The proposed Rewaj Act: a new FCR?

Why legal reforms proposed for Fata could be in conflict with fundamental rights.

By Waseem Ahmed Shah

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Rewaj Act provides for repealing the entire FCR, whereas the earlier draft regulation had stated that the FCR would be withdrawn from ‘protected’/administered areas only.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.

Under the FCR, jirgas in Fata accord punishments in civil and criminal cases on the basis of their own traditions and beliefs while the state assumes a limited role. With the political agent as the judicial authority, criminal and civil cases are decided by him.

Before the introduction of the Fata tribunal in 1997, decisions made by political agents could not be contested by aggrieved individuals. With the creation of the Fata tribunal, amendments were made to the FCR. With reforms instituted by the then PPP government in 2011, locals were empowered to challenge decisions by political agents in appeals to the commissioner of the adjacent district and could subsequently file review petitions before a three-member FCR Tribunal.

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 riwaj 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.

"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."

“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.”

Legal experts say parallel judicial systems will not serve the purpose of mainstreaming Fata.

Mr Afridi recalls under the erstwhile Provincially Administered Tribal Areas (Pata) regulations functional in Malakand, jirgas were given exclusive jurisdiction with respect to all offences under the PPC except offences against the state or related to the armed forces. Similarly, they were empowered to adjudicate in civil disputes. “Those regulations were declared unconstitutional by the high court in 1990 and the judgment was upheld by the SC in 1994,” he explains. The proposed rewaj act would also face the same fate, he adds.

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.

With the proposed Rewaj Law, the Constitution (Thirteenth Amendment) Bill, 2017 was also introduced in the National Assembly (NA) which envisages increasing the number of provincial assembly seats to 23 for Khyber Pakhtunkhwa with members from Fata. The introduction of both bills has resulted in battle lines being drawn between groups of parliamentarians. While the Jamiat Ulema-i-Islam-Fazl and Pakhtunkhwa Milli Awami Party have been opposing these proposed laws, several tribal MNAs including Shahjee Gul Afridi and Shabuddin Khan are campaigning for reforms. These bills have now been referred to the NA’s standing committee on state and frontier regions.

Click on the tabs below to read more about the intricacies of the Fata merger.

Fata’s forgotten women

In the process to mainstream the tribal areas is the state bargaining away women’s rights?

By Razeshta Sethna

Hina Shahnawaz was 27-years-old when she was murdered in Kohat in February 2017. Working for a non-governmental organisation in Islamabad, she was her family’s sole breadwinner. Educated and with a promising career trajectory, hers was an extraordinary achievement for an unmarried tribal woman — so extraordinary that it evoked the anger of her semi-educated male cousin.

When she refused his marriage proposal, he shot her in the heart in her own home because, according to rewaj (tribal custom), she was a blot on his clan’s honour. For women like her, achieving socio-economic emancipation is often tantamount to death. “Women are treated worse than dogs under rewaj,” explains a young woman from Kurram Agency who has been ‘exchanged’ through a jirga decision to settle a feud.

In the Federally Administered Tribal Areas, women have been invisible and voiceless for centuries. Because women cannot be seen to be counted, their population is based on estimates in the absence of official figures. According to the 1998 national census, Fata’s female population is 1.5 million, with around a three per cent literacy rate.

The region has long been considered an impossible, if not difficult, area to access. And because Fata and most of the Pakhtun belt is a militarised and controlled space, it is impossible to investigate incidents of abuse and violence against women. “Fata has always been treated as a strategic space where people have been denied their political rights for 70 years,” says Bushra Gohar, a senior member of the Awami National Party (ANP).

Deprived of basic education and healthcare, women have suffered the most from this neglect. Dowry is legal, property is denied to women when it involves shared lands and a woman is considered her family’s honour — to be bought, sold, bartered and killed. “Women risk punishment, even death, if the honour of the clan is violated,” explains Sakeena Rehman, an ANP representative from Mohmand Agency.

