 73 23 Ibid, section 7. 24 Ibid, section 6. 25 Ibid, section 7. 26 Ibid, section 8b

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claims or appeals have been made, nor is there any process by which the knowledge and

suitability of the said officer to work within the community can be ascertained.

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2. Forest Settlement Board


The Forest Settlement Board is appointed by the Khyber Pakhtunkhwa Province27 (hence:

KPK), following a decision by the KPK government to declare a ‘reserve forest’28. The role of the board is ‘enquire into and determine the existence, nature and extent of any rights,

alleged to exist in favour of any person in or over any land comprised within such limits or forest […], and to deal with the same’29. The authority of the Board extends to ‘forest reserves’

and not to ‘village/protected forests’, over which the government has exclusive and discretionary powers30. Culturally speaking, the role is vital as it enters into a point of prevalent conflict: transfer of forests from common, local community rule, to direct preview

of the government. In relation to conflict resolution and the addressing of grievances, the committee has the mandate to:

Survey and demarcate the boundaries of a reserve forest established by the provincial government31

Log, investigate and recognize the different tenure claims to the forest.32 Adjudicate tenure claims (including ownership, access and use rights) with the powers

of a Civil court33, and replacing this court, with uniqueness of jurisdiction in this field34, including admitting or rejecting and replacing or providing for replacement land or finance for rights claims35.

In terms of the capacity of the board is to be comprised of three members, the chair to be of minimum rank within the revenue office, the divisional forest officer and a representative of

the community36. There are no term limitations or qualifications mentioned for the divisional officer in question, nor, within the law, of the revenue officer (aside from rank). Both the officers within the board, and others as acting under the board, have broad capacity with

regard to property and person within their auspices37. However, opportunities for professional development and further learning are limited, and reviews of performance are rare.

Transparency

Information on the mandate and procedure of the mechanism are readily available in that they are contained in the Forest Act 1927 on a national level and as part of the KPK Forest Ordinances, 2002. Both the provincial government and the board must proclaim, in the

27 KPK Forest Ordinance 2002, Section 5.1(c). Ordinances elaborating the Pakistan Forest Act 1927. 28 Ibid, Section. 4. 29 KPK Forest Ordinance, 2002, Section. 5.1(c). 30 Ibid, Section 29. 31 KPK Forest Ordinance, 2002, Section 8(a). 32 Within a 3-month timeframe following the proclamation of a forest area as reserve forest. KPK Forest Ordinance, 2002 Sections 6(c), and section 7. 33 Ibid Section 8(a), 34 Ibid, section 92. 35 Ibid, sections 10-16. 36 Ibid, Section 5.2. 37 Ibid, section 73.

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vernacular, both the fact and the consequences of the action of reserving a forest as well as

using commonly known geographical references demarcating the affected land38.

The board is required to take down in writing all claims, government relevant existing

information and evidence both collected and provided, by claim and with regard to each claim39.

Several types of specific claims require the board to record the claim itself40, though it does not explicitly say such records need to be made public, it is assumed they are, though no mention is made of where. Record must also be made of any settlement order41, as well as notes for future usage or compensation42.

However, two qualifiers apply: there is no duty to elaborate reasonings for decisions/orders, and there is no specified location from which an aggregate, organised list of claimants and grievances may be found or kept, nor any follow up mechanism to monitor settlements . In addition, no notification needs to be made when declaring a ‘protected forest’43.

Accessibility

According to the letter of the law, there are no restrictions on who may make a claim or lodge

a complaint under the mechanism.44 Furthermore, notifications of a decision to declare an area of land as a forest reserve needs to be made in the local language45, both in terms of the

declaration itself (as well as possible ramifications) and the geographic land markers in terms known to the local population. All of which suggests that information regarding the

proclamation is disseminated, and that language or illiteracy are not a barrier for lodging a complaint46. Alternative measures for extension of time limits, which provide unsuitable

hardships in rural areas, as well as thinly populated ones, are provided for in case of the passage of the allotted administrative time47, and the freedom to choose pleaders with no

professional limitation is also given48.

The process itself, of inquiry, though stated in Section 7 of the KP Ordinance, is not elaborated upon, with no clear procedure on how it is to be followed. While there is a duty to record in every section dealing with both claim and appeal49, there is no specification of where the ultimate, official record is kept, nor elaboration of access to it. The same limitations regarding

clarity apply to the geographical location of the board itself50- where appeals can be lodged.

38 Ibid, Sections 5.1 (a-b) and 6, respectively. 39 Ibid, Section 7. 40 Ibid, sections 11-16. 41 Ibid, Sections 12-15. 42 Ibid. 43 Ibid, Section 29.4 44 Ibid, Section 6.1(c) allows for any person to make a claim of right, while section 8 creates the duties of a civil court, which include equal

standing, section 17 allows for the same standing in cases of appeals against decisions. 45 Ibid, section 6.1 46 Ibid, section 6.1(c) along with section 7 promise allow for complaints to be lodged through verbal communication and taken dow n by the committee. Further reference in section 10.1 47 Ibid, section 9 48 Ibid, section 19 49 Ibid, sections 10 through to 20. 50 With the exception of a vague ‘convenient neighbourhood’ under section 18.3.

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In addition, the person in charge of the process of appeal under section 17 is only selected, upon request, by the provincial government, and in notification in the official gazette. This

does not permit easy access to the same standard as the initial claim.

Finally, given the lack of clarity on record keeping, and the concentration of powers within the hands of a small group for inquiry, claim and appeal, fear of ‘rent seeking’ could be raised, though it could be mitigated by the composition of the board as well as the different options of appeal bodies. The lack of clear records location, and limited capacity to monitor and ensure could lead to fear of reprisal following competing claims.

Predictability

Predictability is closely associated with both access and transparency. Much like the position of the FSO above, the Forest Settlement Board (FSB) has far reaching mandate and capacity, which poses a threat due to concentration of power51- being charged with the dissemination of the forest reserve declaration, the collection, inquiry into and settling of claims (see above).

It is also the body which transfers appeals regarding its own activities 52.

In addition, the protocols and the processes of the FSB are not elaborated upon. However, it

could be possible to claim that the duties of a civil court are bestowed along with the powers associated with it53. The FSB also has an increased level of predictability, compared with the FSO, due to its composition- both including separate branches of administration and a local, locally chosen, representative. Having said that, the process of choosing this representative (which community, how long, who votes, and so on) are not elaborated upon.

Last, the window of time is limited to a three-month window, both for the initial claim54, and

for the appeal to follow55, unless proven there was good reason to exceed it- though full discretion regarding such reasoning is left to the committee56.


The most important element of legitimacy within the board relates both with its composition and with the decision-making process within it: The composition of the board includes three members with potentially different interests57, specifically, the fact that a member is chosen from within and by the local community58and, vitally, that decisions are made by a majority59.

51 Historical assessment of social and environmental issues in Pakistan. 52 Ibid, section 18. 53 Ibid, section 8 (b). 54 Ibid, Section 6.1 (c). 55 Ibid, section 17. 56 Ibid, section 9. 57 Ibid, section 5.2 58 Ibid, section 5.3 59 Ibid, section 5.4

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While this confers legitimacy on the board, a lack of procedure for the election, alongside lack

of stated accountability and qualifications for the community member may limit that.

In addition, taking into account the particularly common set of local rules practiced by Jirga

courts60, the duty of the board to receive and record any ‘local rule or order’61 could strengthen the legitimacy of the inquiry by the board.

Where addressing the conflict between the declaration of a reserve forest and the rights claimed over it, other than pasture and the like, the board is authorised to deal with these rights as well62. However, all such powers of acceptance of claims, regarding rights other than pasture and those elaborated in sections 12-16, depend upon the government accepting the recommendation of the board, itself an issue of independence. For the more traditional rights of usage, the board has complete discretion. Within the ambit of this discretionary power, the board may decide to respect and record all rights, or provide a convenient, equivalent land, remuneration, or provisos within the forest itself, all to be recorded63. Notably, there is no described process or conditions (such as acceptance of sufficiently proven local rights) by which such decision can be guided, allowing the board complete discretion.

The process of appeal described in sections 17-18 does state the obligation to transfer it ‘without delay’, the standing to be inclusive, and the hearing to be done in a convenient place with notification to the parties interested. This is, again, limited in terms of independence, as the appeal does need to go through the board, and the two options to hear an appeal are the revenue office, part of which is involved in the original decision, or a Tribunal, which the government is under no obligation to create.


Except the appeal process described, the FSB does not have a review or very efficient, laid out

oversight. The protocols and procedures are described in the requirement to meet in a convenient place, the time allotted, the language to be used, and the requirement to record.

However, no provision of oversight has been made, there is no reasoning provided for decisions, neither the obligation to provide, not the guidance within the law. As record

keeping has been identified in other papers and sections as an issue in Pakistan, the simple requirement ‘to record’, with no template or link to a location where, could be identified as a potential gap. This is also true in terms of the capacity to evolve.

Inclusiveness

The Forest Settlement Board includes in its composition a community member chosen by the community and with an equal vote in the decision process and making. While several articles in the ordinances do stress the use of vernacular and the accessibility of claims and appeals, there is no further involvement of stakeholders in the deliberative or decision-making process of the board once claims or appeals have been made.

60 Understanding land conflict tenure in Pakistan and Hasan. L., Analysing Institutional Set-up of Forest Management in Pakistan. Pakistan Institute of Development Economics, Islamabad. RESEARCH REPORT NO. 182 61 PKP Forest Ordinance, 2002, section 10.1 as well as sections 10-16 elaborating on the capacity to claim traditional rights. 62 Ibid, section 11.1 63 Ibid sections 12-16

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3. Land Revenue Officer (Including Land Revenue Board)


A Land Revenue Officer is a class of officer, ranging in rank and mandate, and created in

accordance with the West Pakistan Land Revenue Act of 196764. Together the ranks from Patwari to Board of Revenue (through all their different nomenclature) form a mechanism

which includes record making and keeping, review, mutation of land rights, settlements of disputes, appeal, oversight and secondary legislation. Here the mechanism is treated as a

whole. The Board of Revenue specifically is a statutory body and holds powers of adjudication and rule-making which place it outside the criteria of a Grievance Redress Mechanism. However, it is a duel essence body, serving also as a highest place of appeal and review and

an overseer of the rest of the mechanism, and has thus been included here.

The mandate of Land Revenue Officers is land rights, ownership and uses, along with the

revenue created and associated with all types of land other than ‘land which is occupied as the site of a town or village and is not assessed to land-revenue’65. Therefore, the power to

determine and, potentially, resolve conflicts66 relating to tenancy and land use, issues central to the REDD+ safeguards, lie well within the ambit of this mechanism.

Revenue officers are charged with the creation of, periodical review, and amendment of Record of Rights. This document is the default position of legal truth once entered67regarding lands and rights. Vitally, Revenue Officers (RO) also have the power to settle disputes in several different ways: settling of dispute by officer in question68, arbitration by sides to the dispute69, or serving as a judicial process70 well as forming a part of the Forest Settlement

Board above. The Revenue officer ranking system is meant to serve as a cyclical self-reviewing system71, with periodic, ad hoc, and request based review and oversight of records, transfer

of rights, and dispute settlements.

Both in country research and a desk review72 have revealed gaps in the reliability of the system, the speed of its function in both appeal and dispute settlement and the potential for misconduct of the Patwari, the lowest rank, considered to be part of the Village officers, who are charged with the actual surveying and making of records upon which all disputes later hinge.

While the capacity of the RO is changing, there are indications that review and true oversight are rarer than bureaucratic institutional loyalty, and, due to the insularity of the

system the true recourse of appeal is with the overburdened judicial system.

64 West Pakistan Land Revenue Act, 1967. Section 7.1 65 Ibid, Section 3.1 66 Including the powers of a civil court, section 27, the power to summon witnesses, section 21, and more. 67 Ibid, section 52-3 68 Ibid, section 44-5 69 Ibid, Chapter XII Passim. 70 Many references, depending on the dispute subject, see for example, section 27. 71 UN Habitat ‘A guide on land and property rights in Pakistan’ Pakistan Settlements Flood Recovery Project, Islamabad, Pakistan, 2012. Pp. 17-23. 72 Insecure Land Title by Bakhtawar Bilal Soofi Dawn Newspaper 05.04.2015

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Transparency

As a rule, the revenue mechanism is the main mechanism charged with recording property and usage rights as they relate to land. As has been mentioned elsewhere, however, record

keeping by revenue officers has often been perceived as incomplete73.

