Constitutional reforms: Centre’s intransigence leaves FATA judiciary in limbo
In the absence of consensus, tribal areas are functioning without higher courts
In the absence of consensus, tribal areas are functioning without higher courts. PHOTO: APP
ISLAMABAD:
As the federal government continues to drag its feet on extending constitutional rights to the people of the Federally Administered Tribal Areas, the judicial system for Fata has been partially paralysed, leaving many in a judicial limbo over the fate of their cases before the courts.
At the heart of the disagreement is the fact that, currently, all constitutional rights guaranteed to Pakistanis are denied to the people of Fata. The most contentious consequence of this blatant lack of equal protection is the fact that Fata tribesmen live under the colonial-era law known as the Frontier Crime Regulations (FCR), under which a single Islamabad-appointed bureaucrat – the political agent – serves as judge, jury and executioner for all criminal cases, with inhumane collective punishments and no recourse to judicial review.
Under pressure from parliamentarians and rights activists from Fata, the government has started introducing some reforms, most importantly the introduction of an appellate tribunal, to be appointed by the Khyber-Pakhtunkhwa governor, which would serve as some sort of judicial check over the power of the political agent. However, a dispute between Fata parliamentarians and the Fata Secretariat over its structure has dragged on long enough for the last tribunal to have expired five months ago, with no renewal in sight.
“The appellate tribunal is like a high court for the people of Fata,” said Muhammad Ejaz Mohmand, the chairman of the Fata Lawyers Forum (FLF). “Hundreds of appeals against the judgements of the Fata judiciary are pending unheard for the last several months. The term of the previous tribunal ended earlier this year but the Fata administration has not yet appointed the next tribal appellate court.”
The dispute over constitutional law, meanwhile, has added very real consequences for the lives of the people of Fata. “Tribesmen are already deprived of their constitutional fundamental rights. Now those people who have been convicted by the tribal judicial system are left with no option but to wait for a solution to the dispute,” said Mohmand.
For its part, the Fata Secretariat claims that it has not appointed the tribunal because the FLF and other civil society organisations have rejected it, one official from the FRC told The Express Tribune requesting anonymity.
Mohmand admits his group rejected the proposed tribunal. “The reason for the rejection was that it comprised two retired bureaucrats and a senior law practitioner. The tribunal was toothless for all practical purposes because it had no powers to enforce its orders. Powers under the contempt of court laws are necessary for any tribunal to enforce its judgements.”
The FLF also rejected a proposal by the FRC that would have created two appellate tribunals, each to would be headed by a retired judge form the Peshawar High Court. FLF’s reason for rejecting that proposal was the same: the tribunals would still not have contempt of court powers.
The one exception the FLF was willing to make was to a previous tribunal that comprised senior officials of the Khyber-Pakhtunkhwa bureaucracy, including the chief secretary, the home secretary and the law secretary. “That tribunal also lacked contempt of court powers, but it was the better alternative among the three proposals,” said Mohmand, owing to the fact that it had senior serving officials as opposed to retired officials.
Ultimately, however, the FLF believes that the appellate tribunals are simply a stop-gap measure and that the real solution to Fata’s judicial troubles lies in extending the jurisdiction of the Peshawar High Court to the tribal areas.
Malik Ajmal Wazir, a spokesman of an alliance of 10 major political parties, endorsed the FLF’s demands for extending the Peshawar High Court and the Supreme Court’s jurisdiction to the tribal areas. “The establishment of the tribunals under the FRC’s proposals will not satisfy the people of Fata,” he said.
Published in The Express Tribune, June 1st, 2015.
As the federal government continues to drag its feet on extending constitutional rights to the people of the Federally Administered Tribal Areas, the judicial system for Fata has been partially paralysed, leaving many in a judicial limbo over the fate of their cases before the courts.
At the heart of the disagreement is the fact that, currently, all constitutional rights guaranteed to Pakistanis are denied to the people of Fata. The most contentious consequence of this blatant lack of equal protection is the fact that Fata tribesmen live under the colonial-era law known as the Frontier Crime Regulations (FCR), under which a single Islamabad-appointed bureaucrat – the political agent – serves as judge, jury and executioner for all criminal cases, with inhumane collective punishments and no recourse to judicial review.
Under pressure from parliamentarians and rights activists from Fata, the government has started introducing some reforms, most importantly the introduction of an appellate tribunal, to be appointed by the Khyber-Pakhtunkhwa governor, which would serve as some sort of judicial check over the power of the political agent. However, a dispute between Fata parliamentarians and the Fata Secretariat over its structure has dragged on long enough for the last tribunal to have expired five months ago, with no renewal in sight.
“The appellate tribunal is like a high court for the people of Fata,” said Muhammad Ejaz Mohmand, the chairman of the Fata Lawyers Forum (FLF). “Hundreds of appeals against the judgements of the Fata judiciary are pending unheard for the last several months. The term of the previous tribunal ended earlier this year but the Fata administration has not yet appointed the next tribal appellate court.”
The dispute over constitutional law, meanwhile, has added very real consequences for the lives of the people of Fata. “Tribesmen are already deprived of their constitutional fundamental rights. Now those people who have been convicted by the tribal judicial system are left with no option but to wait for a solution to the dispute,” said Mohmand.
For its part, the Fata Secretariat claims that it has not appointed the tribunal because the FLF and other civil society organisations have rejected it, one official from the FRC told The Express Tribune requesting anonymity.
Mohmand admits his group rejected the proposed tribunal. “The reason for the rejection was that it comprised two retired bureaucrats and a senior law practitioner. The tribunal was toothless for all practical purposes because it had no powers to enforce its orders. Powers under the contempt of court laws are necessary for any tribunal to enforce its judgements.”
The FLF also rejected a proposal by the FRC that would have created two appellate tribunals, each to would be headed by a retired judge form the Peshawar High Court. FLF’s reason for rejecting that proposal was the same: the tribunals would still not have contempt of court powers.
The one exception the FLF was willing to make was to a previous tribunal that comprised senior officials of the Khyber-Pakhtunkhwa bureaucracy, including the chief secretary, the home secretary and the law secretary. “That tribunal also lacked contempt of court powers, but it was the better alternative among the three proposals,” said Mohmand, owing to the fact that it had senior serving officials as opposed to retired officials.
Ultimately, however, the FLF believes that the appellate tribunals are simply a stop-gap measure and that the real solution to Fata’s judicial troubles lies in extending the jurisdiction of the Peshawar High Court to the tribal areas.
Malik Ajmal Wazir, a spokesman of an alliance of 10 major political parties, endorsed the FLF’s demands for extending the Peshawar High Court and the Supreme Court’s jurisdiction to the tribal areas. “The establishment of the tribunals under the FRC’s proposals will not satisfy the people of Fata,” he said.
Published in The Express Tribune, June 1st, 2015.