THE DISPENSATION OF JUSTICE IN THE FEDERALLY ADMINISTERED TRIBAL AREAS (FATA) OF PAKISTAN: ITS APPLICATION AND ANALYSIS

Abdul Malik Khan*

The federally administered tribal areas called as FATA like other four federating units, is fifth important unit of Pakistan whose system of administration of justice is fundamentally and radically different from the one prevailing in the settled area of Pakistan. FATA is a composite of Seven Agencies and Six Frontier Regions en-massing an area of 27220 square kilometers lying along the porous border with Afghanistan called Durand Line drawn by the colonial rulers of British India in 1993.
The chief architect for running the affairs of FATA is an infamous colonial law known as the Frontier Crimes Regulation of 1901. Obviously, it allows the tribesmen to stay with their own traditions and customs in relation to resolving their personal or inter-tribal conflicts from a small loan affairs to the extent of blood feud in accordance with Pukhtoonwali (pukhtoon code of conduct). But, in-fact turned the area into colony run by the state through political administration under the clutches of draconian law known as FCR of 901.
There are three components of tribal system of justice; namely, the jirga system being an old institution of the tribal people evolved to resolve the quarrels of tribesmen in the light of unwritten laws of tribal society; FCR of 1901, and; political administration. This system makes no distinction between judicial and executive functions. This fusion displays a system whereby executive authority tends to encroach upon the fundamental freedom of the individuals and basic human rights of the tribal people.
Thus, the paper in hand is set to analyze the rational behind the enforcement of FCR, role of traditional as well as FCR recognized jirga and the job of political administration in terms of comparative study of parallel system prevailing in the settled area of Pakistan.

The Background of Colonial Laws in the Tribal Belt

The inherent purpose for the enforcement of Special Laws in the North West Frontier Region of British India on the part of colonial power was to advance its influence and also extends its hegemony over the tribal belt in furtherance of its imperialistic plan towards Central Asia and to contain the advancement of Russia. For this objective, several steps were taken to entrap the tribesmen in host of problems. Obviously, acknowledging the local autonomy of the area and adopting a policy of non-interference into the traditions of Tribal people, in-fact, debarred them from the benefit of Human Rights principles and Individuals Freedoms at the cost of maintaining status quo in the area, was the result of erstwhile British colonial policy which is yet being followed till date despite the lapse of one and a half century despite the independence of Pakistan.1
At the outset, when the British had taken the control of the six-­frontier district of the North West Frontier Region of British India, the ordinary laws as were prevailing in India were also extended there. While finding low rate of conviction in the light of peculiar nature and psyche of tribesmen in relation to crimes to whom under certain circumstances revenge for honor and murder crimes were traditionally recognized as their sacred obligations than through the help of state machinery. For these reasons, many a times requisite evidence for the conviction of offender was not available. Resultantly, the convictions were rare which led to the promulgation of special laws in this area.2

Judicial Scrutiny and Validity of FCR 1901

The FCR as being enforced in FATA has always been subjected to tough criticism by the superior judiciary of Pakistan. After the emergence of Pakistan, the various provisions of FCR have been challenged at different times before the superior courts of Pakistan. I would like to quote two cases in support of this contention i.e. the case of Malik Toti Khan V District Magistrate, SIB! and Ziarat whereby section 1,4,5, 11, 12, 14,15, 16, 17, 40, and 41 of the FCR were challenged to be declared in conflict with Article 5 the Constitution of 19563 and in the case of Abdul Akbar Khan V District Magistrate Peshawar sections 8 and 11 of FCR containing special provisions for the trial of case was also challenged to be in violation of the principle of equality as enshrined in the 1956 Constitution of Pakistan.4 The division bench held that classification in FCR is not reasonable and no rationale behind it. Since, the imposition of martial law in the country on the seventh October 1958, the 1956 Constitution was abrogated, thus, the Fundamental Rights were also suspended.
There after, the said Regulation continued to revive even after the enactment of 1962 Constitution until the Fundamental Rights were re­incorporated with the stroke of first amendment to it in 1964. This, once again, led to challenge the validity of the various provisions of FCR, thus, sections 8 and 11 were agitated before the high Court in 1964 in the case of Muhammad Usman V state through EAC and AIM Quetta and a full bench re-iterated its earlier versions given in the two former cases in the similar toe that the Regulation was no longer applicable to any part of the West Pakistan saving tribal areas.5 As when it was agitated in the Shariat Bench of the Baluchistan High Court in the case of Mulana Muhammad Ishaq Khosti V Government of Baluchistan on the ground that it is repugnant to the injunctions of islam as enunciated in the Holy Quran as well as Sunnah of the Holy Prophet (PBUH). The Shariat Bench while upholding the FCR being the law of convenience and expediency critically declaring its provisions to be in contradiction to the tenets of Islam, thereby, declaring it to be bad law as being repugnant to the Sharia.6
Before the enactment of 1973 Constitution, the FCR has closely been watched by the superior courts in the noted famous cases: such as Sumandar Khan’s case (PLD 1954. FC. P 228). In this very case justice A.R Cornelius referred to FCR proceedings as obnoxious to all modern recognized principles of governance of administration of justice. In the Gul’s case (PLD 1960—SC-307); Zawar Khan’s case (PLD) 1968-SC-485). All these cases followed the principles laid down by the Privy Council in royats vs Zamindar case.7
The rationale behind the enforcement of this notorious Regulation on the part of the British was to advanced their concept of forward policy aiming at subjugating the people of NWFP, Baluchistan and Tribal Areas with iron hands on the basis of false pretensions of non­interference in their local affairs so as to leave them to the domain of their traditional Jirgas. NWFP got rid of FCR with the adoption of 1956 Constitution and Malakand and Dir were rescued of its shackles in 1973. Baluchistan got release in 1973 with exception to its certain areas. Today, FATA is only the hostage of FCR.8

