If you are a woman in Fata you don’t have the legal right to inherit property right now. Fortunately, though, this is set to change as the government does away with old laws and makes new ones—all part of merging Fata with Khyber Pakhtunkhwa.
“I am women but I cannot claim a share in my parents’ property under the FCR,” says Nausheen Orakzai, a resident of Orakzai Agency. She is an M.Phil student and says that while her father and grandfather have property, neither she nor her sisters can claim it.
Nausheen Orakzai is referring to a very old British-era law that has governed the Federally Administered Tribal Areas: the Frontier Crimes Regulation or FCR. In it jirgas or councils of elders decided crime and punishment for disputes. There were no courts and traditional policing.
But now the Pakistan government is going to change this by sending the Supreme Court and Peshawar High Court to make decisions in Fata. On April 14, 2018, the Senate passed a bill that mandates setting up the courts in Fata under certain conditions. (It was opposed by the Jamiat Ulema-i-Islam-Fazl and Pakhtunkhwa Milli Awami Party who are allies of the ruling party. They want Fata to be a separate province.) The extension is still conditional, however, as the federal government will decide which part of Fata it wants to bring under the jurisdiction of the Supreme Court and Peshawar High Court and when.
When the Fata Reforms Committee was preparing recommendations, the government of Khyber Pakhtunkhwa also submitted its own 93-page draft to the Fata Reforms Implementation Committee. It suggested a transition of one year for the political administrations in Fata’s seven agencies to decide all their cases. “After that period, all cases will go to the Peshawar High Court directly,” says Nizamuddin Salarzai, an office-bearer with the Fata Youth Jirga.
The problem was that the FCR dealt with both penal law and procedural law. “The FCR deals with criminal as well as civil cases,” explains Fazal Shah Mohmand, an advocate of the Supreme Court. This means that land disputes, which are civil in nature, were also lumped in with criminal under the FCR. Doing away with the FCR will end this. Fazal Shah Mohmand adds, however, that, “The FCR is a regulation that is likely to be rendered ineffective once the bill [to extend the courts to Fata] becomes an act.”
Alternately, the president is likely to abolish the FCR before signing the bill. If not, lawyers are chomping at the bit for an opportunity to challenge the FCR once the courts start working in Fata. Fazal Shah Mohmand says the Peshawar High Court can only hear cases pertaining to citizens, offices and courts in Khyber Pakhtunkhwa, so in his opinion, extending its jurisdiction is the first step towards a merger. “It would be real day of independence for the tribal people [when this happens],” he says.
Indeed, the most important part of opening courts in Fata will be that women will get the right to inheritance. All cases that are left undecided by the political administration, such as those on land disputes and women’s right to inheritance, would directly go to the Peshawar High Court, adds Nizamuddin Salarzai.
Women will not be the only ones to benefit. If the courts are open for business it is expected that a flood of people seeking impartial justice will be banging their doors down. “Cases related to habeas corpus and those related to violations of fundamental rights would be taken to the courts,” says Abdul Latif Afridi, who is an advocate of the Supreme Court. This will simply be an outcome of the denial of justice for so long under the FCR that has been in effect since 1901. “Much needs to be done, however, it is great news for the tribal people and a step in the right direction that would pave the way for the merger,” says Afridi.
For now, though, women cannot claim inheritance of their parents’ property under the FCR and their claims are decided in jirgas. There are no land records here and the land is divided on the basis of custom. Even when men inherit, it is by verbal agreement mostly. This is why, when a women demands the right to inheritance, the matter is referred to a jirga. The jirgas (read: all male) stretch the decision-making out for long periods of time. One argument that pro-jirga supporters can give is that jirgas issue judgements on women’s rights in light of the Shariah and as Islamic law protects a woman’s ability to inherit, the jirga would rule in her favour. Dr Naureen Nasreen, a social activist from Kurram Agency, tells TFT, however, that while Islamic law provides for women’s inheritance, the problem is that in a male-dominated society these matters are decided in their interests. “They hide behind religion where it suits them and bring in Pakhtunwali wherever religion doesn’t work,” she says. She has never heard or known of a single woman in her lifetime who has been given her share from her parents’ property.
These cases often take a dark turn. There is the example of Eid bibi in Kurram Agency whose father gave her property as she was unmarried. He wanted her to have some financial security. But after his death, his grandchildren killed her in the name of “ghairat” and usurped it. Malik Mir Afzal Khan of Mohmand Agency says that if one brother wants to even give a share of the property to his sister, three other men will stand up to oppose it. He gives his own example of wanting to do this but his other brothers disagreed.
