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close this bookHabitat Debate - Vol. 5 - No. 3 - 1999 - Security of Tenure (HABITAT, 1999, 63 p.)
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Towards Land Reform in Bangladesh

by Patrick McAuslan

The principal message of the Istanbul Declaration on Human Settlements and the Habitat Agenda, is that while a strategy of enablement is the preferred mechanism for providing access to land and ensuring security of tenure, the role of Governments does not stop at enabling land markets to operate efficiently and transparently. Governments must also direct their attention to considerations of equity in the operation of land markets; land markets must be enabled to work for the benefit of all and all must be enabled to participate on an equal and fair footing in the land market. To this end, government and civil society must be involved in working with the disadvantaged and the poor, removing obstacles to their obtaining land, developing innovative mechanisms, instruments and institutions to assist such persons to obtain access to land and security of tenure via the market, and governments must desist from actions which penalise such persons and lessen their opportunities to obtain and hold on to land.

An important mechanism to bring about the changes necessary to comply with these principles is the law: reforms in the law to develop an appropriate legal framework to facilitate access to land and security of tenure for all people is a leit motiv running through that part of the Habitat Agenda dealing with ensuring access to land.

The Urban Problem

Over the last four decades, a substantial urban population increase has taken place in Bangladesh, both in absolute terms and as a percentage of the total population. In 1961, the urban population was 2.6 million people, or 4.8 per cent of the total population. According to figures contained in the Bangladesh National Report to Habitat II, the urban population of Bangladesh in 1993 was 23 million which represented just over 20 per cent of the total population.

Low-income patterns in urban Bangladesh ensure that access to shelter and land is limited to the small percentage who can afford to pay the price. In Dhaka, the capital, an estimated 70 per cent of the urban households are low-income, with 28 per cent middle income and 2 per cent high-income. The small proportion of high-income households has access to 15 per cent of the residential land while the vast majority of low-income households has access to just 20%. Similar distributions apply in the three other major cities.

The urban poor lack access to land and where they do occupy land, the amount per household is extremely small, and there is no security of tenure. Where they are legally in occupation as tenants, private landlords will dispossess them if greater income earning opportunities present themselves in relation to land occupied by such tenants. Where they are occupying private land as squatters, either illegally or with the tacit acquiescence of the landowner, they are liable to be dispossessed for the same reason or in addition have to pay protection money to stay. Where they are illegally occupying government land, they are liable to be evicted at any time with minimal or no warning.

Land Laws

No special arrangements exist for the management of urban land, notwithstanding that such land poses different challenges and has different needs to the management of rural land. Policy statements recognize the need for new laws on urban land matters. However, these laws focus more on urban planning and improving the operation of the land market and do not touch on the development of any specific legal framework for urban land management or for upgradation or regularization of slums and squatter settlements.

Land laws in Bangladesh are based on the common law system of freehold and leasehold title for private and public land. In the case of public freehold or leasehold, there are various official lengthy procedures which have to be complied with before land can be transferred to a private citizen. In the case of private freehold or leasehold, the legal framework for accessing land, protecting title and setting out the rights and obligations of the parties to any particular transactions is contained in the Transfer of Property Act 1882 and the Registration Act 1908.

Both these Acts are venerable pieces of legislation but they are land laws for the minority; the ability to use the laws depends on access to lawyers, to some basic knowledge about one’s rights under the law and on being a legally recognized part of society; that is, landlord and tenant laws apply to the legal relationship of landlord and tenant and not the informal or “illegal” relationship between squatters and landowners or between squatter landlords and squatter tenants. These laws have really no meaning or relevance to the urban majority - the poor. The most fundamental criticism of the land law is not of the existing laws but of the missing laws; namely, laws which address the tenure problems of the urban poor.

There is general agreement that urban planning laws are ineffective in Bangladesh. Commentators call for more powers of intervention in the land market with particular emphasis on the area of low-income housing. However, rather than seek to increase control and regulation on the assumption that what was missing in the past was insufficient control and regulation, policies and laws on urban land use management should be directed to harnessing the energies of the urban poor and facilitating their acquisition and use of land.

Behind the arguments about laws and their reform lie policy issues which must be resolved before any new laws can be developed. The arguments for urban land law reform are based on a policy of in situ regularization of informal settlements and this in turn is based both on international experience - wholesale demolition and relocation don’t work - and international obligations such as the Habitat Agenda. The arguments against urban land law reform are based on long-standing and consistent national policies which emphasise the sanctity of private and public property and the need therefore to relocate squatters.

Towards Reform of Laws and Policies

The sharp contrast between relocation and regularization is misplaced as it is based on an approach to rights to land which does not correspond either to reality on the ground or to current developments in legal thinking and practice. The way forward is to blend reality and law in the development of a new urban land law for Bangladesh which provides the legal framework for land rights and for their progressive realization via programmes of regularization and secure tenure for the urban poor.

Patrick McAuslan is Professor of Law at the University of London (U.K.). He is currently working as a consultant for UNCHS (Habitat) in its Land Management Programme and urban land reform in Bangladesh.