Constitutional as well as Administrative Status of FATA

The Tribal Areas are, today, being administered by virtue of Article 247 of the 1973 Constitution. Part XII, Chapter 3 of the 1973 Constitution defines the Tribal Areas whereas reference to this Areas is also included in Article 1(2) of the Constitution as being integral part of the territorial jurisdiction of Pakistan while Article 246 defining the Tribal Areas draws a distinction between FATA and PATA (provincially administered areas).9 The FATA consists of that areas which were included in territories of NWFP as result of West Pakistan Dissolution Order of the President of Pakistan — Order of 1970; however, FATA was excluded from NWFP from the said Dissolution Order of 1970, hence, referred to in Article 1(2) of the 1973 Constitution.10
Article 247 of the Constitution underlines the method and pattern for the administration of Tribal Areas both the FATA and PATA. It further states that executive authority of Federation extends to FATA and it may be stated that executive authority of Federation rests with the president and the cabinet ministers with prime minister as its head. The executive authority of Federation extends to matters that lie in the domain of parliament to make laws. The statute of parliament only applies to the FATA after the approval of president and the president can qualify them with exceptions and modification. President is also empowered to frame Regulation for the purpose of keeping peace and good governance of FATA. It may be added in doing so; president ought to be bound by Article 48 of the Constitution. Regulations are meant for laying down of procedural as well as administrative matters and not for substantive law. The president can by order declares a portion of FATA or the whole FATA ceases to be as such areas but in doing so, he has to ascertain the views of the people of the concerned areas through the representation of Tribal Jirgas.11
It may be stated, here, that the jurisdiction of superior courts have been ousted in relation to FATA unless parliament by laws otherwise so directs. The constitutional discrimination is so obvious that excluding president as well as the governor no other institution of significance is designated for FATA, hence, people are at the mercy of president who is the chief executive and sole lawgiver. The president delegates his powers to governor who also acts as a sovereign being. Obviously, the parliament and superior courts have no jurisdiction or authority over powers exercised by the president and the governor in this regard; hence, both of them are not accountable.

The System of Administrative Justice in FATA

There are three components of administrative system of justice in FATA. These are the FCR of 1901; the traditional Jirga system as well as FCR recognized Jirga and the political administration. Before 1970, there were no regular courts and most of the cases were being dealt with under section 40 of the FCR and court procedure came in to being in tribal areas in 1970. Later on, Assistant Political Officer was also designated as an Assistant Political Agent in 1978 and was empowered to act as an Assistant District Magistrate (ADM). While the Divisional Commissioner at D. I. Khan and Peshawar have been given review jurisdiction before the adoption of Local Government Ordinance 2001. Nowadays, an FCR special tribunal consisting of Law as well as Home Department Secretaries to the NWFP government is exercising the re­visionary jurisdiction powers under the FCR. There needs to have a proper glance over the three tiers of the administration of justice in the tribal areas separately.12

