Extending Constitutional Rights to Pakistan’s Tribal Areas

BY: Umar Mahmood Khan; Rana Hamza Ijaz; Sevim Saadat

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When Pakistan’s Federally Administered Tribal Areas were officially merged into Khyber Pakhtunkhwa Province in May 2018, the five million residents of the former tribal areas acquired the same constitutional rights and protections—including access to a formal judicial system—as Pakistan’s other citizens. This report, based on field research carried out by the authors, explores the status of the formal justice system’s expansion, finding both positive trends and severe administrative and capacity challenges, and offers recommendations to address these issues.Supporters of the FATA youth jirga celebrate the merger of Khyber Pakhtunkhwa Province and the Federally Administered Tribal Areas in May 2018. (Bilawal Arbab/ EPA-EFE/ Shutterstock)

Summary

The inability to access formal justice has long been a driver of conflict in Pakistan’s tribal communities. The merger of the former Federally Administered Tribal Areas into Pakistan’s formal judicial system in 2018–19 has the potential to promote both justice and peace.

Recent research suggests that the reform process in what are now known as the Newly Merged Districts (NMDs) of Khyber Pakhtunkhwa Province has created challenges in terms of the capacity of various justice sector institutions.

Even though informal jirgas have been declared unconstitutional by the Supreme Court, they remain an integral (but informal) part of the justice system, providing speedy justice that resonates with local values.

However, case files from courts established in the NMDs indicate that most litigants now enjoy much greater protection of their rights and civil liberties.

Women’s access to justice has increased dramatically, but sizable investment is needed to make legal institutions more gender sensitive.

The population of the NMDs needs greater information about, awareness of, and access to the formal justice system, and access to legal aid and counsel needs to be improved.

This report assesses the provision of constitutional guarantees and protections related to the formal criminal justice system in Pakistan’s former Federally Administered Tribal Areas. Commissioned by the South Asia program at the United States Institute of Peace, the report is based on an analysis of case files from the districts of Khyber and Mohmand, supplemented by surveys of and interviews and focus groups with litigants, lawyers, and government stakeholders.