• The SC and PHC will extend to Fata under the new bill
• Jirgas will operate at the trial stage, similar to their function under the FCR

WITH debate around Fata’s future legal framework continuing, it appears that the government is in favour of a parallel judicial system for the region. Until recently kept a closely guarded secret, a draft of the Tribal Areas Rewaj Bill, 2017 — introduced in the National Assembly by the federal government on May 15 — envisages two different judicial systems that will function simultaneously in Fata. If enacted, this bill will replace the colonial era Frontier Crimes Regulation (FCR), 1901. The proposed Rewaj Act provides for repealing the entire FCR, whereas the earlier draft regulation had stated that the FCR would be withdrawn from ‘protected’/administered areas only.

According to Section 14 of the proposed Rewaj Bill, the Supreme Court (SC) and Peshawar High Court (PHC) will exercise jurisdiction in Fata. When the proposed system is juxtaposed with the FCR judges will be appointed by the federal government. Jirgas will function at the trial stage, similar to their function under the FCR, whereas the high court will be the appellate forum. Instead of political agents, judges will refer cases to councils of elders tasked with determining factual aspects (of cases) in accordance with rewaj (tribal customs) — after which they will furnish a decision based on the findings of this council.

Objections to the Rewaj Bill

Legal experts say parallel judicial systems will not serve the purpose of mainstreaming Fata. “When the jurisdiction of the superior courts is extended to Fata and this act is enacted, we will challenge it before the PHC on the touchstone of fundamental rights; and it is expected to be struck down,” says Abdul Lateef Afridi, a senior lawyer and a former parliamentarian from Khyber Agency. He believes the government should introduce regular laws and a proper judicial system.

Experts believe that codifying rewaj in line with the Constitution, and international conventions is a difficult task. Presently, excepting for Kurram Agency — where a codified rewaj titled turizuna is available — none of the other agencies in Fata have specific codified acts. Disturbingly, several provisions of turizuna, especially those that sanction the selling of women, are against fundamental rights. “There is no uniform rewaj or tribal code of life in different tribal areas. It is difficult to codify rewaj, and is also against the popular demand of those living in Fata when it comes to mainstreaming their areas,” explains Ijaz Mohmand, a legal representative of the Fata Lawyers Forum. According to Mr Afridi, the rewaj in Kurram Agency is not in accordance with modern day realities. “How can one explain in present times why a woman should be sold for 800 Kabuli (old Afghan currency),” he says.

It is perhaps because of these objections that the federal law division (the author of the draft document) had started a review of an earlier version of the proposed Rewaj Act, known as the Rewaj Regulation for Tribal Areas, 2017. However, except for minor changes no substantive variations were made in the present bill said to be poorly vetted.

Function of judges under the proposed reforms

The bill states that judges in the administered areas will be appointed by the federal government within such local limits as the latter may direct. They will be empowered to ensure the council of elders reviews its findings or refers the matter to another council if required, except when decisions are unanimous among members. Moreover, an aggrieved party will have the right to file an appeal before a high court bench within 30 days from the date any sentence has been passed. Similar to a provision available in the FCR, this proposed act ensures that a political agent or the deputy commissioner may in exceptional circumstances — if recommended by a jirga — refer any offence or civil dispute to the court for a decision thereon.

While the government has not included some widely criticised provisions, such as the FCR’s territorial and collective responsibility clauses, it has incorporated a proposal that lends power to the federal government to directly remove structures and encroachments.

The Second Schedule to the proposed act comprises two parts, including 144 laws, which will be applicable to Fata. Currently applicable in settled areas, these laws include the Pakistan Penal Code (PPC), Code of Criminal Procedure, Civil Procedure Code and Qanoon-i-Shahadat Order, 1984, apart from several minor laws. Moreover, if the Rewaj Act is in conflict with any of these laws, the provisions of the former will prevail — but only when not in violation of constitutional rights. According to a former bureaucrat who is privy to these developments, “the critical issue here with the rewaj law is the sanction [permitted] and substantive parts [of the act] that cannot be reconciled with formal laws [in settled areas] particularly penal laws and composition of regular courts. A situation creating different sets of substantive laws cannot sustain the test of a judicial review as it defies the basic concept of equality before the law.” He also reminds that the maintainability of the Rewaj Act is subject to Article 8 of the Constitution, which prescribes that “any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by the Constitution, shall to the extent of such inconsistency, be void.”

Extending the jurisdiction of superior courts will open the door for a judicial review of the draft rewaj law; legal experts say the outcome is obvious in view of existing precedents. “All changes in the executive and judicial system in Fata would need adequate institutional arrangements to preclude the possibility of a resultant vacuum, so as to avoid exploiting the situation by extremist elements like we had faced in case of Pata regulations,” explains a former bureaucrat, requesting anonymity.

(A longer version of this article can be accessed at www.dawn.com)

Published in Dawn, May 23rd, 2017