FCR of 1901

It is a legacy of colonial era. As we are knowing, the British legal system in general meant for FATA was purposely designed to rule the areas through a class of persons having social influence, status and loyalty to the British must be above board although, ostensibly, depicting a policy of non interference in the traditional affairs of the tribal society whereas the object was to distant them away from the realm of universally accepted judicial system and instead to bring them under a sugar-coated legal device. For these reasons, the legal system was so devised so as to clothe a class of notables in the name of council of elders with an authority to resolve the dispute in concurrence with political administration. In case of formal Jirga under the FCR it acts as a recommendatory body and the final verdict rests with the Political Agent in case he is dissatisfied with recommendations he can over rule it by substituting an other Jirga to decide the matter in order to obtain his desired results.13
The motive of collective responsibility in the FCR is alien to parallel legal system prevailing in the settled areas. By this novel clause in ECR, an innocent person is held liable for the crime of another having no links or abatements. Similarly, the whole clan, sub-clan or village can also suffer penalty of fine under the collective territorial responsibility. It is also contended that the Regulation is intended to prescribe a simple procedure for a society where illiteracy rate is high and the people prefer to appear before the notables whom they respect and repose full confidence and feel convenience in resolving their conflicts as against the judicial officer who follow strict formalities and technicalities in the disposal of cases.14 In brief, FCR is a small Regulation having seven chapters spreading over 63 sections, is the only law to represent the whole legal system of FATA from the social and political domain to the governance of FATA administration, hence, FATA is the only region where discriminatory law is applied with full force barring application of a few laws, hence, under the FCR un-checked powers of political administration makes no sense in light of Constitutional enactments of Pakistan.15

The second component of FATA judicial system is its long standing customary institution, since, time immemorial called Jirga system exercising authority to resolve personal, public, inter tribal conflicts and quarrels among the contending parties and to impose fine or award punishments. Help is also sought from Jirga by the political administration to maintain law and order situation. Civil as well as criminal cases under the FCR are also referred to them for decision. Conventionally, the members of Jirga sit together in circle without a formal convener or secretary and without any regard to arrangements of hierarchal status. All of them have equal say and equal vote but respect is accorded to aged persons. Jirga is considered as a shadow for the weaker section of people and ensures the justice not ought to be done but it should have seen to be done.16
The paper outlines the scope and function of FCR recognized Jirga. It is a nominated council of elders by the Political Agent empowering them to investigate and put forth their suggestions/recommendations for holding an offender either innocence or guilty of the crime charged with. The Jirga is always expected to investigate the conflict in the light of his own knowledge and methodology; elucidate the facts, summit solutions. In case of conviction in a murder crime, Jirga can impose maximum punishment up to 14 years imprisonment short of death penalty. The members of Jirga are usually drawn from the notables or Maliks of the area. They are known to be men of integrity, repute and well versed in the tribal traditions. The size of Jirga may vary from situation to situation in view of the seriousness of crime. Each party to conflict has to nominate as many representatives as the opposite party does so for the sake of saving their respective interest.17 For the following reason system of Jirga is preferred over the ordinary courts trial:
1)   The members of Jirga are considered to be fully conversant with the tribal customs and may sometimes have the first hand knowledge in respect of the occurrence.
2)   Jirga is more informal in starting procedure without any legal technicalities.
3)   It adopts a flexible standard for proceedings and exercises discretionary powers.
4)   It is easily accessible, inexpensive and expedient than ordinary procedure of court of law.

The Tribesmen Psyche to Crimes

The Pathan perhaps chooses nothing better than remedying his own wrongs and to dispense justice with his own hands.18 He always considers taking revenge as a retaliation of wrong done to him as sort of obligation and sacred duty. In such a state, murder quarrels remains to be unabated over the years. For these reasons the role of Jirga is considered as a safeguard mechanism to stamp out rivalries, thus, provides a better sense of security. If the notion of self revenge or logic of gun may be regarded as a deterrent force in accordance with tribal psyche than the role of Jirga may be ranked as a reconciliatory, compensation awarding and decision making body.19

