Tuesday May 17, 2022

Women’s property rights

January 27, 2022

Pakistan has had a dire record of providing women with their rights to inheritance and property. Even though the right to acquire, hold and possess property is protected by the constitution of Pakistan, women, in particular, are routinely deprived of this right.

In cognizance of this, the government of Pakistan has announced legislative changes over the years to bolster the protection afforded to women under the law. In 2011, the Prevention of Anti-Women Practices (Criminal Law Amendment) Act added new offences in the Pakistan Penal Code that criminalise depriving women of their inheritance.

In 2012, the Punjab Partition of Immovable Property Act announced that land would be distributed in a manner that ensures that it is jointly held by both spouses. The Punjab Land Revenue (Amendment) Act of 2012 made it binding on a revenue officer to serve a notice to all joint landowners immediately after the sanctioning of the inheritance mutation.

These changes were made in an attempt to empower women and to notify them at each stage of the rights they may have in a property. Yet, despite the upgrades in legislation, disputes remain pending for decades and the courts are clogged with property matters.

Recently, the Supreme Court of Pakistan has in ‘Ghulam Qasim vs Razia Begum’ recognised that, despite repeatedly pointing out that effective measures should be put in place to protect the rights of inheritance of females, this has still not been done. The Supreme Court highlighted that it is only determined women that challenge their family members in court to secure their rights in property but they are then left embroiled in disputes for decades. It found that the state should ensure the protection of the rights of women which is far cheaper and less wasteful of public resources rather than approaching a court each time for restoration of rights – after a violation.

Against this background and with mounting international pressure, such as an upcoming GSP+ review, the government of Pakistan has taken action to provide women with a specific forum to protect their rights in property by enacting the Enforcement of Women’s Property Rights Act 2021. The ethos behind the enactment of the law was to provide women with a separate forum to agitate their complaints before an ombudsperson where matters related to property issues could be resolved speedily. This Act was then adopted in the provinces.

Shortly after its enactment, the provincial acts were challenged in multiple high courts. In Lahore, this challenge landed before Justice Jawad Hassan who is the only judge who has not granted a stay in the proceedings. Aaminah Qadir – one of the writers of this piece – was appointed as amicus curiae in the case. The proceedings before Justice Hassan challenge the validity of the Act on the basis that it is ultra vires to the constitution, and that it infringes upon the powers of the courts.

The main issue that was raised relates to Section 4 and Section 7 of the Act. These sections highlight the circumstances in which a complaint can be filed before the ombudsperson. Section 4(1) enables any woman deprived of ownership or possession of her property to file a complaint before the ombudsperson if no proceedings in a court of law are pending relating to that property. Contrastingly, Section 7(1) states that even where proceedings are pending in relation to the ownership or possession of any property, a woman may file a complaint to the ombudsperson.

The wording of this section is peculiar as other legislation related to ombudspersons explicitly require an ombudsperson to stay proceedings when proceedings are pending in a court of law. The petitioner thus alleged that Section 7(1) infringes upon the powers of a court of law as it permits parallel proceedings to commence before an ombudsperson when a court is already hearing a matter.

The deliberate inclusion of Section 7 must be understood. The amicus drew the court’s attention to the intent of the legislature in including Section 7 – to expedite simple procedures in inheritance cases that are often pending for decades, and which often result in women being deprived of their rightful share in property. It provides women with a short-cut avenue to resolve their disputes – even where cases are pending before courts. The amicus also highlighted that a reference is to be made by the ombudsperson to the court if any proceedings have commenced in a court and that this reference is merely recommendatory in nature. The ombudsperson then has to be permitted to undertake proceedings by the court, if proceedings are already pending in a court of law. It is thus the court’s discretion as to whether to allow proceedings to continue before the ombudsperson.

The Enforcement of Women’s Property Rights Act 2021 can be ground-breaking in providing women speedy access to justice if it is implemented correctly. Its success depends on a true understanding of the ethos and purpose behind its enactment and on the setting up of a proper referral mechanism from the ombudsperson to the courts. First and foremost, the Act must survive the tests of vires in the courts – and must exist – if it is to dispense justice to women.

Eshm Suhaib is a lawyer.

Aaminah Qadir is a human rights and constitutional lawyer based in Lahore. She tweets @aaminahq