When Noreen Naseer, an activist from Kurram Agency, conducted a survey in her area of women’s views on tribal practices, most matriarchs were resigned to their fate — but younger women expressed anger at oppressive customs sanctioned through the Frontier Crimes Regulations (FCR). Ms Naseer, who teaches at the University of Peshawar, claims that “even a 21st century Pakhtun man believes his cultural practices are superior and that tribal society is egalitarian.”

Absent from the table

There are no mechanisms in the almost 120-year-old Frontier Crimes Regulation (FCR) to protect women against practices such as swara, badala-i-sulh (‘exchanged’ to settle feuds), valvar (‘exchanged’ for money), ghag (being forcibly ‘claimed’) and honour crimes. According to Ms Naseer, most tribal families have experienced at least one honour killing. Given the prevalence of such violence, why have crimes against women gone largely undocumented?

“There are no police stations in our tribal areas to register cases; there are no courts or independent tribunals. Women are at the mercy of informal justice systems,” Ms Naseer explains. She is involved with the Qabaili Khor (tribal sisters) network, constituting about a hundred women, including Ms Rehman. Advocating in favour of mainstreaming Fata, they want the judicial system to extend to Fata — but is anyone listening?

“Our women and girls want to go to school, but all they do is collect sticks from the mountains and walk miles for water. Change will come only with a legal system that replicates the [country’s] judicial mechanism,” Ms Rehman posits. One of two women on the seven-member ANP reform watch committee, she believes women’s voices must also be heard through jirgas, especially if they are to have a role in a reformed set-up. Whether that actually happens is to be seen, but disrupting a centuries-old patriarchal order will require time and political will.

In November 2015, Fazeelat Bibi, accused of committing adultery, was killed by her brother-in-law in Khyber Agency. Her husband filed a case with the FCR Commissioner in Peshawar against the jirga and political agent in Landi Kotal, who had sanctioned her murder under rewaj.

Ms Gohar concedes that it is not easy for women to be nominated onto all-male consultation committees. “Political parties must take responsibility, as the reform package will go through a parliamentary committee. Parties must be put on the spot for not nominating women to key decision-making forums. Women should not be absent from the table,” she says.

The FCR and the Rewaj Act

There is no mention of women in the colonial-era FCR, with one exception — Article 30, Chapter IV: “any married woman, who knowingly and by her consent, has sexual intercourse with any man who is not her husband, is guilty of adultery, and shall be punished with imprisonment for a term which many be extended to five years or a fine or both.”

The complaint must come from a husband or a guardian, leaving women vulnerable to abuse.

In November 2015, Fazeelat Bibi, accused of committing adultery, was killed by her brother-in-law in Khyber Agency. Her husband filed a case with the FCR Commissioner in Peshawar against the jirga and political agent in Landi Kotal, who had sanctioned her murder under rewaj. “She was property, so she was used as a sacrificial goat,” says Ms Naseer. Even if justice is served in her case, it will come too late.

“Our state has forgotten women,” human rights activist I.A. Rehman says.

When a six-member, all-male government committee proposed recommendations, including replacing the FCR with the Rewaj Regulation for Tribal Areas, women’s rights were sidestepped.

Recommendations include the jirga system — with no reference to women’s inclusion — for civil and criminal matters, with the court appointing a council of elders to adjudicate in accordance with tribal customs.

“The jirgas will inherit all the traditions of the FCR jirga, including indifference and hostility towards women. There is no reference to women’s inclusion in the new jirgas,” Mr Rehman says.

Ms Gohar concurs, “Rewaj is the new face of the FCR. Vested interests want the status quo to remain untouched, and they include the civilian bureaucracy, the military and the maliks.”

Having witnessed jirga decisions followed in her area, Ms Naseer says, “Almost all jirga members have killed female family members in the name of honour.” She believes that most jirgas comprise illiterate people with no knowledge of forensic sciences or DNA tests.

“Elders are paid allowances by political agents for sitting in jirgas so, yes, they will resist abolishing this centuries-old system. Customs of rewaj are also manipulated for their benefit,” she tells Dawn.

