FAO.org

Inicio > Base de Datos Género y Derecho a la Tierra > Perfiles de País > Lista de países > Marco legal nacional
Base de Datos Género y Derecho a la Tierra

Pakistan

Derechos consagrados en la Constitución

The Constitution, 1973:

  • Article 2: “Islam shall be the State religion of Pakistan”.
  • Article 3 calls upon the State to eliminate all forms of exploitation.
  • Article 8: “Laws enacted in Pakistan cannot be in contravention of the Constitutional provisions.”
  • Article 18: “Every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business.”
  • Article 23: “Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan”.
  • Article 25 guarantees equality of rights to all citizens irrespective of sex, race, and class and empowers the Government to take affirmative action to protect and promote women’s rights.
  • Article 26 and 27 provide for equal access to public places and equality of employment in the public and private sectors.
  • Article 32: “The State shall encourage local Government institutions composed of elected representatives of the areas concerned and in such institutions special representation will be given to peasants, workers and women.”
  • Article 34: “Steps shall be taken to ensure full participation of women in all spheres of national life”.
  • Article 35 states that the State shall protect marriage, the family, the mother and the child.
  • Article 37 [e] makes provision for securing humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment.
  • Articles 51 and 106 provide for the reservation of seats for women in the legislatures.
  • Article 203D: No law or provision of law may be enacted that is repugnant to the Injunctions of Islam as laid down in the Holy Quran’ and the Sunnah of the Holy Prophet.
  • Articles 203A, 203C, 203D, 227 state that the Federal Shariat Court may examine and decide whether any law is inconsistent with these injunctions (12).

Derechos de la mujer de propiedad y uso de la tierra en los Códigos Civil, de Familia y del Trabajo

The Muslim Family Laws Ordinance, 1961:

  • Introduced marriage registration and penalties of fines or imprisonment for failure to register. However, a Muslim marriage is still legal if it is contracted according to the religious requisites.
  • A man who wants to enter a subsequent marriage must submit an application and pay a fee to the local Union Council in order to obtain written permission for contracting a polygamous marriage. The application must state the reasons for the proposed marriage and indicate whether the applicant has obtained the consent of the existing wife or wives. The chairman of the Union Council forms an Arbitration Council in order to determine the necessity of the proposed marriage. The penalty for contracting a polygamous marriage without prior permission is that the husband must immediately pay the entire dower to the existing wife or wives, as well as being subject to a fine and/or imprisonment. A polygamous marriage contracted without the Union Council’s approval cannot be registered. Nevertheless, a subsequent marriage remains valid even if a man does not seek the permission of his existing wife or the Union Council (13).
  • The Child Marriage Restraint Act of 1929 introduced penal sanctions for contracting child marriages. The minimum marriage age is set at 18 years for men and 16 for women. However, under-age marriages are not rendered invalid (13).

The Dissolution of Muslim Marriage Act, 1939, amended in 1961:

  • Article 2: Provides the grounds on which a woman married under Muslim Law is entitled to obtain a decree for the dissolution of her marriage.
  • Article 2 [VIII] [D]: A wife is entitled to all the property that she has earned for herself and also to the benefits deriving from the property of the husband. If dissolution of marriage is demanded by the wife, she is not entitled to a dower. Upon dissolution of marriage, the husband has no right on the property of the wife (8).
  • The Act guarantees women with the right to divorce, also knows as Khula; however, it requires a specific intervention on the part of the court (8).
  • Article 9: During the whole duration of marriage, maintenance of the wife is responsibility of the husband (8).
  • The Act has been amended by Article 6 of the 1961 Muslim Family Laws Ordinance, which entitles a woman to a decree for the dissolution of the marriage, if her husband contracts a polygamous marriage in contravention of the Muslim Family Laws Ordinance (13).

The Married Women’s Property Act, 1874:

  • A married woman has the right to separate property and to taking legal proceedings in her own name. A married woman is liable for her contracts regarding her property (8).

The 1872 Contract Act guarantees men and women with the same rights to freedom of trade, business and profession (8).

The Civil Servants Act of 1973 states that no discrimination shall be made between men and women with regards to remuneration and benefits in the public sector.
In the private sector also, entities, which fall within the purview of labour laws, have to give the same remuneration, allowances and benefits to all employees doing the same work, regardless of gender (8).

- Article 45 of the 1934 Factories Act and Article 23 [C] of the 1923 Mines Act prohibit employment of women in a night shift (8).

- The 1963 Hazardous Occupations Rules prohibits employing women in hazardous occupations (8).

- Article 17-2 of the 1984 Law of Evidence requires a male witness for the promulgation of legal contracts comprising women and equates the testimony of two women to that of one single man in the settling of financial transactions (8).

Mecanismos legales de herencia

Inheritance provisions may vary depending on whether the deceased was a Christian, a Hindu, or a Muslim (14).

- Inheritance for Muslims is governed by Islamic Shariah as codified in the 1961 Muslim Family Laws Ordinance, and the 1962 West Pakistan Muslim Personal Law Shariat Application Act. These laws consolidated and amended the various Muslim laws.
The definitions of heirs, and their shares, are decided according to their sects and sub-sects, such as Cutchi Memon, Khoja, Sunni or Shia (14).

The Muslim Family Law Ordinance, 1961:
- Provides for the distribution of shares according to the personal law of each religious group in the country (14).

