Approximately 3.5 million tribal women of Pakistan living in the Federally Administered Tribal Areas remain invisible and disempowered in the proposed Riwaj bill 2017. Reforms proposed by the government that is now in the Parliament aims at changing the colonial “special status” and mainstreaming of FATA with the extension of Pakistan’s 1973 Constitution. The much awaited, however controversial bill, presented has displayed a complete disregard for any gender parity or female representation in the new draft. The gender-blind set up proposes to continue with the all-male congregation in the form of Jirga and traditions as its guiding force with a presiding judge (Qazi), nominated by the government of Pakistan like presently appointed political agents. The bill proposes a combination of formal and informal justice system. One emanates from the state that is introduction of laws such as Criminal Procedure Court and Pakistan Penal Court along with informal mechanism like Riwaj, originating from traditional sources of authority, deriving legitimacy from its social and cultural embeddedness in the region. It seems that state is trying to please either certain stakeholders or ensuring its efficiency of provision of speedy justice in the tribal area has failed to comprehend that laws and legal institution does not exist in a vacuum. It is observed and experienced in FATA that the hybrid system of judicial structure (Political Agents along with Jirga and Judicial Council) has the potential to further oppress and marginalise the weakest section of the societies. The state must keep in mind that discrimination against the weak emerges, if the judicial system is not transparent or a combination of many as is the case of Riwaj bill.
The state by evoking a static and vague concept of “tradition” in the bill not only fails to account for changing times in FATA but will end up fossilising the region as it did in the past century, resulting in one of the major crises of the country. The excuse of best “cultural practices” as put forward and its continuation — all in the name of “stability” is just respecting the wishes of the stakeholders and misses the core value of justice for the women of FATA. The act proposes to repeal the notorious Fontier Crimes Regulation (1901). However, it mentions that the bill will be extended to government-protected areas (Allaqa-e- Sarkar) and not to the un-protected ones (Allaqa-e- Ghair). Does this mean that in some areas, FCR and Riwaj will still be functional, and both men and women will not be able to access the Qazi Courts? The ambiguity on the above distinction made by the government does not help. The bill proposes implementation of 141 new laws to FATA, but the irony is that the cruelty to animal law is also to be extended, however Family Laws i.e. Muslim Family Court Ordinance 1961, Muslim Family Act 1964 etc has been ignored. Family Laws deal with some of the most important aspects of family issues like expeditious settlement and disposal of family disputes, the power of giving substantial relief to wife and children with a right of appeal. In the Riwaj Regulation bill, family issues are to be decided as per the prevailing customs of the area, excluding women from family laws functional in the rest of Pakistan. As the bill says, ‘any party to a civil or other dispute may make an application to the Court for decision by the Riwaj’.
It is pertinent to mention that there is no codified Riwaj available in any tribal agency except Kurram, known as ‘Turizuna’, a document that is an explicit display of misogyny and patriarchy. Moreover, the interpretation and application of such traditional values are left to the whims of Men in Jirga. Furthermore, the bill lays down the case of inconsistency between state laws of CrPc, PPC and Riwaj. It states “in case there is any conflict between the provisions of this Act and any other law, including the CPC, Cr.P.C and the Qanun-e-Shahadat, 1984 (P.O. No. 10 of 1984), for the time being in force, the provisions of this Act shall prevail to the extent of the inconsistency”. The deliberately created dichotomies between formal and informal system are unhelpful and unfair to a large women population of the region. Tribal women have experienced worst forms of violence; state perpetuated violence through its oppressive colonial system and its subsequent militarization, social violence in the shape of highly patriarchal culture with no respite offered by the legal, social and economic infrastructure of the state. The bill with its cultural relativist approach has no mechanism to deal with the present social evils like child marriages, denying her property, divorce rights, Swara (settling the dispute through her), Valver (bride money), Ghag (masculine roar), killings in the name of honour – and some other cultural practices. The cultural constraints internalise her oppression and the state will legalise it with the Riwaj Act. The justification of Riwaj and narrative accepted about the tribal area is that cultural, social and religious perceptions of gender roles are ingrained and agreed by both men and women. Hence, they find abstract concepts of equality and human rights foreign and unacceptable.
We tribal woman from FATA are aware of our deprivation in the system but have no support system or mechanism to address our issues. The government claims that the bill is drafted according to the aspiration of tribal people’s customs and traditions, safeguarding their fundamental rights. However, the problem is most of the people consulted by the state during drafting are men who already have a voice, agency and power. Women aspiration and fundamental rights are excluded systematically under the name of culture, thus giving her limited citizenship.