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July 17, 2019

Security and justice after the merger

Opinion

July 17, 2019

The writer has served as the chief secretary of GB, AJK, KP and Sindh and was the chairman of Wapda and the Pakistan Railways

The merger of the erstwhile tribal areas into Khyber Pakhtunkhwa in 2018 was a wise decision. In fact, this was the only rational course available; other options were impractical and out of step with ground realities. The Sartaj Aziz committee, competently steered by secretary Safron, Arbab Shehzad, did a good job. However, were the tribal areas merged earlier, the country would have avoided much precious lives and material loss.

Why was the merger of the tribal areas into settled districts necessary? There were two main reasons. First, following the 9/11 events and the American invasion of Afghanistan, the writ of the Pakistani state was seen as largely absent in the tribal areas. The presence of the state needed to be established in Fata (tribal areas) by flushing out foreign and local elements inimical to Pakistan through an effective security and justice delivery system. Second came the late realization that the tribal areas needed to be ‘settled’ and brought at par economically with the more developed parts of the country.

To a purist, a ‘settled district’ is one where formal land settlement through the record of rights determines the basis of land ownership, administration and revenue obligations. Parts of the then Kurram Agency and the Daur areas of North Waziristan were thus ‘settled’ in land terms a hundred years back. Other areas like Chitral and Dir have not seen land settlements, yet they are districts. Today the merger of tribal agencies into settled districts is, quite wrongfully, defined as adopting the settled districts’ civil and criminal courts to these areas. Actually, the fundamental change involves the substitution of the concept of 'collective tribal responsibility’ of an infringement of law to ‘direct personal responsibility’ of the individual. This would now be a direct state responsibility as times and the tribal society have both changed.

The serious question to ponder is whether the adopted court system can deliver justice in the merged areas when it is perceived to have largely failed for over 150 years in the settled districts. The existing courts (kachery) in the settled areas are associated with inordinate delays, complicated procedures, exorbitant costs and an inability to provide relief both to the plaintiffs or the victims of crime. (The World Justice Project/ Rule of Law Index ranked Pakistan 117 out of 126 in court performance and these are all settled districts courts).

The tribespeople know well the travails and frustrations in the settled areas' courts and therefore need to be consulted before extending the system to their areas. Without their ardent support, the new system would fail. A year after the merger there is a void; neither the police nor the new courts are actually functioning on the ground. There is confusion, discord and distrust. Why would these same courts function differently in the newly merged areas? The tribespeople reportedly avoid both the police and the new courts and place greater reliance on informal resolution of their problems which is what they did before the British arrived on the scene.

Fortunately, an alternate remedy is already available as there is no bar in applying a different civil and criminal procedural law in the merged areas. In the US, no two states have identical procedural or penal sections of the law while for the ‘Indian’ tribes there are special indigenous laws again. Our constitution does not bar the retention of the ‘rewaj jirga’ as a procedural code, both for civil and criminal cases. Why should there be geometrical uniformity when culturally people are so different? Punishments however would continue to be awarded under the Pakistan Penal Code which has been the case in the merged areas for over a century. The application of the Evidence Act would have to be graduated though. The district and sessions judges with subordinate courts would be exclusively responsible for administering these courts.

The jurisprudence behind the ‘rewaj jirga’ system is different from that of the courts system in vogue in the settled districts. The ‘rewaj jirga’ should not be confused with the annulled Frontier Crimes Regulation (FCR) system which was an amalgam of civil, criminal, preventative procedures with some penal provisions incorporated. The state-sponsored ‘rewaj jirga’ is similar in material ways with the US jury system except that the jirga members, as influential local notables, are permitted to adduce evidence. The ‘rewaj jirga’ like the jury, only makes a recommendation to the presiding officer who pronounces the sentence or remands the case to another jirga. The state jirgas are also very different from the vindictive and vengeful private vigilante ‘jirgas and panchayats’ of Sindh and Punjab -- and it is a travesty to even call these latter ones ‘jirgas’.

The introduction of the police into the merged districts is a correct first step but assumption of all responsibilities should be undertaken gradually over a period of time. The existing khassadars and levies should first be inducted into the new police force and future enlistment must recognize the rights of every tribe and sub tribe right down to ‘tappas’ and ‘kandis’. All new recruitment to the positions of upper and lower subordinates, including a portion of the ASP/DSPs, should be selected from those tribespeople who have actually lived in the former tribal areas. Most importantly, the police must be held to account for all acts of omission and commission which today is not the case even in the settled districts following the abolition of the executive magistracy. The Public Safety Commissions at different tiers have not worked because only a monitoring authority empowered under the Criminal Procedural Code can redress infringement of the rules by the police. These commissions, whereever created, failed to check police abuse and malfunctioning and were no more than Trojan horses.

The role of the new deputy commissioner and his subordinates would remain strategic to the success of the merger for a period of time. The tribes by and large trusted the political officers, the ‘pultical’, for over a century because the office was seen as a guarantor of their rights under the law and rewaj. Totally eliminating the position would be a major cultural change. The hasty replacement of the deputy commissioner by the Nazim in Pata, for instance, created a vacuum in the district administrative structure which in due course led to the paralysis of the state for a decade. It ended only after the military moved in in 2009. For long-term stability, the DC would need to be empowered as a district magistrate so that along with the police s/he remains involved in responsibilities involving security, law and order, conflict resolution and even development matters. The magistracy is the buffer between cocked rifles and aggrieved people. There should be no replays of the Model Town (Lahore) tragedies.

Argument and dialogue resolve issues better than any force exerted by the police. The Frontier Corps and the army would remain in the background and well away from direct interaction with the people as was always the case in the past in the tribal areas. The district administration and the police being responsible for the security and rights to life, liberty and property -- would they be answerable to supervisory hierarchies right up to the chief Minister and the judiciary? The elected ‘nazim’ however, should have no police or security responsibilities. It is also felt that in view of the heavy commitments of the chief minister it may be prudent for the governor to pay special attention to the needs of the tribal areas on behalf of the government.

Vision demands that all political parties put their heads together once again by amending the constitution to align it with the aspirations of the tribespeople.

Email: [email protected]

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