PESHAWAR: The federal government has prepared a draft bill that seeks to repeal the British-era Frontier Crimes Regulation (FCR) by extending the civil and criminal procedure code and jurisdiction of the higher courts to the Federally Administered Tribal Areas (Fata), while at the same time providing legal cover to the tribal jirgas to be appointed and presided over by a judge, official documents have revealed.

“It has hit the bull’s eye” a government official said. “Barring a few adjustments and a little tweaking here and there, by and large the draft bill is almost final,” he said.

“It does not only seek to repeal FCR but by default, while extending the jurisdiction of the Peshawar High Court, it may actually pave the way for Fata’s merger with Khyber Pakhtunkhwa,” he said.

The proposed bill, called the Fata Nizam-i-Adl Act, 2016, was circulated for consultations early this month.

The draft bill will be the subject of discussion at meetings at the Ministry of State and Frontier Regions and the Law Division on Thursday, it has been learnt. A copy of the bill is available with Dawn.

The draft legislation has been prepared by the Fata Reforms Committee, which is headed by Adviser to Prime Minister on Foreign Affairs Sartaj Aziz and includes Minister for Law and Justice Zahid Hamid, Minister for State and Frontier Regions Abdul Qadir Baloch and National Security Adviser Nasir Janjua.

The committee was constituted by Prime Minister Nawaz Sharif on November 8, 2015. The committee has toured all the seven tribal agencies to seek public opinion on a host of issues including FCR and Fata’s status.

The Frontier Crimes Regulation, termed a “black law” by many civil and human rights activists and enacted by the British Empire in 1901, gives sweeping powers to the civil administration to impose collective punishment on a family, tribe or sub-tribe.

According to Section 4 of the proposed law, Code of Criminal Procedure, 1898 shall apply to Fata, subject to modifications under which a reference in the Code to the Magistrate, Magistrate of the First Class, Magistrate of the Third Class or Magistrate having powers under Section 30, shall be construed to be a reference to the Judge.

A reference in the code to the Provincial Government or Federal Government shall be construed to be a reference to the Federal Government, the draft bill says.

Similarly, a reference in the code to the District Magistrate shall be construed to be a reference to the Political Agent and a reference to the officer in charge of the Police Station shall be construed to be a reference to the officer in charge of the Law Enforcement Agency deputed in tribal agency.

According to the bill, all powers vested in the district magistrate under the code shall be exercised by the political agent.

The bill also provides for application of the Civil Procedure Code to Fata, subject to modification that a reference to Civil Judge or Senior Civil Judge shall be construed to be a reference to the Judge, to be appointed by the federal government in consultation with the High Court in such number, such manner and such terms and condition as may be prescribed.

Each Judge, it says, shall exercise his powers in subordination to the High Court. The High Court, it says, may, on the application of any of the parties, after notice to the other party and hearing them, transfer any civil or criminal matter to any Judge, within 30 days from the appointment of the Council of Elders.

Any aggrieved party, it says, can make an application to the Court for decision in accordance with Rewaj and applicable law, to give its findings within 30 days on the issues in dispute.

‘Council of Elders’

Where an application is made to the court, the Judge shall nominate the Council of Elders whose names would be communicated to the parties, and any objection taken thereto by any of the parties, shall be recorded and the objection disposed of after a hearing of the parties.

The Council of Elders, the draft says, shall examine the matter and decide the factual controversies and applicable Rewaj; thereafter, the Judge shall decide the legal issues by passing a decree in accordance with the findings of the majority of the Council of Elders or require the Council of Elders to re-examine it.

The decree so passed shall be deemed a final settlement, to be executed by the Court through the Political Agent or the District Coordination Officer in case of the Frontier Regions.

The draft law also seeks to extend Criminal Procedure Code to Fata. According to the law, a case shall be registered after an offence and the accused would be produced before the Judge within 24 hours of such an arrest.

The Judge, it says, shall nominate a Council of Elders (in the same manner) within ten days from the date of the arrest of the accused and shall refer the case of the accused to the Council for determination in accordance with the Rewaj. The Judge, it says, will apply the law in accordance with the findings of the majority of the Council of Elders or require the Council to re-examine it.

No person shall be prosecuted or punished for the same offense more than once, the draft law says. The bill also provides for the right of bail to the accused including persons under the age of 16 years, women or sick or infirm persons. The accused person, it says, shall not be released on bail unless the complainant has been given notice.

The Act of Surety, to be furnished for bail, would include personal surety or such other surety as is prevalent in accordance with the Rewaj. In exceptional cases, the political agent or district coordination officer may refer any offence or civil dispute, if so recommended by a Qaumi Jirga of the tribe, to the Court for decision in the interest of justice and public peace, the bill says.

It says that where the Judge convicts a person, he may pass a sentence of imprisonment or fine or both for the offence, provided that the sentence shall not exceed 14 years.

The bill grants powers to the political agents and DCOs to sanction or refuse construction of any new hamlet, village habitation, tower or walled enclosure within 120 yards from the centre of the road, after duly recording the reason for the sanction and refusal.

The bill grants powers to the federal government to order the removal of any structures and encroachments situated in close proximity to the frontiers of Pakistan, if national security so warrants, to any suitable site, and award to the inhabitants such compensation of any loss which may have been occasioned by them.

It also gives powers to the political agents or DCOs in FRs to remove any person they deem to be dangerously fanatic or having no ostensible means of subsistence or someone who cannot give satisfactory account of himself or has a blood feud, by referring the matter to the Court for decision, and shall in accordance with the decision of the Court, require him to reside beyond or within the limits of Fata and FRs.

Under the draft bill, appeal will be made to the high court. It also provides that no person shall be compulsorily deprived of his property unless he is paid adequate compensation.

Published in Dawn, April 28th, 2016