What follows is a description of the legal duties regarding how the mechanism conveys or disseminates information on its own performance (how stakeholders are kept informed of the progress of their case and the outcomes), with reference to potential gaps within that framework.

Questions of transparency focus on two aspects: the making of the Record of Rights, and the access to it. This is as, in accordance with sections 52-3 of the W.P. Land Revenue Act, once

recorded, any record of rights is assumed to be true, and a dispute of it goes directly to one of the courts, and thus beyond Grievance Redress Mechanisms. It is therefore the process of

dispute leading up to the making of the record that is the focus here.

Information on the precise mechanism by which a revenue officer is bound to create a Record

of Rights74, as well as hear a claim75, settle a claim and record the reasons for a decision76, appeal, review lower orders77, or refer to arbitration78 are all noted and elaborated upon in

the different versions of the West Pakistan Land Revenue Act 1967, with certain Boards of Revenue publishing specific rules79 elaborating on this.

Section 14, however, can pose an issue both in terms of transparency and predictability, as it allows the higher ranks of revenue officers to, with no explanation needed, withdraw or take upon themselves, or reattribute, any case before any lower officer. A similar issue is posed

regarding section 20, which allows the board to create rules of procedure not existing in the act, with no clarity as to their publicity. An additional, overarching potential issue of

transparency, is associated with the right of the board of revenue80to make many rules regarding the form, conduct leading to, and content of the Record Of Rights- without a duty

to make said ruler or to necessarily make them public.

The creation of the initial or revised ROR is regulated under section 39 of the Land Revenue Act, which includes a set of minimum details to be included. Any decision to revise such a record must include a notification to those affected81. Such records need to be made and

73 See both UN Habitat, above, and ‘Insecure Land Title’ ibid. 74 W.P. Land Revenue Act, 1967 Section 39. 75 Ibid, section 27 imposing civil procedure duties, 27.2 providing for all hearings to be public, section 44 allows for any dis pute, either suo moto or through claim, to be reviewed, with section 62 allowing for a dispute of an assessment. Section 44.1 specifically deals with the duty to record reasonings for a decision. 76 The power in all of these disputes to settle the claim lies, initially, in the hands of the of the Revenue Official, e.g. section 44.1, 62 and more. 77 W.P. Land Revenue Act, 1967, Chapter XIII 78 Ibid chapter XII 79 E.g. Punjab Land Revenue Rules of 1968, last amended 2011. http://www.punjabcode.punjab.gov.pk/public/dr/(52)%20PUNJAB%20LAND%20REVENUE%20RULES,%201968.doc.pdf 80 Land Revenue Act, 1967, section 55. 81 Land Revenue Act, 1967, section 40.

http://www.punjabcode.punjab.gov.pk/public/dr/(52)%20PUNJAB%20LAND%20REVENUE%20RULES,%201968.doc.pdf

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reviewed periodically82, with their records also containing minimum prescribed information

kept and made accessible and, in some provinces, digitized83.

The process of updating rights, mutation of rights, their recording, and the review of the

process, the duties of the revenue officer toward the claimant and the redress mechanisms are all elaborated under section 41. This includes a timeframe, an alternative measure of

change, a receipt and the public nature of such changes and proclamations. 84

Where a dispute arises with regard to the making of record, sections 42.8 and 44 provide for a public, inclusive settling of the dispute through public inquiry.

Sections 25-28 deal with the mode and language of proclamations. Section 25 elaborating on the notification of a proclamation to relevant stakeholders, with section 26 including a notice to all in the relevant land. Section 27.2 promising a public process, and section 28 discussing the language, which can be described as local. Such proclamations apply to the proclamation of an assessment under section 61, which will commonly take place where value and services

are changed with regard to REDD+ activities.

Chapter X of the Land Revenue Act of 1967 gives the revenue mechanism the right to survey

and decide on the value and demarcation of estates. The exceptions to this, which can be decided by the officer conducting the survey85need not be explained, and the repercussions of this process, which is common when land related projects take place, are far reaching86. Lack of prescribed procedure, reasoning, or duty to note reasoning make the process of making claims a far more opaque one.

Chapter XII is dedicated to the process of arbitration, either with consent of the parties87, or, on more limited topics, without their consent88. Throughout the chapter the procedure of

nomination of arbitration, the timeframe and reasoning for disallowing nominations are all described. Section 157 creates a duty to record the decision, the reasoning, and the reasoning

for the dissent, if such exists. Section 159 further requires the RO to record the reasoning for decisions under this process- be it acceptance, rejection or modification.

Regarding the process of appeal, no decision, whatever it may be, will be made on any type of appeal (under Chapter XIII of the Land Revenue Act of 1967) without notification of any

relevant party which may be affected by such changes 89.

In summary, while there are requirements guaranteeing transparency of proceedings in many of the redress mechanisms regarding the Record Of Rights and its associated surveys and mapping exercises, some are lacking timeframes, are not necessarily clearly defined or set out, and some duties to record or make public certain announcements do not take into

account practical barriers to transparency such as timing, language, location and capacity. All discussed more at length in the following sections.

82 Ibid section 41. 83 KP Land Revenue Act, section 41A. 84 In 2014 KP inserted section 42A, which further elaborates on the record keeping duties of the officer, duties which make the process far more transparent. However, such articles do not exist in all provinces. 85 Land Revenue Act, 1967, section 116.3 86 Ibid, section 122.1(b) which states that results of such a survey shall determine the rights within it. 87 Ibid, section 151.1. 88 Ibid, section 151.2. 89 Ibid, section 161.2 and 162.2(c).

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Accessibility

Accessibility is the extent to which relevant stakeholders are aware of the mechanism, and its ease of access. This includes whether any assistance is provided for those who may face

barriers to access (including language, illiteracy, financial, geographical location, fear of reprisals).

The Land Revenue Mechanism, including the access to the grievance and redress mechanisms are mostly concentrated within the provincial versions of the West Pakistan Land Revenue Act and, as such, are generally accessible to the public. Chapter IV of the same act, discussed in detail below, is the main chapter addressing procedure, with chapter XIII addressing review and appeal process.

However, within the process, much discretion is given to the Board of Revenue to create rules of procedure not existing in the act90, with no clarity as to their publicity. This is further an issue where in all matters not elaborated, though in terms of procedure and conduct,

obedience is to the superior officer91, further obscuring potentially both transparency and access to the mechanism. An additional, overarching potential issue of accessibility, is

associated with the right of the board of revenue to make many rules regarding the form, conduct leading to, and content of the ROR- without a duty to make said rules or to necessarily make them public92, which limits full access to potential aspects of the mechanism. In addition, no specific seat is mentioned in association with specific cases, but rather ‘any place within the limits of his jurisdiction’93, and is not limited from functioning during days of local holidays, which may limit attendance94.

Access to the mechanism itself is promised to all who would plead before it95, and any notice or proclamation is to be served personally96 and positioned in a public place97and in accordance with local customs. This is true of any decision- from change and acquisition of

rights (mutation) to dispute inquiry and settlement, as well as appeal. However, unlike other mechanism, namely the Forest Settlement Board/Officer above, no provisions are made for

illiteracy (such as the taking down of claims by the board itself), not a duty to elaborate of possible consequences, or to demarcate using local knowledge. Nor is there any financial aid

promised, with fees occasionally collected for proceedings 98.

At the heart of any dispute lie the Record of Rights, access to which is central to any conflict

resolution. Section 176 makes every document that a village official must keep be a public document open to inspection by all and duty bound to be in public reach, including, under

section 4.28, patwari. In addition, Chapter VI deals with the records themselves, from the

90 Ibid, section 20. 91 Ibid, section 19. 92 Ibid, section 55. 93 Ibid, section 31. 94 Ibid, article 32. 95 Ibid, section 21.1. 96 Ibid, section 25. 97 Ibid, section 26 98 Ibid, section 34.

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details to be included99, the procedure and periodical review100, as well as the duty to make

it publicly available both nationally and locally101.

Both the avenue of arbitration and that of appeal on any decision are clearly outlined in

chapters XII and XIII respectively. While the process described is elaborate, several details allow for the filling in by rules made at a sub legislative level102which may not be as accessible.

A further issue is that of time frames: these range from 30-90 days for an appeal103, or nine days104 for a review of an order, all of which are, in administrative terms, and across a large

space, considerably shorter times than could be required for true access.

While the Grievance and Redress mechanism is elaborated upon, and the record upon which is based is made to be accessible, many of the procedures are very time limited, with some of them depending for elaboration on additional rules. While concessions are made to local customs and issues, these are not as comprehensive as those indicated in other mechanisms. Last, the ‘lynchpin’ of the system, the Patwari, concentrates a lot of power and discretion in the procedure, and is connected intimately to the local interests, which could raise issues of reprisals or obstruction of true access to an efficient and fair procedure.

Predictability

Closely linked to the procedures of the mechanism, predictability means whether the

mechanism has (and sticks to) clear procedures and time frames for resolution; it is closely associated with both access and transparency. Much like the position of the FSO and the FSB

above, the Revenue Mechanism has far reaching mandate and capacity, which poses a threat due to concentration of power - being charged with the assessing, determining, maintaining,

deciding disputes and their appeal, and reviewing its own decisions (see two previous sections).

As a result, other documents have already discussed the lack of trust associated with unpredictable wielding of power105, most especially by the lowest ranking official, the

Patwari.

The procedure for making claims is outlined in chapters XII and XIII of the Land Revenue Act, with access to claims, the right to be heard and the procedural duties with regard to initial claims marked out in Chapter IV. With regards to predictability, however, while the descriptions are elaborate, they leave a lot of procedural discretion in the hands of the RO - from the need for rules to be elaborated on by the board (see above section)106, to the short time frames for such appeals107.

99 Ibid, Section 39. 100 Ibid, sections 40-42. 101 Ibid, Sections 43-44. 102 Ibid, Section 55, among others. 103 Ibid, Section 162. 104 Ibid, Section 163.2(b). 105 Historical review of tenure and land conflicts in Pakistan. 106 W.P. Land Revenue Act, 1967, Section 20, among others. 107 W.P. Land Revenue Act, 1967, Section 163.

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Regarding the process of review, though it, too, is elaborated upon in, among others,

chapter XIII, it is a discretionary process, which happens either as a decision of the higher-level Revenue officer, or due to a claim108.

While it would be possible to secure a predictable, and flexible GRM from within the Revenue Mechanism, at present the process seems to be favoured in the discretion of the officers

executing it, and overly complex in order to ensure a truly predictable mechanism.


These terms are more analytical terms which, to an extent, depend upon situation on the

ground and a gap analysis, rather than direct legal provisos. The terms deal with the level of independence of the GRM from relevant implementing agencies in the sector, credibility as a

vehicle for grievance resolution, fairness of process and outcomes including in terms of respecting fundamental rights of citizens.

As has already been discussed in other sections, the process for Grievance Redress is, mostly, publicly available, though limited in both transparency and access, which challenges its

credibility. These issues can be divided into four sub categories:

Appointment Concentration of Power

Discretion of usage

Problems arising in practice

With regards to appointment, the lynchpin109 of the revenue system, where much of the

executive power lays, is a local appointment, and the lowest rank of RO. While this creates problems of credibility110, the law itself poses three potential obstacles to the appointment

of revenue officers: there are very few restrictions on conflict of interest regarding either appointment or action111, and there are two potential instances where a single officer can

fulfil two roles- either geographically112or in terms of capacity113.

The issue of the concentration of power within one system, and the discretion allowed by

such a system, combined with the system which has an interest in the potential results of a REDD+ projects (as regards to the value of land, as well as potentia l revenue from it), is both personal and institutional: Section 20.3 allows a RO to decide to transfer or resolve a claim him/herself, with no explanation required. Sections 41.6 and 42.6 both allow the relevant RO

to inquire and have the final word on the text of the ROR, at a review which is held in complete discretion of the reviewer- an approach repeated in section 161.

108 Ibid, e.g. Section 163.1, sections 13,14. 109 UN Habitat ‘A guide on land and property rights in Pakistan’ Pakistan Settlements Flood Recovery Project, Islamabad, Pakistan, 2012. Pp. 17-23. 110 See Final analyses of legal, institutional and governance capacity to address safeguards in Pakistan. 111 W.P. Land Revenue Act, 1967, section 178 provides the only such limitation in the primary legal instrument, and the limitations are very few. 112 Ibid, Section 18. 113 Ibid, section 15.

