In the post September 11th period, the provinces bordering Afghanistan, known as the Federally Administered Tribal Areas (FATA) usually brings the images of the gun-totting Al-Qaeda terrorists but beyond these images lie the jackboot justice introduced by the colonial British and perfected by the Pakistani authorities under the draconian Frontier Crime Regulation (FCR) of 1901. The systematic denial of the legal and judicial reforms in the Federally Administered Tribal Areas (FATA) indeed institutionalised Taleban style of justice in the FATA region and the absence of the edifice of the State structure or governance created the necessary conditions in which Pakistan has to engage in war.
Political Agent: The judge and the jury
The executive authority of the President of Pakistan has been extended to the FATA. It is the President of Pakistan who effectively rules this tribal region directly. And, the step motherly treatment of the Federation towards this tribal region has kept the region away from development. Under Article 247 (3) of the Constitution of 1973, no act of Parliament is applicable to the FATA or any part thereof unless the President of Pakistan so directs. The Governor of North West Frontier Province acts as the “agent” to the President of Pakistan.
Yet, it is the Political Agent or, in his absence, the Assistant Political Agent posted in each Agency of the FATA who is the real boss on the ground. He is both the judge and the jury.
Under the draconian Frontier Crime Regulation (FCR) of 1901, the Political Agent or his deputy, the Assistant Political Agent, enjoys unbridled powers – both executive and judicial. There is no regulatory mechanism to check misuse of powers by the Political Agent which often resulted in serious human rights violations. Under the FCR, suspects are tried by the tribal jirga or council which submits its recommendations regarding conviction or acquittal to the Political Agent. The Political Agent makes a decision regarding conviction or acquittal but is not bound by the jirga's recommendations. The orders of the Political Agent cannot be challenged before the higher courts. In effect, there is virtually no separation of the judiciary from the executive in the FATA.
While the Constitution has virtually put the entire populace of the FATA region at the mercy of the President of Pakistan for any reform and development in the region, the Political Agent has been ruling the tribal region with absolute authority with the help of black laws and he is beyond the reach of the law.
On 29 June 2007, the Peshawar High Court ordered the Kurram Agency administration to immediately release 11 tribal maliks (elders) including Malik Janan, Malik Zahoor, Malik Mazda Jan who were arrested on the order of Assistant Political Agent of Lower Kurram, Dost Mohammad on 17 February 2007 under the FCR and threatened the administration to initiate contempt of court proceedings if it failed to release the tribal maliks. Earlier in May 2007, the High Court had directed the Kurram Agency administration but the authorities failed to release the detainees.
The Frontier Crimes Regulations: The source of all ills
The Frontier Crimes Regulations of 1901 (FCR) has been certified as “draconian”, “black laws”, “illegal”, “unconstitutional” and “un-Islamic” by the people and the courts. The FCR was enacted by the British colonialists as an instrument of subjugation of the local people and to check any rebellion by the tribals. In 1979, the Balochistan High Court (the Shariat bench) held that the FCR was discriminatory and un-Islamic. On 29 July 2002, the Lahore High Court ruled that the Frontier Crimes Regulation was no more in existence following the Balochistan High Court's judgment of 1979 and hence, detention under the FCR was “illegal”. In the same order, the Lahore High Court directed the release of Qimat Gul of the FATA who had been detained for about two-and-a-half years without any right to defend. The Political Agent of Bajaur Agency had implicated him under the FCR and had detained him when he protested against forcibly grabbing of his land by some influential persons in the village.
The FATA is divided into two administrative categories: “protected” areas which are under direct control of the government and the “non-protected” areas which are administered indirectly through the local tribes. The FCR empowers the authorities to arrest and detain any one without specifying the charges. The accused cannot get bail in such cases. Contrary to all civilized laws and jurisprudence, the FCR provides for collective punishment to the family members or blood relatives instead of punishing only the guilty. Family members or blood relatives are handed a jail term for no crime of their own. Innocent men, women and children become victims of this black law. Children as young as two years old have been convicted under it. In “non-protected” areas, the tribe has been vested with the responsibility of implementing the jirga decisions. The jirga often mete out punishment to an offender with a heavy fine. More serious measures of punishment involve expelling an individual or a family from the area, and confiscating, destroying or setting fire to homes and property.
Article 13 (a) of the Constitution of Pakistan states that no person “shall be prosecuted or punished for the same offence more than once”. But under the Frontier Crimes Regulation, tribal prisoners had to serve two or more sentences for the same crime. Most tribal prisoners complained that they remained in jails even after serving their jail terms because they were unable to furnish huge amount of bail to Political Agents. In April 2007, while hearing a jail writ petition (JPW) by a tribal prisoner Rahimullah, a division bench of Peshawar High Court consisting of Chief Justice Tariq Pervaz Khan and Justice Qaim Jan Khan directed the Federally Administered Tribal Areas (FATA) Security Secretary to check the “unbridled” powers of political authorities and the human rights violations carried out by them. The Assistant Political Agent (APA) had sentenced Rahimullah under section 40 of FCR on 15 December 2003 but before the completion of Rahimullah's first jail term, the APA passed another order on 14 January 2005 against him in the same crime. Again on 25 May 2006, the APA convicted Rahimullah for another three years in the same crime.
Constitutional blockade to access to justice and reforms
The Government of FATA has officially admitted the miscarriage of justice by the jirga system of administration of justice. The FATA Government webpage has been candid when it states, “Although the jirga mechanism enjoys widespread favour, corruption has begun to enter the system. It is reported that the poor and more vulnerable segments of society cannot afford to convene a jirga. There are a number of requirements for a jirga to be held, including hospitality, which is increasingly beyond the reach of most ordinary people. There is also the grievance, now voiced more frequently, that in most cases jirga decisions favours the richer or more influential party.”
Yet, there has been no attempt to provide access to the rule of law to the people of the FATA. The Constitution itself provides the biggest hurdle to the access of justice as Article 247(7) states “Neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area, unless Majlis-e-Shoora (Parliament) by law otherwise provides.”
On the other hand, no legislation passed by the Parliament is applicable to the FATA region without the assent of the President under Article 247 (3) of the Constitution.
In the view of Article 247(3) of the Constitution, the FATA region has been excluded from all legal reforms that Pakistan has witnessed since 1947. During these six decades, Pakistan has enacted tens of laws relating to administration, social, economic, political and judicial reforms to cope with the changing social needs but these reforms have been effectively denied to the people of FATA due to the bar provided in Article 247(3).
Lack of economic development and basic services
The people of the FATA have little livelihood opportunities. Only 7 per cent of the total geographic area of the region is under cultivation while more than 82 per cent of the land is not suited for cultivation. Most households are engaged in primary-level economic activities such as subsistence agriculture and livestock rearing, or small-scale business conducted locally.
Level of poverty in the FATA is comparatively higher than the rest of Pakistan. The FATA region is also at the lowest rank in literacy rate and availability of medical and health services. According to a comparative chart on these socio economic indicators, only 17.42% of the FATA population is literate compared to Pakistan's national literacy rate of 43.92% and North West Frontier Province (NWFP)'s 35.41%. The female literacy rate in the FATA is only 3% compared to Pakistan's national rate of 32.02% and 18.82% of NWFP. The people of FATA region have been denied access to adequate healthcare services. The number of doctors is limited and there is huge difference in the population per doctor in the FATA and in other parts of Pakistan. The doctor-population ratio in the FATA is 6 times more than the Pakistan's national ration of 1,226 persons.
[Courtesy Asian Centre for Human Rights]
