Dealing with FATA
Legal Reforms
The report stated that the FCR should be renamed the FATA Good Governance Regulation/Act201 and all sections related to collective/vicarious responsibility should omitted, thereby making an individual responsible for his own acts initially in protected areas and gradually the whole of Fata.
It stated that the the jirga system should be retained for both civil and criminal matters, whereby the court will appoint a council of elders to decide factual issues and announce judgments on the basis of riwaj and the prevailing law in force.
Importantly, it was recommended that the jurisdiction of the Supreme Court and the high court be extended to the tribal areas by amending Article 247 and other relevant laws, so that those who want to protect their fundamental rights can do so like any other citizen of Pakistan.
“All stakeholders must maintain clarity over the terms riwaj and jirga.
The committee proposed retaining the jirga system in the civil and criminal Justice system of Fata for the reason that an all-together repeal would be too drastic a step. |
Moreover, with certain changes in the procedures, the Jirga process could start resembling the “jury system”, which is an acceptable process in all the major legal systems of the world. Simultaneously, any legal instrument, which incorporates Riwaj as part of the judicial process, must ensure that it’s not in conflict with fundamental rights and other substantive laws.
Firstly, the committee said judicial processes, based on Riwaj, will be formalised and codified in such a manner that these shall become an integral part of the judicial system, having passed through the scrutiny of the superior courts.
The other possibility is that with the passage of time, the citizens of Fata discard it in favour of a system that is the norm in the rest of the country, thus bringing in uniformity and equality.