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The institutional element of this lies with the autonomy of the revenue department: Where

an order or position were held in appeal, such an appeal is final114. Moreover, the process of such appeals is within the chain of the RO115 and, with few exceptions116, is final and exclusive

of civil courts on many subjects117.

All of the above create two inefficient competing systems, which often contradict each

other118. The corruption often revealed as a result of the concentration of power119 hinders the legitimacy of the mechanism which is perceived to hold an interest in some of the

adjudicated cases, as well as to work in very slow and inefficient modes, leading to limited equity of outcomes.

It is worth noting that, lacking any comment from the reviewers, the process outlined in chapter XII of the land revenue act could perhaps hold more credibility, with the limitation that it is, to a large extent, at the discretion of the RO.


This section deals with the extent to which the mechanism has procedures and processes for

the critical evaluation of its performance and a view to evolving.

The Revenue mechanism has several sections dealing with reviews of previous decisions: Section 20.3 allows for a RO to either transfer or decide a case himself, following an inquiry.

Section 41 deals with periodic reviews, though it does not mention the period in question, and the conditions for such a review are limited. A further review order is mentioned in

section 42.6, though neither the reasoning nor a specific duty are created, and no format for the review is given.

Though several other sections repeat this, central to this section is Chapter XIII, under which review is specifically dealt with. While section 161 allows for an appeal, such is only possible once if the appeal has stood, allowing for very limited review of decisions, while section 163 allows for a random review of any order at rank or below, though there is neither obligation nor form to such a review, and no right of appeal is given to a decision not to review. Finally, section 164 allows for rank or below review, but it is either at the complete discretion of the reviewer or within 90 days, if based on a claim.

None of these review mechanisms are obligatory (other than the separate appeal mechanism,

discussed elsewhere), nor are they collated in any way to make them relevant for improvement or the making of policy. Thus, is can be claimed that monitoring and review are

limited within the main legal instrument dealing with the revenue mechanism.

Inclusiveness

This section discusses the extent to which the mechanism involves relevant stakeholders within the deliberative and decision-making process. This can be seen as the involvement in

114 Ibid, section 163. 115 Ibid, section 161 and section 69. 116 Ibid, limited appeal through section 53. 117 Ibid, Sections 172-4. 118 See Final analyses of legal, institutional and governance capacity to address safeguards in Pakistan. 119 See Historical assessment of social and environmental issues in Pakistan.

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the initial process, the right to object when the effects of a decision have an affect on the

individual/community, the right to participate in the process of arriving at a decision and to affect such a decision and the right to appeal such a decision.

Except for the mechanism in chapter XII (elaborated below), there are no direct involvement mechanisms for stakeholder involvement, other than Appeal, also discussed below. However,

during the initial drawing up of the ROR, the survey for its review120, the overturning of decisions (through review or appeal), and changes in rights (acquisition or mutation121) there

is always a right to be heard by potentially aggrieved parties 122.

It is important to note, however, that none of the above include any involvement that goes beyond that of a judicial process. Indeed, the process is meant to simulate a judicial one 123, and is thus decided by the revenue officer through (unelaborated) inquiry, not through consultation. While it is true that, to a certain extent, the RO is bound by local custom124, these decisions are largely discretionary, and never include a process by which such custom is identified.

The process of appeal, elaborated under chapter XIII, is again a judicial one, where the sum

of the involvement is that of making a claim and bearing witness. There is no collaborative effort within, no form of consultation or attempt to include communities which may not have the capacity to engage in the formal appeal process.

Mention must, however, be made of the chapter dealing with arbitration. The involvement in the initiation of the process must, for certain subjects, be with the consent of the parties 125, on for others, without126. However, the process itself involves a mediation between supervised equals. While the award is entirely within the ambit of the RO to accept, reject, or amend, reasoning must be given and, taking account of the process, it leaves most of the initial decision to the arbitrators of the parties127.

In short, while the usual appeal process exists, and certain concessions are made to custom and language128, equal inclusion in the mechanisms is not largely present.

120 Ibid, section 69. 121 Ibid, section 43 (b). 122 Ibid, sections 163-4. 123 See, for example, Ibid, section 27. 124 See, in different contexts, ibid, Sections 49, 123.1, 124.1, 149 (though at the discretion of the RO), 125 Ibid, section 151.1 126 Ibid, section 151.2 127 Ibid, section 159. 128 Ibid, section 28.

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4. Jirga Courts


Pakistan has a well-developed and highly diverse body of customary law governing land rights.

Customary law differs among provinces and geographical subdivisions, tribes, classes, and residential status, and is enforced by established tribunals known as jirgas. Customary law

governing land issues ranges from marital property rights to principles governing boundaries.

The Jirga, or Panchayat are processes of informal conflict resolution. They are based on customary codes and community acceptance, with legal backing in the Federally

Administered Tribal Areas for maintenance of peace, law and order and good governance, as well as the Alternative Dispute Resolution Act, 2017 which is currently applicable in the

Islamabad Capital Territory, gives legal and constitutional cover to centuries - old jirga and panchayat system in the Country with a view to ensuring speedy redressal of petty civil

matters and reducing burden of litigation on Courts. The Act is not applicable in the provinces as yet; however as per Article 144 of the Constitution of Pakistan 1973, the Provincial

assemblies may adopt the same. However, it is important to note that these laws are applicable to less than 5% of the population (approx. 10 Million people out of 207 million).

As a result, most of the following sections shall be more general in nature.

Further, according to Regulation 10 of the Frontier Crimes Regulation, no Civil Court shall have jurisdiction to call in question the legality of anything done or purported to be done in respect of any matter, the cause of action whereof has arisen in the tribal areal.

The capacity is that of those counted as ‘honourable men’ in the community and thus varies largely depending on the selected tribunal129. Chosen based on age, reliability, and shrewdness. Decisions must be unanimous and the jirga can impose fines for wrongful

behaviour. In Punjab and Sindh Provinces, local leaders and elected panchayat (local governance body) members often hear and resolve land disputes. In most areas, women are not permitted to participate in the jirga, and resolutions reached often perpetuate existing biases against women’s land ownership and control.

Transparency

Not being based on written procedure, other than in the FATA130 and in ICT, where the ADR 2017 stipulates some of the procedure, Jirga courts do not often have a set procedure, other

than nomination, which is based on social capital and changes from district to district. While they do receive legal backing as above, this is, at most, associated with the process of electing

a council of elders131, and not with the process, which is broad and tends to change with location. However, it would be known to the local community. As the procedure is not set

and based on social capital, the reasoning is neither accessible nor always recorded.

129 USAID (2010) Pakistan country profile: property rights and resource governance 130 The Frontier Crimes Regulations 1901 131 Alternative dispute resolution act, 2017, regulation 4 and 8. Applicable currently only to a fraction of the country.

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Accessibility

The mechanism is, by definition, known to stakeholders, though not through official dissemination (again, with limited exception in FATA and ICT). In terms of language and

literacy, this is the most accessible mechanism available in almost any culture. However, often the arbitrators are chosen from among the powerful and the wealthy, and this could

lead to a different kind of accessibility- effective access to equal treatment.

Predictability

This closely linked to the procedures of the mechanism, predictability means whether the

mechanism has (and sticks to) clear procedures and time frames for resolution. Jirga (or any other name by which they may be locally known), rarely has a fully outlined procedure- even

that outlined in the ICT or the FATA (see above) often elaborates on standing and the election of the tribunal, with a basic process and handling of awards. With the exception of these laws,

though no timeframe is mentioned, deliberations tend to be speedy and resolved within a short period.


Jirga courts enjoy a large amount of credibility in many of the provinces, with the legitimacy

stemming from the community ownership of the process. However, such processes are mostly run by the wealthier class within each community and have clearly identified vested interest. While they do enjoy great credibility, fairness of process is not assured, and local involvement, often an advantage, also means local interests, and potential conflict, often in terms of fair outcomes.


There is no monitoring and evaluation of the process, as it is an ad hoc body, with no training

(again, with the two exceptions mentioned above: According to Section 18 of the Alternate Dispute Resolution Act, 2017, no appeal or revision shall lie from the decree or any order of

the Court under this Act. According to Regulation 48 of the Frontier Crimes Regulations, an Appeal shall lie to the Commissioner or Additional Commissioner if authorized by the

Governor, within 30 days from the date on any decision given, decree or sentence passed, or order made by a Political agent or District Coordination Officer.) Therefor there is no collation

of results and, again, with the exception above, no record of said awards.

Inclusiveness

Relevant stakeholders are nominally involved in the process of selection of arbitrators and have a right to be heard under their own conditions. The socio-economic class of the tribunal can have a skewing effect on the actual collaborative effort to reach a result and may push the community in a more conservative direction, including the exclusion of women, as mentioned above.

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II. Recommendations

While this section elaborates both specific and general recommendations, the following

three are true for the GRM throughout Pakistan in general.

Following the example of the Punjab, it would be advisable to attach explanations to

the legislation, throughout. This can be done in general, following case law, or to address specific points below.

A second general recommendation would be to follow the (amended below) Forest Settlement Board mechanism formed in Khyber Pakhtunkhwa forest ordinance 2002.

An improved mechanism would include the elaboration of the Punjab, the system of the KP and the additional duties and constraints described herein.

a) Forest Settlement Officer

While more general recommendations have been included below, in the section of the Forest Settlement Board, this section will include legal recommendations specific to the

forest settlement officer.

It would be recommended to expand the section in the Forest Act touching on

declaring the FSO, a more elaborate explanation of potential conflicts of interest, and their consequences, must be declared, along with a procedure to resolve such a case.

Alongside the declaration mentioned in section 4, include an explanation of the precise remit and limitations of the FSO.

In relation to the above, create a section providing for the administrative duties of the FSO, this is done with the aim of creating accountability and limiting the discretion of the FSO- including:

o Under section 6(a) describe the minimum reporting associated with the word ‘situation’.

o Under section 6(c) create a duty to provide a receipt. o Include a duty to record reasoning in decisions (expanding on sections 12-14,

as well as on section 26.7 of Punjab version of law). o Create administrative time scale for the response of the officer.

The issue of efficiency of the procedure, mentioned in many papers, can also be addressed through a shifting and defining of the responsibility of the government, in

this case creating administrative duties for the government to be ready with the ROR of all the area involved in the specific event and making it available- this could fall

under the proclamation under section 4, or under the duties of record under section 7.

In addition to clarification and elaboration on the record keeping duty of the FSO in all decisions (sections 12-14), above, a database should be created which includes a

periodic review of the actions of the FSO, defined as a duty of superiors (a more precise version of the ability of the Revenue officers to do so, but in the form of a

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duty, defined by time scales, reasoning provided and transparency of process) to

conduct overviews. All record keeping, recording of, appeals, reasoning (sections 12-14) and review must

be made accessible in local database subject to the same requirements of vernacular language and defined as a duty of an official to maintain.

Following on section 4, 12, 17-19 and others where relevant, institutional arrangement needs to be added for creating a mechanism for stakeholder consultation. One which is locally elected and separated from the appointed FSO, which has the capacity to consult but not to decide.

While this may not be as easily feasible, as it requires general administrative limitations, but all processes should carry a limitation of time imposed upon the government official.

b) Forest Settlement Board

The following recommendations attempt to cover several of the gaps identified in the above

analysis, while maintaining and complimenting the existing structure and, as much as possible, capacity of the mechanism in place. As this mechanism is unique to the KP, all legal

recommendations throughout refer to the Khyber Pakhtunkhwa Forest Ordinance, 2002, These recommendations can be said to fall under three main categories:

1. Clearer, more accessible and transparent procedure

2. Improved record keeping

3. Increased accountability

Below are specific recommendations, while some legal suggestions have been made, the general goal is the important point made, with several ways for it to be attained.

o Where the declaration of a reserve forest is made, a duty to put up notice, albeit in the vernacular, may not inform entirely. A stakeholder meeting could be called to elaborate

of the consequences, mechanisms and avenues of recourse. The duty to do so should be elaborated as a sub section under section 6.

o Alternatively, or in a complimentary manner, it would be possible to have an officer whose sole function is to provide and elaborate on the above. This appointment and the duties associated with it, should be both part of the declaration and meetings advised above, and elaborated through section 5.

o When electing local representative, a clear procedure, how election occurs, conflict of issues provisos and so on, must be available and the process transparent. While this could enter directly into section 5.3, as there are many questions of procedure to be elaborated upon, a section regarding election, capacity and limitations could be created. Several sections under Chapter XI could also be appropriate.

o There should be a procedure for the inquiry itself. Currently the authority to conduct an inquiry is elaborated upon, but an ordering of the process, under departmental protocols,

would aid in transparency and participation. This could be within local and district protocols. However, the protocol should be clearly made public with each declaration of

a reserve forest. o It would add to the oversight and transparency of the process if the board was to provide

a receipt of the lodging of a complaint. This should be included inter alia in sections 7,10,11,12,15-19 as appropriate. This should be the duty of the FSB and serve in

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administrative procedures, should the FSB fail to be accountable, in terms of time,

reasoning and so on. o In general, the duties and obligations, the procedures and limitations of the FSB should

be elaborated upon in dedicated sections within chapter XIII, with conflict of interest, section 112, expanded and elaborated, to the unique role of the FSB and its different

members. o While there is a duty to log and record both the inquiry and the decision, and it is assumed

that the decisions are logged within the revenue record, interviews and past research have shown that access to records is limited. Sections 13-14, dealing with the record

should: Be extended in their application- duty to keep record should be made explicit in

duties, above. Include reference for a duty of ease and immediacy of access to such records.

o A template for records would also aid in filling them out and in later oversight. This should include reasoning for decisions, as well as the claims themselves. Review of the

concentrated records should be conducted at the end of each period, as defined in section 20, and include a full record, statistics, reasonings and be made immediately and widely

available, as an administrative duty. o On the issue of appeals:

There should be a single assured venue of appeal outside the courts.

