FATA UNDER FCR

(FRONTIER CRIMES REGULATIONS):
AN IMPERIAL BLACK LAW

Muhammad Maqbool Khan Wazir*

The Frontier Crimes Regulations (FCR) forms the bulwark of the government machinery in the Federally Administered Tribal Areas (FATA) of Pakistan, which dates back its origin to the British colonial period in pre-partition India. Pakistan inherited the Tribal Areas as one of the successor states to British India after partition in 1947. The FATA comprise of 7 Agencies and 6 "frontier regions". Federally Administered Tribal Areas (FATA) the “Excluded Areas” as they were called by section 91 of the colonial contitutional law of Government of India Act are still the “Excluded Areas” from the relm of development and moderen civilization. FATA still has no network of the state institutions in the modern sense. The legal and adminstartive system in FATA is the same which was designed in the 19th century by British colonialists for their special intersts. FATA today is formally a part of Pakistan but more closely resembles a colony whose population lives under laws and administrative arrangements that set it apart from the rest of the state. Almost six decades after Pakistan’s independence, tribal Pashtuns remain subject to the application of this colonial law, some of whose clauses are cruel to the point of being inhumane. FATA is not an ungovernable territory but the state has elected to govern it through local proxies and draconian colonial-era administrative structures and laws, depriving locals of constitutionally guaranteed civil and political rights and protection of the courts. Today, there is little justification for a parallel legal system that was designed to serve colonial ends and remains outside the purview of Pakistan’s judiciary.
This paper examines the Frontier Crimes Regulation (FCR) from various perspectives. It explains why the FCR was codified as a regulation of the government of India and became a law applicable to the tribes of FATA. It further discusses that the retention of FCR (1901) in FATA reflects the arbitrary duality of judicial systems in Pakistan. How great injustice is this that being the citizens of the country whose population enjoys all the constitutional provisions but the tribesmen is excluded from this. Why, are the tribesmen not the citizens of this country if yes, then why this dual system and discriminatory laws exist in the country?

Administration of Tribal Areas

NWFP is one of Pakistan’s four federal units, governed by an elected provincial government with the centrally- appointed governor acting solely as the representative of the federal government. In British India, the area that is now Pakistan’s NWFP was first administered by a chief commissioner as part of Punjab province. In 1901, NWFP was granted the status of a separate province and divided into Settled Areas (“Districts”) and Tribal Areas (“Agencies”). Under the Governor General of India, the NWFP governor supervised the administration of both settled and tribal areas. Pakistan retained this system of administration, with the NWFP governor administering FATA as the agent first of the governor general and then the president.1
Article 247 of the constitution states: “Subject to the Constitution, the executive authority of the Federation shall extend to the Federally Administered Tribal Areas, and the executive authority of the province shall extend to the Provincially Administered Tribal Areas”.
NWFP’s provincial governor exercises executive authority in FATA as the president’s representative. The president enjoys discretionary powers in the 1973 constitution to “make regulations” with respect to “the peace and good governance” of FATA.2 According to the government’s official rules of business, the responsibility for the “overall administrative and political control of FATA” falls under the federal ministry of states and frontier Regions (SAFRON).3 While SAFRON, as a federal ministry, is answerable to the elected prime minister and national assembly, it is virtually irrelevant in policy implementation or execution in FATA and acts mainly as a conduit for routing federal funds. Ultimate executive authority over FATA rests with the president and is exercised through his agent, the provincial governor. While, the political agent (PA), a federal, and at times provincially recruited, bureaucrat heads the local administration of each FATA agency.4 Backed by khassadars from different tribes. In this way, the administration controls a source of employment which it can use to coerce recalcitrant tribes or individuals.

Judicial Structures

Frontier Crimes Regulations (1901)
The Frontier Crimes Regulations 1901, popularly known as FCR is one of major component of the administrative system of justice in Tribal Areas. FATA’s judicial system is enshrined in the FCR (1901), a hybrid colonial-era legal framework that mixes traditional customs and norms with executive discretion.5 The British created this harsh law to manage and control their Indian Empire’s restive frontier belt. Originally drafted in 1872, the FCR was promulgated with amendments in 1901 and applied by Pakistan to NWFP until 1963 and Balochistan until 1977. Unlike FATA, the Provincially Administered Tribal Areas (PATA) are subject to the jurisdiction of Pakistan’s regular court system. In 2007, there is little justification for a parallel legal system that was designed to serve colonial ends and remains outside the purview of Pakistan’s judiciary.6

