Chair and Discussant: Dr. Faqir Hussain, Secretary, Law and Justice Commission of Pakistan, Islamabad, Pakistan
Panel Organizers: Dr. Saba Gul Khattak, Visiting Fellow, SDPI; and, Ms Kiran Habib, Project Associate, Women’s Land Rights, SDPI, Islamabad, Pakistan
The first paper was presented by Ms Nazish Brohi, Research Consultant, Sustainable Development Policy Institute, Islamabad, Pakistan. In her paper “Land and the Patriarchal Bargain”, she talked about women’s agency that can be read in negotiations with patriarchy and argued that since women are being barred from alternative justice frameworks, they have conceded to and demand concessions from a system that has its internal logic and justifiability, and that their conflicts and contestations are expressed within that system. She also highlighted how pacts with patriarchy subvert conventional approaches to empowerment and explained that although women are very much cognizant of the value of land, they largely choose not to contest for its ownership in lieu of the social protection, identity and respectability that they benefit or expect to benefit from through their association with the men of their families.
Ms. Samina Afridi, Lecturer at the Department of Philosophy, University of Peshawar, Peshawar, Pakistan, in her paper “Land Ownership and Pakhtun Women in Tribal Areas and NWFP” underscored the absence of federal and provincial laws in the Federally Administered Tribal Areas (FATA) and pointed towards the low status of women due to Pakhtun customary laws and self proclaimed interpretations of Islam in the area. She highlighted how women are denied their fundamental rights by placing special emphasis on women’s property rights and strongly advocated for the statutory laws of Pakistan to be applied in FATA as well.
Dr. Saba Gul Khattak, Visiting Fellow and former Executive Director, Sustainable Development Policy Institute, Islamabad, Pakistan, explored the possibilities for women’s land rights in her paper titled “Friction Between Religion and Custom: Possibilities for Women’s Land Rights?”. She talked about the class and political context and the patriarchal forces at play while connecting it with her primary data from Swat in order to look at the issues of women’s landlessness, poverty and status. She recommended changes in the system through strong political will and state institutions; alternative conceptualizations and; land reforms and redistribution. She also posed a question of equality while emphasizing that even sharia does not give women equality so where do we start?
The panel chair and discussant, Dr. Faqir Hussain, Secretary, Law and Justice Commission of Pakistan, Islamabad, Pakistan, in his comments spoke on the principle of gender equality and gave examples of progressive legislation with regard to inheritance in, India, Turkey and Somalia and observed that by prescribing equal shares for male and female heirs, gender-based discrimination has been removed from inheritance laws in these countries. Whereas, with regard to the Pakistani legislation on inheritance he noted that it suffers from three flaws: one, the unequal shares prescribed, two, non-enforcement of the law, and three, its non-application to the FATA. Referring to the law of inheritance, he said it is the most ignored and violated law and strongly believed that the non-enforcement of it is a major hurdle in the way of women’s empowerment.
He recommended that the Muslim Personal Law (Shariat) Application Act 1962 should be extended to FATA; it should be made obligatory on the Revenue Authorities that in the event of death of a person, they should carry out necessary mutation in the Record of Rights and transfer the shares to each legal heir, male or female; the Excise and Taxation Department, which keeps record of property, may also be obligated to change such record, in the event of death, thereby allotting to every heir his or her share in the property; devolution of inheritance should be made compulsorily registerable; and the civil courts should be empowered to act suo moto or on the application of an aggrieved party by taking cognizance of a dispute in inheritance.
Discussion
The panel presentations were followed by a question-answer session. Responding to questions on public policy for redistribution of land and women’s share in it in case of new land reforms, Dr. Faqir Hussain observed that the next time around, land reforms would have to take into account the due share of women as the basis of land reforms is not the law of inheritance. Ms Brohi in this regard added that a lot of women in the past were given land holdings because of the land reforms but they could hardly exercise any control over it because after the land reforms were introduced, families which had huge tracts of land parceled the land out in the names of the wives, daughters and sisters and it is presumed from the data that much of it was with the assumption that it is better to parcel the land out to a woman who can then be controlled. In response to a question relating to sharia, Dr. Khattak said that sharia may not be the ultimate and quoted the examples of Somalia and Turkey where male and female heirs are entitled to equal shares and suggested this to be the way to go forward. On comments relating to individual versus collective ownership of land, Dr. Khattak feared that collective ownership of property too, would have gender dynamics and therefore we would still need to be very careful in how we tread that ground. She further added that there are deep-seated structures and thinking that inform land ownership issues and foremost amongst that is the issue of social order and sexual agency which is connected with private property. Men want extra land ownership because they want to be in control and they do not want the social order to be disturbed and that fundamentally is where one needs to look at how policy can be manipulated to address this deep-seated issue.
Reported by Kiran Habib
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