Broken justice

Islamabad — The recent execution by stoning of a man and woman accused of adultery in Kunduz, Afghanistan is a startling reminder of the brutal system of justice administered by the Taliban. A slew of other such harrowing images over the years has helped create an important narrative of the Taliban’s callous disregard for human rights and archaic legal norms.

A parallel, and equally significant, storyline has been that of the Taliban providing a speedy and effective system of justice appreciated for its ability to settle important commercial and civil disputes. A recent report by Chatham House argues that Afghanistan’s lack of emphasis on ensuring access to justice to its citizens has been exploited by the Taliban, the memory of whose "harsh, but just" rule has garnered many supporters.

This position is not new. Over the years, studies and reports have repeatedly pointed towards the Taliban’s expeditious brand of justice as one reason for their continued success in Afghanistan. Despite general agreement on this, improving the rule of law and ensuring access to justice have too often been sidelined by both local government and international donors, deemed desirable but ultimately secondary to the more important and immediate aim of providing security and countering militancy.

This situation has strong parallels with that in Pakistan’s Federally Administered Tribal Areas (FATA), where local Taliban fighters and other militants have capitalized on the perceived lack of justice (including false imprisonments, costly and lengthy court cases, and inefficient or corrupt legal systems) to win the support of the local populace. Issues related to the ability of FATA’s residents to access the justice system thus remain at the heart of development in the FATA, often the source of tension between tribal communities and the government of Pakistan and political administrations, intricately related to sustainable security and political progress in the region.

The way Pakistan’s tribal areas are set up and governed is complex. FATA is divided into two administrative categories, the protected and non-protected areas. The protected areas are directly under Pakistani central government control. Here, criminal and civil cases are decided by political officers vested with judicial powers, and both jirgas and political agents (PAs) play a part in deciding cases. The verdicts of jirgas, a customary judicial institution in which tribal elders make decisions through consensus, can be challenged before an appellate court (at the Commissioner’s office), and further appeals can be lodged with the FCR Tribunal. The FCR Tribunal, established at the Home Department, provides the primary means to appeal against the decisions of the PA and Office of the Commissioner. However, this tribunal is scheduled to meet only once a month, and in reality meets even less frequently, diminishing its impact. In the majority non-protected areas, cases are resolved solely through local jirgas, and in only a few instances can their decisions be challenged.

To a greater degree than in Afghanistan, international and local actors are constrained by the legal system in place in the tribal areas. Inherited under British colonial rule in 1901, the Frontier Crimes Regulation (FCR) is the penal code to which inhabitants of FATA, composed of 7 tribal agencies and 6 frontier regions (FR), are subject. These inhabitants are denied the right of appeal to the Pakistani Supreme Court or other high courts of Pakistan, and are not extended legal rights available to other Pakistani citizens through acts or resolutions of the national or provincial assemblies. Instead, the political agent of each agency simultaneously holds executive, legislative and judicial powers.

This situation brings to the forefront a number of significant concerns. The first is the legal status of the FATA itself. The FCR has been largely denounced by politicians, experts and human rights advocates in the country and abroad as draconian and outdated (given that the law still refers to "British India," it is hard to argue otherwise). The collective territorial responsibility clause has received particular scrutiny; under this clause, the family, and in some cases entire tribe, of an individual found guilty of committing an offence can be punished for the individual’s act. Perhaps most infamously, the collective responsibility clause resulted in the entire Mehsud tribe being subjected to arbitrary arrests and seizure of property on the basis of the late Pakistani Taliban leader Baitullah Mehsud’s anti-government actions.

Another concern is the effective functioning of this system at the micro level. Do FATA inhabitants know the legal rights available to them for redress or recourse? Does the jail system function effectively? In other words, does the rule of law, even if inherently problematic, exist at all in the tribal areas? In speaking with lawyers from the area, it seems clear that the answer to these questions is a resounding no; in fact, the arbitrary and complicated nature of the FCR has ensured that very few subject to the law are aware of the rights to which they are entitled, or the law which governs their lives. Tribal case precedents in each agency are usually maintained orally, and the lack of a written record of decisions and judgments anywhere in the FATA hinders the consistent provision of justice, and shrouds the whole process with uncertainty. Detention facilities, jirga halls and offices of court clerks are largely in a state of ragged disrepair and need rehabilitation. There is growing resentment among the population that jirga decisions favor the rich and influential. In the protected areas, the lack of separation between the judiciary and executive is an obvious problem.

While it is a necessary goal to bring the tribal areas into the fold of mainstream Pakistani politics — and that requires repeal of the FCR, extension of the Political Parties Act and dismantling of the system of political agents — it would be unrealistic to assume that this is possible in the short-term given Pakistan’s dire security situation, or, equally importantly, the unwillingness of political actors to make the necessary changes.

Even if repeal were possible, acceptance of an alien legal form would take time. In fact, according to a joint survey conducted by New America Foundation, Terror Free Tomorrow, and Community Appraisal and Motivation Program (CAMP), when asked about the future long-term justice goals in the region, 66 percent of FATA inhabitants said that it was important to them that the tribal areas be governed by local jirga. In contrast, only 34 percent agreed that it was important for Pakistani courts to be involved in legal and judicial matters.

Nonetheless, providing justice is integral to state legitimacy. Therefore, the need to improve and strengthen the existing legal methods should be a priority for the state and international donors given the preponderance of alternative courts run by the Taliban and other militant factions (and until such time as complete repeal of FCR is a real possibility). A necessary first step would be to implement the proposed changes announced by Pakistani president Asif Ali Zardari on August 14, 2009. These changes would limit the judicial powers of the political agent, narrow the scope of the collective responsibility clause and extend political party activity into FATA. Not nearly enough, but perhaps the beginnings of a complete overhaul.  

Niloufer Siddiqui is a graduate of the Johns Hopkins School of Advanced International Studies and is currently an international development consultant in Islamabad.