Thus, having land records is essential. In Sindh, for example, land records were computerised and when the data was crunched a surprising picture emerged: women owned 20% of agricultural land. Fata has 27,000 sq km but as there are no land records no one can tell who owns what. The government it seems is clear that this is the way forward. Land reforms and mapping are part of the 25-point recommendation on Fata reforms.
Opening courts
Setting up courts in Fata will take people, time and money. The Peshawar High Court has said it will need Rs14 billion from the federal government.
At the heart of the reforms is some simple math. If the country wants Fata to merge with KP, everyone will have to foot the bill. This means that the government will have to take money away from the other provinces to pay for a larger KP after Fata is added to it. “The main problem would be the three percent share in the National Finance Commission Award and land reforms, for both are interlinked,” says journalist Iftikhar Firdous. It there is no money there will be no reforms.
The political administration will be given eight to 12 months to decide all cases pending before it and during this time judicial complexes will be constructed and staff hired. After that all cases will go directly to the Peshawar High Court. But journalist Rahimullah Yusufzai offers a word of caution: “Elections are around the corner and the PML-N government is faced with a crisis, therefore these reforms cannot be implemented this year.”
The writer is a freelance journalist based in Peshawar and can be reached at imjournalist2@gmail.com and @fawadalishah84
Fata reforms: a brief history
Fata reforms have a history. The first ever serious attempt was made by former prime minister Zulfikar Ali Bhutto who asked former interior minister Naseerullah Babar to head a committee on it.
The committee was told to form a framework to make Fata part of KP (then NWFP) in March 1977 and give it representation in the provincial assembly. This could not be done because martial law was imposed.
Then in 1996, the federal government extended the Adult Franchise Act which gave the tribal people the right to vote for the first time. They were empowered to elect their representatives to the National Assembly. Prior to this, the all-powerful maliks made these decisions for the people.
The next big step came in 2002 when the Pakistan Peoples Party-led government made the Political Parties Order 2002 which was applied to FATA. It allowed political parties to campaign freely in Fata.
In 2002, there was a push to extend Local Government Regulations to Fata. This was followed by a failed second attempt to implement the Fata Local Government Regulation 2012.
The government formed another committee, led by Advisor to the Prime Minister Sartaj Aziz, that visited the agencies. It has reportedly, held jirgas and consulted around 3,000 tribal elders. Besides this, it received 29,000 comments on the hotline opened by the Ministry of SAFRON and most of them supported the merger of Fata with KP.
“I am women but I cannot claim a share in my parents’ property under the FCR,” says Nausheen Orakzai, a resident of Orakzai Agency. She is an M.Phil student and says that while her father and grandfather have property, neither she nor her sisters can claim it.
Nausheen Orakzai is referring to a very old British-era law that has governed the Federally Administered Tribal Areas: the Frontier Crimes Regulation or FCR. In it jirgas or councils of elders decided crime and punishment for disputes. There were no courts and traditional policing.
But now the Pakistan government is going to change this by sending the Supreme Court and Peshawar High Court to make decisions in Fata. On April 14, 2018, the Senate passed a bill that mandates setting up the courts in Fata under certain conditions. (It was opposed by the Jamiat Ulema-i-Islam-Fazl and Pakhtunkhwa Milli Awami Party who are allies of the ruling party. They want Fata to be a separate province.) The extension is still conditional, however, as the federal government will decide which part of Fata it wants to bring under the jurisdiction of the Supreme Court and Peshawar High Court and when.
When the Fata Reforms Committee was preparing recommendations, the government of Khyber Pakhtunkhwa also submitted its own 93-page draft to the Fata Reforms Implementation Committee. It suggested a transition of one year for the political administrations in Fata’s seven agencies to decide all their cases. “After that period, all cases will go to the Peshawar High Court directly,” says Nizamuddin Salarzai, an office-bearer with the Fata Youth Jirga.
The problem was that the FCR dealt with both penal law and procedural law. “The FCR deals with criminal as well as civil cases,” explains Fazal Shah Mohmand, an advocate of the Supreme Court. This means that land disputes, which are civil in nature, were also lumped in with criminal under the FCR. Doing away with the FCR will end this. Fazal Shah Mohmand adds, however, that, “The FCR is a regulation that is likely to be rendered ineffective once the bill [to extend the courts to Fata] becomes an act.”
Alternately, the president is likely to abolish the FCR before signing the bill. If not, lawyers are chomping at the bit for an opportunity to challenge the FCR once the courts start working in Fata. Fazal Shah Mohmand says the Peshawar High Court can only hear cases pertaining to citizens, offices and courts in Khyber Pakhtunkhwa, so in his opinion, extending its jurisdiction is the first step towards a merger. “It would be real day of independence for the tribal people [when this happens],” he says.