FCR Jirga
The jirga is although an informal institution but it has very formal effects on the pukhtoon society in general and on tribal people in particular. It is one of the most time-honoured institutions in the tribal world and part of the culture of the tribesmen, who are very proud and fond of their culture.7 The FCR preserves the Pashtun tribal structure of jirga (council of elders), 8 to which the political agent can refer civil and criminal matters.9 The jirga ascertains guilt or innocence after hearing the parties to a dispute and passes verdicts on the basis of rewaj. However, the PA retains ultimate authority.10
On its face, the FCR is based on the premise of cohabitation between the jirga and the political agent for the provision of speedy justice in accordance with tribal customs. But the British distorted the institution, making it subservient to the political agent and its decisions non-binding.11 Pakistan retained this system, with the political agent initiating cases, appointing the jirga, presiding over trials and awarding punishments without even the technical possibility of revision by a regular court of law.12
Most FATA residents supported the jirga as an efficient source of dispensing justice. In cases where neither the government nor the political agent has a stake, the process can be quicker and offer disputants more opportunity to air their grievance and negotiate than an ordinary court trial.13 But jirga verdicts often favour those with political or economic clout at the expense of the vulnerable segments of the population, particularly women, 14 who are excluded from direct participation in the system and suffer when male members of their families are detained.

Due process
Trials under the FCR do not provide the accused due process of law. There is no right to legal representation, to present material evidence or cross-examine witnesses.15 Those convicted are denied the right of appeal to the Peshawar High Court or the Supreme Court of Pakistan.16
The power of revising the PA’s decisions rests with an FCR commissioner, appointed by the NWFP governor, who can act either on his own or in response to a petition by an aggrieved party17 but cannot “set aside the finding on any question of fact by a Council of Elders [FCR jirga] accepted by the Deputy Commissioner [Political Agent]”. Revision is allowed only if there is “material irregularity or defect” in the proceedings or on an “occasion [of] a miscarriage of justice”.18
A final appeal can be made to an FCR tribunal comprising the provincial law secretary, the home secretary and the chief secretary of the province (the senior civil bureaucrat), who casts the decisive vote in case of a split verdict. Given the skeletal nature of FRC rules for granting an appeal, the scope of review is limited.19 In essence, convicted parties have no recourse to an impartial court of law and must rely on bureaucratic discretion. Since the FCR vests appellate authority in the executive, it violates the safeguard of an independent judiciary enshrined in Articles 2-A and 175 of the constitution.

Justice Denied
Almost six decades after Pakistan’s independence, tribal Pashtuns remain subject to the application of this colonial law, some of whose clauses are cruel to the point of being inhumane. Under section 40 of the FCR, the PA can preventively imprison tribesmen for up to three years “for the purpose of preventing murder, or culpable homicide….and sedition”.20 The PA can also take other preventive measures such as stopping the construction of settlements close to the border or doing away with them on security grounds; and halting the construction of or demolishing buildings used for “criminal purposes”.21
Individuals involved in blood feuds and “dangerous fanatics” can be expelled from an agency.22 Section 38-1 allows the private arrest of a suspect, a convenient weapon in the hands of those with economic and political power to settle scores with weaker opponents.23 Used in conjunction with section 29, this can result in five-years imprisonment for suspicion alone.24 Section 38-4 gives law enforcement agencies “a right to cause the death of a person” on suspicion of intent to use arms to evade arrest.
This authorization of force by the state is particularly relevant in the context of the military operations in South and North Waziristan Agencies since 200425 and, most recently, the 30 October 2006 strike by the army on a madrasa in Bajaur Agency in which 82 people, including reportedly minors, deemed “terrorists” and “miscreants”, were killed.26