It should be in the format of a tribunal. This is provided in section 17, suffix, and should be a duty of the government, with clear description of duties, capacities, and avoidance of general and specific conflict of interest, be provided in the following, new section 18.

It should be the role of a different body than the FSB to transmit appeals.

Appeals should be recorded and reasoned. This duty should be included in a coherent manner to the legislative changes suggested above with regard to record keeping.

As this is a stage prior to civil court litigation, the finality of the appeal decision can create unbalanced power relations, especially when the conflict of interest of the

appellate officer/tribunal are not warded against. Thus, it would be good to better define the qualifications and other safeguards in nominating the appeal

mechanism. This could happen in a new section 18, and include many of the comments above.

For monitoring and oversight, a single body, charged with review of the records of the FSB could be nominated. A database should be created which includes a periodic review of the actions of the FSB, defined as a duty of superiors (a more precise version of the ability of the Revenue officers to do so, but in the form of a duty, defined by time scales, reasoning provided and transparency of process) to conduct overviews.

The duties of such a review, the body conducting it, and the publicity of the results, the accountability of those conducting it and potential outcomes would deserve their

own chapter.

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c) Land Revenue Officer (Including Land Revenue Board)

The revenue mechanism suffers from several problems which stem from the large, vertical

concentration of power within the system, an overly complicated process, which is not entirely accessible or inclusive, all of which set the stage for, at best, an overloaded system,

and at worst, as has been found in other papers, a corrupt system132.

What follows is a list of general recommendations aimed to address systemic, not specific issues, however, where appropriate, specific legal suggestions have been made. These refer

to the West Pakistan Land Revenue Act of 1968. Regardless of content, the Punjab Revenue rules, while not covering every option, should be emulated based on local context, adjusting

to the specific province:

Concentration of vertical power: The Revenue mechanism is insulated from external

review. o A link permitting external review should be created. While Chapter XIII does

deal with review, a section should be added, creating an ad hoc, external review board, or an ombudsman with no ties to the revenue mechanism and a duty to review and report periodically.

o A duty to periodically review should be attached to existing review mandates. Specifically, the right given to review, in section 163, 164, and chapter XII in general, needs to be a duty, and it should be a periodical duty. A section should define the contents of such a review, the public nature of findings, whether decisions are overturned or not, and a statistical section. This could be tied in with the above section for external review.

o Collation of review, for purposes of policy and of development should be formed. See above two recommendations, a chapter should be created, expanding on the duties to report, the content of the report, the time frame, and the accessibility.

o Timeframes, while occasionally defined, should be defined for all actions of the RO. In addition, some of the timeframes should be extended, such as

section 161 and 163.2(b).

Procedural discretion and complexity: The procedure is largely discreet, and difficult to follow.

o Create a duty, not a mandate to create procedural rules. This refers specifically to section 20. These rules should be created in each province (though exist in some) within a limited time and should be published in local vernacular. They should include a provision on conflict of interest.

o Simplify rules of procedure. Where dealing with a GRM, rules of procedure should be accessible, and where they cannot be, help should be made automatically and immediately available.

o Ensure publicity of rules. See above, on creating a duty.

132 See Final analyses of legal, institutional and governance capacity to address safeguards in Pakistan.

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o Limit discretion. Chapter III, currently dealing with both appointment and

power, should include duties, and elaborate, precisely, the duties of each rank, the limitations and the powers. This should be done within the law, in a

coherent manner, and made available in all local languages. Accessibility and inclusion: relating to the last point, accessibility and inclusion are

vital to the working of a functioning GRM. o Follow Forest act of 1927, including local languages, reference to illiteracy and

local markers, encourage participation through inclusion of a local representative ensuring no conflict of interest. See above recommendations

for specific locations. o More varied access to the mechanism, through provision of oral claims, easier

access to records, and extended timeframes for action by stakeholders. See above for elaboration within law.

Expand Chapter XII: Chapter XII lays out a mechanism for arbitration. This mechanism can be enhanced by transferring more of the authority from the hands of the RO, into

those of the sides, keeping an arbitrator, but a more equal process. While many small legal adjustments could be applied herein, mostly it would be the expansion of the

use of this mechanism. Additional legal recommendations can only be expanded with time and usage.

As a rule, an increased accountability, and decreased discretion, alongside enhanced access, review and transparency would underline any systemic recommendation for this mechanism.

d) Jirga Courts

Alternative conflict resolution in the form of Jirga (or differently named) courts is often obeyed, speedy and respected. However, the pitfalls of such a mechanism for the protection

of all rights involved, are many. Chapter XII of the land revenue act of 1967, as well as the Alternative Dispute Resolution Act of 2017 and the Frontier Crimes Regulation all offer a

certain amount of control over these mechanisms, while allowing them to maintain ownership of the process and efficiency in dispensing it. It would be recommended for such

hybrid systems to be integrated more widely and enhance the accountability and neutrality of such customary mechanisms.

Legally speaking this would mean extending the ambit of these laws, with a particular focus on sections elaborating the precise range of decisions allowed to the Jirga, or other mediation bodies, expanding on a softened version of conflict of interest (due to the interrelated nature

of smaller communities) and a precise description of the duties and limitations. While these bodies can be ad hoc, and be flexible in protocol, complete lack of accountability poses a

danger and, potentially, hurts their credibility and effectiveness.

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III. Land Tenure Conflicts

This section reviews the existing, most prevalent land tenure conflicts in Pakistan. Land tenure lies at the heart of land use change moments, such as those brought about by the initiation

of a REDD+ scheme. It is in such moments of transition and re definition, that rights and ownership are often compromised.

This section is structured into 3 main sections:

An introductory section provides some background on land tenure in Pakistan in

general and expands on the concept of land conflict; and The next section lists the main categories of land conflict and analyses some of the

potential causes of these conflicts, as well as identifying the provinces in which they are most prevalent.

Land Tenure in Pakistan

Prior to independence, Pakistan was a British raj, governed by colonial legislation, which was adopted and retained in much of civil law of Pakistan. The British formalized the system of

land administration, legally enshrining the rights and responsibilities of owners of land vis -à-vis the State, the relationship between land owners and their tenants, the rights and

responsibilities of various categories of tenants, a system of adjudication of disputes in matters pertaining to land and also set out in detail the powers and duties of various categories of Revenue Officers.133

Much of Pakistan’s civil law, which is retained from colonial legislation originating in India, has been adapted over the years to conform to Islamic jurisprudence, which is itself evolving. 134 Statutory law specific to land rights in Pakistan is fragmented, with more than two dozen laws governing land matters at national and provincial levels.135 In addition, property rights of the tribal population of FATA are subject to a separate legal framework, the majority of which consists of customary law.136 Last, the records which fill the rights granted in accordance with the above laws are often fractured and not uncommonly have several versions.

Land in Pakistan is divided into three categories: state land, privately held land, or land subject to communal rights under customary law. Land for which there is no rightful owner vests in

the Provincial Government if within a Province, or with the federal government if not.137

133 UN Habitat (2012) A Guide on land and property rights in Pakistan. Pakistan Settlements Flood Recovery Project. Islamabad 134 Reynolds, Thomas H. and Arturo A. Flores. 2009. Foreign Law Guide: Pakistan 135 Including: The Transfer of Property Act, 1882; The Punjab Tenancy Act, 1887; The Government Tenants Act, 1893; The Land Acquisition Act, 1894; The Registration Act, 1908; The Colonization of Government Lands Act, 1912; The Sindh Tenancy Act, 1950; The Khyber Pakhtunkhwa Tenancy Act, 1950;The Provincial Land Revenue Acts of 1967; The Baluchistan Tenancy Ordinance, 1978; The Land Record Manual; The Land Administration Manual; and The Settlement Manual. 136 USAID (2010) Pakistan country profile: property rights and resource governance 137 Constitution of Pakistan 1973 article 172

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Major tenure types are summarized as follows:

Ownership. Ownership is the most common tenure type in Pakistan. Private individuals and entities can obtain freehold rights to land, and communal ownership

rights are recognized under customary law.138 Lease. Term leases are common for parcels of agricultural land over 30 hectares.

Leases are for fixed rates, generally run at least a year and may have multi-year terms. Leases may be written or oral agreements.139 Leases over a certain length officially require notification of the Revenue department and official insertion in the Record of Rights.140

Sharecropping. Sharecropping arrangements are common on small- and medium-sized parcels of agricultural land (less than 30 hectares). Sharecropping arrangements usually provide the landowner with half the production from the land. Most agreements are unwritten.141

In terms of institutional arrangements, Provincial Land Registrars and Provincial Boards of Revenue are responsible for maintaining registries of landholdings and revenue payments, but the records are not comprehensive. The whole system is based on the records of the most

junior revenue official (patwari), who has an absolute authority over surveying land, demarcation, resolution of conflicts and survey of cropping for assessment of revenue. The patwari is also responsible for registering land ownership, land transfers and distribution as well as maintenance of records. In some cases, provincial revenue departments actually bypass the land registrar.142 On the other hand, records of land owned by the military and granted to housing and development authorities are maintained by them respectively, the registrations not being lodged with the registrar or revenue departments. Last, records of changing rights are meant to be kept and transferred by the Forest Settlement Officer in the

case of a declaration of ‘reserve forest’ and the inquiries and disputes that follow143. The multiplicity of institutions with some degree of jurisdiction over land registration, coupled with the concentration of power of the patwari has created an environment ripe for rent-seeking by officials and others involved in the land registration process.144 Even ignoring this potential, it has established a fragmented and inaccessible land record system, which lies at

the heart of many of the land tenure conflicts.

