Facilitator’s note: In 2001, women own less than 1 per cent of the property on the planet (PPSEAWA International Bulletin - Pan Pacific Southeast Asia Women's Association 21st International Conference). Hasna Cheema, Consultant, UNDP Regional Centre in Colombo, investigates contradictions between the inputs of legal contexts and equity outcomes in property ownership. She highlights some major legal and social barriers that deprive women of legitimate economic rights. Hasna’s coverage of countries encompasses a disparate range of blends-of-legal-systems (Pakistan, Sri Lanka, Nepal, and Viet Nam) with regard to the discriminatory property laws.
[About this discussion: The AP-HDNet (http://www2.undprcc.lk/ext/HDRU/index.php) welcomes you to the e-discussion on gender - addressing unequal power, unequal voice. We encourage you to share your experience, country examples, lessons learned, and good (and not so good) practices. Your responses and comparative experiences will be important for the preparation of the Asia Pacific Human Development Report. Thank you very much for your interest and cooperation.]
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Dear Network Members,
Property and inheritance rights have direct influence on assets ownership and control. They play a crucial role in women’s economic empowerment. The full recognition of these rights enhances women’s capabilities to lead productive and meaningful lives. With enhanced capabilities, women get more space to choose and avail opportunities. Consequently it is instrumental in accelerating human development process and promoting gender equity in the society.
Can economic equity be achieved in the presence of discriminatory laws against women? Laws play a pivotal role in safeguarding economic rights of an individual in a society. Discriminatory laws pave way for further perpetuation of despicable social practices and marginalization of poor in the society including women. Existence of discriminatory economic laws, including property and inheritance, is one of the key barriers in promoting economic equity. The lack of implementation of laws is another factor which impedes realization of women economic rights.
A brief analysis of the property and inheritance rights of few Asian countries reveals a grim reality. The economic rights of women are trampled upon by society with little remorse. The examination focuses on some major legal and social barriers which deprive women of their legitimate economic rights.
Let’s have a cursory glance at some of the property rights bestowed upon women in few Asian countries and explore how these rights are safeguarded or infringed.
In Pakistan the constitution of 1973 guarantees every citizen the right to ‘to acquire, hold and dispose of property’ (http://www.pakistanconstitution-law.com/const_results.asp?artid=23&title=Provision%20as%20to%20property). In addition it stipulates that ‘no person will be deprived of his property’. Apart from the constitutional guarantees, the legal instruments also uphold women’s property rights. The Married Women’s Property Act, 1874 entitles married women to separate property (http://www.vakilno1.com/bareacts/Laws/The-Married-Womens-Property-Act-1874.htm). Similarly the Transfer of Property Act 1882 confers equal rights to women to engage in sale, mortgage, lease, gift and transfer of immovable property deals (http://www.iiiglobal.org/country/india/THE_TRANSFER_OF_PROPERTY_ACT_1882.pdf).
In reality, Pakistani women are deprived of their legitimate property rights. A combination of factors such as customary practices, social inhibitions, distorted version of Islamic provisions on inheritance and unequal power structures prevent Pakistani women from exercising their due rights.
Many despicable practices remain unchallenged in the society. The practices are devised to make women powerless and voice less in the power structure of the society. A practice of haq bakhshwana (giving up rights) is followed in southern parts of Punjab and Sindh. Under this tradition a girl member of the family is forced to stay single or is married to Quran. The main motive behind this practice is to keep property within the family and to prevent its division which is evitable in case female member decides to marry.
Watta Satta (exchange marriage whereby one set of brother and sister are married to another) and cousin marriages are designed to prevent break up of property. Aside from deprivation of right to acquire and own property, women themselves are treated as property. Pakistani media often carries reports of female killings by their own family members because they exerted their rights to marriage or property. Recently five women were brutally tortured and buried alive as they had opted for court marriages of their own free will (Dawn 2008). Although honor killing is declared a criminal offence (http://www.pakistan.gov.pk/divisions/law-division/media/I-2005.pdf ), women continue to fall prey to this despicable crime. It is also quite common for women to transfer property to male members of the family under social pressure.