Historical Background

FCR by itself is a small law having seven chapters spread over 61 sections. It was promulgated through regulation-III of 1901 by the Britishers in 1901. To establish the grandeur of the British Raj and to overawe the frontier tribesmen, the sole obstructionist in their imperialistic designs, the colonial rulers introduced special procedures for the trial of cases by excluding the technicalities of the ordinary courts of law. Since the procedure for trial of civil and criminal cases as contained in these regulations is radically different from the ordinary court procedure, it would be of interest to have some idea of the historical background of this regulations.27
After the annexation of Punjab and NWFP in 1849, the British Government here introduced the law courts of British India, with their hordes of half trained Hindu lawyers who lived by encouraging petty litigation, and soon became a vehicle for the continuation of the pukhtoon’s personal feuds.28 Therefore, they found that the ordinary civil and criminal laws were not suitable for these areas. Although civil disputes were quite few in those days, yet the incidence of crimes, especially murders and dacoities, were so alarming that the ordinary laws and courts found it impossible to check them. Therefore, the Government started introducing reforms in the province. The Frontier was likened to a gunpowder magazine and to introduce reforms in such a land as this, it was asserted like holding a match to the gunpowder, and explosion was, of course inevitable.29 Hence, in response to British occupation and reforms beyond the hills, the tribesmen became more furious and increased the number of raids and dacoities in settled districts.
Another incident in 1872, which enhanced the promulgation of such regulation, was the assassination of viceroy, Lord Mayo by an Afridi evidently as a result of “tor” case. This incident made the situation very critical and worst. Immediately after this the Government enforced the Frontier Crimes Regulation and established a separate law code for the Frontier based at least in part on local customs, providing for the trial by official Jirgas selected by Deputy Commissioner/Political Agent, as well as suspension of the usual rules of evidence and reduction of the need for outside legal council.30
Under this Regulation, the DC/PA with the concurrence of Commissioner was authorized to take steps for ordering the removal of villages, restricting the erection of hamlets without the sanction of Commissioner, detention of all or any member of the tribe acting in a hostile or unfriendly manner and the imposition of fines on village communities in certain circumstances. He was further authorized to refer the case of a person accused of murder or any other heinous offences, where sufficient proof was not forthcoming for judicial conviction, to the decision of council of elders, convened according to the Pathan or Baluch usage, and cause the decision to be carried out as if it was a decision of a court. The sentence which should be awarded by the council of elders, however only extended to the inflation of fine on the convicted person.31
A few years after the promulgation of this regulation, it was found that the figures of murder and other crimes were going upward, so this regulation was made more effective and “The Punjab Frontier Crimes Regulation of 1887” was issued. The major change brought in this regulation was the power of the council of elders to award punishment of rigorous imprisonment up to seven years. In the coming years the figures of violent crimes in general and of murders in particular reached the highest ever recorded. So the Lt. Governor of Punjab recommended the revision of this regulation and expressed that Jirga system is very essential in these circumstances. The revised draft was approved by the Government and brought on to the statute book as the “Frontier Crimes Regulation, 1901. This scheme was not materially different from the earlier one as section 8 & 11 empowered the DC to refer both civil and criminal cases to the council of elders for decision. The DC and Commissioner inherited the same power in this regulation. The power of awarding sentence of imprisonment was also enhanced by the regulation from seven years to fourteen years. 32
The FCR 1901, in a somewhat modified form continue in effect in tribal areas of Pakistan even today. Several government officials and maliks expressed the belief that locals would reject the extension of a corrupt and inefficient judiciary to FATA. They argued that Pashtun tribes jealously guard their customary laws and practices and would resist the replacement of the jirga system, with its quick justice, by an alien court system in which trials can drag on for years. However, jurists and lawyers familiar with the FCR insisted there was no legitimate cultural or political justification for denying citizens in FATA their basic rights to legal representation and appeal in a court of law.33 The Supreme Court acknowledged this logic in a case concerning application of the FCR to Balochistan. Rejecting the FCR-based justice system in which the executive, represented by a deputy commissioner, wields inordinate authority, it concluded that “mere existence of a tribal society or a tribal culture does not by itself create a stumbling block in the way of enforcing ordinary procedures of criminal law, trial and detention which is enforceable in the entire country.”34 The retention of FCR (1901) in FATA reflects the arbitrary duality of judicial systems in Pakistan.

