Fixing Pakistan’s broken tribal laws

On Aug. 12, two days before Pakistan marked 64 years of independence from Britain, President Asif Ali Zardari announced that the Frontier Crimes Regulation (FCR) — legislation that governs the country’s Federally Administered Tribal Areas (FATA) and dates back to the 1800s — was being amended and that political parties would be allowed to operate in the FATA.

"Some may say that the reforms are not enough and much more needs to be done," read the official press release. "Let it also not be forgotten that no one took even a single step in the last one hundred years to reform the Frontier Crimes Regulation and give political rights to the people."

While the ruling Pakistan Peoples Party (PPP) counts the step as a key achievement, it falls short of its original promise to repeal the law. The FCR — which was introduced by the subcontinent’s British rulers — has long been decried as a tool that allows for collective punishment and arbitrary detentions, and does not adhere to basic principles of human rights and justice. But over 60 years after independence, Pakistan is still holding on to the FCR, ignoring the fact that it has severely added to the woes of those who have not just been the worst hit by militancy, but also lack resources for development, education, and security.

Under the FCR, an entire tribe or village can be punished — by seizing its members’ property, imposing fines, and limiting their movement — for the alleged crimes of its members. Residents of the tribal areas can be detained for up to three years on the grounds of "maintaining peace." No right of appeal was available to those sentenced under the FCR.

As explained in this report, "Under the unreformed FCR, the tribal areas were under the direct jurisdiction of the president…it has been governed by political agents — civil servants, usually from the district management group or police, who ran the area on behalf of the government and reported to the [Khyber Puktunkhwa province] governor. Political agents appointed jirgas (tribal councils), which decided all disputes in the areas according to ‘rewaj’ — tribal customs codified into law by the British in the early part of the 20th century."

The reforms themselves are small concessions. Collective punishment still exists, but women, children below 16, and those above 65 will not be arrested or detained. A whole tribe will not be arrested first in the case of a crime allegedly committed by a tribal member, but action will be taken against "immediate male members of the family followed by sub-tribe and other sections of the tribe," in the event of an infraction.

Moreover, appeals will still be heard by civil servants (a commissioner and an additional judicial commissioner, as well as a tribunal) rather than by a court.

Writing in the Express Tribune, Nadir Hassan explains that "All of these measures are improvements but they merely turn the FCR from outright barbaric to severely repressive. To applaud the government for making these small changes is like praising the Cowardly Lion in The Wizard of Oz for letting out the occasional yelp. The FCR is still a law of dubious constitutionality that needs to be done away with."

In 2010, Justice Dost Mohammad Khan, part of a two-member Peshawar High Court bench hearing a petition that challenged the FCR, observed that "the tribal areas had been kept backward intentionally. The bench observed that there was no medical college or university in the tribal areas despite the fact that hundreds of thousands of people resided there. While parliamentarians have been elected from FATA…they could not legislate for their areas. The colonial rulers had introduced the FCR for controlling the tribal areas."

While announcing the reforms, President Zardari said "that the door had been unlocked and it is for the people of tribal areas to decide how much more of reforms they want in their system of governance. Any system imposed on them from outside will be counterproductive."

Though the current proposal leaves open the possibility that the FCR could be repealed in the current government’s tenure, it is ironic that while the government has unlocked one door, it has closed another.

New legislation now allows the Pakistani military to "act as judge, jury and executioner for anyone held on charges of terrorism in the tribal areas." Dawn reported that two ordinances enacted recently would "provide legal framework to the military operations conducted in Federally Administered Tribal Areas (FATA) and Provincially Administered Tribal Areas (PATA) since that date."

This effectively legalizes any illegal detentions in the tribal areas by the Pakistani military and empowers the military to occupy property, arrest people, conduct trials, and announce punishments, including the death penalty.

Additionally, the Express Tribune reported that while a review panel — with two civilian and two military members — would be put into place, it would not have any powers to order the release of suspects held by the military.

The "Action in Aid of Civil Power" ordinance comes after security agencies expressed their frustration over the release of suspected militants by anti-terrorism courts. According to a 2009 U.S. Embassy cable on human rights abuses by security forces, which was published by the anti-secrecy organization WikiLeaks, "Senior military commanders have equally and repeatedly stressed their concerns that the courts are incapable of dealing with many of those detained on the battlefield and their fears that if detainees are handed over to the courts and formally charged, they will be released, placing Pakistan Army and Frontier Corps troops at risk."

The cable continues, "Post assesses that the lack of viable prosecution and punishment options available to the Pakistan Army and Frontier Corps is a contributing factor in allowing extra-judicial killings and other human rights abuses of detained terrorist combatants to proceed. There may be as many as 5,000 such terrorist detainees currently in the custody of the Pakistan Army and Frontier Corps from operations in Malakand, Bajaur, and Mohmand. As operations in these areas and other parts of the FATA proceed, this number will increase." Since the military operations in the tribal areas began, stories and evidence of extrajudicial killings has emerged, leading to inevitable inquiries by the Pakistan Army, reports of which are yet to be made public.

The current Pakistani government has won praise for finally coming through on reforms in FATA. But if it is truly serious about "doing more," it needs to look at a full repeal of the FCR, rather than replacing some powers with others that could inevitably lead to more human rights violations.

Saba Imtiaz works at the Express Tribune, an English-language newspaper in Pakistan.