Copyright © CAMP 2013 Community Appraisal & Motivation Programme (CAMP) Understanding Justice Systems of Khyber Pakhtunkhwa, FATA and Balochistan: The Pakhtun Perspective All rights reserved Citation, reproduction or translation of this publication, in whole or part, for educational or other non-commercial purposes is authorised but with written permission, provided the source is fully acknowledged. ISBN: 978-969-9534-07-02 Copies and more information available from: P.O. Box 765 Email: [email protected] & [email protected] Download from: www.camp.org Authors: Naveed Ahmed Shinwari & Neha Ali Gauhar Design & Printed by: Waya Communications, Islamabad Illustrations: Rehan ud Din Khattak Paper: EU, 100 gm, FSC certified Table of Contents Map of Pakistan- showing FATA, KP and Balochistan ii List of Acronyms iii Preface V Executive Summary Vii Chapter 1: The political and administrative structure of FATA, 1 Khyber Pakhtunkhwa and Balochistan Chapter 2: The Formal Structure of Courts in Pakistan 11 Chapter 3: Nizam-e-Adl – A New Addition To The Formal System 15 Chapter 4: Knowledge of Formal and Informal Justice Systems and 21 their use Chapter 5: Pakhtun awareness and opinion of the institutions and 27 actors in KP and Balochistan Chapter 6: The Jirga: A traditional Justice system 43 Chapter 7: The state of Fundamental Rights and Jirga 59 Chapter 8: Women and the Jirga system 77 Chapter 9: Access To Justice and Conflict Dynamics 95 Chapter 10: Legality and Legitimacy; Formal and Informal systems 111 Compared Chapter 11: The Way Forward – Jirga Evolution 139 Annex I Methodology 152 Annex II Questionnaire 160 Annex III Target Demographics 189 List of Acronyms Alternate Dispute Resolution ADR Anti-Terrorism Courts ATC Awami National Party ANP Convention on the Rights of the Child CRC Community Appraisal and Motivation Programme CAMP Code of Civil Procedure CPC District Coordination Officer DCO District Police Officer DPO FATA Tribunal FT Federally Administered Tribal Areas FATA Federal Board of Revenue FBR Federal Shariat Court FSC Focus Group Discussions FGDs First Information Report FIR Frontier Regions FRs Frontier Crimes Regulation FCR Government of Pakistan GoP Human Rights Commission of Pakistan HRCP International Convention for the Elimination of all forms ICERD of Racial Discrimination Internally Displaced Persons IDPs Key Informant Interviews KIIs Khyber Pakhtunkhwa KP Musalihati Anjumans MAs National Assembly NA National Finance Commission NFC Nizam-e-Adl Regulation NAR Non-Governmental Organisations NGOs North West Frontier Province NWFP Pakistan Penal Code PPC Political Agent PA Peshawar High Court PHC Post Crisis Needs Assessment PCNA Provincially Administered Tribal Areas PATA Supreme Court of Pakistan SCP iii Tehreek-e-Nafaz-e-Shariat-e-Mohammadi TNSM Tehreek-e-Taliban Pakistan TTP United Nations Development Programme UNDP iv Preface Historically, individuals, social groups and The subject of this report is the opinion of societies have disputed with and competed Pakhtun people living in Khyber Pakhtunkhwa against one another over scarce commodities (KP) and Balochistan with regard to the systems and resources - land, money, political power, of justice in those Provinces. In 2010, similar and ideology. In many parts of the world, research was conducted among the Pakhtuns in traditional systems of justice and dispute FATA. In this report, comparisons between these resolution are being approached to resolve provinces and FATA are presented. conflicts, and to ensure peace and stability within local societies or tribes. Often those The judicial structure in Pakistan is derived systems are suitable to resolve modern, from the Code of Civil Procedure (CPC) 1908 current conflicts because they satisfy the and the West Pakistan Civil Courts Ordinance local cultural and religious sentiments. This (II of 1962). However, the formal court system aspect, the traditions related to religion and has evolved to meet circumstances demanding local codes of justice, often make them more changes; one of the latest ones was the addition successful than the contemporary or modern of the Nizam-e-Adl courts as part of the justice systems. The existing body of literature agreement to resolve the conflict in Malakand confirms that the nature and causes of conflicts Division of Khyber Pakhtunkhwa in 2009. and the mechanisms for resolving them are deeply rooted in the culture and history of The approach of Pakhtuns is distinct from every society; they are in many important ways the Pakistani judicial structure when it comes unique to them. to accessing justice in those areas where Pakhtunwali, the “ways of the Pakhtun.” However, such traditional systems are being prevails. To them ‘Jirga’ is still the preferred criticised for their