The Federally Administered Tribal Areas (FATA) have been kept away from the country’s judicial system under Article 247 of the Constitution of Pakistan and all kinds of disputes are resolved under the centuries-old tribal system. The ongoing reforms process not only aims at bringing the tribal region into the national mainstream, but also bringing FATA under the judicial system of the country.
Haider Mohmand, a lawyer of the Peshawar High Court (PHC), hailing from Mohmand Agency, says judicial system can be extended to FATA under two procedures. “It can be done through amendment to Article 247 of the Constitution, while a presidential ordinance can also be promulgated to extend mainstream judiciary to FATA,” he told TNN. Legal expert Shakirullah Afridi, hailing from Khyber Agency, says the FATA people will have three options for resolutions of their problems if the judicial system was extended to the tribal areas.
“An act must be passed from the Parliament to establish courts in FATA and appoint sessions judge level officers there. When a dispute will reach the court, it will give option to the rival parties to resolve it under Riwaj Act or the Jirga system. The rival parties will also have options to resolve the dispute through Criminal Procedure Code (CrPC) or Shariah law. In case of disagreement between the rival parties on mode of resolution of the dispute, the court will have final say over the matter,” he said.
Majority of people in FATA are in support of administrative reforms, but some segments want resolution of disputes under the old traditional tribal system even after introduction of reforms. Haider Mohmand Advocate says if a judicial officer is appointed along with every political agent then it will be sufficient for extending judicial system to FATA. “Establishment of judicial system is not a difficult task. There are several instances in our region where deaths occurred over personal enmities and the tribal elders intervened and ordered Tiga (ceasefire) after which not a single shot was fired by either party. There are several influential people in FATA who can manage the Jirga system well. Administrative powers should rest with the political agent or assistant political agent, and judicial powers can be given to law and human rights experts. These officers can be given special training for dealing with FATA issues keeping in view local traditions,” Haider Mohmand told TNN.
The purpose of reforms process in FATA is to ensure political, social, economic and educational development of the tribal people and bring them into the national mainstream. However, Shakirullah Advocate believes that both the tribal people and judicial officers will face problems under the new system. “The FATA people will have to adjust to the new judicial system about which they have little knowledge. Capable people from all parts of the country may be appointed in the FATA judiciary, but language and cultural barriers may impede their smooth work. The issue of tribal mind-set may also surface. However, the system will work efficiently once these problems are resolved,” he said.
Haroon Shinwari, a lawyer from Khyber Agency, says scrapping of Frontier Crimes Regulation (FCR) and reforms in administrative system is the need of hour. However, he said the tribal population must be taken into confidence before introducing reforms. Like legal experts, the common people also have different opinion about extension of judicial system to FATA. Muhammad Shoaib from Shankai area of South Waziristan says: “Our Jirga system is better than the High Court and Supreme Court. The new judicial system will definitely fail in South Waziristan.”
Malik Ghulam Khan from North Waziristan says: “It was our long standing demand to have judicial system in FATA. Since 1901, we are living in darkness. Corruption is rampant in FATA due to lack of proper judicial system. The new system will reduce corruption in our region.” Nawaz from North Waziristan says: “We want abolishment of FCR. We have our old Jirga system and we don’t need courts because they consume too much time in deciding cases.”
Haji Rauf from Parachinar, Kurram Agency, says: “Reforms must be carried out in a transparent way and people of FATA must get access to the High Court and Supreme Court.” Malik Zameen Hussain from Sheengakh says: “The government should show urgency in bringing reforms in FATA. Reforms are direly needed because currently an assistant political agent wields all administrative and judicial powers.”
Naila from Orakzai Agency says: “All the people of FATA will get access to their rights with establishment of judicial system.”Zameen Shah from Landikotal tehsil of Khyber Agency says: “Bringing judicial system in FATA will be a positive step as complex problems of modern era cannot be resolved without judicial system.”Farhad from Mohmand Agency says: “In case of a dispute between two brothers, both will have to visit courts for hearing which will not be a positive picture. We support Jirga system because it brings an end to mistrust and sarcasm and provides speedy and inexpensive justice.”
Sajjad Mohmand from Haleemzai says, “The courts will greatly benefit the tribal people because they will give judgements after fulfilling all requirements of justice. It will open avenues of justice for the FATA people and they will have the facility to approach the court if they feel the political agent has committed injustice to them.”
