Identifier
Created
Classification
Origin
07PESHAWAR714
2007-11-09 11:25:00
UNCLASSIFIED
Consulate Peshawar
Cable title:  

FATA: PRIMER - JUDICIAL PROCESS AND DISPUTE RESOLUTION

Tags:  PGOV PTER EAID MOPS PK 
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P 091125Z NOV 07
FM AMCONSUL PESHAWAR
TO SECSTATE WASHDC PRIORITY 7179
INFO AMEMBASSY ISLAMABAD PRIORITY 
AMCONSUL LAHORE PRIORITY 
AMCONSUL KARACHI PRIORITY 
AMEMBASSY NEW DELHI PRIORITY 
AMEMBASSY KABUL PRIORITY 
AMEMBASSY CANBERRA PRIORITY 
AMEMBASSY LONDON PRIORITY 
AMEMBASSY THE HAGUE PRIORITY 
USMISSION USNATO PRIORITY 
AMEMBASSY OTTAWA PRIORITY 
CIA WASHDC
NSC WASHINGTON DC
SECDEF WASHDC
USCENTCOM INTEL CEN MACDILL AFB FL
JOINT STAFF WASHDC
AMCONSUL PESHAWAR
UNCLAS PESHAWAR 000714 

SIPDIS

E.O. 12958: N/A
TAGS: PGOV PTER EAID MOPS PK
SUBJECT: FATA: PRIMER - JUDICIAL PROCESS AND DISPUTE RESOLUTION

REF: A) PESHAWAR 686 B) PESHAWAR 592 C) PESHAWAR 559

Introduction
------------

UNCLAS PESHAWAR 000714

SIPDIS

E.O. 12958: N/A
TAGS: PGOV PTER EAID MOPS PK
SUBJECT: FATA: PRIMER - JUDICIAL PROCESS AND DISPUTE RESOLUTION

REF: A) PESHAWAR 686 B) PESHAWAR 592 C) PESHAWAR 559

Introduction
--------------


1. This is the fourth in a series of primers on Pakistan's
Federally Administered Tribal Areas (FATA). This cable
describes how tribesmen in the FATA and Frontier Regions (FRs)
resolve disputes in an area that is not subject to the laws that
govern the rest of Pakistan. The concentration of judicial and
executive powers in the hands of the Political Agent and the
continued predominance of the Frontier Crimes Regulations of
1901 allow dispute resolution in the FATA to be heavily
influenced by a small number of individuals whose actions are
seldom subject to judicial review. Subsequent cables will
address topics such as the 2001 "devolution" reforms. End
Introduction.

The Colonial Legacy
--------------


2. The FATA and Frontier Regions do not have an independent
judicial system. The Political Agent (PA) in the seven FATA
agencies and the Assistant Political Agent (APA) in the six
Frontier Regions exercise judicial as well as executive
authority (Refs A and C). While this cable will examine the
varying degrees of the PA/APA's authority in the FATA, the
Frontier Crimes Regulation (FCR) of 1901 empowers these
administrators to adjudicate disputes and to enforce their
decisions.


3. The FATA's colonial legacy continues to play a dominant role
in how tribesmen settle disputes today. The FCR was first
established in 1871 as an attempt by the British to balance a
need for better law and order with the tribes' fierce desire to
remain independent in managing internal disputes. This
compromise, which today remains intact under the 1901 iteration
of the FCR, allowed the tribes to settle criminal and civil
disputes according to tribal customs or "riwaj" when the
political administration has no direct stake in the conflict.
The jirga, or council of elders, remains the primary forum in
which tribesmen negotiate settlement of disputes in the FATA and
implement tribal custom. Jirgas also play a predominant role in
the Provincially Administered Tribal Areas (PATA) and even the
settled districts of the Northwest Frontier Province (NWFP) due
to the common tribal heritage of the Pashtun people.

Jirga
--------------



4. A jirga is a gathering of two or more people convened to
discuss and decide any issue ranging from personal affairs to
inter-tribal blood feuds. A jirga may also be constituted to
communicate a tribe's grievances to the government. The size
and composition of a jirga depends on the scope of the issue
under consideration. There is no quorum required to assemble a
jirga. It is an informal institution characterized by sparse
documentation and flexible processes which may be manipulated to
best address a specific concern. A jirga begins after the
parties to a dispute select a mediator who serves as the head of
the council of elders. The mediator obtains consent from the
disputing parties that the jirga's decision will be binding.
Members of the council then consider the information provided by
the disputing parties, deliberate, and come to a consensus
decision.


5. A jirga's decisions are based on a combination of "riwaj"
(tribal custom) and Sharia (Islamic law). Customary law among
Pashtuns is informed by a strong sense of retributive justice
(Badal),asylum (Melmastai) and forgiveness (Nanawatai). Riwaj
may also be understood to be a body of informal and partially
codified customs such as not carrying arms on Fridays. These
customs vary widely between the tribes residing in the FATA. An
informal system of precedent also plays an important role in
tribal custom, and members of a jirga will often refer to past
cases during deliberations.

Agreements vs. Undertakings
--------------


6. Jirgas interface with the FATA's political administration

through agreements and "undertakings." In an agreement, both
the political administration and the tribe are parties to the
jirga and are considered to be bound by its decision. An
undertaking is a one-way notification or reiteration of a
previous decision where tribesmen or the political
administration agree to carry out a specific action. An
undertaking may also be an official acknowledgement of riwaj by
the political administration.