Registering a land transaction in Pakistan involves six procedures, requires an average of 50 days, and costs 5.3% of the total property value. The formal land-registration process begins with engagement of a lawyer or deed writer to draft the transaction document on required

138 Anwar, Talat, Sarfraz Qureshi, and Hammad Ali. 2005. Landlessness and rural poverty in Pakistan. Pakistan Development Review, 43 (4):855–874 139 Ibid 140 West Pakistan Land Revenue Act 1967 141 Anwar, Talat, Sarfraz Qureshi, and Hammad Ali. 2005. Landlessness and rural poverty in Pakistan. Pakistan Development Review, 43 (4):855–874 142 Ali, Zahir and Abdul Nasir. 2010. Land Administration System in Pakistan – Current Situation and Stakeholders’ Perception. A paper presented at FIG Congress 2010, Facing the Challenges – Building the Capacity. Sydney, Australia, 11– 16 April 2010 143 Forest Act 1927. 144 Ibid

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stamp paper. The parties to the transaction present the document to the Land Registrar who

verifies the identity of the parties and their authority to enter into the transaction and enters certain endorsements. The owner must take the document to the Board of Revenue, or to

the patwari, to enter a record of the mutation in the Record of Rights. The patwari issues a fard, which is an extract of the Record of Rights and evidences ownership of the land.145

Land ownership in rural Pakistan is highly concentrated. In 1990, smallholders with less than

2 hectares of land made up 96% of the landholders but owned only 55% of the land. In 2000, only 37% of rural households owned agricultural land and between 20% and 40% of the rural

population was landless or near landless. Countrywide, 7% percent of farms had 200 hectares or more and controlled 40% of the agricultural land. The median size of a private farm in

Pakistan is about 1.3 hectares of cultivated area.146

Pakistan has engaged in three land-reform efforts (1959, 1972, and 1977) under three different governments. According to the Federal Land Commiss ion, the government has, to

date, expropriated 1.8 million hectares (less than 8% of cultivated area) and redistributed 1.4 million hectares to 288,000 beneficiaries. The Land Reform Act of 1977 – Pakistan’s third and most recent effort at addressing inequality of land access and land-tenure insecurity since Independence was followed by the imposition of martial law, and much of the momentum fuelling reforms dissipated. In the years that followed, the courts ruled various provisions of

the Act un-Islamic, and political will to address land issues waned.147 Occasional uprisings occur. In March 2010, landless peasants marched toward Lahore to demand land, and in April

2010, the Punjab government announced a programme to provide 255,024 plots to landless peasants.148

The aforementioned land reforms have however been limited to agricultural lands and lands

termed waste and grazing land. In contrast, forest land has not been subject to land reform.149

Tree and Forest Tenure

Forests are a provincial concern,150 each of which can draft and implement their own forest policies within the framework and guidance of the national forest policy.151 The Ministry of the Environment, Forestry Wing, is responsible for national policy-making, national forest surveys and assessments, reporting, and meeting international obligations. Provincial

governments are responsible for the protection, management, and development of forests, forest law enforcement, and forest operations.152

145 World Bank (2008). Doing business 2009: Country profile for Pakistan. Washington DC: World Bank. 146 USAID (2010) Pakistan country profile: property rights and resource governance 147 USAID (2010) Pakistan country profile: property rights and resource governance 148 Khan, Mahmood Hasan. (2000) Pakistan’s Dual Economy. Dawn 149 Syed Mahmood Nasir. Ministry of Environment. FAO Trends in forest ownership, forest resources tenure and institutional

arrangements A case study from Pakistan 150 In the Constitution, anything that does not fall in the Federal Legislative List is deemed to fall in the domain of the provinces. Ahmer bilal soofi (2007) report on the legal, institutional and policy framework for redd+ in pakistan 151 Asif, Syed Ahman Raza. (2008) Forest policy, legal and institutional framework information report. Islamabad: Ministry

of Environment 152 Ibid

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Under the Forest Act of 1927, all forest and range areas were classified as reserved, protected or unclassed. Unclassed forests were included in the act in anticipation of their final

settlement as reserve or protected forest, however Unclassed forests do not fall under the purview of the Forest Act.153 This foreshadows a further moment of conflict when an

unclassed forest is declared reserved and not only moves under the purview of different legislation, but means that customary land usage, and non-timber forest product usages must

be integrated into a Record of Rights.

Reserve forests are mostly managed by the state, though in some cases limited community rights, such as grazing, right of way and access to water points are admitted154, such forests

are then defined as ‘village forests’. The right of passage, water, and grazing are sometimes allowed subject to government approval.155

Protected forests include (though often similar forest types are included under the opposite

taxonomy in a different province)156:

State lands declared as protected, with access and usage rights for communities (except for banned activities);

Private or community forests with restrictions on usage and harvesting limits imposed by the forest departments in hilly areas of Punjab, NWFP and AJK;

Guzara or community-owned forest managed by forest departments;

Private forest with exclusive ownership − managed and harvested by forest departments in hilly areas, and fully managed by owners in the plains;

Forest plantations, including roadside and canal sides, owned and managed by the government;

Privately owned forest plantations, including farm forests, shelter belts and blocks, managed and harvested by owners; movements of harvested timber regulated by the

forest department in some areas. In most regions, forests that are not registered as either protected or reserve forests are considered the common property of a village, tribe, or clan. These common forests are sometimes divided among the group members, while in other cases, they are treated as

common property.157 The provincial government has the discretion to define conditions and a lot rights throughout many of the reserve, protected, village and Guzara forests, a system

often at the heart of conflict over usage and ownership rights. In addition, there is often distinctions between ownership of the land and that of some of the rights- such as the

trees.158

153 Ahmer bilal soofi (2007) report on the legal, institutional and policy framework for redd+ in pakistan 154 The forest act, 1927, section 28. 155 Hasan. L., Analysing Institutional Set-up of Forest Management in Pakistan. Pakistan Institute of Development Economics, Islamabad. RESEARCH REPORT NO. 182 156 See contrast between ‘Guzara’ in KP forest ordinance, and ‘Forests not being the property of the government ’ in Punjab. 157 Asif, Syed Ahman Raza. (2008) Forest policy, legal and institutional framework information report. Islamabad: Ministry

of Environment 158 See KP Forest Ordinance, 2002, section 35.3.

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Table 3: Legal Classification of Forests in Pakistan159. It is worth noting that the borders between these definitions often shift.

Legal category

Classification Province (or territory) where applicable

Legal basis

Government Forest

Reserved forest All provinces and Gilgit‐ Baltistan

Section 3 of the Forest Act; Section 4 of the Forest Ordinance

State Forest Balochistan Section 3 of the Balochistan Forest

Regulation Demarcated Forest AJK Section 3 of the AJK

Forest Regulation

Protected Forest All provinces and Gilgit‐

Baltistan

Section 29 of the Forest Act; Section

29 of the Forest Ordinance

Undemarcated Forest AJK Section 10 of the AJK Forest Regulation

Village Forest All provinces, AJK and Gilgit‐ Baltistan

Section 28 of the Forest Act; Section 28 of the Forest Ordinance; Section 14‐A of the

AJK Forest Regulation

Community Forest KP Section 101 of the KP Forest Ordinance

Unclassed Forest Punjab Section 28‐A of the

Forest Act Private Forest

Guzara Forest Punjab and KP Punjab Guzara Rules; Section 35 of the Forest Ordinance

Protected Wasteland KP Section 36 and 37 of the Forest Ordinance

Community Forest AJK Section 13‐A of the AJK Forest

Regulation

159 Taken from Indufor (2017) development of the national redd+ strategy and its implementation framework –interim Report

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Section 36 Forest Punjab, Sindh, Balochistan and Gilgit-Baltistan

Section 36 of the Forest Act

Section 38 Forest All provinces and Gilgit‐

Baltistan

Section 38 of the Forest Act; Section

38 of the Forest Ordinance

Chos Act Areas Punjab Punjab Land Preservation (Chos)

Act 1900

Reserve forests offer limited use rights to local populations, including grazing of domestic

cattle, collection of fuelwood from fallen trees or brushwood, and rights of water and way. In protected forests, whether State-, community- or privately owned, all activities are allowed

except those that are specifically prohibited by special orders. However, only the forest department has the right to harvest trees, and the owner is not allowed to cut trees for domestic use without the department’s permission.160 This is further complicated as the department often already has note of customary timber rights, but the transfer of them is

illegal, convoluted or contested as a process. The land tenure systems prevalent in public, communal and private forests vary somewhat from province to province, however, lack of comprehensive studies of provincial forest tenure arrangements, as well as the limited scope of this report means that these will not be described here individually. Examples will be provided in specific contexts below, where appropriate. The examined literature has highlighted the need for a comprehensive study on forest land tenure in Pakistan.161

Types of Conflicts over Land in Pakistan

Broadly speaking, land conflicts can be defined as “a social fact in which at least two parties are involved, the roots of which are different interests over the property rights to land: the

right to use the land, to manage the land, to generate an income from the land, to exclude others from the land, to transfer it and the right to compensation for it.” 162 A land conflict,

therefore, can be understood as a dispute over property rights to land.

The land conflicts most commonly occurring in Pakistan are the following:

Conflicts between the State and citizens/communities Conflicts between private parties

160 Ibid 161 Asif, Syed Ahman Raza. (2008) Forest policy, legal and institutional framework information report. Islamabad: Ministry of Environment 162 B. Wehrmann (2008) Land Conflicts: A practical guide to dealing with land disputes . Deutsche Gesellschaft fur Technische Zusammenarbeit (GTZ) GmbH Eschborn, Germany

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Conflicts occurring on common or collectively owned property While these distinctions are useful in understanding the parties, many types of conflict run like a thread through all types, with the common denominators often identified as incomplete record keeping, opaque procedure, lack of access to swift and equitable conflict resolution

mechanisms and more. What follows is a sub division of different, common typed of conflict. In each sub category, in order to enable a methodical examination of the types of land-related

conflicts that occur in Pakistan and to facilitate a judgment of the effectiveness of existing conflict resolution mechanisms, reference is made both to the parties to the conflict and to

the underlying reasons.

Conflict between State and Citizens

As has been mentioned above, government has ownership over most of the forests, and has complete control over the records describing the rights associated with any of them. It also

has the capacity to unilaterally decide on change of usage and definitions of sections of the forest which, while under its own control, are subject to usage rights by generations of local

communities. It is therefore unsurprising that a large portion of conflict takes place in this arena, either over the validity of records, or over the moments of change and redistribution.

These disputes can be further subcategorised into conflicts which are due to legal pluralism, and boundary conflicts. Underlying both conflicts are two main elements: the Record of

Rights, whose quality has been questioned many times (see references throughout this document), and the discretion to act, or lack of clear and accessible, predictable protocol for

action, which has been discussed in the section dealing with recommendations for existing GRMs.

Conflicts due to Legal Pluralism

Pakistan has a well-developed and highly diverse body of customary law governing land rights. Customary law differs among provinces and geographical subdivisions, tribes, classes, and residential status, and is often enforced by established tribunals known as jirgas. (However, the standing of Jirgas themselves change according to province- with the ICT having embedded them in the ACR act of 2017, and the FATA having embedded them differently

using the Frontier Crimes Regulations 1901).

Customary law governing land issues ranges from marital property rights to principles governing boundaries. Particularly in the Tribal Areas, people regulate their own affairs in

accordance with customary law, and the government functions through local tribal intermediaries. Tribes recognize individual land ownership, ownership by a joint or extended

family, and collective landownership by a tribe.163 One of the most prominent points of conflict is that of parallel jurisdiction created- for example, during the declaration of a

163 USAID (2010) Pakistan country profile: property rights and resource governance. In addition, the Jirga are given legal jurisdiction in the Frontier Crimes Regulations 1901, but only in FATA.

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reserved forest, FSO/B must take into account customary law, but it is not clear how, or if this

means they are bound to jirga.

Most of Pakistan’s forests are in mountainous areas where tribal communities have lived for centuries, holding land, including forestland, under principles of customary law.

Documentation of forestland rights is rare and rights to open-access areas ambiguous, laying the basis for potential conflict.164

The middle of the 19th Century saw a process of land settlement and demarcation by the

Colonial administration. 165 This State-led demarcation and control of the forests was never accepted by the local population, particularly in mountainous areas where most of Pakistan’s

forests are, and where tribal communities have lived for centuries, holding the land, including forestland, under principles of customary law.166 This resulted in a conflictual relationship

between the government and the locals that has persisted over the years.167

In the face of local protests, the government established another category of forests, called Protected forests where locals were granted more rights (see previous section). The disputed nature of these forests was recognised by the government and final demarcation was delayed until all claims could be thoroughly investigated. 168

The Land Reform Act of 1977 – Pakistan’s third and most recent effort at addressing inequality of land access and land-tenure insecurity since Independence – failed to meet its objectives

of plugging gaps in prior legislation and implementing tenancy, land ceiling, and land distribution reforms. The 1977 Act was followed by the imposition of Martial Law, and much

of the momentum fuelling reforms dispelled. In the years that followed, the courts ruled various provisions of the Act as un-Islamic, and political will to address land issues vanished.

A revival of interest in land reform and attendant revisions to the Act (mostly to pave the way for expansion of commercial farming interests) took place in the 1980s but without

addressing the large numbers of landless people.