Muhammad Rehman from Bajaur says FCR should be amended, not scrapped. “There is a lot of difference between tribal and settled areas. The judicial system involves hiring of lawyers and other efforts which is not an easy task,” he told TNN.
TNN also conducted a group discussion with Fazal Shah Advocate, an eminent lawyer from Mohmand Agency, Murad Khan Saqi, a tribal elder, and Mehreen Afridi, a human rights activist from Khyber Agency, to ascertain their viewpoint over extension of judicial system to FATA.
TNN (from Fazal Shah): Extension of judicial system to FATA is main ingredient of reforms process. How this system will work in tribal areas? Fazal Shah: There are two aspects of this question. The first is that which laws will be implemented in FATA and in which areas. The appointment of judges and their method of resolving cases will be a matter of keen observation. The draft of FATA reforms is positive in respect of giving right to FATA people to approach the High Court and Supreme Court. The procedure of working of the courts will become clear after passage of the Act from the Parliament. For example, Pakistan Penal Code (PPC) is a law in Pakistan under the Constitution. The PPC and CrPC will lay down procedure for working of the courts. The Act passed in this regard will have a separate section having rules and procedures. So the mode of working of courts in FATA will become clear with passage of time. A committee will be formed for the purpose of devising strategy for the mode of working of courts in the tribal areas.
TNN (from Murad Khan): Will it be possible to extend the courts to FATA. If yes, then to what extent?
Murad Khan: The ongoing reforms process in FATA is part of the National Action Plan (NAP). The NAP not only envisaged reforms in FATA, but also in judiciary, police and other institutions. We are welcoming the reforms in whatever shape them come. The tribal people also want access to their rights like other Pakistanis. I have talked to various lawmakers and lawyers and asked them whether the High Court or Supreme Court will be able to resolve my land disputes in an area like Tirah and they replied in the negative. I asked then what will be the way forward and they replied that we will have to organise a Jirga for this purpose.
TNN: So you believe that the judicial system is bound to fail in FATA?
Murad Khan: It will definitely fail because there is no record of our enmities, lands or relations. The courts will be unable to get evidences of cases in FATA as they don’t exist at all. However, Jirga system is capable of resolving all disputes due to its outreach and familiarity with tribal situation.
Fazal Shah: The draft of the government has given representation to Jirga system. The Jirga system cannot be separated from tribal affairs.
TNN (from Mehreen Afridi): There are views in favour and against extension of judicial system to FATA. How do you see the existing scenario?
Mehreen Afridi: Such a situation arises whenever human rights are violated in any area. In this situation, the extension of High Court and Supreme Court Jurisdiction to FATA becomes inevitable to ensure that people have access to their rights. We should not merge the Jirga and judicial system. Why the tribal people have been kept deprived of their rights? If the Jirga system is to remain intact than what is the need of bringing a new act, as it could be done by amending the FCR. Every area has its traditions and customs. However, there is no need for bringing these customs under the regulations and making people bound to it. There might be positive and negative aspects of customs and traditions, but the judicial system has its own importance. Being rights activists, we welcome the judicial system. However, it should not be mixed with Jirga system.
TNN (from Fazal Shah): Do you agree with Murad Saqi that courts will fail in FATA?
Fazal Shah: If we consider ourselves Pakistanis then we should abide by the Pakistani law and Constitution. We cannot reject the High Court and Supreme Court.
Murad Khan: So tell me are Articles 246 and 247 not part of the Constitution of Pakistan?
Fazal Shah: It is a separate issue and we can discuss it for as long as we wish. We want an opening to move forward. We want amendments in the Constitution to get access to higher judiciary.
Mehreen Afridi: Bringing judicial system in FATA is inevitable but the tribal people will only benefit from it if Article 247 is amended. The main aim of long struggle for reforms was to get legal and constitutional rights for people.
TNN: Will the FATA people wholeheartedly accept the judicial system and abide by it?
Mehreen Afridi: The system will progress slowly for which we need to remain steadfast and patient. It can’t achieve desired results overnight.
Fazal Shah: It is encouraging because currently our hands are tied and we cannot approach the superior judiciary to resolve our disputes. Reforms will enable us to approach the courts to get justice. The courts will decide cases strictly according to law.