FCR Versus 1973 Constitution

Even the much proclaimed constitution of 1973, which is considered o be ensuring all fundamental right of the citizens, contains contradictions and anomalies with regard to FATA and its people. According to article 1 of the 1973 constitution, FATA is a part of Pakistan. Fundamental human rights are guaranteed in articles from 8 to 28 while Islamic principles and objective resolution have also been incorporated in the constitution through article 2-A. seeing it through this angle the 1973 constitution seems ideally protecting and ensuring the fundamental rights of the citizens but when it comes to the FATA it has altogether different dimension.35 Under article 247 all these provisions are rendered null and void for the FATA and a new modus operandi of a separate administrative system are explained. Under this arrangement no act of the parliament extends to these areas unless the president directs so.36 The president is not only declared the constitutional figurehead but also the chief executive for FATA. It is only the executive authority not any legislation that extends to FATA.37 All the previous constitutions including the much proclaimed one of 1973 have failed to deliver rights and welfare to FATA and perpetuated the bureaucratic rule instead of constitutional rule and democratic rights.38     
How great injustice is this that being the citizens of the country whose population enjoys all these provisions but the tribesmen is excluded from this. Why, are the tribesmen not the citizens of this country if yes, then why this dual system and discriminatory laws exist in the country?
Chapter I of the part II of the constitution providing for fundamental rights is inapplicable, though it is a moot point whether citizens of the same country can be classified negatively and deprived of fundamental human rights guaranteed by the constitution. In order to expose the grave and flagrant violations of human rights in FATA it is useful to analyze the situation with the reference to fundamental rights as enshrined in the constitution vis-à-vis the FCR, the supreme law for FATA.39

Any Law Inconsistent with the Chapter on Fundamental Rights shall be Void
Article-8 provides that any law inconsistent with the chapter on fundamental rights shall be void to the extent of such inconsistency. FCR being totally inconsistent still holds the ground. It discriminates both in civil and criminal matters, classifies citizens, does not provide for any proof for conviction or a civil decree, and gives no right of defense by a counsel or a right of appeal. The judicial powers are exercised by the executive without any check and balance system. The writ of the superior courts does not run into FATA and hence fundamental rights are not justifiable over and above all this, the Shariat Bench of Baluchistan High Court declared it “Un-Islamic” in 1979. But yet it reigns FATA.40
Article-8 also guarantees that the state shall not make any law which abridges the fundamental rights of this chapter. Here the “State” means “parliament”. Under article 50 parliament consists of President and two houses. The President as such applies law with notification and adaptations and make regulations for peace and good Government of FATA. The laws applied and regulations made by the President of FATA will be subject to article 8(1) and (2) of the constitution. The president acts within the territorial jurisdiction of High Court of Provinces and also is firmly amenable to the jurisdiction of Supreme Court of Pakistan under Article 184 (3) of the constitution. FATA may or may not have a High Court but the Supreme Court is for whole of Pakistan including FATA. The Supreme Court may be debarred to exercise jurisdiction in relation to FATA but under Article 184 (3) the jurisdiction of Supreme Court in relation to fundamental rights can not be taken away as it is the constitution for all the territories of Pakistan which include the territory of FATA.41

Protection of Life and Liberty

Article-9 protects life and liberty but under FCR hundreds of people are arrested and detained every year without any charge or trial. For months and in some cases for years the detents stay in prison on the basis of the so called plea of collective tribal territorial responsibility. In fact, liberty has no meaning in FATA except statelessness, lack of accountability and responsibility and the rule of “might is right”.

Safeguards against Arrest and Detention

Article-10 provides for safeguards against arrest and detention. Under FCR grounds are neither shown nor can be asked for the notorious section 40 of FCR is always put into action where under a three years term of imprisonment without any charge or commission of offence is as routine in FATA which is normally repeated for a second term.

Prohibits Slavery and Child Labour

Article-11 prohibits slavery and child labour. It is true that slavery does not exist in the classical sense where the master would have command over the life of slave. But in terms of liberty and free conscience, the worst type of slavery is prevailing. Child labour is not seen with negative feelings. Generally children are subjected to labour by parents for economic reasons.

Protection against Retrospective Punishment

Article-12 provides protection against retrospective punishment. But this is violated everyday as there is no check upon the authorities and therefore tribesmen are punished without recourse to law and its essential pre-conditions. Section 12 (2) of the FCR is unique and empowers Political Agent/Assistant Political Agent to award punishment higher than prescribed under the law. This section is so clearly in conflict with article 12 of constitution that retrospective punishment and any complaint thereof looses significance in FATA.42

Protection against Double Punishment and Self-Incrimination

Article-13, gives protection against double punishment and self-incrimination. Under FCR persons are arrested and they are handed over to the joint interrogation team where they are kept in torture cells for months and hence extracting a confession of self-inculpatory nature is a normal phenomenon. In cases where the Political Agent/Assistant Political Agent does not want to accept the bail bond, the under trial prisoner can be kept under detention for an indefinite period and no remedy except a revision to the commissioner is available which too is as formality.

