Is The New Justice System In Former FATA Unjust?
The Khyber Pakhtunkhwa (KP) government recently extended the Dispute Resolution Council (DRC) mechanism to the newly merged tribal districts. The motive behind this move was to reduce the burden of cases on the infant regular courts system in the erstwhile tribal areas. This alternate reconciliatory mechanism of justice at grassroots community level has been functioning in settled districts of KP for some time now. The KP government thought that since the people of tribal districts traditionally acquainted with the justice system based on reconciliatory local Jirgas, this mechanism is bound to succeed in these areas. The argument that this system of justice is speedy, less expensive and available at the grassroots level. However, according to the modern norms of justice this new mechanism lacks the fundamental criterion of judicial processes.
In this regard the government brought an amendment to the KP Local Government Act 2013 to set up an Alternate Dispute Resolution (ADR) mechanism at tehsil level in the merged districts. The membership of these DRCs comprised forty neutral elders selected from the concerned district out of which ten members will be nominated by the District Commissioner (DC) from the civil administration. The remaining 30 are either referred by the parliamentarians or they themselves got the nomination using their influence. In any civil dispute, the Assistant Commissioner (AC) will pick three to four persons from the membership of ADR to conclude the dispute.
The parties to the dispute will have no say in the formation of ADR for their dispute. It is the prerogative of the AC to nominate whoever he deems fit for the case in question. These members of the ADR listen to the parties and deliberate over the case using customary laws of tribal areas to reach the conclusion. Then they present their findings, report or decision to the AC. In case of complaint, the aggrieved party can submit a written application to AC or DC for review. The decision of the AC or DC will be final and cannot be challenged in any court in the country.
The authorities introduced this mechanism with good intention to assist the newly established courts system in the merged areas. The logical reason for this mechanism could be as the regular courts system is not equipped with appropriate data, infrastructure, manpower, forensics facilities and other essential requirements for case investigation and judicial process.
Apart from this, Jirga mechanism should not be taken away all at once from the people as they are not very well aware and acquainted with the judicial system of Pakistan.
Nonetheless, the ADR mechanism triggered debate on its legality and viability. Legal fraternity called this system illegible and against the modern norms of justice. A large number of people in the tribal districts also think that these Jirgas are reflective of the old draconian Frontier Crimes Regulations (FCR) law. A lawyer from the merged district has already challenged its legality in the Peshawar High Court (PHC).
There are some reasonable explanation to this criticism and legal lacunae in the new Jirga system based on ADR. These Jirgas are not illegal but the procedures for its formation in merged areas is against legal norms because the ACs and DCs have been give judicial powers. The Supreme Court of Pakistan while nullifying Interim Governance Regulation (IGR) in merged districts decreed that no government executive officer can exercise judicial powers or monitor judicial proceedings. In the settled districts of KP, decision of the ACs and DCs under DRCs could be challenged in higher courts of the province. However, in in tribal districts under the ADRs the decision of the DCs is final and cannot be challenged in any court of the country, no matter how unjust it is.
The membership of the ADRs is under strong criticism as most of its members included the same elders who used to be members of FCR Jirgas. Many people question the criteria of their selection, knowledge and experience, social standing and integrity. The same elders were not only against the merger but they also do not use modern norms to conclude disputes and prefer the old rationales of customary law to decide cases.
The members of the ADRs do not investigate the case; they simply listen to the parties and reach the conclusion. Moreover, these ADRs also excluded youth and women. One of the serious allegations is that these Jirgas treat youth and women the same way as they were treated by FCR. In contrast, the reconciliatory Jirgas in settled districts of KP include women and young members. How can this body of judges fairly decide cases related to ‘honour’ killing, sexual harassment and domestic violence without the presence of a woman member in its proceedings?
Without reforms, these Jirgas will be considered to being the exact replicas of the FCR Jirgas which will soon attract so much opposition that it will be declared illegal by the higher courts of the country and all the labor in its formation and extension to the merged areas will go into vain. No reforms mean illegality which will result in failure and weakens people beliefs of justice.