When armed men blew up a power station in Mohmand Agency two years ago, security forces came to the local press club and arrested Saeed Badshah and a fellow journalist. “The power station was near my home,” Badshah explained, “so under the collective responsibility clauses of the Frontier Crimes Regulations, we were detained until the culprits were produced by residents”.
Badshah was lucky – authorities released him within a day, but only after intense media pressure. However, many other residents of the Federally Administered Tribal Areas (FATA) have not been so fortunate.
More than seven million inhabitants of FATA are governed by the Frontier Crimes Regulations (FCR), a law drawn up by British colonial rulers in 1901 that allows the punishment of entire tribes for crimes committed by members.
In 113 years, Pakistan has not made substantial changes to the law. Presidentially-appointed bureaucrats, called “political agents”, can order whole villages to be burnt down and tribes to be blockaded or sent into exile. Pakistan’s constitution excludes FATA from the jurisdiction of the country’s courts, and no law passed by parliament is applicable there, either.
Now lawyers and activists from FATA are looking to the Peshawar High Court for help.
At a hearing on March 17, the courtroom was crowded with hundreds of lawyers, and residents from FATA thronged the lobby outside.
“The court cannot ignore our fundamental rights, it must realize we are all citizens,” said Ijaz Mohmand, president of the FATA Lawyers Forum, which filed four petitions challenging the FCR. Since 2009, the court has taken up individual cases challenging the lack of jurisdiction in FATA, including hundreds of petitions on behalf of locals detained by the military in its battle against a Taliban insurgency in the region.
Many of its rulings have not been enforced – last year it ordered the federal government to shoot down American drones if necessary, to prevent what it called “war crimes”.
In the landmark hearings this month, the court invited legal experts to explain why it should not have the power to hear appeals against the FCR. Activists are hoping the court will order the government to make reforms.
The reforms already have the support of the country’s legal fraternity – and two years ago, the provincial assembly of neighbouring Khyber-Pakhtunkhwa passed a unanimous resolution calling for the FCR to be repealed.
In 2011, President Asif Ali Zardari ordered a series of reforms to the FCR.
|Groups of fighters are active in Pakistan’s tribal areas [AP]|
Political agents are now required to constitute a jirga of at least three tribal elders to advise them during a trial, which must conclude within three months of the suspect’s arrest. Punishment is restricted to male tribesmen between the ages of 16 and 65, and can include imprisonment of up to 14 years. And a three-member tribunal, consisting of senior bureaucrats appointed by the president, can hear appeals to trials conducted by political agents.
But the changes have been largely cosmetic, according to Abdul Latif Afridi, a senior lawyer and former lawmaker in Peshawar. “The Political agent is still there, and the tribunal [composed of] executive officers, not judicial officers,” he said.
“We are free to kill each other if we like, as long as we don’t do anything to the government,” said Mansur Khan Mahsud, research director at the FATA research centre, an Islamabad-based think tank.
Mahsud’s tribe, the Mehsuds, became the target of the FCR in 2009, when the military decided to move against the Pakistani Taliban, at the time led by a 35-year-old tribesman, Baitullah Mehsud. The Political agent of South Waziristan ordered the detention of all Mehsud tribesmen – hundreds of thousands of people – in FATA, and the seizure of their property throughout the country. Stunned Mehsud tribesmen watched police seal their businesses in cities like Peshawar.
“All Mehsuds are not terrorists,” said Muhammad Saleh Shah, a senator and Mehsud from South Waziristan. “Just because some of the Mehsuds are terrorists does not mean all our lives should be destroyed.”
Shah’s home was one of thousands destroyed by authorities in 2009.
The military still bars Mehsud tribesmen from three of five native districts in South Waziristan, but in 2009, the Peshawar High Court ignored constitutional restrictions to overturn the blanket arrest order against the tribe.
Guilty until proven innocent
A fundamental problem with the FCR is that FATA’s residents are ruled by the prevailing political winds; not the law.
Shah Wali Khan, who chairs the three-person tribunal formed under the 2011 reforms to hear appeals, said the FCR is more fair than the judicial system in the rest of the country.
“The system works because nothing is hidden in a village,” he said. “Before the jirga is even called, each member already knows if the suspect is guilty.”
To lawyers like Samiullah Afridi, who handles dozens of appeals before the tribunal, that presumption of guilt is precisely the problem with the FCR. The jirgas are beholden to influence by both the Taliban and the military.
In the last eight years, fighters have killed more than one thousand elderswho would have taken part in those jirgas. In areas where armed groups are strong, tribal jirgas are dominated by pro-fighter elders; in other areas those siding with political agents are dominant. These agents often fail to ask suspects if they object to the elders sitting at the jirga that will judge them.
“Sometimes these jirgas put their signature on a blank sheet of paper,” said Afridi. “Elders come to me [when questioned] saying, ‘We did not give this judgement.’”
Powerful political agents
If political agents don’t like a jirga’s decision, they simply order another trial.
These days, the political agent is the rubber stamp for the military, providing legal cover to do whatever it wants
Afridi, the lawyer, points to the case of Mian Khan and his son Pir Muhammad, both detained in 2011 in Bara, Khyber Agency, accused of being members of the Taliban-style fighter group, Lashkar-e-Islam. Three separate jirgas ruled the pair innocent, but the political agent refused to release them. It took two years and a direct order from the Peshawar high Court to finally set the men free.
Detainees acquitted by courts outside FATA are even brought to the tribal regions to be tried under the FCR.
In 2009, security officials detained three college students in Islamabad and accused them of belonging to an Afghanistan-based fighter group. When a court acquitted them, the students were brought to Khyber Agency and convicted of being part of a different armed group.
That conviction was overturned by the FATA Tribunal, but Afridi has several other cases like it – including that of Dr Shakil Afridi, accused of helping the CIA confirm the location of Osama bin Laden. Dr Afridi was first detained in Peshawar, outside FATA, and kept in secret detention for a year before being brought to Khyber Agency, where he was convicted of being part of Lashkar-e-Islam.
“These days, the political agent is the rubber stamp for the military, providing legal cover to do whatever it wants,” said Mahsud.
Reforming the FCR, or repealing it altogether, will require the buy-in of Pakistan’s military and civilian establishment. With more than 100,000 troops stationed in FATA, and regular attacks by militants throughout Pakistan, Mahsud says it is difficult to imagine major reforms.
“People will keep each other busy, paying lip service to reforms, but nothing will happen until peace is restored, or the government decides to bring the area into the mainstream,” he said.
But Ijaz Mohmand, of the lawyer’s forum, remains undeterred. “If we don’t get a ruling from the court in our favour, the only option left will be to protest, to march, to hold sit-ins in-front of Parliament and force them to give us our rights in FATA,” he said.
“We know the country is going through a dangerous time, is in a fragile state, but it does not mean we should not discuss reforms.”