Forbids the Violation of Dignity of Man, Privacy of Home and Torture
Article-14, forbids the violation of dignity of man, privacy of home and torture for extracting evidence. Under FCR dignity of man is a mere myth. Imagine, there are no limitation is provided and hence they are kept as prisoners for indefinite period. No grounds for arrest are necessary. The operations clean-up are infact undesirable acts where violation of privacy of homes is not significant. Houses are confiscated under section 21 of FCR, then para-military forces attack such houses. They render women and children shelter less and innocent persons are subjected to torture and worst kind of oppression.43

Freedom of Movement, Assembly and Association

Articles-15, 16 & 17, respectively guarantee the freedom of movement, assembly and association. Due to tribal structure and lack of state authority movement is restricted as the individual can move on his own risk. As for as freedom of assembly and association are concerned, these are looked down upon by the authorities. Except for Jirgas and puppet organizations admiring the authorities, political parties and gatherings, meetings and associations are ridiculed and frustrated. Political workers are being harassed and threatened of arrest and conviction and thus are black-mailed by the authorities.44

Freedom of Trade

Article-18 is for freedom of trade but under FCR and the so called collective territorial responsibility business premises and trade centers are closed every day in FATA. The huge markets and the whole of bazaars are demolished in the operation.

Protection of Property Rights

As regards property rights under articles 23 & 24, no security what so ever exists in FATA. The authorities can deprive a person as well as a tribe of their property without compensation. In some cases compensation is given to the person or tribe, however security of property does not exist.

Equality of Citizens

Article-25, speaks of equality of citizens and their entitlement to equal treatment. But tribesmen of FATA are un-equal in every respect. There is no judicial system for them. Civil and criminal courts depend on the sick jirga system, which is always under the thumb of authorities.45
Thus a person convicted under FCR is denied constitutional rights available to other citizens of Pakistan. At the same time the universal declaration of Human Rights is also violated.46 The absence of the above mentioned rights 50 years back or under foreign occupation is understandable. Maintenance of status quo and further tightening of the noose around the necks of the tribes after independence is however flabbergasting.
Nevertheless, the constitution of the Islamic Republic of Pakistan as a whole, for all practical purposes, is a redundant and tautological document as far as its application in FATA is concerned. Consequently, the people of FATA have neither any ‘human rights’ nor can they claim any other status, privilege, position conferred upon other citizens of Pakistan by the constitution. The implication are obvious, the frontier crimes regulations 1901, notoriously known as the black law as an instrument of the colonial rule, still reigns supreme in FATA, where unjust arrests, derogatory trials, and human rights abuses are the common practice of the day.

Inhuman Laws in FCR

The notorious Frontier Crimes Regulation was enforced in 1901 to advance the objectives of the Britishers in NWFP, Baluchistan and all the tribal areas. NWFP got rid of it in 1956 on the commencement of 1956 constitution. Baluchistan was released from its clutches when 1973 constitution was enforced. Malakand and Dir were rescued of FCR in 1973. Today FATA is the only hostage of FCR.47 It is the supreme law in FATA and other civil and criminal laws are not extended. It serves all purposes both of procedural as well as substantive law. Neither criminal procedure code (Cr.,P.C) nor civil procedure code (C.P.C) or law of evidence is applicable. No lawyer can defend any accused or plaintiff at a trial. No right of appeal to the High Court or Supreme Court exist. Until 1997, the Commissioner acted as a revisional court but in 1997 it was amended and turned into appellate forum and the powers of revision of the Commissioner’s verdict were given to the tribunal consisting of secretaries of Home and Law Department. But all these belong to the same executive and are usually hand in glove for all practical purposes.48
The Jirga, as a useful institution, has always played a pivotal role in the daily life of the tribesmen. It remained an authority for settling disputes and dispensing speedy justice to all. The Britishers inserted in FCR the institution of Jirga to give an impression to the world that they had high regard for tribal sentiments and attached this with pious intentions. But it was only a tact. The main source or authority is the PA. He gets signs from the members of Jirga on blank paper and then put on the paper his own decision, 49 as;
Under section 8 &11 of FCR the PA/DC refer the civil and criminal cases to the council of elders (Jirga).
ection 8, civil reference to the council of elders:
1.     “Where the Deputy Commissioner is satisfied, from a police report or other information, that a dispute exists which is likely to cause a blood feud or murder, or culpable homicide not amounting to murder, or mischief or as breach of the peace, or in which either or any of the parties belongs to a Frontier tribe he may, if he considers that the settlement thereof in the manner provided by this section will tend to prevent or terminate the consequences anticipated, and if a suit is not pending in respect of the dispute, make an order in writing, stating the grounds of his being so satisfied, referring the dispute to a council of elders, and requiring the council to come to a finding on the matters in dispute after making such inquiry as may be necessary and after hearing the parties. The members of the council of elders shall in each case, be nominated and appointed by the Deputy Commissioner.
2.     The order of reference made under sub-section (1) shall state the matter or matters on which the finding of the council of elders is required.
3.     On receipt of the finding of the council of Elders under this section, the Deputy Commissioner may:

