The Horrendous Judicial Structure Of FATA

 The Horrendous Judicial Structure Of FATA: Compromised Rights And Steps For Their Realization

The Federally Administered Tribal Areas (FATA) of Pakistan in the north-west part of the country, which is a semi-autonomous region, consist of seven administrative units or agencies namely, Bajaur, Mohmand, Khyber, Kurram, Orakzai, North Waziristan and South Waziristan. Even though the tribal areas are declared as the part of Pakistan in Article 1 of the Constitution, they are not governed by the Constitution, let alone other ordinary laws. The British had introduced a special law, Frontier Crimes Regulation 1901 (FCR) to curb the increasing rate of crime, specifically murders, and to stop the resistance by Pashtoon people against the British Raj. The then Lieutenant Governor of Punjab stated that “according to Pathan code of honor, murder under certain conditions is not a crime but an obligation”.[1] However, this special law has continued to stay in force despite raging criticisms by different political actors even after the independence and up till now. A number of reforms have been introduced but nevertheless, the law continues to haunt 4 million citizens of Pakistan. This article will shed light on FCR’s defiant provisions and the steps taken to bring FATA’s judicial structure at par with other parts of Pakistan.

Before the 2011 reforms in FCR introduced by a Presidential Order, it was widely known for its deleterious inapplicability of three basic rights of Wakeel (Legal Representation), Daleel (to present reasoned evidence) and Appeal (to a higher judicial authority)[2], violating as a whole the Articles 10 and 10A of the Constitution. However, the reforms of 2011 was an effort to bring the trial procedure in line with the provisions of the Constitution, Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and European Convention on Human Rights. Now after the amendments, the presumption of innocence and informing the accused promptly of the charges are mandatory and also, most importantly, the accused is to be brought before a magistrate within 24 hours of arrest.[3] The accused can also be released on bail[4] but the crucial right to consult a lawyer still awaits to be incorporated.

Not only that, the sentencing was followed by an extremely strange process, contradicting the right to a fair trial. According to clause 8 of this regulation, the commissioner awards the sentence after receiving the report of hearings conducted and findings gathered by the council of elders, this report too is not binding on the commissioner and his sentence may be contrary to the findings. Justice A. R. Cornelius in his judgement on Samandar v The Crown 1954 rejected this process by stating:

“The process of decision provided under the Regulation is also foreign to justice as administered by the Courts. The hearing is before a Jirga but the power of decision is vested in the Deputy Commissioner, who does not see or; hear the accused or any of the witnesses, and is not empowered by law to do so, even if he should so desire. In these circumstances, the Jirga is a merely advisory body, and since the Deputy Commissioner does not have the case presented before him through counsel, it is obvious that his decision is wholly vicarious. Decisions of this nature are common enough on the administrative side, but they are obnoxious to all recognized modern principles governing the dispensation of justice.”[5]

The 2011 reforms have also covered the right to appeal in order to overcome the gap between the FCR and Constitution. According to these amendments, in post-trial proceedings, the accused is empowered to appeal against the decision of political agent/ DCO to the commissioner. Further, a revision against a decision can be done by FATA tribunal.[6]

Furthermore, the infamous clause 21 and 23 of ‘collective responsibility’, impose the responsibility of a crime on a person who did not commit it, infringing most of the fundamental rights enshrined in the Constitution including the inviolability of a dignity of man, freedom of movement and safeguards as to arrest and detention. If a person belonging to a tribe commits a crime or in a village, a person is grievously hurt or a body of a person who has been killed is found, the members of that tribe/village too shall be arrested and their property seized or fines may be imposed on them. It was, however, amended in the reforms of 2011 and children under the age of 16, elders above the age of 65 and women were excluded from the collective responsibility clause.[7]

The ‘Mainstreaming FATA’ report made by the Benazir Institute of Democracy has drafted certain recommendations in order to mend the judicial structure and uplift the standards of dispensation of justice by maintaining a judicial hierarchy. The recommendations propose that the citizens of FATA should be given the right to opt for adjudication either by Riwaj or by Sharia or Law. If the citizens opt for riwaj, the members of jirga shall be chosen by the political agent keeping in consideration the consent of the parties. If the jirga gives a split decision only then the appeal shall be available in FATA court and then further appeal in Peshawar High Court which should have a FATA specific bench. However, the citizens should have the right to opt for FATA Court as the court of the first instance if they decide that the adjudication process should be governed by Law, not Riwaj. Not only that but the FATA bench of Peshawar High Court may also be moved under original jurisdiction by Article 199 of the Constitution. Ultimately, the final appeal shall lie in the Supreme Court, apart from the original jurisdiction under Article 184(3), which shall also be available to the FATA residents.[8] However, these recommendations are still far from being heard, let alone being implemented.

Regardless of the steps taken to bring FATA’s judicial structure in line with the rest of the country, the rights of the FATA residents have still not been fully recognized. The reforms of 2011 are a huge step towards the full realization of rights of FATA residents. This process must continue and similar steps must be taken in order to make ‘people’ of FATA a part of Pakistan too, as enshrined in Article 1 of the Constitution.

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References

[1] Abdur Rauf v The NWFP Government PLD [1958] Pesh. 100
[2] Umer Dil, ‘Black Law (FCR) in Federally Administered Tribal Areas (FATA) of Pakistan’ (Atlas Corps Blog, 20 July 2016)   http://www.atlascorps.org/blog/black-law-in-federally-administered-tribal-areas-fata-of-pakistan/ accessed 22 August 2017
[3] Prof. Ahmed Ali Khan ‘Frontier Crimes Regulations: A Contextual Analysis’ [2013] pg. 16
[4] Frontier Crimes Regulation 1901, s.11A
[5] Samandar v The Crown PLD [1954] F.C 228
[6] Frontier Crimes Regulation 1901, s.47 and 48
[7] Prof. Ahmed Ali Khan ‘Frontier Crimes Regulations: A Contextual Analysis’ [2013] pg. 16
[8] Benazir Institute of democracy, ‘Mainstreaming Fata’, Peshawar, 2009, pg. 20

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Waleed B. Arshad

The author is a law student at the Bahria University, Islamabad.



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