South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

THE report of the Committee on Fata Reforms, that has rightly been made public via the website of the Ministry of States and Frontier Regions (Safron), needs to be studied with great care because bold strokes of policy sometimes run dangerously close to rashness.

The committee was set up in November 2015 and the completion of its report within 10 months is quite creditable. However, greater thinking was perhaps needed before the committee’s composition and the process of consultation with stakeholders were finalised.

Headed by foreign policy adviser Sartaj Aziz, the committee comprised Governor Jhagra (and governor Abbasi before him), Safron Minister (retired) Lt-Gen Abdul Qadir Baloch, Law Minister Zahid Hamid, National Security Adviser (retired) Lt-Gen Nasser Janjua, and Safron secretary Muhammad Shehzad Arbab. It might have been better if these government heavyweights had been joined by a couple of non-government representatives.

The committee held consultations with the maliks and elders in the tribal agencies and frontier regions, “representatives of all political parties and other members of the civil society, including traders, media representatives, and youth”. Since the report does not identify the people the committee consulted it is not possible to determine their representative character. Parliamentarians from Khyber Pakhtunkhwa or from any other region, or organisations such as lawyers’ associations, were apparently not consulted.

One should like to see a wide-ranging discussion on what Fata will become under the ‘rewaj’ rule.

The report takes brief note of the Naseerullah Babar proposals of 1976 (which would have “succeeded had the military coup of 1977 not occurred”); extension of adult franchise to Fata in 1996 and of the Local Government Ordinance in 2002; the Sahibzada Imtiaz Ahmad report of 2006; the Fata sustainable development plan of 2006; retired justice Ajmal Mian’s report of 2008; a report by the Shaheed Bhutto Foundation of 2008 and the Political Parties’ Joint Commission of 2013; and the report of the governor’s Fata reform commission of 2015. All these efforts sought to reform the FCR and that is the present committee’s main concern too.

The committee has proposed restricted integration of Fata with KP as the territory will be subject to a special law, to be called the tribal areas rewaj act, which will replace the FCR. “Provisions relating to collective responsibility in the FCR should be omitted from the new act,” says the report and adds that the “jurisdiction of the Supreme Court of Pakistan and the Peshawar High Court should be extended to Fata”.

The committee has recommended that “the ‘jirga’ system should be retained for both civil and criminal matters, whereby the judge [which judge?] will appoint a council of elders to decide factual issues in accordance with rewaj and will pass a decree in accordance with its findings on civil reference or pass an order in accordance with its findings and applicable law in a criminal reference”. This crudely drafted formulation is unlikely to pass scrutiny by sticklers for due process.

The buzzword for Fata now is rewaj. We recently heard this word when two men were acquitted of murder by a political agent because the jirga had held that the rewaj permitted homicide in the name of ‘honour’ or ghairat.

One should like to see a wide-ranging discussion on what Fata will become under the rewaj rule. If the proposed rewaj act will legitimise the tribal customary law, how will the tribal people be integrated with the population of KP? The people in that province will be yoked under three different and often contradictory justice systems — the Pakistan laws, nizam-i-adl in Malakand Division and the rewaj in the tribal areas.

Well-informed sources maintain that a United Nations agency has played a significant role in the drafting of the rewaj act. If this is true, the involvement of United Nations personnel would be difficult to justify for producing a law that offends against the principles of law and justice advocated by the international champion of non-discriminatory legal systems.

The committee says that it “has proposed retention of the jirga system in the civil and criminal justice system of Fata for the reason that its repeal would be resisted and destabilise the social order, which is undesirable”. The committee hopes that the jirga “will develop into the jury system” and also boldly proclaims that “any legal instrument, which incorporates the rewaj as part of the judicial process, must ensure that it is not in conflict with fundamental rights as well as other substantive laws administered in Khyber Pakhtunkhwa”.

No amount of jugglery with words can hide the fact that the rewaj law will legitimise deviations from the fundamental rights enshrined in the Constitution of Pakistan and will discriminate between the people of Fata and their compatriots within the province of KP and outside it.

Strangely enough, the committee is worried only about resistance to the repeal of the jirga system. One wonders whether the committee took into consideration the resistance that the plan for land settlement could run into. As regards the extension of Pakistan laws to Fata, the committee might not have been unaware of the strange case of the extension of custom laws to Malakand Division and the government’s hasty retreat there.

Mainstreaming Fata has been on the agenda for decades. The reform committee is proposing the territory’s integration (even though partially) with KP at a time when external factors may not be conducive to a substantive change in the life of the tribal people. It may not be prudent to ignore the possible reaction of Afghanistan to the process and its impact on the section of the population that has not concealed its opposition to merger with KP.

Even the memorandum of Fata parliamentarians included in the report refers to two options — integration with KP or creation of a new province. As a senior lawyer from the Malakand division told the present writer, Fata’s future cannot be decided without substantial revamping of the country’s foreign and defence policies.

Published in Dawn September 1st, 2016