The way forward is marked with uncertainty: how will the state allow the people of Fata, women included, to move into a new social and political status?

“Laws cannot be made without social development and education, and without women’s participation,” Mr Rehman points out. So far, the voices of tribal women have been ignored. Just how much say is allowed to women in male-dominated consultative bodies in the future can only be imagined. But without their participation, it will be impossible to mainstream tribal communities and bring reforms to this historically neglected part of the country.

Click on the tabs below to read more about the intricacies of the Fata merger.

Where the past is the present

Fata’s elders do not fear death or arrest, but loss of tribal identity and pride.

By Mushtaq Jadoon

The Federally Administered Tribal Areas represent the gateway to the plains of the subcontinent through seven passes: Bajaur, Dir, Khyber, Mohmand, Peiwar Kotal in Kurram Agency, the Bolan Pass and Gomal in South Waziristan — the latter three frequently used by invaders from the north, for whom this region represented geostrategic significance.

The threat from the south came from Sikh invaders — though only for a brief period — followed by the British in 1849. Historian Arnold J. Toynbee rightly noted that this region was the ‘crossroads of civilizations’.

Invaders had little time to engage the tribesmen in futile war; their main aim was always to conquer the subcontinent or retreat swiftly into the mountains before the onset of summer. Besides rearing livestock, toll tax on trade and the transportation of goods between the subcontinent and Central Asia remained their main source of income.

Even the British thought it prudent to devise a peculiar mechanism of administration through the appointment of political agents and tribal elders. Masters of this region long before the advent of colonial rule in the subcontinent — notwithstanding their culture and preference for self-governing — it is a myth, then, that the tribesmen of the northwest are essentially a creation of the British.

After gaining independence in 1947, the state of Pakistan continued with more or less the same colonial legacy. In modern times, successive governments continued this policy of appeasement that, coupled with circumstance, provided tribesmen with ample opportunities to exploit their advantageous position for extracting maximum benefits from the rulers.

The Soviet invasion of Afghanistan in 1979 was yet another turning point in the tribal areas’ history. The government undertook development work, but under a package of patronage. Followed by the Afghan jihad, these years not only resulted in the proliferation of narcotics, weapons and other contraband items but also catapulted a new social class of wealthy Islamic militants into a position of prominence. In the 1990s, opposition to the political administration and the power of traditional maliks was brewing.

Pakhtun society — and the tribal region in particular — is based on the rule of elders known as gerontocracy. Tribal elders exercise power with the consent of co-tribesmen, forming a unique representation through collective leadership. But after the 1980s, state policies and socio-economic factors weakened the political administration. New stakeholders emerged, including educated youth, the Taliban and a new wealthy class of tribal elders, all of whom were effectively challenging the traditional leadership of local maliks. After 9/11, the reversal of policy pitched Islamic militants, with the support of local sympathisers against the state-sanctioned leadership.

When faced with the challenge of militancy, the corrupt political administration and local maliks — many with weak moral authority and perceived as paid agents of the political administration — were in no position to meet this threat.

Speaking to one elder in 2001, when I asked what had most disturbed him, he explained that he did not fear death or arrest, but loss of tribal identity and pride. Tribal elders were targeted in the years after 9/11; many hundreds being killed while others fled for safety to the settled areas.

In a tribal society, the power vacuum created due to such social degeneration and administrative failure is usually filled by warlords — a phenomenon witnessed from Swat to Balochistan. Also, due to its culture and terrain, Pakhtun society is not conducive to direct policing. Despite many of the drawbacks of the tribal administrative system, including the violation of human rights, it has remained effective in certain ways for over a century.

Moreover, it will prove impossible to change tribal culture simply through legal instruments, especially as tribesmen have closely guarded their traditions for centuries. In the end, long-term peace and progress in Fata can only come with good governance — including a viable, administrative and judicial system that is integrated in the mainstream.

The writer was the district commissioner of Kohat from 1998-2000 and political agent in Miranshah from 2000-02, among other postings in the tribal areas.