Administrative Justice in FATA
From time immemorial the tribal people of Pakistan have been living together by tribal, clan, or family bonds in meeting most of their spatial requirements. Quarrels and conflicts are still a common worry of the tribal society. However, most of their collective and individual feuds and disputes are generally settled by the tribesmen themselves in their Jirgas without the aid or assistance of any outside agency. The parties usually accept the decision given by the Jirga, consisting of their accepted elders and respectable people of the community.
Although, a predominantly spoken and unwritten culture of Narkh (precedent or custom) and Liaraha (rule), which have deep-roots in their history is still prevalent in all the tribal areas. However, an unwritten document of customary laws known as Wazirnama (Aeen-e-Waziri) was first ever codified in Waziristan more than 400 years ago. Though, it is very simple rather incomplete and incoherent document but at least it secured some basic principles to settle criminal or civil disputes by administrative courts in Waziristan with the help of Jirga. The simple and non-technical system of customary laws may be partly attributed to the plain structure of the overall tribal society and partly to the inadequate role that administrative courts play in the process of administering retributive justice in the area.
One of the ways of seeking justice to obtain restitution, damages, or seeks other private remedies against a person, group of persons is to approach the administrative courts in the agency. An application in the court of political or assistant political agent may be preceded to initiate a case, which abates a customary nuisance or tradition. Political Naib Tehsildar (NT), a local Tehsil official initiates criminal proceedings with the reception of information regarding any crime or offence. At the instruction and approval of the political or the assistant political agent, the Naib Tehsildar takes action against the accused to offenders. Most of the disputes are solved by mutual consultation, failing that through arbitration by impartial parties in a Jirga or a Meraka. An immediate effort is made to obtain a truce between the parties. This arrangement locally termed as placing a Tiga. It literally means to place a stone to have truce among the parties till such time when their tempers cold down and sanity return. Violation of the Tiga is punishable in accordance with the terms decided and often there is a provision of a substantial fine and forfeiture of a right. If the political authorities are a party to the truce, the violation may result in addition to their displeasure, as it entitles the administration to suspend or repeal any of the economic benefits enjoyed by the offending party.
To answer the question as how does the system of customary laws and rules satisfy the demands of nature of justice administration in tribal areas? Three important components of the justice administration including the Jirga system, role of the political administration, and the Frontier Crimes Regulation of 1901, have had for reaching effects on the lives of the tribal people.
Frontier Crimes Regulations (FCR)
The Frontier Crimes Regulations 1901, popularly known as FCR is one of major component of the administrative system of justice in Tribal Areas. FATA’s judicial system is enshrined in the FCR (1901), a hybrid colonial-era legal framework that mixes traditional customs and norms with executive discretion. The British created this harsh law to manage and control their Indian Empire’s restive frontier belt. Originally drafted in 1872, the FCR was promulgated with amendments in 1901 and applied by Pakistan to NWFP until 1963 and Balochistan until 1977. Unlike FATA, the Provincially Administered Tribal Areas (PATA) are subject to the jurisdiction of Pakistan’s regular court system. In 2007, there is little justification for a parallel legal system that was designed to serve colonial ends and remains outside the purview of Pakistan’s judiciary.
The jirga is although an informal institution but it has very formal effects on the pukhtoon society in general and on tribal people in particular. It is one of the most time-honoured institutions in the tribal world and part of the culture of the tribesmen, who are very proud and fond of their culture. The FCR preserves the Pashtun tribal structure of jirga (council of elders), to which the political agent can refer civil and criminal matters. The jirga ascertains guilt or innocence after hearing the parties to a dispute and passes verdicts on the basis of rewaj. However, the PA retains ultimate authority.
On its face, the FCR is based on the premise of cohabitation between the jirga and the political agent for the provision of speedy justice in accordance with tribal customs. But the British distorted the institution, making it subservient to the political agent and its decisions non-binding. Pakistan retained this system, with the political agent initiating cases, appointing the jirga, presiding over trials and awarding punishments without even the technical possibility of revision by a regular court of law.
Most FATA residents supported the jirga as an efficient source of dispensing justice. In cases where neither the government nor the political agent has a stake, the process can be quicker and offer disputants more opportunity to air their grievance and negotiate than an ordinary court trial. But jirga verdicts often favour those with political or economic clout at the expense of the vulnerable segments of the population, particularly women, who are excluded from direct participation in the system and suffer when male members of their families are detained.
Trials under the FCR do not provide the accused due process of law. There is no right to legal representation, to present material evidence or cross-examine witnesses. Those convicted are denied the right of appeal to the Peshawar High Court or the Supreme Court of Pakistan. The power of revising the PA’s decisions rests with an FCR commissioner, appointed by the NWFP governor, who can act either on his own or in response to a petition by an aggrieved party but cannot “set aside the finding on any question of fact by a Council of Elders [FCR jirga] accepted by the Deputy Commissioner [Political Agent]”. Revision is allowed only if there is “material irregularity or defect” in the proceedings or on an “occasion [of] a miscarriage of justice”.
A final appeal can be made to an FCR tribunal comprising the provincial law secretary, the home secretary and the chief secretary of the province (the senior civil bureaucrat), who casts the decisive vote in case of a split verdict. Given the skeletal nature of FCR rules for granting an appeal, the scope of review is limited. In essence, convicted parties have no recourse to an impartial court of law and must rely on bureaucratic discretion. Since the FCR vests appellate authority in the executive, it violates the safeguard of an independent judiciary enshrined in Articles 2-A and 175 of the constitution.
Almost six decades after Pakistan’s independence, tribal Pashtuns remain subject to the application of this colonial law, some of whose clauses are cruel to the point of being inhumane. Under section 40 of the FCR, the PA can preventively imprison tribesmen for up to three years “for the purpose of preventing murder, or culpable homicide….and sedition”. The PA can also take other preventive measures such as stopping the construction of settlements close to the border or doing away with them on security grounds; and halting the construction of or demolishing buildings used for “criminal purposes”.
Individuals involved in blood feuds and “dangerous fanatics” can be expelled from an agency. Section 38-1 allows the private arrest of a suspect, a convenient weapon in the hands of those with economic and political power to settle scores with weaker opponents. Used in conjunction with section 29, this can result in five-years imprisonment for suspicion alone. Section 38-4 gives law enforcement agencies “a right to cause the death of a person” on suspicion of intent to use arms to evade arrest.