Since Pakistan’s independence, the Federally Administered Tribal Areas have been governed by the Frontier Crimes Regulations (FCR) — considered a black law by human rights activists because it gives the political administration unlimited financial, executive and judicial powers.
Unfortunately, FATA’s women are conspicuous by their absence in all areas of governance. An examination of the formation, structure, working and findings of the FATA Reforms Committee 2016 as well as of details pertaining to commissions, committees, action plans formed for the purpose previously shows that women’s representation has never been an item on reforms’ agenda.
According to Pakistan bureau of statistics report, women comprise around 48 percent of FATA’s population, but they have had no opportunity to include their charter of demands in proposed reforms. No woman has yet been elected to the National Assembly as a representative of FATA, and, before Badam Zari, no woman had ever contested elections on a general seat from this tribal region.
The report of the latest committee on FATA reforms states that 182 different laws have been extended to FATA. The report shows that guidelines for reforms are aimed at ‘major social transformation of the region and its people’ that ‘must not be permitted to fail’. The report also claims it is absolutely necessary to continue supporting the retention of ‘Rewaj’ as the tribal way of life and a basis for dispute adjudication and resolution. Similarly, ‘introduction of judicial reforms to extend the jurisdiction of the Supreme Court and High Court while retaining the jirga system’ were also included in the proposed reforms.
In ‘mainstream’ Pakistan, a seven-member Marriage Commission, headed by Justice Abdur Rashid and comprising three men and four women, had accepted long ago that family laws needed to be liberalised in accordance with the needs of the modern era. This ultimately led to the introduction of reforms in Muslim personal laws. Thus, relevant personal laws have been enacted in Pakistan for issues related to marriage registration, polygamy, maintenance, talaq and judicial divorce, custody of children, inheritance, and succession. Among all these laws, however, only the West Pakistan Muslim Personal Law (Shariat) Act of 1962 was ‘extended’ on August 30, 2012, to FATA by the then President of Pakistan, Asif Ali Zardari.
According to the Dissolution of Muslim Marriage Act of 1939, a Muslim woman could obtain divorce only on eight specific grounds. However, the Muslim Family Law Ordinance of 1961 defined additional responsibilities and chalked out certain procedures to protect the rights of the married couple. Family Courts were established across the country under the West Pakistan Family Court Act of 1964.None of these other laws have yet been extended to FATA. In this situation, FATA’s women are singularly deprived of any legal remedy in matters pertaining to their personal rights through the ‘Court’ of the Political Agent.
Reforms in FATA should include extension of all laws that protect personal rights with complete ‘institutional framework’ needed for implementation of these laws
(M), a resident of FATA, who is the victim of domestic violence, had filed an application with the court of the Assistant Political Agent on January 1, 2013. She sought ‘dissolution of her marriage’ on the ground that she was subject to physical violence and was receiving life threats from her husband as she had testified against him in a murder case. She did get any relief from the court but her husband was soon released following a settlement with the victim’s family. After his release, M left her home and started living in different cities, because of which her parents stopped supporting her. Although her case fulfils most of the grounds for dissolution of marriage under khula as well as judicial divorce, she has not been able to get remedy for years because the relevant laws haven’t yet been extended to FATA. With no legal recourse, there is an absolute legal, institutional and judicial vacuum for dealing such cases in FATA.
Forget about rights protected by international human rights law, FATA’s women are even deprived of rights available to women in other parts of the country. M has four children and is completely helpless to save her life and dignity. This is a case that has come to our knowledge but we have yet to identify hundreds of thousands of undocumented cases where women are being deprived of justice for years.
On February 6, 1994, Pakistan had become party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Under Article 16 of the CEDAW, Pakistani government is obliged to take appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations. FATA women are also Pakistani, their rights should be protected by fulfilling international obligations under the CEDAW. Pakistan should provide equal legal, economic, social and cultural opportunities to FATA women.
Under Article 247, read with Article 145, of our constitution, the President of Pakistan is empowered to ‘enact’ any law for FATA or to ‘extend the operation’ of an existing law to the region. Reforming FATA should not be restricted to the extension of the jurisdiction of the High Court and Supreme Court. It should include extension of all laws that protect personal rights with complete ‘institutional framework. Presently, only 10 women-related laws have been extended to FATA, and astonishingly there is no implementation mechanism for these laws. Parliament will soon be taking the FATA reforms bill with the constitutional amendments. The government and opposition must focus on gender disparity in this regard. FATA women should have representation on all relevant forums, including the Senate, National and provincial assemblies, judiciary and executive departments.
The writer is lawyer. He can be contacted at: firstname.lastname@example.org. His twitter handle is S_irshadahmad