The Fata merger: Towards a brave new world: The proposed Rewaj Act: a new FCR?
• 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Rewaj Act provides for repealing the entire FCR, whereas the earlier draft regulation had stated that the FCR would be withdrawn from ‘protected’/administered areas only.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