The Adjudicative Role of Jirga

The origin of Jirga is lost in the mist of history. Being centuries old institution of Pukhtoon community has been displaying vital role in making peace, conciliation and awarding compensation in the tribal belt, it is an assembly of elders whose selection or nomination is on the basis of social as well as religious status and usually each members of Jirga is well conversant with tribal traditions and customs. It sits in a circle without any convener or speaker and every member has an equal say in the proceeding of Jirga. As size may vary from five to fifty as warranted by the seriousness of issue being referred to it for resolution. Its decisions are binding on the parties to conflict and its disobedience entails penalty leading to imposition of fine or the burning of dwelling places of defaulters.20
The Jirgas have been named according to its types in the Pukhtoon society such as Loya Jirga of Afghanistan, Tribal Jirga, local Jirgas, Milli Jirga (National Jirga), Woliusi and Masharano jirgas (Lower and Upper Houses Jirgas) as called in Afghanistan. However the FCR’s recognized Jirga is different from these traditional Jirgas whose members are nominated by the Political Agent under the provisions of FCR and their suggestions and recommendations for the resolution of dispute may be rejected by the Political Agent and instead to constitute a new Jirga to elicit desired results on the issue. For these reasons, FCR constituted Jirga whose members are called to be consisting of uneducated lot as well as men of dubious character may be correct and valid to some extent but not as a whole truth, therefore, not justifying the contention to scrape the Jirga system in total which is an integral part of the Pukhtoon social set up in the delivery of sense of participation to the tribesmen in their private as well as public affairs ranging from personal loan dispute to the blood-feud of tribal people. Besides, affording a relief to ordinary courts of law by sharing their increasing burden; is also, a comfortable medium of providing a quick and inexpensive justice. It may be added that amicable settlement of disputes outsides the court is regarded as the best way for saving the conflicting parties from unnecessary lengthy litigation as well as avoiding heavy costs in engaging lawyers, paying court fees etc. Thus, the adjudicator roll of the Jirga system may be reformed and developed into perpetual judicial forum.21
Tribal customs in corresponding to the laws promulgated by the state machinery though may not be short of flawlessness yet most of them are neither irrational or unjust or ill logical. Barring a few overriding the women rights or some others, a bulk of them are in conformity with the tenets of Islam because visible feature of Pukhtoon culture and tradition is duly reflective of Islamic way of life. Moreover, the concept of restorative justice in tribal society further supplements its justification in obtaining social cohesion and harmony in a society.22
It may never be construed that the tribal system of justice is said to be the best in absolute but as compare to the system under the ordinary laws of the country is stated to be nothing enticing enough to convince the tribesmen for its adoption because the large mass of ordinary laws is the product of colonial legacy which is not discharging the justice in a quick, cheep and easy manner.23
It is note worthy to say that steps are being taken for the Islamization of laws in the country through the function of Islamic ideology council and as the result of judgments of Federal Shariat Courts.24 One of the leading judgments on the subject is the denouncing of usury based economics system of the country is a landmark step in this direction.25 But still a big chunk of these laws are the product of English jurisprudence and common laws of England, which command obedience as a result of coercion,26 and cannot command the reverence inspired by self-sustaining obedience. It may be added that self respect for law is the most important thing than the coercion. For these reasons, the tribal code of conduct evolved on the ground of native values mostly enjoy the necessary respects more than the laws made on imported notions and also promulgated by authoritative legislature or formally democratic institution which in technical terminology advocate the will of majority people while, in fact, if to be seen in the context of last General Elections in Pakistan it may represent the participation of 30 to 40% of general public. It may also be noted, since, the passage of time a large-scale formulation, complexities and technicalities have been crept in to the legal system of country affecting the proper deliverance of justice; hence, it has become time consuming, expensive, out of reach of common people. Trials in criminal and particularly in civil disputes have become intelligible to the layman as long as requisite professional assistants arc not sought. While this being the ground reality, on what convincing ground can we expect that the tribesmen would opt to replace their less complex, less expensive and less delayed system of justice with a cumbersome, unintelligible and inexpedient system of ordinary justice? For these reasons, successive governments in the country have been endeavoring to plane out different ways and means in the names of speedy trial courts or anti-terrorist courts for the purpose of providing quick justice in the light of stated position, tribesmen would not like to entertain a large-scale modification with their centuries old customary laws.27
The political administration through the provisions of FCR control the deviant tribesmen and maintain law and order in their respective areas can be dubbed as one of the most dreaded tool in the hands of political administration. The domain of FCR, no doubt, is confined to roads, government buildings and government functionaries but in the event of its wide application warrants it’s the name of draconian law. Moreover, in the absence of independent appellate forum under the FCR so as to check the way-wardens of the political authority is against the principles of ideal justice. That is why human rights conscious tribesmen loudly appealing for the modification of FCR in conformity with the universally accepted standards of equity, fair play and justice. However, it may not be regarded as a demand for the change of long standing established system of Jirga as an indigenous institution of the tribal people in FATA, mostly falling outside the very sphere of FCR, as and when tribesmen lean to resolve their interse disputes in accordance with their native traditions through the channels of their local traditional jirgas.

