For decades, a part of Pakistan languished under a colonial law that established collective responsibly, denied rights, and inflicted harsh punishments on millions of Pashtun tribespeople.
That law is now gone. But nearly a year after the repeal of the Frontier Crimes Regulations (FCR) legal code, the future remains uncertain for more than 400 civil and criminal cases originally lodged under its various archaic clauses.
“Now that the [proper] laws and constitution are being implemented in the [former] tribal areas, there is no mechanism for dealing with cases lodged under the FCR,” Latif Afridi, a senior lawyer in the northwestern city of Peshawar, told Radio Mashaal.
Last week, the Peshawar High Court, the apex court for northwestern Khyber Pakhtunkhwa Province, of which Peshawar is the capital, called on the provincial government and Islamabad to explain how to proceed amid such legal complications.
“One solution could be if the provincial assembly adopted a new law that clearly enables the lower and appeals courts to hear these cases,” he said. “A new law could also establish a special court for these cases.”
The FCR were the law of the land in the former Federally Administered Tribal Areas (FATA) for decades. The century-old legal code appointed collective responsibility, meaning an entire clan or tribe could be punished for the alleged crimes of an individual or any offense taking place in their territory. The laws empowered government bureaucrats and denied FATA residents basic rights and the rule of law.
The FCR were partly responsible for the mayhem in the region. After 9/11, FATA turned into a main battleground for Pakistan’s war on terrorism. Over more than a decade, terrorist attacks and military operations killed tens of thousands of FATA residents, while episodes of fighting displaced more than half of its 6 million residents. The draconian laws prevented FATA residents from protesting for their rights because political activism was illegal.
Last May, the Pakistani Parliament abolished the FCR after merging FATA into the adjacent province of Khyber Pakhtunkhwa. But the Fata Interim Governance Regulation (FIGR) that Islamabad introduced to replace the FCR was struck down by the Peshawar High Court in October. Pakistan’s Supreme Court upheld its ruling in January and ordered that regular courts be established across former FATA within the next six months.
The abolition of the FIGR also ended the FATA tribunal created in 2011 to review decisions or sentences handed down under the FCR. The legal code, first concocted and implemented by British colonialists in the late 19th century, gave overwhelming power to government administrators, typically civil servants, to adjudicate civil and criminal cases. They often relied on a handpicked jirga or tribal assembly to reach verdicts. The courts never followed due process.
One of the most famous cases under the FCR is that of a Pakistani doctor. In May 2012, an FCR court handed Shakil Afridi a 33-year sentence for allegedly supporting an Islamist militant group in his home district of Khyber, bordering Afghanistan. Islamabad originally accused the physician of running a fake vaccination campaign to help the C.I.A. locate Osama bin Laden in the northwestern garrison city of Abbottabad in 2011. Afridi’s appeal was also pending in the FATA tribunal.
“There is a lot of confusion,” Ijaz Mohmand, a lawyer, told Radio Mashaal. He says that senior judges in the Peshawar High Court are unsure how to deal with such cases. “I am pursuing many cases in the high court, and even the judge there is very confused. He tells us that they will make a decision about how to deal with these cases.”
Earlier this month, courts began functioning in the erstwhile FATA and began tackling the thousands of cases previously considered by government bureaucrats.
Shaukat Yousafzai, Khyber Pakhtunkhwa’s information minister, says that all court cases in former FATA will gradually be moved to regular courts. “There will be one law everywhere, so it won’t matter whether a court in [the eastern city of Lahore] hears a case or a court in FATA or in [the southern seaport city of] Karachi,” he told Radio Mashaal.
Pakistani Prime Minister Imran Khan also pledged his commitment to streamline former FATA. On March 18, he announced a three-week consultative process to devise a 10-year development plan for the region.
“Our people in the tribal area will see unprecedented development as [the] government plans to spend over Rs100 billion [$1 billion] annually for [the next] 10 years in tribal districts,” he wrote on Twitter.