Long-Awaited Judicial Reforms in FATA

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Najma Minhas |

In a historic move, the federal cabinet approved the proposed recommendations of the Committee on FATA Reforms as a part of its efforts to mainstream FATA. This will put an end to the decades-long sense of frustration and deprivations undergone by its people. One immediate urgency behind these reforms has been the desire to eliminate terrorism from the country.

The reforms include return and rehabilitation of the displaced persons by April 2017, reconstruction of the area by December 2018, and participation of FATA in the provincial elections to the K-P Assembly in the 2018 elections and later in local bodies’ elections. The reforms will also undertake an introduction of a 10-year comprehensive socio-economic development plan to improve the development indicators in FATA, rebuild the damaged infrastructure, create employment and economic opportunities, and double the quota for FATA students for admission to colleges in other provinces. However, the most promising feature of the reforms is the extension of higher and superior courts’ jurisdiction to FATA.

Read more: Should FATA merge with KP or become an independent province?

Terming it a historic decision, legal experts say the proposed legal reforms would replace the century-old draconian FCR law that concentrates the judicial and executive powers in the hands of the political administration. President of the FATA Lawyers Forum, Rahim Shah, has described it as giving the tribesmen access to justice that was previously denied, a right to appeal, provide Daleel (argument), and be provided Wakeel (legal counsel) in the courts of justice.

Under the current FCR, crimes against women are ignored, despite the fact that maximum crimes in FATA are related to women.

According to Article 1 of the 1973 Constitution, FATA is a part of Pakistan. Yet, clause 7 of Article 247 of the Constitution currently stipulates that “[n]either the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area…”

While the Constitution protects the fundamental rights of the citizens, when it came to FATA, this was not happening. Under Article 247, all these provisions are rendered null and void for operation in FATA and a separate judicial system was stipulated. By ousting the jurisdiction of the Supreme Court and High Court, Article 247 (7) is acting as an impediment to the tribal people in securing their fundamental rights and thereby prevents them from being mainstreamed.

Under the current FCR, crimes against women are ignored, despite the fact that maximum crimes in FATA are related to women. Honor killing, child marriage, Swara marriage (a tribal custom to give women in marriage to the aggrieved party in consideration for settling a dispute), exchange marriages, and “bride price” are still accepted norms in FATA without any legal remedies.

Read more: What kind of politics is being played to stop FATA being integrated into Pakistan?

The Frontier Crimes Regulations, 1901, known as a black law is a remnant of the colonial rule. It assigns the FATA people a few ‘human rights’ and neither can they claim any other status, privilege, or position conferred upon other citizens of Pakistan through the Constitution.

Amnesty International has described the Frontier Crimes Regulation, 1901 (FCR), as being deeply flawed. It does not ensure the protection of human rights as given by the Constitution of Pakistan, nor those covered under Pakistan’s international obligations as a state party to the UN Convention on the Rights of the Child and the UN Convention on the Elimination of All Forms of Discrimination against Women.

The reforms also empower the auditor general of Pakistan to carry out a proper audit of the funds provided to the government line departments to ensure transparency and hold the government officer accountable.

Striking down of the FCR has, therefore, been a long-cherished demand of various stakeholders, primarily due to its inhuman and tyrannical nature and its employment by the administration of tribal areas and its handpicked tribal agents, Maliks, to oppress the tribesmen.

In the newly proposed legal reforms, the judicial setup in FATA would be a blend of the existing judicial system of the country and the traditional mechanism prevailing in FATA. A civil judge would form a council of Jirga on any complaint to deliberate upon a given issue. The Jirga will assist a court in matters concerning the issue of fact in any matter before a judge who would determine the scale of sentence based on the existing Riwaj or tradition of the area.

However, now it will be ensured that the judgment must not infringe the fundamental rights or other provisions of the Constitution. The complainant will have the right to appeal to the Peshawar High Court under article 199.

This landmark reform will ban the collection of octroi and taxes by the administration from the next financial year. This will reduce corruption and help to reduce the prices of goods that were taxed in this illegal manner before. The reforms also empower the auditor general of Pakistan to carry out a proper audit of the funds provided to the government line departments to ensure transparency and hold the government officer accountable.

Read more: Why Do Human Lives Dying in Pakistan Matter Less than When Dying in London?

This ushering of a more participatory approach coupled with a common man’s access to easy justice and improved responsiveness of statecraft players would help the people to develop a sense of ownership of the system they are part of. This, in turn, will help the government to restore people’s confidence in the state institution, thereby bridging the existing gap between the state and its marginalized citizens.

According to legal experts, the extension of the writ of the superior courts to FATA alone would be a marked progress and find a solution to a plethora of issues the people of the area are faced with. These reforms also empower the Supreme Court to take a Suo-Motu action against any issue confronting the community.

Najma Minhas is Director Governance and Policy Advisors. She is an analyst and appears on many national Pakistani TV channels. She has contributed pieces for The Foreign policy, The Diplomat, Islamic, The Nation, and other newspapers.
This article was first published in The Express Tribune.

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