- In general, Muslim law of inheritance is based on the following principles:
i. All shares are distributed to legal heirs by intestate succession.

ii. The shares of the inheritance depend on the closeness of the relationship of the legal heirs to the deceased.  Blood relations have the closest ties. These shares are distributed depending on how many children, sisters, brothers and other relatives the deceased person had, and they may change from case to case.

iii. Female children are entitled to half the inheritance of male children; wives inherit one-eighth of their husband’s estate.

iv. Heirs acquire an absolute interest in specific shares of the estate of their ancestor, even before distribution. Vested inheritance may occur. For example, if an heir dies before distribution, but was alive at the ancestor’s death, the share of his/her vested inheritance passes on to his/her heirs (15).

- Under the Sunni law there are 12 shares in a deceased person’s property, four for males and eight for females.

- The Shia law recognizes nine shares and does not include grandfathers, grandmothers or sons and daughter/s.

- Female shares are similar under both the Sunni and the Sharia laws:
i. the wife or wives gets 1/4 of the share if there is no child or child of a son, otherwise she gets1/8 of the property;
ii. the mother gets 1/3 if there is no child or child of a son, otherwise 1/6;
iii. a daughter gets half the share of the son;
iv. in the absence of a son, the daughter gets 1/2 of the inheritance and if there are more than one daughter they collectively get 2/3 of the share (14).

- The 1962 West Pakistan Muslim Personal Law Shariat Application Act entitled Muslim women to inherit all property, including agricultural property, with shares prescribed according to the Shariat. It also extended the Shariat to all of West Pakistan, except tribal areas in the North West Frontier Province (14).

Legislación de tierras

Land Reforms Regulation, 1972, enacted as Martial Law Regulation N. 114, amended in 1973:

  • Article 8 [1]: Fixes the limits of individual holdings and ceilings of ownership at 150 acres of irrigated or 300 acres of non-irrigated land.
  • Article 9: No person may possess any share in Shamilat – the common property of a village - if s/he owns or possesses the maximum permissible area of land.
  • Articles 13 [1] and 16: Land held in excess to the official permissible area of retention is to be vested in the Government without payment of any compensation to the landowners in question.
  • Article 18 guarantees free distribution to tenants and landless. However, no land is to be granted to tenants who are already entitled to inherit land.
  • Articles 7 [1] [b] [i] and 10 [2] define the right of prior transfer of land to heirs: wife, sons, daughters, father, mother, children of deceased sons and daughters.
  • Article 11 allows for choice and exchange of area exceeding the ceilings.
  • Article 25 [1] [a] [b] [c] [d]: A tenant shall not be rejected from his tenancy unless it is established in the Revenue Court that he has failed to pay the rent or misuses the land, does not cultivate the properly or sublets his tenancy.
  • Article 25 [3] [a] [b] [c] states that the landowner has to pay all taxes, water rates and seeds, while expenses for fertilizers and pesticides are shared .
  • Articles 4, 5, 6 of Part II provide for the constitution of a Land Commission of the Province and of a Federal Land Commission (16).

- The 1973 Land Reforms Punjab Amendment Act extended the law to the whole Province of the Punjab (16).

Land Reforms Act, 1977:

  • Articles 3-6: No person shall own more than 100 acres of irrigated land or 200 acres of unirrigated land, including the share in Shamilat.
  • Article 9: Land in excess of the permissible area shall be surrendered to the Land Commission.
  • Article 11: The Federal Government, in respect of the surrendered land, shall pay compensation.
  • Articles 15-17 deal with the disposal of land vested in the Government. The land may be granted to landless tenants and may be used for public purposes.
  • Articles 18-27 outline powers and duties of Federal and Provincial Land Commissions (16).

Medidas políticas/mecanismos institucionales que refuerzan o limitan el derecho de la mujer a la tierra

- The National Commission on the Status of Women (NCSW) was established in 2000 to monitor and advise the Government on the impact of all policies and laws affecting the status and rights of women and suggest repeal or amendments or new legislation essential to eliminate discrimination.

The Commission has reviewed a number of laws and suggested amendments, including: the 1951 Pakistan Citizenship Act, amended to give children of Pakistani women married to foreigners, the right to nationality; and the 1979 Hudood Ordinance laws, which made a rape victim liable to prosecution for adultery if she could not produce four male witnesses to the assault, repealed in 2006 by the Women’s Protection Bill (8).
Furthermore, NCSW has undertaken research on the issue of inheritance and advocates for policy and legal reforms to secure women’s existing rights (14).

- The 2002 National Policy for Women’s Development and Empowerment acknowledges women’s disadvantaged position in society and aims at empowering women irrespective of caste, creed or religion. The primary objectives of the Policy are to remove inequalities, protect women’s human rights and eliminate negative customary practices (14).

- The Ministry for Women Development is the executing agency for the National Policy for Women’s Development and Empowerment.
The Ministry has undertaken a major reform programme in all provinces through the Gender Reform and Action Plan (GRAP). However, the Ministry has not endorsed directly women’s land rights or access to resources and is hampered by inadequate manpower and capacity (14).

The GRAP, implemented in Punjab from 2008 for 48 months, aims at mainstreaming gender in the provincial departments. Its objectives are:
i. to ensure that all the public sector operations in the provinces promote gender equity and reduce gender inequality;
ii. to seek transformation of the provincial government into an organization that practices and promotes gender equality;
iii. to ensure that all the provincial civil servants understand gender issues;
iv. to make adequate representation of women as decision makers in the provincial government (17).

- The Rural Support Programmes (RSPs) provide financial and technical services to the vulnerable communities, including rural women, for enhancing their income generating capacities.

The National Rural Support Programme (NRSP), established in 1991, is the largest RSP and works with more than half a million vulnerable households organized into a network of more than 29 000 Community Organizations (19).


Fuentes: los números entre paréntesis (*) se refieren a las fuentes que están en la sección de Bibliografía