Bannu: The appellate court that gave borderlands legal rights to the people of Pakistan after more than 60 years is without judges since January 2015. The civil society in the Federally Administered Tribal Areas attributes the delay to reluctance on part of the bureaucracy to change the ambiguous “special status” of the region.
When the government set up a complaints tribunal in tribal areas back in 2011, it seemed like wish come true for the people of the region and those who have long fought the battle for human rights and equal status for citizens of Pakistan’s borderlands.
The late Benazir Bhutto’s Pakistan People’s Party that was in power in 2011, introduced amendments in the Frontier Crimes Regulations or FCR – the discriminatory “Black Law” under which the people of the FATA have been governed since the British rule.
Reforming the Law
The amendments to FCR meant relaxing the notorious law of collective responsibility – under which an entire tribe, including its women and children, are punished for the crime or misdemeanor of one of the tribe’s member – the system of justice and discretionary powers of political agents, a virtual potentate when it comes to the tribal agency he administers.
All this became possible through the three member FATA Tribunal, an appellate court for the people to challenge decisions of political agent and the commissioner.
At the time, the long-awaited step was much celebrated, seen as move towards doing away with the “special status” of FATA under the Constitution and the special set of parallel laws applied to the region. The mainstream Pakistan is governed under the Criminal Code of Procedure that give people access to courts – appeal against a conviction in the court, a lawyer to represent them in the court, and the right to argue their case in the court.
The tribesmen of FATA, ruled under the FCR, do not have the above rights – to challenge a conviction, to have legal representation and the right to present evidence in the court. Leave alone access to justice, the region did not have any courts till the FATA Tribunal came along.
A Court without Judges
But the FATA Tribunal has been put on hold for the last 5 months since the tenure of its members ran out on January 26, 2015.
The Tribunal consists of three members—a chairman and two members. According to the amended rules, the chairman would be a retired bureaucrat of 21 grade, another member would be a retired bureaucrat of 20 grade and the third member would be a law practitioner eligible to become a judge of high court.
The rules insist that all three persons should have a good knowledge of tribal customs and its relevance to a tribal society along with the prevailing law in the mainstream Pakistan. The amendment in FCR proposed the tenure of the members would be three years.
But the Tribunal is under attack from the FATA Lawyers’ Forum, an association of legal professionals from the tribal areas fighting for equal human rights in the region, since the day of its commencement. More so because the appointment of fresh members if still pending due to one reason or another.
Wali Khan Afridi, a senior law practitioner from FATA, said that the powerful bureaucracy did not want to bring any changes in the present administrative set up “as in that case there would be a full stop to the corrupt practices of its members.”
He said he was a member of the reforms committee that sought to amend FCR but “some forces were not keen on bringing reforms in FATA.”
“FATA is like heaven for bureaucracy and they don’t want to lose their heaven,” said Afridi. “These are forces actively resisting change in administrative structure of the region. And then there are others opposed to bringing amendments in the laws governing FATA.”
A Biased Tribunal
Civil society actors in FATA allege that the members of the Tribunal were not independent of the “forces” that were reluctant to let go of the power and privileges they enjoyed on account of the “second rate status” of the region and its people.
“Even after the amendments, the appointment of the members is based of political and bureaucratic affiliations and favouritism,” said Wali Khan Afridi.
Sources in the Tribunal told News Lens that it had dealt with more than 1400 cases in its first three years.
Pir Fida, a lawyer and former member of the FATA Tribunal, said the cases were actually appeals of the public against the decisions of political agents and commissioners. Speaking of the nature of the cases, Fida said all kinds of civil and criminal cases were dealt with.
“We disposed of cases of assassinations, abduction, narcotics, land disputes and even forced disappearances,” said Fida.
He said the cases were decided purely on merit: “No compromise over speedy justice was made during all this time.”
Ijaz Mohmand, a lawyer who is president of the FATA Lawyers’ Forum, disagrees: “The two bureaucrats sitting with a single lawyer member are so powerful and influential that they cannot go against the decisions of their brethren in the bureaucracy.”
He criticized the process that led to the selection of the members saying none of them belonged to FATA.
“How, then, can they understand the customs (Riwaj) of FATA that serve as the foundation of the Jirga system in the tribal areas?” said Mohmand.
But Fida, the former member of the Tribunal, said he was a Pukhtun – the same ethnicity as the tribesmen in FATA – and knew the customs of the Pukhtun tribes whether they were in FATA or mainstream Pakistan.
“I could show you many cases that have been dealt with in the light of the prevailing customs of the Pukhtun culture,” said Fida.
A People’s Tribunal?
But for most of the people in FATA who have grown used to living under the rights-vacuum created by FCR, a condition made worse by the lack of awareness about rights and education, the absence of an information campaign around the appellate court means they don’t not even know if it exists.
“I have only just heard about it now for the first time,” said Anwar Dawar who runs a private hostel in Peshawar when asked about the Tribunal.
However, Karim Mehsud, a lawyer from the South Waziristan Agency, terms the Tribunal a positive step saying “it is not the fault of the Tribunal if the people don’t know about it.”
He said the people would become aware of its presence gradually. But Mehsud also criticized the manner in which its members were selected saying “it is very much politicized.”
“Members are susceptible to pressure as they are not from the judiciary,” said Mehsud.
About amendments to the FCR, he said that Article 11b that provided the right to bail to the accused had disappeared from the law. “There is not even a single application to the Tribunal regarding the use of 11b under FCR.”
Speaking of the possibility of court convictions not carried out and the contempt of court, Pir Fida said the Tribunal had the power to enforce its decisions but Ijaz Mohmand didn’t agree.
“The Tribunal and its operations fall under the governor of Khyber Pakhtunkhwa who always looks to his political affiliations, not the cause of justice,” said Mohmand.
However, he said, the Tribunal had delivered the goods to the public in that about 60 percent of its decisions were on merit. The rest of the 40 percent, he said, were debatable.
Justice on Hold
As the Tribunal waits for appointment of its members for another three years, it has been a topic of heated debate among the FATA civil society circles.
Afridi, Mohmand and Karim Mehusd are of the opinion that its members should come from the judiciary as, according to them, civil servants have nothing to do with the law and courts.