An example of the conflicts resulting from this situation can be found in Malakand District in Khyber Pakhtunkhwa, where the government claims ownership of the forests in the District,

but the local population contest this claim. This contesting of the settlement process means that it has not been possible to declare the forests as ‘Reserved’, to determine the rights of people in them, nor to demarcate them.169

164 Wani, Bashir Ahmed. 2001. National Forest Policy Review: Pakistan. Republic of Pakistan Ministry of Environment, Local Government and Rural Development Report. 165 Hasan. L. (2007) An anatomy of the State failures in forest management in Pakistan. The Pakistan Development Review. 46 : 4 Part II (Winter 2007) pp. 1189–1203 166 Wani, Bashir Ahmed.(2001). National Forest Policy Review: Pakistan. Republic of Pakistan Ministry of Environment, Local Government and Rural Development Report. 167 Hasan. L., Analysing Institutional Set-up of Forest Management in Pakistan. Pakistan Institute of Development Economics, Islamabad. RESEARCH REPORT NO. 182 168 Ibid 169 Hasan. L., Analysing Institutional Set-up of Forest Management in Pakistan. Pakistan Institute of Development Economics, Islamabad. RESEARCH REPORT NO. 182

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Another example of conflicts between statutory and customary claims is the case of a pilot

forestry programme in Azad Kashmir.170 In this case, local populations actively opposed the project, which involved planting on their lands as they were fearful of losing possession or

control over their land to the government once it was planted by the Forestry Division, or being deprived of their rights to collect fodder and graze their cattle. In Contrast, large

landowners, being confident of their statutory claims (and political power to uphold their claims), did not regard tree planting by the Forestry Division as a threat to their ownership of

land and trees 171. (See also the section below on violent acquisition of land).

Under customary law, women in Pakistan generally have rights to collect firewood from forest areas and gather non-timber forest products such as herbs and tubers. Governmental

restrictions on access to protected or reserved forests have often deprived women and their families of critical resources.172 (this is further complicated, for example, by the Land Revenue

Act allowing the male head of a family to be the only responsible member to be able to accept summons in some of the provinces, though he is not always at the heart of the dispute to

which these summons attest). The tension over the conflicts between customary claims on the one hand, and statutory claims by the government has also led to significant violations of law by the locals in retaliation. According to one study from the 1980s, the number of reported forest cases in

the Azad Kashmir region then stood at 50,000, almost one family in every six being involved.173

Boundary Disputes

While under the Land Revenue Act of 1967, records of ownership are kept by the District Revenue Officer, due to the aforementioned disputes, as well as institutionally inherent gaps discussed at length in the assessment of the revenue mechanism, demarcation and documentation of forestland rights is rare, or seldom verified and subject to oversight. According to many forest authorities, it is practically impossible to keep records of

private/communal forest landownership. 174 This is compounded by the fact that it is the forest settlement officer/board who are meant to make record of change during tumultuous moments of rights acquisition, loss or mutation when reserve forests are declared, are ad hoc positions, making records theoretically separate to those of the revenue mechanism, which

need to be integrated, a further step in potential problematisation of the record keeping itself. According to some sources, between 50% and 75% of cases brought before lower-level civil

courts and the high courts are land-related disputes. By one estimate, over a million land

170 Azad Kashmir Hill farming Technical Development Project in Pakistan, co-financed by the World Bank between 1978-83 171 Cernea, M. M. (1988b) Alternative Social Forestry Development Strategies. In J. Ives and D. C. Pitt (eds.) Deforestation: Soc ial Dynamics in Watersheds and Mountain Ecosystems. London: Routledge. 159–190. 172 USAID (2010) Pakistan country profile: property rights and resource governance 173 Ibid 174 Asif, Syed Ahman Raza. (2008) Forest policy, legal and institutional framework information report. Islamabad: Ministry of Environment

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cases are pending countrywide. Many of these are boundary disputes due to erroneous

boundary descriptions that create overlapping claims, and multiple registrations to the same land by different parties. These cases can take between 4 and 10 years to resolve, with the

party in possession of the land delaying adjudication in order to prolong the period of beneficial use.175

Examples of such conflicts can be found in the following instances:

The forests of Balochistan are governed by the Balochistan Forest Regulations 1890. Under Section 3 of the Regulation any woodland, permanent grazing ground or other land that is

government property can be declared a state forest.176 Acts such as setting fire, felling, tapping or clearing for cultivation are prohibited on state forests except when permission of

the government or a forest officer authorized by the government is sought and granted.

No rights of any description adverse to the government can be acquired in or over State Forests other than through a grant or contract made by or on behalf of the Government.177

However, there is no provision or mechanism in the Regulation for determining pre-existing tenure rights of private individuals and communities in areas declared as State forests. There is also very little in the way of protection for individual and community rights to forest land which is declared a state forest, regardless of whether it is a source of subsistence for such individuals and communities.178

Although reliable figures were not available for this study, it is suggested that the absence of

a procedure or mechanism to declare or recognise customary rights that precede a declaration of a forest area as state forest could lead to conflicts between the provincial

Forest Division and local populations.

Consultations carried out by Indufor as part of the development of the National REDD+ Strategy found that forest boundaries are not often clearly surveyed or demarcated. Despite

this, respondents claimed that conflicts between the state and local populations are not serious and rarely interfere with forest use.179 Rather, of greater concern is the conflicts

between different communities and user groups making some forests difficult to manage or use.

While some of these issues get resolved (or resolve by themselves) this is done slowly, imperfectly, or at great expense, often through informal ways for conflict resolution that are socially acceptable, unrecorded and potentially at conflict with the ROR.

The province of Sindh, as an additional example, does not have its own forest policy and regulates forests management and use according to the Forest Act 1927, which as seen above,

175 USAID (2010) Pakistan country profile: property rights and resource governance 176 Section 3 Balochistan Forest Regulations 1890, Baln Regulation V of 1890 177 Indufor (2017) development of the national redd+ strategy and its implementation framework –interim Report 178 Ibid 179 Ibid

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divides forests into reserve and protected forests, covering approximately 8% of the

province’s total area.180

Surveying and demarcation of forest boundaries in Sindh is irregular, with serious conflicts between the state and citizens/communities occur, occasionally interfering with forest

management.181 Additionally, serious conflicts occur between different communities and user groups, generally within Guzara (collective) forests, often relating to forest access and

use. These conflicts are making some forests difficult to manage or use.182

The laws governing tenure rights such as The Sindh Tenancy Act 1950 tenancy act and others are not very effective in resolving disputes related to land tenure, ownership and use rights.

On the other hand, the forests of Khyber Pakhtunkhwa are governed by the KP Forest

Ordinance 2002, and KP Forest Policy of 1999. Under the Ordinance,183 the Provincial Government has wide powers to establish reserved forests applicable to almost all forests in

the province except that exclusively owned by individuals. Under the forest Act, the responsibility to settle forest tenure claims usually resides with the Forest Settlement Officer.184 Under the KP Forest Ordinance, this power vests within the Forest Settlement Board which includes one representative of the community or village

selected by the community.185

Unlike the procedure for the reservation of a forest, there is no clear obligation on the provincial government whereby pre-existing rights in a forest must be determined prior to it

being declared a protected forest. The wording of the Ordinance is that “where the Government fears that such inquiry and record will occupy such length of time as to endanger

the Government’s rights, it may immediately declare such land to be a protected forest pending the inquiry into pre-existing rights.”186 These wide discretionary powers allows the

government to close temporarily (no more than 30 years) a forest, immediately extinguishing the rights of the local population.187

KP’s legal framework does not have any formal mechanisms for the recognition of customary

rights, other than an obligation, in several locations (such as the ordinance) to vaguely consider them. Meaning the law does not fully harmonize formal and informal rights to forest resources. The Khyber Pakhtunkhwa Tenancy Act 1950, and other laws do not provide effective means to resolve disputes related to land tenure, ownership, and use rights. In practice, the disputes related to land tenure; ownership/use rights, are common and is

affecting the management of forests.

180 Indufor (2017) development of the national redd+ strategy and its implementation framework –interim Report 181 Indufor (2017) development of the national redd+ strategy and its implementation framework –interim Report 182 Ibid 183 KP Forest Ordinance 2002 Section 4 184 Pakistan Forest Act 1927 Sections 6 and 8 185 KP Forest Ordinance 2002 Sections 5 and 8 186 KP Forest Ordinance 2002 Section 29(4) 187 KP Forest Ordinance 2002 Section 30(1)(b)

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Individual ownership and tenancy has been recognized in the manner provided under the

Land Acquisition Act 1984. Where the claimed rights of an individual to a forest land under the process of being reserved are rejected altogether, such an individual only has the right to

appeal under Section 17 to a notified officer of the Revenue Department or the Forest Tribunal, if established.

These gaps of discretion, predictability and clarity are of great significance in general, but

especially as, true to 2014, 21% of Khyber Pakhtunkhwa’s area or 1.3 million hectares were forests (Bureau of Statistics 2015).

Violent Land Acquisitions

Finally, violent land acquisitions and wars over land lie at the heart of land tenure conflict within this category. For over 15 years, military authorities have been locked in a conflict with

peasant farmers in District Okara over tenancy rights. The army has been running farms and dairy plants in the area for many years and is trying to force local farmers to sign fresh,

disadvantageous tenancy agreements. Protests have been crushed with much violence188.

There have been breaches of laws and regulations on the outskirts of Karachi as well. Powerful

individuals are alleged to have used their clout with the Sindh Government to bulldoze huts and throw locals out to create the infrastructure for their giant housing projects189.

Expropriation by the State without Compensation

The object of Land Acquisition Act, 1894 is to provide complete indemnity to owners and not to allow acquisition of land without proper and adequate compensation190. This is also the

main instrument for the acquisition of land and is amended regularly over the years. During the colonial period, land could be acquired for public purpose or to meet the need of companies (business firms, cooperative societies, and societies registered under the law). The gap between the recipient of proper compensation and those who get little or nothing amounts to discrimination, and the complexity of the instrument, as assessed within the act, or as handled by the revenue mechanism, or forest settlement mechanism, lends natural advantage to repeat players191. This has been repeated, in sympathetic declarations by the courts, that 192193 the whole system is weighted against those whose capacity to overcome the effect of dislocation and loss of livelihood is minimal, amounting to near expropriation and eviction by the government.

188http://www.europe-solidaire.org/spip.php?article42047 23.09.2017 189 Lust for land by Irfan Hussain in Dawn Newspaper dated 27.08.2016 190 PLD 2010 SC 719 191 See assessment of relevant mechanisms above, especially chapter VII of the land revenue act. 192 PLD 2010 SC 719, 2015 SCMR 28 193 2015 SCMR 915

http://www.europe-solidaire.org/spip.php?article42047

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Conflicts due to Lack Land/Agrarian Reforms

The rural and agriculture sector of Pakistan functions in a feudal way, which has given birth to a land-tenure system with a high degree of land concentration, absentee landlordism,

insecurity of tenure for share-croppers and low agricultural productivity194. This conflict involves relationships between private parties, but is the result of inaction on the part of the

government.

As has been repeatedly mentioned in paragraphs above, the issue of land reforms is critical in Pakistan; it has been argued that there is a vast unequal distribution of land in the rural parts of Pakistan, comprising 60% of land. This landlord culture has a detrimental effect on farmers, often bending them unwillingly to

the instruction of local large land holders- Jageerdaars and wadeeras. Some land holders have created ‘states within the state’195, building on their accumulated wealth to run these

communities, and the land within them, with certain amount of impunity196.

Conflicts between Private Individuals

Distinct from conflicts between individual and state, these conflicts are most commonly

centred around inheritance of joint rights, sale, usage and boundary disputes. In common with Government conflict, however, lie the contributing factors of fragmented records which allows for common, and often innocuous, double sales and rentals, argument over usage rights, and so on. This is further complicated through opaque procedure, though here inaccessibility of mediation is perhaps less of an intractable obstacle.

Inheritance Conflicts

Inheritance in Pakistan is governed by Islamic Shariah as codified in the Family Laws Ordinance, 1961, the West Pakistan Muslim Personal Law Application Act, 1962 and Succession Act, 1925. Conflicts in this field have been ubiquitous for many years due to changing layers of inheritance regulation197. After the death of an owner, succession to

his/her property starts. A Pakistani’s estate if he is a Muslim, legally and juridically vests immediately on his/her death in his or her heirs and their rights respectively come into separate existence forthwith. This seemingly straightforward act of transference of rights is

194https://www.dawn.com/news/881169 195 See USAID report https://www.land-links.org/issue-brief/land-tenure-and-property-rights-in-pakistan/ 196https://www.linkedin.com/pulse/land-agrarian-reforms-pakistan-ather-associate-chartered-banker-uk 197 UN Habitat ‘A guide on land and property rights in Pakistan’ Pakistan Settlements Flood Recovery Project, Islamabad, Pakistan, 2012. Chapter 8 follows the development of the inheritance regime.

https://www.dawn.com/news/881169

https://www.land-links.org/issue-brief/land-tenure-and-property-rights-in-pakistan/

https://www.linkedin.com/pulse/land-agrarian-reforms-pakistan-ather-associate-chartered-banker-uk

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complicated by problematic registration in ROR, as well as the transference of rights in joint

property, which is not registered, and the rights to which are not easily transferred. For example: Rights in Guzara forests are inherited, along with property in the village concerned.

