After keeping a part of Pakistan’s western borderlands under century-old colonial laws for nearly 70 years, Islamabad has finally moved to reform the region.
But human rights campaigners have said the proposed changes in the Federally Administered Tribal Areas (FATA) still aim to keep most archaic legal arrangements in place, which will deprive the region’s estimated 7 million to 10 million people from seeing the rule of law. They will remain vulnerable to oppression by government bureaucrats.
In a key provision of the reform package unveiled last week, a government committee has recommended to replace the nearly 120-year-old Frontier Crimes Regulations (FCR) law with the Tribal Areas Riwaj Act.
Critics have said the very name of the proposed law (Riwaj refers to customary laws in local languages) suggests the proposed reforms are cosmetic.
“We are worried that citizens will be deprived of their fundamental rights if the state wants to keep the customary laws and the jirgas (eds: tribal councils) to adjudicate these laws,” said Zohra Yousaf, who heads the nongovernmental Human Rights Commission of Pakistan.
Yousaf demanded Islamabad aim to integrate FATA into the country’s mainstream so that its residents can enjoy all the rights enshrined in Pakistani laws and under the constitution.
“The broad thrust of the 49-page report is to maintain the status quo under new nomenclature,” said Afrasiab Khattak, a politician and leading proponent of reforms in the tribal areas.
He said that by denying Pakistani legislatures a role in lawmaking for FATA and keeping the FCR alive under a new name, the FATA reforms package, officially called the FATA Good Governance Regulation/Act 2016, keeps the region tied to its troubled-past status.
FATA was shaped by rivalry between imperial Britain and Tzarist Russian in the late 19th century. British India viewed FATA as a buffer between Afghanistan and beyond that, Tzarist Russia.
Khattak said community forums such as jirgas remain a good place for discussing problems and debating new issues but they cannot replace the judiciary in a modern state.
“It is not right for the state to condone certain reprehensible practices in the name of customary law,” Khattak said. “The state needs to encourage establishing the rule of law for all its citizens to ensure that they are served justice.”
Since the 1880s, the FCR has been used to punish Pashtun communities in FATA. Some harsher clauses of the FCR established collective responsibility that held a whole tribe or clan responsible for alleged crimes of an individual. Long jail terms meted out by administrative officers without a fair trial and the demolition of houses are still common.
Islamabad, however, has said it has adopted a gradual approach to integrating FATA.
“We have recommended the government put together a 10-year developmental program to bring all of the FATA’s [human development] indicators on par with those of [neighboring] Khyber Pakhtunkhwa Province,” said Sartaj Aziz, Pakistani prime minister’s foreign policy adviser who headed the government committee on FATA reforms.
Mian Ajmal, a former judge, said the idea of following tribal customary laws and practices is still popular among FATA’s residents, most of whom come from about a dozen Pashtun tribes.
“Under these reforms, the jurisdiction of Pakistani [provincial] high court and [federal] supreme court is being extended to FATA,” he observed. “These courts can eventually strike down some provisions of the new reforms if they see them as violating the fundamental rights of the region’s residents.”
Observers have said that FATA is still a long way from recovering from more than a decade of violence, including Taliban attacks and large-scale military operations.
FATA Pashtuns are a majority of the estimated 60,000 civilians whom Islamabad says have been killed in terrorist attacks since 2004. More than 3 million civilians were displaced from seven FATA districts over the same period.
While more than half have returned to their homes, the rest are still awaiting government help in returning to their mountainous homeland.