Reform of Colonial-Era Laws Aims to Bring Pakistan’s ‘Black Hole’ into the Light

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FATA is a heavily militarized area where around 100,000 Pakistani troops are stationed.(RFE/RL)

Pakistan, May 29, 2017: It’s a place where a toddler can be thrown in jail for crimes committed by a tribe member; where people can spend years behind bars without ever being charged; and where the authorities can oust entire communities from their homes without explanation.

Justice in Pakistan’s Federally Administered Tribal Areas (FATA) is a throwback to another era — a colonial one. For more than a century, human and legal rights have taken a back seat under a set of laws introduced by the British Raj in 1901 in an effort to bring resistant Pashtun tribes on a contested frontier to heel.

But now plans are in motion to bring residents of the restive region along Pakistan’s western border with Afghanistan under the umbrella of the central government by ending the old legal system, offering voting rights and greater government representation, and raising living standards. The inclusive approach, in theory, will end FATA’s isolation and help lure locals away from joining the various militant groups that thrive there.

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Legal ‘Black Hole’

A number of tribes voluntarily agreed to the laws, known as the Frontier Crimes Regulations (FCR) when they were introduced. But the system did not die with the end of British colonial rule — it was incorporated into Pakistan’s legal system upon its founding in 1947, and remains more or less intact today.

Residents of the seven tribal areas that make up FATA have suffered immensely under the system, and have seen few of the benefits of being part of a state. They were granted only minimal political representation; were not allowed to vote in national elections; infrastructure modernization such as electrification largely passed them by; unemployment rates jumped to as high as 80 percent; and millions have been displaced by fighting and natural disasters.

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The FCR was originally intended to quell fierce Pashtun opposition to the British Indian empire in the late 19th century. The system gave unchecked power to tribal leaders, who were given partial autonomy in exchange for quelling rebellion and protecting British interests. The FCR suppressed the locals while keeping the area extremely isolated.

The British created FATA and the neighboring Northwest Frontier Province (known today as Khyber Pakhtunkhwa Province) as a buffer zone following the creation of a 2,400-kilometer border with Afghanistan known as the Durand Line in 1893. The border, which Kabul does not recognize to this day, divided the Pashtun tribes who lived in the region.

The draconian laws allowed the British Raj — and later presidentially appointed bureaucrats known as “political agents” — to punish an entire tribe for the crime of an individual, jail residents for up to three years without cause, and forcibly relocate people and have their property searched and seized.

In one notorious case, a 2-year-old was jailed in 2004 along with her mother and two siblings for a crime committed by the girl’s father.

In another, the entire Mehsud tribe was subjected to collective punishment in 2009 after the government moved against the Pakistani Taliban, which was led by 35-year-old tribesman Baitullah Mehsud. The political agent in FATA’s South Waziristan tribal agency ordered the detention of tribe members and the seizure of their property.

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The lack of formal law and writ of the state in FATA has led many activists to label the area a “black hole.” For residents of FATA, the proposed reforms are essential to establishing law and order, and ridding their homeland of the moniker.

Nation-Destroying

Sayid Kabir has been incarcerated numerous times in FATA without charge or explanation.

“I was put in jail seven times under the FCR,” says the 37-year-old, who now lives in Peshawar, the capital of Khyber Pakhtunkhwa Province, under which FATA would be subsumed under the reforms. “I did not commit any crime. I only protested for more provisions of water and electricity in my community.”

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It’s a common story in FATA. Former resident Qayum Afridi says he was jailed for years in dismal conditions. The FCR, he says, “destroyed us” and must be abolished. If and when the reforms go into effect, he may get his wish.

Supporters of the proposed changes have staged several protests calling for the government to adopt the reforms immediately.

The reforms, recommended by the government-appointed FATA Reforms Committee, were approved by Prime Minister Nawaz Sharif and his cabinet on March 2. Pakistan’s president also endorsed the reforms.

For the reforms to take effect, the plan approved by the government on March 2 must now be codified as a draft constitutional amendment that requires approval by two-thirds of the lawmakers in both chambers of Pakistan’s bicameral legislature. There are 104 members of the upper chamber of Pakistan’s parliament, the Senate, and 342 lawmakers in the lower chamber, the National Assembly. In 2016, both chambers of Pakistan’s legislature approved a draft version of the plan.