The descendants of the people (inhabitants) who were admitted as landowners in the first land settlement enjoy the full rights attached with the property, including rights to the Guzara

forests, yet their capacity to sell these rights, beyond their lifetime, is limited. This means that often a right was sold and, following the death of the seller, his descendants could argue the

right of inheritance over it.

In the Hill district of Rawalpindi in Punjab Province, on the other hand, Guzara Forest rights cannot be sold because the Forest Act of 1927 provides that rights can be transferred only

through inheritance. An owner of Guzara Forest can therefore sell his/her share of ownership (with the consent of other co-owners), but not the associated rights, assigned with the

property. Such rights are non-transferable198.

Under the KPK Forest Ordinance of 2002, rights of pasturage or to forest produce can be admitted by the Forest Settlement Board, but no right can be acquired over reserve forests except by succession, and no right can be alienated by mortgage, grant, lease, sale or otherwise without the sanction of the Government199.

While these are scattered examples, they underline one salient fact: the fragmented nature of records, along with a disjoining between assets, rights of usage, and rights of transfer, can

create long standing tenure issues which, in the context of REDD+ will intensify if no credible, legitimate and efficient redress mechanism is found to settle these common disputes. The

source of these conflicts is further brought to the fore in the next section, dealing directly with ownership issues brought about by inconsistent ROR standards.

Ownership Conflicts due to Lack of Land Registration

Despite a mechanism intending to do so, in the form of the Revenue mechanism, institutional,

legal and factual circumstance mean that there is no centralised land register that conclusively records all rights pertaining to land from where a prospective buyer can investigate title and probe for any encumbrances. Further, the state does not even guarantee the accuracy of the land record it maintains200.

Entries in the record of rights do not confer any right/title nor carry any presumption: a party in whose favour such entries are recorded must establish its title by adducing evidence201. While the revenue record is important record as it enshrines entries, which have a vital

bearing of valuable rights of individuals, ownership of land rights is often disputed due to poor record keeping of conveyances and 202mistakes in the chain of title.

198Section 23 & 24 of the Forest Act, 1927 199Section 6 of the KPK Forest Ordinance, 2002 200 Insecure Land Title by Bakhtawar Bilal Soofi Dawn Newspaper 05.04.2015 201 1998 CLC 1842 202 Insecure land title, ibid, also see analysis above of revenue mechanism.

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This is evident even through a brief survey of the official structure of the record keeping across

districts, with The Revenue Department in district of Rawalpindi, Punjab keeps the records of ownership and right holdings while The Forest Department in Abbottabad Circle, KPK does

not keep ownership records for communal (Guzara) and private forests as these can be sold, so their ownership keep changing. Non-keeping of record is leading to ownership conflicts

between the individuals. Last, the forest in Diamir district is unsettled and ownership has not been properly defined in the official record.

In such situation of official lack of record, customary law is applied, and all claims of ownership

are settled by Northern Areas Forest Department in consultation with the tribes. Yet customary law itself being often undefined or defined differently in different locations,

compounds potential issues with land-based transactions, requiring a stable, efficient and unified base to avoid conflict and abuse.

For example, the Forest Department in Abbotabad Circle, NWFP does not keep ownership

records for communal (or Guzara, as it is known locally) and private forests as these can be sold, so their ownership keeps changing. Yet without the record, several of the issues of double sale/usage, elaborated on below, occur. The ownership of communal forests is recorded in the revenue record maintained by the

Revenue Department and can be collective or joint. Yet the customary rights within the communal or joint ownership are not always recorded, and not in a uniform way. This is both

due to the registrar or the patwari, and due to the changing way in which such rights can be transferred.

Conflicts can thus arise when a parcel of forest is sold, as the permission of all the owners is

necessary, as it is when a single owner wants to sell his/her individual rights in a joint-ownership parcel. Sales can be either with or without rights in the forests, and individuals

with rights in communal forest can sell those rights to other individuals. Yet the rules for the sale, the rules for the record keeping, and the rules for the capacity to transfer rights, are

different within and between provinces.

Private forest owners can sell the ownership of forest land with or without rights to grazing, the proceeds of commercial harvesting, wood collection, etc. In the hill district of Rawalpindi in Punjab province, on the other hand, Guzara forest rights cannot be sold because the Forest Act of 1927 provides that rights can be transferred only through inheritance. An owner of a Guzara forest can therefore sell his/her share of ownership (with the consent of other co-

owners), but not the associated rights. Therefore, the sale and purchase of Guzara is rare. The Revenue Department in this region keep records of ownership and right holdings while

the forest department issues wood cutting permits to right holders and transit permits for the movement of wood that has been legally extracted from private or communal forests.

The Forest Act also dictates that the FSO/FSB keep a separate record, at time of new declaration, which is meant to be added to revenue records, but there is no unifying format

for this to be done.

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Last, certain forests are unsettled, and ownership has not been properly defined in the official

records203. In such situations, customary law is applied and all claims of ownership(s) are settled by Northern Areas Forest Department in consultation with the local tribes. A complete

lack of record further challenges smooth changes of rights and usages, which can be at the root of many private conflicts, such as those in the following section.

Multiple Sales/Allocations of Land

Resale of land, multiple transfers and an incoherent, inconsistent system of land tenancy registration lead to a variety of possible land related conflict, here the unregistered resale can lead, with or without intent, to duplicate sale of land, with serious individual and communal repercussions. For example, despite an intent to do so, and legislation to this effect in some provinces 204 Record of land could not be completely computerized, with the most blatant effect being the deprivation of innocent people of their land due to multiple sales by the mafias 205. This is an extreme case, however, and the land record centers are operational in 143 tehsils of the Punjab province under the administrative control of the Board of Revenue, Punjab206.

The above criminal cases are just one manifestation of this problem, with data on owners of Guzara forest in KP being unavailable as ownership of private and Guzara forests keeps

changing with these forests being saleable and transferable. Land Revenue records of ownership, kept by the District Revenue Officer under the Land Revenue Act of 1967, do not

always extend to specific, inherited shares of guzara forests. This means that successive transfers lead to multiple occasionally conflicting decisions of land holding and ownership.

Limited access to Land Due to Discrimination by Law, Custom or Practise

A further conflict associated with land tenure and usage, is that of discriminatory access to land due to law, custom or practice. Women usually do not participate in commercial activities and prefer to stay in homes especially in the province of Khyber Pakhtunkhwa 207 and Federally Administered Tribal Area, where custom, often entrenched in law as above,

does not allow them regular participation in the search for land. Therefore, while the constitution of Pakistan, 1973 as well as the legislative instruments do not put any sort of

legal embargo upon women to own or dispose of the property in their life time without any compulsion and force, custom and practice do not permit women to participate in business

transactions in tribal areas.

203 Such as the forests of Diamir District in Gilgit Baltistan 204 KP Land Revenue Act, 1967, section 41A. 205 https://www.dawn.com/news/1297905 206 Section 3 of the The Punjab Land Records Authority Act, 2017 207 The KP Land Revenue act, for example, states in section 24.1 that only a male member of a family shall receive summons and, in section 82.6 groups women, admittedly for the purpose of arrest, with lunatics, minors and ‘idiots’.

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On a more regional level of discrimination, and, as is discussed in this paper at length, lack of

demarcation is itself an obstacle to land ownership- No forest settlements have been drawn up for Baluchistan or the Northern Areas, so neither boundaries nor ownership(s) are clear.

This means that trade and the benefits of any REDD+ project, for example, would be hard to attribute to the local community.

Evictions by Land Owners

A globally common conflict is that between land owners and tenants, especially as relates to the right to evict. In Pakistan there are generally two types of tenants: occupancy tenants i.e. the tenants who enjoyed considerable security of tenure because they have been cultivating the lands since their forefathers208. The other type is tenant at will i.e. the tenant who could be ejected at any time by the landlord thus having no security of tenure209. Presently, the most legislative instruments are in support of landlords who may evict the tenant on number of grounds such as expiration of lease agreement, failure to pay rent, breach of tenancy agreement, violation of an obligation by tenant, misuse of property, sub-letting and eviction of personal need. The broad mandate to evict, alongside few protections for the tenant and a financial advantage for the owners, in many cases, as well as adherence

to customary, unregistered laws, mean that the conflict between owner and tenant in Pakistan is at the heart of such issues.

Indeed, at the extreme end of such conflicts, such actions are taken by politicians or land

mafia / builders, with corrupt state officials act on their behalf after getting bribes. The institutionalised tyranny has its roots in the legacy inherited from the British Raj. The most prevalent one is the relationship of the landowner and his subjects. The feudal mentality has perpetuated almost every institution in Pakistan, where the lord has complete impunity for whatever he does, and the rights of his subjects are not even recognised. They are left to be exploited by the precedents set by their masters. The same mindset is harboured and exploited by state institutions whose use of force against unarmed tenants in the context of

‘disciplining’ them has almost gone unaccounted for and without any legal repercussions.

Disputes over the Payment Distribution for Usage/Sale

Many land tenure issues stem from a lack of a sense of participation and effective ownership. This occurs in public forests, haqdari rights in fragile watershed ecosystem (unsustainable),

tree tenure in community forests (village shamlats), tree tenure in tenant at will and land lessees, and land tenure in guzara forests (individual & common ownership). This lack of

effective feelings of ‘ownership’ allows, especially in KPK, forest contractors employed by Forest Departments for harvesting, road construction, and carriage of timber to exploit poor locals by purchasing their property rights.

208 And, in accordance with the land revenue act, are registered in the ROR, section 42.1. 209 Section 106 of the Transfer of Property Act, 1882.

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Whereas the Government held the contractors responsible for the abuse of rights, the

contractors blame the Forest Department for their incompetence. The Joint Forest Management Committees (JFMCs), the Forest Department officials argue, are still dependent

on the timber mafia from whom they must borrow money as there is no credit available for JFMCs210.

Further, Land Acquisition laws for compulsory acquisition of land for public purposes are

draconian: the Government does not compensate as gold for gold, and the compensation amount is paid after years. By which time the value is greatly eroded and the recipient largely,

often devastatingly, out of pocket. While relief has been provided by the courts211, the conflicts of this type are too numerous and the plaintiffs often too poor to await resolution.

Disputes over the Value of Land

Directly relating to the above, in terms of dispossession or under paying for land rights, and the reason behind the rising and related crimes in Pakistan is the value of the property which

is continuously increasing especially in urban areas and generally in rural areas 212. District Price Committees update the prices of lands on yearly basis. Such Committees operate under

the offices of Deputy Commissioner of the District and, as has been referenced elsewhere in

this document, such departments do not have a developed oversight mechanism213.

Much like in other areas of the world, this trend weakens the already disadvantaged rural population due to the growing trend of urbanization has brought it to the peripheries of big

cities where price of real estate has been rising sky high.

Issues of land value are especially relevant where assets are going to acquire new value (such as in the case of a new resource, or a REDD+ mechanism), as fractured land tenancy

enforcement and regulation bring increased conflict, maintaining new benefits in the hands of repeat players and not local communities, blind to new value of land and its usages.

Sales of another’s Private Property

Due to a combination of limited capacity and a convoluted, multi-step214 process for the purchase of land and land rights in Pakistan215, forged documents, easier to pass as real due to the patwari based system, have led to the sales of property(s) without the actual owner

210 The Underlying causes of deforestation and forest degradation in Pakistan by Asif Saeed. http://www.fao.org/docrep/article/wfc/xii/0983-b1.htm 211 PLD 2004 SC 271 2012 CLC 655 Sindh 212 Land disputes on the rise in capital: Ikram Junaidi Dawn 09.02.2012 213 See section on analysis of existing GRMs. 214 See above at the beginning of current section. 215 See section above, regarding existing mechanisms.

http://www.fao.org/docrep/article/wfc/xii/0983-b1.htm

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being involved in the transaction. Thousands of such cases of fraudulent transactions are

pending adjudication in every forum of the Courts216.

Even though attempts have been made to computerise the land registry system, and thus safeguard the system (see above) these attempts were mostly unsuccessful, continually

increasing the risk of fraudulent land dispossession. The same is true in cases of leasing/renting the property of another- with properties of people living abroad are easily let

on rent / lease basis by the ‘land grab mafia’217. This is done to the extent that valid and lawful leases are cancelled to accommodate the new client218.

