The Other Pakistan: Special Laws, Diminished Citizenship and the Gathering Storm

Abstract

The Pakistani tribal areas of FATA and PATA are perpetually in the international headlines for Taliban activities, U.S. Drone attacks, NATO supply lines and a whole host of political and military events that contribute to the current milieu in Afghanistan and the escalating instability in neighboring Pakistan. What is less known is that all these areas have been historically governed by a special set of laws and regulations in the colonial period as well as the post-colonial era. This in turn has contributed to a very differential set of rights, reduced access to justice, and asymmetric social and economic development. Furthermore, this has had a direct impact on the human rights protection regime in the region, especially for the more vulnerable groups. In this context, the article looks in particular at the Taliban insurgency in the valley of Swat in 2009 which called for the reform of the extant legal system as well as the government and the judiciary’s response to the same – based on an actual visit to the valley during the time and interviews with the local judiciary. The article uses the Swat experience as a case study for the historic constitutional, legal, and administrative treatment of these areas and the multiple issues that such treatment has spawned. In particular, there are the issues of deliberate governmental avoidance of the real underlying causal factors that have stemmed a strong popular resistance to the existing legal system, the use of Islam as a slogan for reform by both the Taliban as well as the government, the various inadequacies of the governmental reform package including erosion of the due process of law and other ad hoc measures, the presence of the army in the area and its controversial investigation and treatment of suspected Taliban insurgents or sympathizers which is not conducted under the rubric of the Pakistani legal system and is also beyond the pale of any international human rights accountability, the special anti-terrorist legal regime in the areas and its various challenges and other significant human rights themes. The article also provides a snap shot of the various additional special legal regimes in the areas of FATA and PATA (including the infamous Frontier Crimes Regulation 1901) that promote undesirable forms of tribal justice, various colonial forms of punishment including collective punishment to the whole tribe for an individual crime, several additional administrative powers and measures that lead to the human rights violations of women, children, and other innocent civilians, and other archaic aspects of a colonial legal regime introduced during the 'Great Game' that persists in the twenty-first century. While written against the backdrop of significant current events that have a resonance for an international affairs audience, the article endeavors to conduct a scholarly historical, sociological and legal analysis of the legal and administrative system of a region that is currently the focus of international attention as it has become a hot bed of militancy – especially since there is hardly any available rigorous literature on these significant themes. At the same time, it highlights various human rights themes that are consistently neglected by relying on diverse literature, empirical work, and different research methodologies that ought to make it compelling for human rights scholars, comparative lawyers, international public policy and justice sector reform experts and any social scientists who are generally interested in this highly complex, ill-understood and fascinating region.