Administration of Social Justice in Fata
ADMINISTRATION OF SOCIAL JUSTICE IN FATA
By Muhammad Farooq Afridi, Advocate High Court, Peshawar
The Federally Administered Tribal Areas (FATA) are located on North- Western Himalaya zone and South-Western Sulaiman Mountains. In Article 246 (c) of the Constitution of Pakistan, the Federally Administered Tribal Areas (FATA) consist of seven semi-autonomous agencies or administrative units--Khyber, Mohmand, Bajaur, Kurram, Orakzai, North Waziristan and South Waziristan and includes "Frontier Regions (FR)" that adjoin the districts of Peshawar, Kohat, Bannu, Lakki Marwat, Tank and Dera Ismail Khan. This tangled mass constitutes an area of 27,200 sq kilometres and is inhabited by around 4.8 million people belonging to different Pukhtoon/Pushtun tribes. The 1510 miles (2430 KM) long Durand Line, which was drawn in 1893 by the British colonial rulers of India, geographically divides the Pushtun tribes in the region between Afghanistan and the FATA of Pakistan. The FATA has remained strategically important since the times of "the Great Game" for imperial domination that took place in the 19th century.
After Pakistan emerged on the world map as an independent entity, the country was governed by the Government of India Act 1935, read with the Indian Independent Act of 1947. Sections 91 and 92 of the Government of India Act, 1935, dealt with the Tribal Areas and defined them as 'Excluded Areas' and 'Partially Excluded Areas'. The above instruments were replaced by the Constitution of 1956 which was a short lived document. Its successor was the Constitution of 1962. Articles 103 and 104 of the Constitution of 1956 while Article 223 of the Constitution of 1962 dealt with the Tribal Areas of Pakistan. After the Constitution of 1962 was abrogated, the next adopted Constitution was of 1973 which still holds the ground. Article 246 of the Constitution of 1973 defines Tribal Areas while Article 247 is pertaining to Administration of tribal areas. The spirit of Articles 246 and 247 of the Constitution of 1973 is substantially the same as of the corresponding Articles of the 1956 Constitution; in that, the Executive Authority of the Federation extends to Federally Administered Tribal Areas and the Executive Authority of a Province to the Provincially Administered Tribal Areas. Frontier Crimes Regulations, 1901 is the local law for the people of FATA. The Political Agent and Assistant Political Agent exercise the judicial power under the FCR and decide the criminal as well as civil disputes among the people of FATA after consulting the Council of Elders. The said decision is based on the Custom/Rewaj of the tribe. The aggrieved party has a right of appeal under section 48 of FCR which is made to the Commissioner while Revision against the order of appellate authority is made to the FCR Tribunal under section 55-A of the FCR. The FCR on one hand is said as a Black law but on the other hand it is a source of rapid social justice amongst the people of FATA as the FCR is immune from the technicalities of procedural law and it provides a speedy justice to the tribal people.
After annexation of the North-West Frontier Province (NWFP) by the British government in the year 1848, they found that the ordinary civil and criminal laws were not suitable for these areas. Although civil disputes were quite few in those days, however, the incidence of crimes, especially murders and dacoities, were so alarming that the ordinary laws and courts found it impossible to check them. So, the first Regulation known as the Frontier Crimes Regulation of 1871 was promulgated for the suppression of crime in the frontier district. Later on, in order to make the law more effective, the Punjab Frontier Crimes Regulation of 1887 was issued which was again further strengthened in 1901 by the Frontier Crimes Regulation which is still applicable. Frontier Crimes Regulation of 1901 gives unbridled, unchecked and unlimited powers to the Political Administration as the political agent exercises executive as well as judicial powers which is against the Doctrine of Separation of Power.
Smooth and speedy justice is the need of the time otherwise if justice is delayed then justice is presumed as denied and that is only possible to introduce judicial reform in FATA. The executive and judicial powers in the hand of political agent make him a powerful king of old days. The combination of executive and judicial functions has resulted in an arrangement contrary to the established norms of justice. Hence the system of justice tends to be obscure by having no distinction between judicial and administrative functions. It is requirement of the time to entrust the judicial powers in the judicial officers fully independent from the executive authority. A separate Judicial system wherein judicial officers should be appointed/posted from district judiciary who shall decide issues within specified time, followed by an appeal to the High Court. Article 247 (7) of the Constitution be amended which says for not exercising the jurisdiction by a High Court as well as Supreme Court in relation to Tribal area. The people of FATA could knock the door of High Court and Supreme Court for resolving their disputes under the 1956 Constitution as well as 1962 but the 1973 Constitution snatched this right away from them and left at the mercy of FCR Tribunal being a highest forum for adjudication of their disputes. This discrimination is violation of Article-25 of the Constitution which says of equality of all citizens of Pakistan.
The issues in FATA are settled under their customary law i.e. Riwaj of the locality but the dilemma of the customary law is that it is in unwritten form except Riwaj-Kurram and that is why only a few Elders of the locality know these customs and decide the referred cases of the people under the existing customs of the locality. But unless these customs are not compiled in codified form then the concept of fair trial would be a dream.
The criminal disputes in FATA especially murder cases are resolved by the tribals through private vengeance system and that is encouraged by the elders of the locality with assistance of political administration as whenever a murderer is arrested and he could prove that he has taken a revenge then he is acquitted being custom of the locality which is termed as Qatal-e-badal. But in the presence of administration of justice by the state, the private vengeance system (extra-judicial killing) is not permissible as no one is allowed to take the law into his hands otherwise there left no need of political administration. The concept of Qatal-e-badal through private vengeance system violates Article-9 of the Constitution which says that no one shall be deprived of life or liberty save in accordance with the law. Besides this custom, a large number of other customs are inconsistent with Fundamental rights guaranteed by the Constitution and any such custom or usage shall be void if that is inconsistent with the Fundamental rights in the light of Article-8 of the Constitution. But then the dilemma is that neither the High Court nor the Supreme Court can take notice of such a Custom which is in conflict or inconsistent with fundamental rights being barred by Article 247(7) of the Constitution. The highest forum for FATA i.e., the FCR Tribunal has no jurisdiction to declare a custom as unconstitutional being not properly constituted judicial forum. While deciding the case of "Abdul Bari, PLD 2014 Pesh-132", it was held by the Larger Bench of Hon'able Peshawar High Court that FCR Tribunal is not even a Judicial Forum as it does not fulfill the minimum constitutional requirement of a judicial forum.
Basic criminal as well as civil reforms must be introduced so that every person who is arrested and detained by the political administration involved in any case or on any other charge must be produced before the judicial officer so appointed/posted for further order within twenty four hours being a constitutional requirement of Article-10 of the Constitution. The judicial officer so posted should also be empowered to take cognizance of any person illegally or improperly detained in public or private custody. The system of FIR in criminal cases as well as settlement of land and attestation of mutation should be initiated in FATA by introducing new judicial reforms. The parties should be given the right of defense by the council. The so-called judicial system should be repealed by intruding new judicial reforms for the people of FATA.