Murad Khan: The High Court and Supreme Court will ruin our tribal system as everyone will get stay on every issue and we will not be able to even go to our homes and hujras (male guest houses). We want a judicial system in accordance with tribal traditions which will be equal for all tribal agencies. Trained tribal elders should be included in the system to decide cases on merit according to local traditions and customs. It will ensure smooth functioning of tribal system and will also bring us under the Constitution of Pakistan. However, we should also get right to approach the Supreme Court of Pakistan against injustices committed with FATA people by other institutions.
TNN: So you are advocating for a parallel judicial system in FATA?
Murad Khan: It will not bring any disaster. We should learn from America where there are 52 states and as many systems.
TNN (from Fazal Shah): Do you see possibility of a separate judicial system for FATA?
Fazal Shah: Being a tribal citizen I am well aware of people’s problems in FATA. The main objective is to give basic rights to people. Reforms will be meaningless if the country’s judicial system was not extended to FATA.
TNN: So you believe that the traditional tribal justice system has failed to deliver?
Fazal Shah: No, I don’t see it as a failure. Traditions and customs are here to stay.
TNN: What will happen in case of clash between two systems? For example what will happen if Jirga has decided a murder case five years ago and the affected party approaches the court now with plea that he was not satisfied with the Jirga decision?
Fazal Shah: Every law is implemented with the concept of immediate effect. It means that the law enacted today will not touch issues of yesterday. So the new system will not deal with old settled disputes. The Supreme Court has given a number of verdicts in this regard. Different governments have tried to make such laws from time to time, but the High Court and Supreme Court rejected those laws.
TNN: What will be the pros and cons of judicial system in FATA?
Fazal Shah: Every person is entitled to basic human rights as soon as he or she is born. There nothing above the constitution in any country. If we consider ourselves as Pakistanis and we claim that we are entitled to certain rights under the Constitution, then these rights can be ensured through the judicial system. As a lawyer, I am hopeful that it will resolve our many problems.
TNN (from Mehreen Afridi): What will be the impact of extension of judicial system to FATA on women?
Mehreen Afridi: There is no mention of tribal women anywhere in the reforms. However, we are hopeful that women will also get their constitutional rights gradually with success of judicial system in tribal areas. When we talk about human rights, it includes rights of men as well as women. We also need to study Riwaj Act thoroughly to see its impact on the women of FATA.
TNN (from Murad Khan): Do you see new challenges in FATA with arrival of courts system?
Murad Khan: I believe that the courts system in settled areas has failed. This fact has also been mentioned in the NAP. If the judicial system is extended to FATA in its existing shape, it will cause various problems. Most disputes in FATA concerns to property issues so a lot of people will get stay orders over disputed lands. Well off people will hire expensive lawyers, while the poor people will be left at the mercy of God. The Jirga system is the easiest forum for a common man to get quick and inexpensive justice.
TNN: If a woman is not getting share in property from her father or brothers and she approaches the Supreme Court for her right, then will it not be beneficial for the woman?
Murad Khan: You are right, but if the woman approaches the Jirga, it will give the woman her right much quickly than the Supreme Court.
TNN: But most people in FATA don’t give share in property to women?
Murad Khan: Yes, women are deprived of their rights in all part of the country. We are prepared to work for giving all rights to women under the teachings of Islam. The courts will not guarantee these rights to women. Women will file appeals in the courts and wander for justice.
TNN (from Mehreen Afridi): How will you conclude this argument?
Mehreen Afridi: The prevailing tribal system is denying rights to women which are given by Islam. Very few women go to courts for demanding their share in property, while most of them don’t indulge in such issues. It is up to women whether they want their share in property or not.
This article has been translated from TNN programme ‘Badloon’ which discusses political activities and reforms process in the tribal areas. TNN producers Shan Muhammad and Salman Ahmed prepared this programme which was broadcast from five radio channels of FATA and Khyber Pakhtunkhwa.
TNN correspondents Shah Khalid, Gul Muhammad Mohmand, Shah Nawaz Afridi, Malik Azmat, Ali Afzal, Marukh Jabeen, Gohar Wazir, Nabi Jan Orakzai and Rizwan Mehsud contributed to this article.