In consequence of 25th Constitutional Amendment and judgments of august supreme court, referred to hereinbefore, jirga (council of elders) in all forms has been declared as illegal. There is no room for jirga for criminal cases. Jirga is permissible only in civil cases. All three forums under FCR, i.e., Deputy Commissions (Political Agent), Commissioner FCR and FCR Tribunal have been abolished. The same are replaced by civil courts, judicial magistracy, district and dessions courts and the high court. All execution matters of judgments and decrees have been transferred to civil courts. All orders and judgments and decrees passed under FCR shall be executed by civil courts. Customs and usages have force of law will have legal footings if they are not inconsistent with fundamental rights guaranteed by the constitution. Policing system is being brought in place.
There is a myth that people of these areas (tribals) have no liking for ordinary system of administration of justice. More than two million people have become IDPs during war against terrorism. They have been living in adjoining settled districts of their areas. They are aware of system of ordinary courts. They come to settled areas for education. They have relations in settled areas. They are 99 % Muslim. They speak Pushto like other people of Khyber Pakhtunkhwa. They obey laws of the region. Tribals are living in every part of Pakistan from Peshawar to Karachi. A huge number of people from these areas are abroad like gulf-states for earning livelihood. Even, criminal and civil cases of tribals are pending before ordinary courts in settled areas of Khyber Pakhtunkhwa. This is propaganda by status quo forces to develop a narrative that new system will be flopped. People of erstwhile FATA, newly-merged areas into Khyber Pakhtunkhwa are very happy that parliament and supreme court have brought them into main stream as citizens and they will enjoy all those rights which other people of Pakistan are enjoying.
It must be borne in mind that it is the effectiveness of the system of law and its implementation that will instil the feeling amongst the most neglected people of our motherland that there is, finally, the rule of law
Merger of 7 districts, most neglected areas into Khyber Pakhtunkhwa as result of 25th amendment to the constitution is a landmark milestone towards administration of justice. It carries the torch which is a symbol of rule of law and supremacy of constitution through District Judiciary of Khyber Pakhtunkhwa. Henceforth, ordinary courts of law shall administer justice. Draconian FCR has gone.
There is a lot that the honourable Judges can do to make the system effective, efficacious and adequate to start with. The people of these neglected areas must be shown that this glimmer of hope is not just momentary and that there is a light at the end of tunnel. We all know how lop-sided the jirga system was.The honourable Judges have a huge responsibility cast on their shoulders. It is not just to decide the matters brought before them. They are the first ones perhaps who are carrying the torch of rule of law. They should not let it fade away at all. They need to protect it. They are pioneers and trend-setters.
The honourable Peshawar High Court had approved case management rules on 23.01.2018. The same are operative part of Civil Procedure Code. The said rules are also applicable to the newly merged Districts. These rules need to be applied in letter and spirit to make sure that justice is administered expeditiously.
These newly established Courts can be seen to be pilot projects for checking that ordinary laws, if implemented properly, are effective. If the Case Management Rules are applied in the fullest, results will come, and the people will trust the system of law. The litmus paper for checking the effectiveness of the old CPC-often regarded as outdated law-which in an honest opinion has not been implemented in letter and spirit so as to enable us to truly and honestly view it as outdated or effective.
These courts must fix a Schedule of hearing as provided in the above-mentioned rules and make a timeline for conducting the trial. If the parties and their counsel fail to comply with the timetable, costs must be imposed on them.
Furthermore, similar case management rules need to be brought and incorporated into the Criminal Procedure Code to make it effective.
It must be borne in mind that it is the effectiveness of the system of law and its implementation that will instil the feeling amongst the most neglected people of our motherland that there is finally rule of law. If the law is not implemented effectively, the people will see it as more draconian than the predecessor system established under the auspices of FCR. The non-functioning of the system is as bad as having a corrupt system in place. As a lawyer, I feel ashamed when I have to tell a client that his case will take at least five years to conclude in the court of first instance.
The writer is an Islamabad-based lawyer and partner at UMR Practice
Published in Daily Times, March 21st 2019.