Special Conflicts over Common and Collective Property

Many of the conflicts in this section echo in reasoning those above. A distinct trait, however, is the conflict internal to, or with, communal ownership groups. The distinct issue here being that many of the rights shared within a communally owned forest (such as Guzara) are subject to customary laws and are even less likely to be correctly recorded, following resale, lack of procedure to record and more. A second issue is that of encroachment on public areas which are common property: common property refers to open spaces which are open to the general public for entry such as parks, football fields, and etc but the illegal use of such common

properties leave the general public with no space to have freedom of movement.

Such illegal uses include public gatherings, private functions with the help of district management as well as marriages in parks and fields, which also includes illegal hunting on

the forest land. The following sections deal with land conflicts associated with communal or public lands.

Unauthorised Sales of Common or Collectively Owned Property

Unauthorized sales of common or collectively owned property are now a routine occurrence within housing societies and housing projects in Pakistan. The blueprints of such societies include various collective properties such as health clubs, parks, graveyards and schools which are never present. Having been intentionally converted into living quarters, in an illegal act

by the management219.

Similar events occur within forest, waste and communal or unsettled land, where land grabbers convert common forest land into private land220, often, as mentioned above, due to

overly simplified record keeping, allowing the use of forged documentation. Such events could have a bearing on any project utilising public lands.

216 https://www.dawn.com/news/1208137- while it describes a case of successful prosecution, the case is described as common, and the fraud described could not function if safeguards regarding right registration were in place. 217 Multiple references throughout the process of stakeholders interviews, see also Transparency International https://www.transparency.org/news/story/mafia_land_grab Accessed 24th April. 218 See https://www.bloomberg.com/news/articles/2017-09-10/-land-mafias-and-the-battle-for-pakistan-s-booming-real-estate accessed 25th April. 219 Land Conflicts A Practical guide to dealing with land disputes by Bebette Wehrmann 220 See, for example, mangrove case currently in courts https://www.dawn.com/news/1140437 Accessed 26/04/18

https://www.dawn.com/news/1208137-

https://www.transparency.org/news/story/mafia_land_grab

https://www.bloomberg.com/news/articles/2017-09-10/-land-mafias-and-the-battle-for-pakistan-s-booming-real-estate


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Disputes Over the Distribution of Revenue from Customary Land

Rights of usage in forests are often separated and distributed among diverse stakeholders:

landowners residing near forests have rights to timber and to shares in the income accruing from the sale of trees. Tenants can graze livestock and collect fuelwood for domestic use, but

at the will of the landowners, who can stop them. Exceptions to this general rule are in Hazara and Swat, where each male member of a family is an entity on his own and has equal shares

in all the benefits from forests, including timber and the income from sales. All over Pakistan, such arrangements are for men only, and it is rare for women to inherit rights 221. In addition to the gender disparity, arguments over such usage rights are common and incredibly difficult to prove through the common record, and, while inquiries into these rights are necessitated in accordance with both the Forest Act and the Land Revenue act, the process is often one of summary judgment, or a grinding one over many years. As a result, often, Jirgas are convened, along with both the advantages and disadvantages of such courts222. Such disputes are of particular relevance to REDD+ projects, as these tend to change the

benefits associated with forests223, and as such will necessitate a redistribution of these benefits, meaning that these processes need to function with equity, speed and legitimacy in

order to confront any such land use and tenancy issues.

Illegal/Improper Uses of State Land

As has been mentioned throughout, issues of demarcation and correct rights association are paramount within the context of land tenure in Pakistan. Government efforts at demarcation are not complete, with certain areas still either demarcated or with a ROR which does not reflect up-to-date rights. One result of this has been considerable illegal annexation of and encroachment on Guzara and community managed forests224. Another is the deforestation and degradation of the land resources due to the conflicts between communities, owners, users and the government with regard to how common land should be used225

Land Grabbing by High-Ranking Public Officials

221 Trends in forest ownership, forest resources tenure and institutional arrangements A case study from Pakistan 222 See sections dealing with Jirga, throughout. 223 With regard to the disputed sharing of benefits, see https://www.dawn.com/news/839382 Accessed 27/04/18. 224 Analysing Institutional Set-up of Forest Management in Pakistan by Lubna Hassan Research Economise Pakistan Institute of Development Economics, Islamabad. 225 Capitalisation and sharing of experiences on the interaction between forest policies and land use patterns in Asia: link peop le with resources. Proceedings of a workshop, Godavari, Nepal, 26-28 January 2005. Volume 2. Technical Papers 2006 pp.113-124


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Land grabbing by prominent persons and high-ranking officials is worthy of specific mention

for two reasons: first is the seeming ubiquity of this phenomenon226, and second is the direct relation of this to the concentration of power mentioned in the section dealing with existing

mechanisms above, and includes illegal sale of government land227. According to information given to the National Assembly in September 2017, an area of 3382 acres of Pakistan Railway

is under the encroachment of influential individuals, 251 acres is with the defence departments and more than 540 acres is being used by government departments.

This ‘land mafia’ is said to be comprised of politicians, criminals, property dealers and corrupt

Government officials228. The most glaring example of such a land grab, in Islamabad, cantered around a huge chunk of land adjacent to the Korang River in Bani Gala in Morah Noor. Many

of the trees in the area have been felled and the land is being farmed, with waste being disposed of in the river that feeds the nearby Rawal Dam reservoir, which, in turn, supplies

Islamabad and Rawalpindi with its ‘clean’ drinking water229.

Illegal Leases of State Land

With ownership and discretionary control over vast swathes of land, including many vital resources, state lands are worth a fortune in leases for logging and mining. It is, therefore, no

surprise that illegal leases of such land, often at the expense of communities who have rights of usage, are also not an uncommon event.

An illegal lease of 275 acres of Forest Department land in Malam Jaba (KPK) has emerged

recently: according to the official records, political personalities and the bureaucracy connived to lease out forests department’s protected land to a private company for 33 years , ignoring many regulations and rights vested in the area230. In another instance the Sindh Government has decided to initiate an investigation against former city Mayor Karachi alleged role in illegal allotment of the state land in January 2018. As a result, many right holders feel uncertain about the resilience of their rights and

concessions. Being doubtful of the future, many right holders attempt to obtain immediate, unsustainable benefits in the existing lease and concessions.

Conclusion While Pakistan’s formal Court system has jurisdiction to adjudicate upon land disputes , and, indeed, Land disputes are the most common form of disputes filed before the Courts , many

226 See, among others, https://www.dawn.com/news/1140437 227 The Accountability Court of Peshawar passed a sentence on five employees of Revenue Department and a citizen for illegal sale of Government land measuring 102 kanal in May, 2016. The Court awarded six years punishment to a citizen who in connivance of officials of Revenue Department sold the state land in Katlang and Takhtbai areas of Mardan. 228 https://www.dawn.com/news/738740 229 https://tribune.com.pk/story/664487/when-land-grabbers-rule/ 230https://www.thenews.com.pk/print/263851-pti-govt-s-another-mega-scandal-forest-dept-s-land-in-malam-jabba-leased-out-illegally


https://www.thenews.com.pk/print/263851-pti-govt-s-another-mega-scandal-forest-dept-s-land-in-malam-jabba-leased-out-illegally

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issues remain challenging. Pakistan’s judiciary is hampering by low pay, poor training and a

large volume of cases. Between 50% to 70% of cases filed before lower Courts are land related disputes, with over a million land cases are pending adjudication countrywide231.

Moreover, there is often a plurality of decisions in the field, with the revenue mechanism and

the courts, the settlement officers and the government reaching different and not always coordinated conclusions. This uncertainty leaves a wide field for, at best, honest disputes over

unrecorded customary rights and, at worst, fraud and land grabbing.

Whether dealing with disputes taking place between government and private citizens or communities, or between joint owners, village forests, or Guzara forests, the s ources of

conflict are inconsistent record keeping, with a concentration of power in single individuals and uncoordinated state and local action.

Where other sections have discussed existing mechanisms, aiming to improve upon them,

this section attempted to lay out the challenges specific to Pakistan in terms of land tenure. This is vital to any REDD+ FGRM as all REDD+ action, by definition, creates and shifts land value and rights, while emptying other resources of value. It is during such shifts of value and policy that the most vulnerable tend to lose more footing, unless specific action is taken to shore up their rights. To this end this document provides an analysis of both the problems

and the roots of a possible solution. What has been provided is merely a snapshot but one upon which an efficient Framework Grievance and Redress Mechanism could function both

as a safeguard for REDD+ projects, but also to address the variety of challenges presented in this section.

231 USAID (2010) Pakistan country profile: property rights and resource governance.

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Methodology

The methodology for the identification and analysis of existing platforms and mechanisms for addressing claims and disputes relevant to the REDD + Strategy in Pakistan was the following:

1. Identification of potential conflicts and complaints associated with REDD + strategic

options. The process of carrying out the Strategic Environmental and Social Assessment (final version March 2018) included the identification potential complaints and conflicts that could result from the implementation of the REDD + strategic options were identified.

2. Based on these identified potential grievances (land tenure conflicts between the state and local populations, conflicts between the local elites and vulnerable sections of the population), the consultant team carried out a preliminary identification of relevant mechanisms.

3. Preliminary analysis: Analytical Matrixes were prepared to guide the analysis and gathered the following information:

a. The legal basis/foundation for the mechanism: that is, the basis for its establishment, of its powers and mandate as found in relevant domestic

legislation. b. The procedures for accessing the mechanism: that is, the formal, or informal

procedures to be followed to access the mechanism, including any preliminary steps that may need to have been exhausted before being able to access it.

c. The responsible institution: while existing mechanisms may be an institution in themselves, in other cases, they may be housed within a larger institution.

d. Jurisdiction of the mechanism: By this we mean not just the geographical jurisdiction, rather the competence of the mechanism and its powers to adjudicate over or merely provide a forum for discussion of the grievances that may arise from the National REDD+ Strategy.

The identification and preliminary analysis of the relevant existing mechanisms was carried out through a mixture of desk-based study and informal discussions with relevant experts.

4. Analysis: to evaluate the effectiveness and appropriateness of existing FGRMs, the mechanisms identified in the previous step were further analysis through desk-based review and interviews with key actors. The following aspects of the mechanisms were examined

a. Institutional commitment and capacity: This means the analysis of the mechanism’s legal mandate and powers, as well as its institutional capacity (technical and economic) to perform its functions. Questions considered:

• Does the conflict resolution mechanism have a legal or policy basis? If so, which one?

• Is the conflict resolution mechanism integrated into staff job descriptions and responsibilities?

• Is the conflict resolution mechanism perceived as independent?

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• Does the mechanism have adequate financial resources for adequate

performance? • Are there dedicated and trained staff available?

b. Transparency: i.e. how the mechanism conveys or disseminates information

on its own performance (how stakeholders are kept informed of the progress of their case and the outcomes)

Questions considered: • Information on the mandate and procedure of the mechanism, is it

public and accessible to the public? • What is the average performance of this agency in dealing with

grievances? • What are the stakeholder perceptions of the agency’s responses?

• What are the type and number of recent/current grievances: number, frequency, type, responses, outcomes; trends?

c. Accessibility: i.e. the extent to which relevant stakeholders are aware of the

mechanism, and its ease of access. This includes whether any assistance is

provided for those who may face barriers to access (including language, illiteracy, financial, geographical location, fear of reprisals).

Questions considered:

• Is the mechanism accessible to all concerned, regardless of their location, language, education or income level?

• Are the procedures for filing complaints and seeking actions easily understood by the potential users of the mechanism?

• Can complaints be filed anonymously? • Is the mechanism duly announced and communicated to potential

users?

d. Predictability: closely linked to the procedures of the mechanism,

predictability means whether the mechanism has (and sticks to) clear procedures and time frames for resolution. Questions considered:

• Does the mechanism offer a clear procedure with time frames for each stage and provides clarity on the types of results it can (and cannot)

deliver? • Is the filing of complaints acknowledged in writing? Does the

acknowledgment outline the procedure to be followed, provide contact details and indicate how much time is it likely to take to resolve

the grievance? • Are there clear schedules to access information that is available to the

public? e. Legitimacy and equity: this means, the level of independence of the GRM from

relevant implementing agencies in the sector, credibility as a vehicle for

58

grievance resolution, fairness of process and outcomes including in terms of

respecting fundamental rights of citizens. f. Monitoring & Evaluation: the extent to which the mechanism has procedures

and processes for the critical evaluation of its performance and a view to evolving.

g. Inclusiveness: the extent to which the mechanism involves relevant stakeholders within the deliberative and decision-making process.

output 17-identification and assessment of pakistan’s ... · redress mechanism must analyse and...

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