AS a significant feature of the Fata reform package, an all-male, six-member government committee has recommended that the 115-year-old FCR law be replaced with the proposed riwaj act for the tribal areas. This would include retaining the jirga system for civil and criminal matters, with the court appointing a council of elders to adjudicate in accordance with tribal customs. Such a move would deal a huge blow to women’s rights given the jirga system’s penchant for issuing decrees that legitimise anti-women practices under the guise of tradition. Emulating current laws under the FCR — laws that have over the decades blatantly discriminated against women — implies that the proposed act will give jirgas the licence to inflict violence on women. This makes no sense — if indeed the government is aware that according legal legitimacy to jirgas would compromise the already vulnerable status of Fata’s women. Because jirgas are based on local traditions and patriarchy, of which honour is a critical component, it is imperative the government encourage mechanisms to do away with anti-women institutions. Take the 2014 jirga decision that ruled 11-year-old Amna be married to a man three times her age as compensation for her uncle having raped a girl. Amna was married off to the brother of the girl who had been raped. Disturbingly, under the proposed package, practices such as swara and ghag — a man’s claim he is betrothed to a woman of his choice (without her consent) — will only gain increased immunity from punishment.
For the sake of human rights and justice, the jirga system must be replaced with a judicial process consistent with legal practices elsewhere in the country; and the Code of Criminal Procedure must be applied to the tribal areas. If such measures are implemented, they will help women seek justice. However, even so, women in Fata suffer not only from a lack of legal protection, they have also borne the brunt of militancy and security operations. Taqrha Qabaili Khwenday, a tribal sisterhood, for example, has repeatedly expressed concern regarding the legalisation of jirgas and how that will impact women’s lives. Such voices must be heard. Tribal women who want to make their own choices must be given representation on reform committees. Without such participation, it will prove impossible to mainstream tribal communities, or to institute reforms in a historically neglected part of the country.