incongruence with modern form of informal or parallel justice mechanism. justice systems or their tendency to violate Formally, the Jirga is still the mechanism for some very basic principles of human rights, dispensing justice and resolving conflicts in especially women’s and minority rights. the FATA under the Frontier Crimes Regulation (FCR). However, Jirga is informal, i.e., not The Pakhtun Jirga’ is one such traditional or codified in Pakistani civil law in other parts of tribal justice system being practiced by the Pakhtun dominated areas of Pakistan. Pakhtun or Pashtun ethnic group that lives in Pakistan and Afghanistan. There are over On the other hand, in Pakistan, it is generally forty million Pakhtuns living on both sides of perceived, by the Pakhtun, that the formal justice the Durand Line in Pakistan and Afghanistan. system does provide a system that is comparable Pakhtuns inhabit an area of more than 100,000 to the Jirga. Generally, the Pakistani public lacks square miles bisected by the Durand Line since confidence in the formal justice system, which 1893. In Pakistan, Pakhtuns reside in Khyber has undermined the Rule of Law and contributed Pakhtunkhwa, Balochistan and the Federally to rising violence, including crime, terrorism and Administered Tribal Areas (FATA). In addition, human rights abuses. For a majority of Pakistanis, v Karachi also hosts some 3 to 4 million Pakhtuns the formal justice system is seen as expensive; who migrated from different parts of the has no provision for compensation for victims; is Pakhtun dominated areas of Pakistan. slow and is widely perceived as corrupt, biased and dominated by the rich. These beliefs provide a conducive environment for the Jirga to remain lawyer by training and a Human Rights activist, the preferred option over the modern justice Neha did a wonderful job in highlighting and system in Pakhtun areas. Hence such a situation comparing the human rights issues in the has provided a favourable environment for Jirga informal justice system, especially that of to flourish and remain the only available option women and minorities in the Pakhtun region. for the Pakhtun community. Fareeha Sultan, project manager for CAMP’s The findings of CAMP’s two research studies Rule of Law Programme, deserves special on Jirga – this one and the one conducted in appreciation for coordinating numerous 2010 on FATA – suggest that underestimating activities and achieving some very ambitious the efficiency and effectiveness ofJirga would and difficult targets for the project. I appreciate be a mistake, especially because it plays an the efforts of Naveed Akhtar, field researcher/ essential role in the maintenance of social consultant, for assisting Riaz-ul-haq, our Senior order and has proved successful in the past. Manager Research/surveys in coordinating It is inexpensive, speedy and accessible to field activities in the field. the poor. It is concluded that traditional approaches to conflict resolution are able to I am very grateful to Riaz-ul-haq (Sr. Manager deal with conflict before they spread because Research), who assisted this research in of their decentralized and local availability, plus terms of coordinating field work, organising the confidence gained in the cultural context enumerators trainings, and focused group and belief systems. discussions, supervising and managing the data gathering and data feeding, and, finally, In developing this understanding, many providing me with cleaned data sets. Special people have contributed to this report. The thanks to Mariam A. Khan our Director compilation of this report would have never Programme and Meher Khan for their support been possible without the active involvement and proof reading the report. My appreciation and intellectual insight of 2,400 men and goes to Irum Ali Khan and Aezaz Khan for their women respondents of Khyber Pakhtunkhwa help in compiling information on the structure and Balochistan, who are most familiar with of formal justice system in Pakistan and their the subject. They were extremely helpful in support in proof reading. sharing their knowledge of and insight into the institution and dynamics of Jirga and the tribal Without the generous financial support of the way of life, which have remained a mystery to German Embassy, Islamabad, this research the outsiders till this day. Their willingness to would not have been possible; I am extremely contribute to this report helped Community grateful. Special gratitude to Ms. Barbara Voss, Appraisal and Motivation Programme (CAMP) First Secretary Political and Mr. Andreas Dauth, develop a perspective on various aspects of Third Secretary Political for their constant Jirga, which is the focus of this report. support and encouragement. I am equally