Pakistan’s former Federally Administered Tribal Area (FATA) still lacks a regular judicial system despite a constitutional amendment in May to merge the region with its northwest province of Khyber Pakhtunkhwa.

The Constitution 25 Amendment Act 2018 rescinded the FATA’s separate status and extended the High Court’s jurisdiction to the tribal region. As a stopgap arrangement, the government promulgated the FATA Interim Governance Regulation 2018 to deal with public litigation before a framework for the litigation process starts.

The Interim Governance bill allows divisional and district-level executives such as commissioners and deputy commissioner to act as judges and set up a council of tribal elders to decide on civil and criminal matters related to tribespeople.

But this arrangement did not work as no action was proposed or taken on over 400 cases by the council of tribal elders. Indeed, some parts of the Interim Governance bill violated constitutional provisions, which prompted Ali Azam Afridi, a local advocate, to lodge a petition in the Peshawar High Court challenging the violations in the new set-up.

Peshawar High Court ruling

Last week, the Peshawar High Court declared Interim Governance bill unconstitutional, saying that some parts of the regulation clash with provisions in the charter. The court instructed the federal and Khyber Pakhtunkhwa governments to make alternative ‘constitutional’ arrangements by the end of the month.

Rahimullah Yousafzai, a senior Pakistani analyst and expert on Afghan and tribal affairs, said: “It was earlier planned that the mainstreaming of FATA will be completed in a time span of five years. However, the pressure from political parties, the army establishment, and tribal population made the government take half-baked measures in haste, which resulted in the present legal ambiguities that we face.”

He said administrative, legal and judicial reforms needed appropriate time to be completed but the government rushed to merge FATA with Khyber Pakhtunkhwa without fulfilling the preliminary requirements.

In its detailed judgment, the Peshawar Court observed: “Indeed the separation of executive from the judiciary is a hectic exercise, which should have been done before the 25th Amendment Act of 2018. The court explained that it was empowered to strike down any law or regulation or action taken in violation of principles contained in Article 25 of the Constitution.

Advocate Ali Azim Afridi said: “The Pakistan constitution guarantees a separation of the executive from the judiciary under section 175(3) but the FATA Interim Governance Regulation ignored this constitutional requirement and authorized the administrative officers to perform as judges, which I challenged in the Peshawar High Court and the court decided the case in my favor.”

Afridi said the government appeared reluctant to grant fully-fledged judicial power to the tribal areas because of the illusion that ‘Rawaaj’ (traditional customs) reigned supreme in tribal culture. “I have myself studied numerous decisions taken under ‘Rawaaj’ and they are neither lawful nor customary or rational,” he said.

He said whether the government liked it or not they would have to implement the Peshawar Court’s ruling by the end of this month, and if they did not, “I will move a contempt of court petition in the court.”

Key cases hinge on jurisdictional change

With the extension of court jurisdiction in the tribal areas, the status of a number of high-profile cases would change. Notably, Dr Shakil Afridi, a man who helped CIA to track down al-Qaeda supremo Osama Bin Laden, could challenge his detention under the Frontier Crime Regulation in regular courts. His lawyers have claimed the doctor stands a good chance to get released if that happens.

“The moment the FATA tribunal is abolished and power transferred to the Peshawar High Court, hopefully by the end of this month, Shakil Afridi’s case will automatically move to the Peshawar High Court for regular hearing,” Dr Shakil Afridi’s attorney Qamar Nadeem said. He claimed the FATA tribunal was drawing out the issue and there was no other forum to move an appeal to. The FATA Tribunal, he argued, was dysfunctional due to confusion over the Interim Governance bill.

The 25 Amendment Act envisaged bringing normal laws to tribal areas where such regulations have never been applied. When the British annexed the Indian subcontinent through the Government of India Act and declared a British Raj on the subcontinent in 1858, they enforced the Frontier Crime Regulation to govern these “lawless” lands in 1901.

But the Frontier Crime Regulation was a regressive piece of colonial legislation designed for the tribal region and deprived the tribespeople of basic human rights, like the right to justice and a fair trial, right to appeal, right to adult franchise, right to association, and the right to freedom of expression. Clauses 21, 22, and 23 of the regulation allowed collective punishment and proposed punishment to an entire tribe or family for crimes committed by a single person. Hundreds of tribal people still languish in jails for crimes committed by their relatives.

Unlike other Pakistan citizens, who enjoy protection under Articles 8 to 28 of the country’s constitution and seek relief from the judiciary if any of their rights violated, people in the tribal areas still long for such fundamental rights.