• Remand the case to council for a further finding; or
• Refer the case to a second council; or
• Refer the parties to a civil court; or
• Pass a decree in accordance with the finding of the council, or of not less than three – fourth of the members thereof, on any matter stated in the reference;
• Declare that further proceedings under this section are not required.”50

The same process is with the criminal cases and after inquiries and discussions in Jirga, brings their decision before the PA/DC. But the real decision maker is the PA/DC whose decision is final and can’t be challenged in any court of law except an appeal to the Commissioner and then petition to the tribunal against the decision of a Commissioner to review the decision.51 J.W. Spain writes:
“The Jirga was beyond doubt a pathan institution, the form it took under the Frontier Crimes Regulation was far cry from its natural state. In any event, the decision of Jirga was primarily recommendatory, and the actual acquittal or conviction and sentence were formalized in a decree by the Deputy Commissioner.”52

In the proceedings under FCR evidence and proof does not have to accord to normal standards of substantiation and secret inquiries and evidences are also recorded. This procedure is deprecated by the superior courts and is held to be contrary to the basic norms of civilized people. But still FCR survive in FATA. Why, are the inhabitants of FATA not civilized? 53

Restrictions on the jurisdiction of civil courts
Another very cruel aspect of the FCR is, the restrictions placed on the jurisdiction of civil courts. This has really made this procedural law as black law. Section 10 of the FCR states that:
“No civil courts shall take cognizance of any claim with respect to which the Deputy Commissioner has proceeded under section 8 subsection (3) clause (a) clause (b) or clause (d)”.

No right of appeal to Higher Courts
The denial of the right of appeal to Higher Courts for redressal of grievances was re-emphasized in section 60 of chapter VII which categorically states that:
“Except as therein otherwise provided, no decision, decree, sentence or order given, passed or made, or act done, under Chapter III, Chapter IV, Chapter V or Chapter VI shall be called in question in, or set aside by, any civil or criminal court”.54
Not contended with the powers to deprive the tribesmen of the right of appeal to superior courts for redressal of their grievances, the Political Agents were authorized to impose penalties on people who were neither involved in any crime nor committed any offence.
Section 21 of Chapter IV of penalties states that:
“In the event of any Frontier tribe, or of any section or members of such tribe, acting in a hostile or unfriendly manner towards the British Government or towards person residing within British India, the DC may, with previous sanction of the commissioner, by order in writing direct:

• The seizer, wherever they may be found, of all or any of the members of such tribe and of all or any property belonging to them or any of them.
• The detention in safe custody of any person or property so seized.
• The confiscation of any such property and may, with the like sanction, by public proclamation.
• Debar all or any member of the tribe from all access into British India; and
• Prohibit all or any person within the limits of British India from all inter-courses or communication of any kind whatsoever, or of any specified kind or kinds with such tribe or any section or members thereof.”55

Fine on communities’ accessory to crime
Section 22 empowers the PA/DC to impose fine on communities’ accessory to crime. It is a law that makes the tribesmen to pay for the crime of fellow tribesmen. It states that:
“Where from the circumstances of any case, there appears to be good reason to believe that the inhabitants of any village, or part of a village, or any of them, have:

• Connived at, or in any way abetted, the commission of an offence; or
• Failed to render all assistance in their power to discover the offenders or to effect their arrest;
• Connived at the escape of, or harbored, any offender or person suspected of having taken part in the commission an offence; or
• Combined to suppress material evidence of the commission of an office. The Deputy Commissioner may with previous sanction of the commissioner, impose a fine on the inhabitants of such village or part of a village, or any of them as a whole.”56