Limits of the Political Agent's Judicial Authority
-------------- --------------


7. A distinction is frequently drawn between "accessible" and
"inaccessible" areas of Pakistan's tribal areas. Accessible
areas include government installations such as forts, posts,
cities, hospitals, schools, post offices, roads and tribal areas
immediately adjacent to roads. Political Agents consider an
area to be inaccessible if there are no security forces present
such as the Frontier Corps and Khasadars (Ref. B). Inaccessible
areas tend to be remote and inhabited by tribes hostile to
government intervention in internal affairs.


8. The Political Agents have played a more significant role in
the dispute resolution process in the accessible areas where
they retain the right to appoint a jirga's elders. Disputants
in civil cases such as land disputes, loan settlements or
disagreements over women, however, frequently choose the members
of a jirga by mutual consent. Political Agents refrain from
interfering in cases where they do not have a direct stake. In
criminal cases, the political administration is considered to be
the "aggrieved" party and those charged with committing crimes
are required to appear before a PA sponsored jirga. Political
Agents are authorized to use enforcement mechanisms granted
under the Frontier Crimes Regulation if the suspected criminal's
tribe refuses to produce him or her. The jirga's decisions in
the accessible areas are advisory, and Political Agents may
choose to disregard them.


9. In the inaccessible areas, Political Agents indirectly
supervise the judicial process. The distinction between civil
and criminal cases does not apply as it does in the accessible
areas because tribesmen settle both types of disputes via
"riwaj." Although, the tribes may approach the Political Agent
to seek assistance in resolving disputes, the majority of
conflicts are settled by jirgas whose membership is determined
by tribal elders who can render binding decisions.


10. The distinction between the Political Agent's role in the
"accessible" and "inaccessible" areas is becoming less relevant
with time. The Political Agent's influence over the dispute
resolution process is greatest where relationships with the
tribes are robust. Political Agents depend on tribal elders to
garner support for their decisions, and the elders in turn look
to the Political Agents for government funds. Lack of
infrastructure has historically served as a hindrance to the
Political Agents' ability to exert influence in the inaccessible
areas. Thirty percent of the FATA has been, until recently,
defined as "inaccessible." The deployment of nearly 100,000
security forces to the FATA and the acceleration of
communications and infrastructure capacity have led many local
observers to consider the whole of the FATA to be "accessible."

Right of Appeal
--------------


11. Tribesmen living in the FATA and FRs may not appeal a
Political Agent's decision in Pakistan's High Courts or the
Supreme Court. Instead, tribesmen may first request that the
Political Agent constitute another jirga to reexamine the
dispute. Influential families are generally more successful in
convincing the Political Agent to convene a review jirga. If a
review jirga is not deemed necessary or if the decision is still
unfavorable, a tribesman may approach the FCR Commissioner in
the NWFP Home Department for judicial review. Appeals against
the decisions of the FCR Commissioner are heard by an FCR
tribunal composed of the NWFP Home Secretary and Secretary of
Law (Ref. C).

Enforcement Mechanisms
--------------


12. Political Agents are granted broad powers by the Frontier
Crimes Regulation to enforce jirga decisions. An entire tribe
may be held collectively responsible for the actions of an
individual. Political Agents may also preemptively imprison
individuals "acting in a hostile or unfriendly manner" towards
the political administration. Other sections of the FCR allow
Political Agents to levy fines, order the demolition of
buildings and separate feuding parties.


13. In practice, Political Agents exercise their rights under
the FCR by levying financial sanctions, imposing blockades and
authorizing the use of force. If a tribe refuses to cooperate
with the political administration, a Political Agent will first
stop salaries to influential members of the tribe. Political
Agents may then stop all government salaries, including Khasadar
pay, and will seize the businesses and property of members of
the offending tribe located anywhere in Pakistan. If
noncompliant behavior continues, Political Agents will move to
impose a blockade on the tribe (historically, using Frontier
Corps forces). Roads in and out of tribal territory may be
sealed in order to stop the flow of trade and foodstuffs to the
offending tribe and any member of the tribe may be arrested.
Political Agents are also authorized to use force in order to
ensure compliance with jirgas' decisions. The use of tribal
Lashkars, Levies, Khasadars, the Frontier Corps and, most
recently, the Pakistani army, may be employed to enforce the
writ of the government (Ref. B).

Current Strains on the Tribal Dispute Resolution System
-------------- --------------


14. Many aspects of the FATA's dispute resolution system have
come under increasing criticism. Parties to a jirga are
required to deposit money in order to have their case
adjudicated. Increasing mediation costs and a growing
perception of inaccessibility have led many tribesmen to seek
alternate avenues of dispute resolution. The rise of militancy
in Pakistan's tribal areas has led many to question the
Political Agents' effectiveness. Dissatisfaction over delays in
disputes mediated by the government has in part fueled the
popularity of militants who make a point of providing "quick"
justice. While the PAs remain the agency's chief executives,
overlapping areas of operation with the military, as well as the
presence of militant commanders, have led to a perceived erosion
of the Political Agents' authority.


15. Collective responsibility, preemptive imprisonment and lack
of judicial accountability of the Political Agents remain highly
contentious in the FATA. The principal of collective
responsibility was promulgated in a time when members of a tribe
were geographically proximate to one another. The FCR, as it
exists today, allows Political Agents to punish members of a
tribe who have no relationship with the offending individual and
are often located in distant provinces. Preemptive imprisonment
allows imprisonment of up to three years with no right of appeal
except to the FCR tribunal who are often seen to rely on the
opinion and records of the Political Agent's office. The FCR is
also frequently criticized for lacking any mention of women's or
children's rights.


16. This cable was cleared with Embassy Islamabad.
TRACYLM