Conclusion

The Tribal belt of Pakistan known as FATA occupies a unique strategic position in the western world since the happening of the 9/11th incident. This area represents semi-autonomous status and is governed under special laws particularly the Frontier Crimes Regulation of 1901. The inherent purpose of the British colonial powers was to devise such a legal as well as administrative set up in the area in the furtherance of their vested interest to contain Russia and safeguard the rich plain of British India from the outside interference, thus, this territorial stripe was named as an “Excluded Areas” in the words of section 91 of the Government of India Act of 1935 which still, no doubt, an integral part of the territory of Pakistan, remains out of the realm of social development and modern civilization. Negligible work of state building institutions has been done in the terminology of modern sense. Since, the lapse of one and a half century even after the emergence of Pakistan, the FATA is yet being ruled under the said outdated administrative system despite the fact that notorious FCR has lost its rational decades ago as a result of famous judgments of Superior Courts and recommendations of the numerous think tanks to bring the area at par with modern social, cultural and legal developments of the present time.
The paper while presenting the brief profile of FCR of 1901 suggests that the prime object of FCR was the suppression of crimes when the ordinary laws were failed to deliver good during the initial occupation and annexation of the areas but at present FCR is dubbed as a black law on the ground of being in derogation to the concept of ideal system of justice prevailing in most of the social welfare States.
Since, the independence of Pakistan, FCR continued to hold the field in Baluchistan as well as in NWFP including the tribal areas but lost its life in NWFP with the enforcement of 1956 Constitution of Pakistan, like-wise also died in Baluchistan with exception to certain areas since the promulgation of 1973 Constitution; where, too, it ceases to exist as result of judgment of the Shariat Bench of Baluchistan High Court (PLD 1979), Quetta, (P217). Today, FATA, is perhaps only the hostage of it.
The concept of collective and territorial responsibility under section 21,22 of the FCR tend to turn the area into a law of jungle and is also in derogation of the Fundamental Rights as enshrined in the 1973 Constitution of Pakistan.28 This concept clothes the political administration to impose collective fine on clan, tribe of alleged offenders or to impose blockade on the merchandize goods of fellow tribe of a criminal or even to seize their property by virtue of discretionary powers under the FCR being conferred on the political administration. It is small law spreading over 63 sections, knows no pious person under the principle of collective responsibility rather promotes a notion of joint-stock company of exploiters whereby high ranking officers can conveniently join. The fusion of executive and judicial powers in the hands of one person—Political Agent is in total clash with the provision of Article 175 of the Constitution of 1973 of Pakistan. Thus, the tribal people have no access to the superior courts against the verdicts of Political Agent or his hand picked Jirgas.
Judging by the standards of Universal Declaration of Basic Human Rights principles as well as Fundamental Human Rights guaranteed in the successive Constitutions of Pakistan, the FCR fails to meet the test of compatibility. This is so because FCR presents a peculiar origin. The colonial rulers of British India devised it as a tool of subjugating and disciplining Pukhtoon tribes in wake of establishing their writ over the stub born area, while enforcing its provision some of the tribal customs and traditions were relied upon by the then Rulers; however, such customs or traditions were twisted in a way to meet the government plan of securing convictions. For this very reason, the selection of Jirgas members were left to the choice of political authorities and the findings of Jirgas were also not binding on the political authority. This way the executive was made ultimate authority and final arbitrator to initiate proceedings to award sentences and not to stay at that but the re­visionary as well as appellate jurisdiction also vest in the executive. This is contrary to the mandate of Constitution, i.e.; the very preamble, Articles 2A and 175 of the Constitution which stand for independent judiciary and this vital safeguard is altogether not witnessed in the FCR.29
While summing up the three components of tribal system of justice such as a institution of Jirga, FCR and political administration, the role of Jirgas is of tremendous significance by providing quick, inexpensive and fair justice in accordance with the tribal conduct of life in the form of unwritten laws known as Pukhtoon Wali, though may not be as such to meet the fundamental elements of ideal justice system. But enforcing the law of FCR handled by the excessive powers of political administration is completely in-derogation of constitutional enactments of Pakistan. Besides it, there is strong desire of the tribal people to abolish the FCR, however, some elements having stake in the present setup wishing to retain it on the pretext of tribal customs and tradition. For these reasons, the opinion over the continuation of FCR may vary. Some people desire its total demolition with the introduction of modern independent judicial system whereas others opting for its retention with small modification of it.
It is, therefore, suggested here that the abrupt or complete repeal of FCR is likely to foment administrative chaos until proper legal and administrative steps with prior homework are taken in bringing a gradual changes in the social, cultural and economic lives of tribal people.