Hearing a writ petition a few days ago the Peshawar High Court put on notice several administrative secretaries, including the additional chief secretary Fata, asking them to explain the delay in appointments of the chairman and members of the Fata Tribunal, the third and final judicial forum provided under the colonial-era Frontier Crimes Regulation (FCR).

The FATA Tribunal has been non-functional since Jan 26, 2015 when its chairman and two members completed their thee-year term. Since then the chairman and members have not been appointed, forcing the aggrieved persons to approach the PHC, which under Article 247 of the Constitution could not exercise jurisdiction in the Federally Administered Tribal Areas (Fata).

The petitioner, Mosam Khan, a resident of Mohmand tribal region, claimed that he was having a property dispute with one Sheikh Qadir, and an assistant political agent had decided the case in his favour. Advocate Iqbal Mohmand, who represented the petitioner, stated that the FCR commissioner, which is the appellate forum under the law, remanded the case back to the APA for considering certain points. He added that against the order of the commissioner the petitioner filed a review petition before the Fata Tribunal, but as the tribunal was non-functional, therefore, the case had been lingering on.

A PHC bench comprising Chief Justice Mazhar Alam Miankhel and Justice Mohammad Daud Khan on May 12 sought replies from the secretary to the Khyber Pakhtunkhwa governor, the provincial chief secretary, the Fata additional chief secretary and secretaries of home and establishment departments.

Early this month in another petition of almost identical nature filed by a tribesman Mohammad Ismail, the PHC had issued notices to the Khyber Pakhtunkhwa governor and Attorney General for Pakistan. The petitioner has also challenged the non-functioning of the tribunal.

A few days ago in almost identical petition, additional attorney general Syed Attique Shah, who was present in the courtroom, assured the PHC that he would take up the matter with the relevant quarters and try that the tribunal would be made functional at the earliest.

The Fata Tribunal was introduced in 2011 when amendments were made to the FCR by then government of Pakistan Peoples Party. While the then government propagated that it had reformed the law to a great extent the legal experts, including the Fata Lawyers Forum, believed that only cosmetic changes were made in the FCR.

Till 1997 there were only two judicial forums available in the FCR. The political agents and assistant political agents were empowered to serve as deputy commissioners/district magistrates and magistrates, respectively, and conduct trials under the FCR. The FCR commissioner was empowered to hear review petitions against orders of the PA and APA. Normally, the commissioner of a division adjoining a tribal agency has been assigned the powers of FCR commissioner.

In 1997 when Farooq Ahmad Khan Leghari was the President of Pakistan amendments were made to FCR through Regulation No II of 1997. Through those amendments the FCR commissioner was turned into an appellate forum, and within 30 days of a decision by the political agent, in his capacity as deputy commissioner, an appeal could be filed before the commissioner.

At that time Section 55A was incorporated into the FCR and another judicial forum by the name of FCR Tribunal was introduced which had the powers of hearing review petition against judgment of the commissioner. The tribunal comprises the provincial home and law secretaries as its members and in case of difference of opinion between the two the chief secretary was empowered to act as its member.

That tribunal had been drawing flak from the legal circles and experts who mostly believed that the administrative officers were not in a position to deliver justice as they could not decide cases without fear or favour.

In the so-called reforms of 2011 the Section 55A was replaced with a new version and through it the FCR Tribunal was replaced with the Fata Tribunal. Under the present Section 55A, a review petition could be filed with the Fata Tribunal within 90 days against any decision given by the appellate authority (FCR commissioner).

The Fata Tribunal comprises a chairman and two members to be appointed by the governor. The chairman shall be a person who has been a civil servant of not less than BPS-21 and having experience of tribal administration. One of the members shall be qualified to be appointed as judge of the high court and well conversant with Rewaj (traditions). The other member shall be a former civil servant of not less than BPS-20.

The tribunal has also been assigned some additional powers including: to issue directives that a person within limits of its jurisdiction be brought before the tribunal to be dealt with according to law; to order that a person illegally or improperly detained in public or private custody within such limits be set at liberty; etc.

In Jan 2012 a former civil servant, Shah Wali Khan, was appointed chairman of the tribunal whereas prominent lawyer Pir Fida and another former civil servant Akbar Khan were appointed as its members. They completed their term in Jan 2015 and now it is awaited that the governor will issue orders for making the tribunal functional.

Legal experts dealing with the cases under FCR believe that genuine judicial reforms, especially extending the jurisdiction of superior courts to Fata, are need of the time. They added that for the time being the Fata Tribunal should be made functional as it was the final judicial forum under the FCR. They added that aggrieved tribesmen had now to move the high court in the absence of the tribunal, and the high court had to assume jurisdiction as no other remedy was available.

Published in Dawn, May 25th, 2015

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