The issue of inheritance rights of women in Islam is often a subject of intense debate. As per the Islamic injunctions on inheritance, a daughter in a family inherits one-third while son is entitled to two-third share of the property. It is based on the principle of ‘to the male a portion equal to that of two females’ (The Quran, Verse 4:11). The division of shares on this principle is discriminatory of female equal rights. Many writers on Islamic law (i.e Parveen Shaukat Ali) have argued that this law does not discriminate against women. Their main argument is that women inherit from three sources i.e. father, husband and son. However men too inherit from other sources. One has to take into account the historical context of this law. The difference in shares between men and women is based on corrective approach of the pre-Islamic custom of exclusion of women from any form of inheritance (Sardar Ali, 2006). It is essential to revise the inheritance law through ijtihad (interpretation of Quranic injunctions on the basis of contemporary circumstances by highly educated Islamic scholars) to promote gender equality.
Sri Lankan women enjoy the freedom to exercise their right to property and inheritance. Based on the general law, they have the freedom to acquire, retain and dipose off property. They are also entitled to equal inheritance rights as men (http://www.commonlii.org/lk/legis/consol_act/mrai69364.pdf). However women in certain communities face restrictions in exercising their property rights. For instance Tamil woman requires written consent of her husband to dispose of any immovable property (http://www.asianlii.org/lk/legis/consol_act/mrai70396.pdf).
In Nepal, the inheritance and property laws are particularly harsh to women. A daughter is entitled to inherit parental property if she is unmarried and 35 years old or above. Once she gets married, she has to return the property to the family minus the marriage expenses. A son, on the other hand, is heir of the ancestral property upon birth (http://www.aworc.org/bpfa/pub/sec_f/eco00001.html).
The Vietnamese’s constitutional and legal provisions promote the principle of gender equity. It is considered a criminal offence to prevent women from participating in political, economic, cultural and social activities. Being a socialist state, land belongs to the people. The state leases land and issues land use rights certificates (LURC). As per the law, the names of both husband and wife must be registered on the certificate. However despite of guarantees, only 3 per cent of Land Use Certificates are registered in women’s names and 3 per cent are jointly held (Vietnam Committee on Human Rights, 2007).
What are some of the commonalities which above mentioned countries share with regard to women property rights and inheritance rights? Firstly, the existence of discriminatory property and inheritance laws against women which marginalize their economic status in the society. Secondly, the laws are not implemented in letter and spirit. The laws of the state are held subservient to the discriminatory customary practices which deprive women of their due rights. Thirdly the discrepancies between general law and personal laws prevent universal application of property and inheritance laws.
Apart from the legal barriers, several other restrictions are imposed on women property right. R. K. Murthy in her contribution to the AP-HDNET (9th September 2008) identifies several obstacles at meso and macro levels including patrilocal system of residence, absence of gender disaggregated data on property ownership at national /state and district level etc. In addition, Niranjan Sarangi and Elena Borsatti in their insightful contribution to the AP-HDNet (19th September 2008) have mentioned that unequal inheritance and property rights between men and women is one of the key challenges inhibiting economic equity.
In contemporary world, societies should learn to question and discard those social norms and practices which perpetuated gender inequities. Human development process involves expansion of people’s choices to live a dignified life. And ‘people’ compose of both men and women. Let societies grant women the autonomy and freedom to claim their due rights which include their property rights. The autonomy granted will enable women to develop their full potential and lead productive lives.
Kind regards,
Hasna Cheema
Consultant
UNDP Regional Centre in Colombo
References
Dawn. 2008. “Honour’ Killing of Baloch Women Condemned.” 1 September. [http://www.dawn.com/2008/09/01/top17.htm]. Last accessed on 19 September 2008.
Sardar Ali, Shaheen. 2006. Conceptualizing Islamic Law, CEDAW and Women’s Human Rights in Plural legal Settings: A Comparative Analysis of Application of CEDAW in Bangladesh, India and Pakistan. New Delhi: UNIFEM, South Asia Regional Office.
Vietnam Committee on Human Rights. 2007. Violations of the Rights of Women in the Socialist Republic of Vietnam. Boissy Saint Léger Cedex, France: Vietnam Committee on Human Rights. [http://www.fidh.org/IMG/pdf/VietCommRappAltCEDAW0107.pdf]. Last accessed on 19 September 2008.
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