Indeed, the most important part of opening courts in Fata will be that women will get the right to inheritance. All cases that are left undecided by the political administration, such as those on land disputes and women’s right to inheritance, would directly go to the Peshawar High Court, adds Nizamuddin Salarzai.
Women will not be the only ones to benefit. If the courts are open for business it is expected that a flood of people seeking impartial justice will be banging their doors down. “Cases related to habeas corpus and those related to violations of fundamental rights would be taken to the courts,” says Abdul Latif Afridi, who is an advocate of the Supreme Court. This will simply be an outcome of the denial of justice for so long under the FCR that has been in effect since 1901. “Much needs to be done, however, it is great news for the tribal people and a step in the right direction that would pave the way for the merger,” says Afridi.
For now, though, women cannot claim inheritance of their parents’ property under the FCR and their claims are decided in jirgas. There are no land records here and the land is divided on the basis of custom. Even when men inherit, it is by verbal agreement mostly. This is why, when a women demands the right to inheritance, the matter is referred to a jirga. The jirgas (read: all male) stretch the decision-making out for long periods of time. One argument that pro-jirga supporters can give is that jirgas issue judgements on women’s rights in light of the Shariah and as Islamic law protects a woman’s ability to inherit, the jirga would rule in her favour. Dr Naureen Nasreen, a social activist from Kurram Agency, tells TFT, however, that while Islamic law provides for women’s inheritance, the problem is that in a male-dominated society these matters are decided in their interests. “They hide behind religion where it suits them and bring in Pakhtunwali wherever religion doesn’t work,” she says. She has never heard or known of a single woman in her lifetime who has been given her share from her parents’ property.
These cases often take a dark turn. There is the example of Eid bibi in Kurram Agency whose father gave her property as she was unmarried. He wanted her to have some financial security. But after his death, his grandchildren killed her in the name of “ghairat” and usurped it. Malik Mir Afzal Khan of Mohmand Agency says that if one brother wants to even give a share of the property to his sister, three other men will stand up to oppose it. He gives his own example of wanting to do this but his other brothers disagreed.
Thus, having land records is essential. In Sindh, for example, land records were computerised and when the data was crunched a surprising picture emerged: women owned 20% of agricultural land. Fata has 27,000 sq km but as there are no land records no one can tell who owns what. The government it seems is clear that this is the way forward. Land reforms and mapping are part of the 25-point recommendation on Fata reforms.
Opening courts
Setting up courts in Fata will take people, time and money. The Peshawar High Court has said it will need Rs14 billion from the federal government.
At the heart of the reforms is some simple math. If the country wants Fata to merge with KP, everyone will have to foot the bill. This means that the government will have to take money away from the other provinces to pay for a larger KP after Fata is added to it. “The main problem would be the three percent share in the National Finance Commission Award and land reforms, for both are interlinked,” says journalist Iftikhar Firdous. It there is no money there will be no reforms.
The political administration will be given eight to 12 months to decide all cases pending before it and during this time judicial complexes will be constructed and staff hired. After that all cases will go directly to the Peshawar High Court. But journalist Rahimullah Yusufzai offers a word of caution: “Elections are around the corner and the PML-N government is faced with a crisis, therefore these reforms cannot be implemented this year.”
The writer is a freelance journalist based in Peshawar and can be reached at imjournalist2@gmail.com and @fawadalishah84
Fata reforms: a brief history
Fata reforms have a history. The first ever serious attempt was made by former prime minister Zulfikar Ali Bhutto who asked former interior minister Naseerullah Babar to head a committee on it.
The committee was told to form a framework to make Fata part of KP (then NWFP) in March 1977 and give it representation in the provincial assembly. This could not be done because martial law was imposed.
Then in 1996, the federal government extended the Adult Franchise Act which gave the tribal people the right to vote for the first time. They were empowered to elect their representatives to the National Assembly. Prior to this, the all-powerful maliks made these decisions for the people.
The next big step came in 2002 when the Pakistan Peoples Party-led government made the Political Parties Order 2002 which was applied to FATA. It allowed political parties to campaign freely in Fata.
In 2002, there was a push to extend Local Government Regulations to Fata. This was followed by a failed second attempt to implement the Fata Local Government Regulation 2012.
The government formed another committee, led by Advisor to the Prime Minister Sartaj Aziz, that visited the agencies. It has reportedly, held jirgas and consulted around 3,000 tribal elders. Besides this, it received 29,000 comments on the hotline opened by the Ministry of SAFRON and most of them supported the merger of Fata with KP.
– Fawad Ali