Pursuing Reforms in Pakistan's Tribal Belt
By Ziad Haider, 2008 Arthur C. Helton Fellow
This summer I had the privilege of working as an Arthur C. Helton Fellow at the Human Rights Commission of Pakistan. A graduate student at Georgetown Law and Harvard’s Kennedy School of Government, I set out to document Pakistan’s ongoing lawyers’ movement that seeks the restoration of judges deposed by President Musharraf last year. Yet my topic evolved to land on an equally dire imperative for Pakistan as attaining judicial independence: securing its federally administered tribal areas (FATA) from where the Taliban is launching attacks in Afghanistan and Pakistan and where Al Qaeda is operational.
My research focus was on the need to pursue legal and political reforms to mainstream this long-neglected and colonially administered region into Pakistan. An impoverished region of 3 million people along the Pakistani-Afghan border still governed by laws and political agents assigned by the British Empire, FATA’s governance has fueled its insecurity with grave local and global consequence. Militant groups benefit from the state lacking any writ across many areas; the political vacuum created by a legal bar on political parties and the inapplicability of laws passed by Parliament; a criminal code whose provisions violate constitutional rights; and the slow pace of justice that has led many to turn to Taliban-style Shariah courts.
FATA’s criminal justice system figured prominently in my research and rests on three pillars: the political agent, the jirga, and the aforementioned criminal code – the 1901 Frontier Crimes Regulation (FCR). The system’s goal was to insulate British India from tribal raids and an expansionist Russia by exercising absolute control over a strategically vital region and making the people responsible for the government’s security instead of the reverse. As such, the political agent was the chief executive, judicial, and administrative officer in each tribal agency and virtually omnipotent. The British co-opted the indigenous jirga system of dispute resolution, whereby tribal elders gather and pronounce judgment, by paying and playing off these elders, made jirga recommendations non-binding on the agent, and denied appellate jurisdiction. The FCR, allegedly reflecting local custom, enshrined provisions that remain in force and deeply problematic to this day. These include the agent’s ability to punish an entire tribe for the crime of one member, double jeopardy, blockade of tribes, and demolition of houses. 61 years after Pakistan’s independence, this system remains intact allowing for, as one lawyer tersely put it, “no wakeel (lawyer), no daleel (argument), and no appeal.”
Having just studied the American criminal justice system in my 1L year, I found the lack of due process in FATA a stark contrast; however, I learnt to view the FCR system in its local and historical context, sift through emotionally charged rhetoric about the FCR’s draconian nature, and grapple with key obstacles to reform. These obstacles include FATA’s deteriorating security situation, bureaucrats with vested political and financial interests, the government’s desire to control a strategic area, weak political and judicial institutions in the settled areas, and the tribesmen suspicion of change and the government.
Indeed, according to a 2008 survey sponsored by the British Government, the majority of FATA’s people do not want the FCR to be repealed and Pakistani law introduced; they want an amended FCR. That is why in light of the outcry following the Prime Minister’s announcement in March that the FCR would be abolished, the federal government established a Cabinet Committee on FCR Reform that is holding ongoing consultations. Fortunately, the Committee is not seeking to reinvent the wheel and is inter alia evaluating the recommendations of a previous FCR Reforms Committee whose 2006 report has languished. Among its measured recommendations were narrowing collective responsibility from the tribe to certain family members, allowing parties to help select jirgas in civil cases, and setting time frames for the accused to be presented before court and inquiries to be made.
As part of my research, I traveled to Lahore, Islamabad, and Peshawar to conduct interviews with individuals including journalists, lawyers and tribal elders from FATA as well as bureaucrats who administer FATA, provincial and federal ministers, and senior army officers. The challenges were myriad. They included simply travelling to the frontier at a time when security concerns are high, getting people to open up and talk about a region as sensitive as FATA, and navigating anti-American sentiment away from how the US has destabilized FATA by entering Afghanistan to focusing on internal governance issues. Yet the famed hospitality of the Pathans, a key component of the Pusthunwali code that governs their life, undoubtedly facilitated my research. Indeed, experiencing the breadth of Pakistan’s heritage, despite having grown up there, was immensely enriching at a personal level.
At a time when Pakistan is distracted by political upheavals and economic downturns, FATA continues to violently fester. That is why on a scorching summer day in June, angry residents of Kurram Agency protested outside Parliament House in Islamabad. One banner read: “Is Parachinar part of Pakistan? If so, why is the government silent on human rights and why is Parachinar in Taliban’s control?” FATA’s antiquated and ineffective governance partly answers these questions. I can only hope my research that will be published in greater detail, and that would not have been possible without a Helton fellowship, can modestly contribute to the debate on mainstreaming FATA. What is certain, however, is that bringing this benighted region governed by 19th century rules into the 21st century is critical for its people and for Pakistan. The tragedy is that it has taken the “war on terror” to drive this point home.