Long awaited judicial reforms in FATA

Published: March 18, 2017
The writer is a Director at Governance & 
Policy Advisers

The writer is a Director at Governance & Policy Advisers

In a historic move, the federal cabinet approved the proposed recommendations of the Committee on Fata Reforms as 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.

Terming it a historic decision, legal experts say the proposed legal reforms would replace the century-old draconian FCR law that concentrate 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.

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 for Fata. 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. Honour 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.

The Frontier Crimes Regulations, 1901, known as a black law is a remnant of the colonial rule. It assigns the Fata people 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.

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 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.

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 state institution, thereby bridging the existing gap between the state and its marginalised citizens.

According to legal experts, the extension of writ of the superior courts to Fata alone would be a marked progress and finding 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.

Published in The Express Tribune, March 19th, 2017.

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