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Under the plans, FATA would be merged into Khyber Pakhtunkhwa Province within five years. The jurisdiction of Pakistan’s national courts would be extended to FATA, and tribal law enforcement would be incorporated into the national security forces. The merger with Khyber Pakhtunkhwa would also give FATA access to Pakistan’s main parliamentary body, the National Assembly, something it was denied under the FCR.

Afrasiab Khattak, a senator and the president of the secular Awami National Party (ANP) in Khyber Pakhtunkhwa Province, says the reforms would bring about significant change.

“If properly implemented the reform package for mainstreaming FATA can not only empower the local population by providing them with the fundamental rights enshrined in the constitution but can also bring the area under full state control and deprive the terrorists from enjoying the safe heavens in the area,” he said.

Only Closer To Fine

Others say the planned changes, collectively known as the Riwaj Act, do not go far enough.

Mustafa Qadri, a Pakistani human rights activist, says the proposed reforms are “far from perfect,” but can be an “important step toward a new, positive phase in FATA’s history.”

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“There are other concerns with the proposed legal setup in FATA: enshrining so-called ‘tribal laws’ into legislation is a recipe for further abuse of rights,” Qadri notes.

He refers to the “jirga” legal system in which unelected tribal councils dominated by elders mete out justice. Qadri says this system is “dominated by political interests” and fails to meet “even elementary aspects of international fair-trial standards.”

Under the reforms, the jirga system would work in tandem with Pakistani courts, which would have jurisdiction in the area, thereby creating an opening for disputes.

A rural jirga is held near the Khyber Pass. (RFE/RL)

Qadri also says that women are excluded from defending themselves under the patriarchal system in which tradition-bound village elders decide their fates. This, he says, has made them particularly vulnerable to rulings that allow sexual and other forms of abuse to be perpetrated with impunity.

He also laments that under the changes the country’s powerful military — which has been accused of carrying out extrajudicial killings, arbitrary arrests, and torture during recent campaigns in the region — is still above the law and will retain sweeping powers. FATA is a heavily militarized area where around 100,000 Pakistani troops are stationed.

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Mohammad Taqi, a U.S.-based Pakistan political analyst, says there are major constitutional, political, and administrative challenges that must be addressed before the changes go into effect, but that the plan is doable.

“All tribal agencies and frontier regions are contiguous to Khyber Pakhtunkhwa,” he says. “Expanding the administrative machinery will be a major task but not an insurmountable one.”

Divided Over Reforms

FATA residents appear to be divided over the proposed reforms, although a majority want to eradicate the FCR and merge with Khyber Pakhtunkhwa.

The FATA Research Center, an Islamabad-based nonprofit organization, conducted a poll in February that found that 68 percent of respondents approved of abolishing the FCR; 74 percent of respondents (54 percent fully; 20 percent partially) endorsed merging FATA with Khyber Pakhtunkhwa.

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However, 26 percent of residents wanted FATA restructured into separate province. This is in keeping with the positions of some religious and nationalist political groups that have voiced opposition to the reforms, saying the changes could undermine local tribal traditions and Islamic law that is dominant in FATA.

In March, five tribal leaders challenged the proposed reforms in the Supreme Court, saying they were “illegal and unconstitutional.” The tribal leaders noted that only the president, and not the prime minister, can decide a merger of the tribal areas even though the president has already backed the reforms. They said a jirga should decide on the merger.

One of the most prominent critics of the proposed reforms is Maulana Fazlur Rehman, a hard-line Islamist who leads the largest faction of the Jamiat-e Ulema Islam (Society of Muslim Clerics, JUI). Mainly led by traditional Sunni clerics, the JUI wants to turn Pakistan into a Shari’a state. Rehman has accused Islamabad of “bulldozing their wishes” upon FATA’s residents.

Another critic is Mahmood Achakzai, the head of the Pakhtunkhwa Milli Awami Party, who has also alleged that Islamabad is enforcing changes in FATA without the consent of residents.

Both men have been accused of opposing the reforms for personal and political gain. (RFE/RL)