Collective tribal territorial responsibility

The whole fabric is based on the principle of “collective tribal territorial responsibility.” The inhabitants of the whole area are held responsible for even in the complex cases of sabotage and terrorism, where the culprit is not known. Indiscriminate arrests are made. Every member of the concerned tribe that comes across is arrested, vehicles are impounded, their business centers and shops are locked up, for long periods, until and unless they find the culprit or pay the losses to compensate the victims as well as pay lakhs of rupees as a fine to the authorities. It is still being considered a powerful weapon in the hands of administration to show their efficiency and effectiveness. The majority of those accused collectively or individually are mostly powerless inhabitants of the area who have no right of any defense and will have to appeal to the same authority who has executed him or them. In the same context once “Yahya Bakhtiar” had said in the Senate that in tribal system there is no wakeel (legal counsel) no daleel (argument) and no appeal.57
Engineer M. Qayyum Afridi writes in The Frontier Post on 1st October 2000.
“The FCR authorizes the PA to arrest these hills men, burn their houses and close their business who happen to be even distant relatives or belonging to the same sub-tribe of the criminal. This is in itself, is a criminal act on the part of political Agent. It is against all the norms of justice, whether secular or divine. No law would allow the punishing of A for the crimes of B. It is just law of the jungle that is practiced by political authorities in the name of FCR. One has heard of “Draconian Law” or Kangaroo courts” but this practice has no parallel in the blunders of legal history. This savage law is based not on the concept of reform but revenge”. 58

Ignores Crimes against Women
The FCR absolutely ignores crimes against women, (not even a single woman reported a case under the FCR so far), despite the fact that maximum crimes in FATA are related to women. Honor killing, child marriage, swara marriage (a tribal custom to give women in marriage to the aggrieved party in consideration for settling a dispute), exchange marriages and "bride price" are still accepted norms in FATA without any legal remedies. Women are not represented in the jury or justice system in the tribal areas.59 Moreover, Amnesty International considers the law governing the FATA, the Frontier Crimes Regulation, 1901 (FCR), to be deeply flawed as it does not ensure the human rights protection afforded by the Constitution of Pakistan, or Pakistan’s international obligations as a state party to the UN Convention on the Rights of the Child and the UN Convention on the Elimination of All Forms of Discrimination against Women. The articles of Universal Declaration of Human Rights of the United Nations set out civil, political, economic, social and cultural rights and freedom of individuals. Some of these rights appended below to illustrate the fact that none of these or equal rights in the country are available to the tribesmen:

• The right of life, liberty and security of a person.
• Equality before law.
• Freedom from arbitrary arrests and detention.
• The right to fair trial.
• Protection against arbitrary interference with family, home or correspondence.
• Freedom of movement.
• Freedom of opinion and expression.
• Freedom of peaceful assembly and association.

Voices Against this System

There have been voices against this system by the victims in particular and the common people in general from time to time. For example (section 8 and 11 of FCR) under article 4 and 5 of the 1956 constitution, under which the cases could have been sent to a non representative hand picked jirga, were challenged in Toti Khan Vs District Magistrate Ziarat and Sibi. The chief justice A. Rehman accepting the petition declared these two articles as discriminatory.
In another similar case Khan Abdul Akbar Khan Vs Deputy Commissioner Peshawar, the FCR’s provions under article 5 of the 1956 constitution were challenged and the judge, justice Kiyani ruled them out as “discrimination between a negro and a Whitman.” These efforts would have brought some good results but the 1958 martial law abrogated the constitution which brought an end to the law reforms process and enabled the FCR to reign supreme.60
Shariate courts were established in 1979 as a part of islamiazation process of the martial law government. Taking advantage of the situation the FCR was challenged before the Shariate bench of the Baluchstan High Court under Maulvi Mohammad Ishaq Khosti Vs government of Baluchistan case. The bench termed them as country to the basic principle of Islam. But decision was applicable to PATA only. Despite these categorical judgments by the superior judiciary against the FCR, it still remains a decisive law in the administration of justice for a population of approximately 7 million. The net result of this whole discussion is that the FCR, the official jirgas, the immense power to PA, lack of political will and reign of supreme vested interest have brutally ruined the human right question in tribal areas which may take even years in redresaal.61

Views of the Earlier Committees

It will be interesting at this stage to refer to the views of the earlier committees and commissions appointed by the Government to examine these laws.

North West Frontier Committee
For the first time, the working of the Frontier Crimes Regulation was examined in 1921 then a North West Frontier committee was set up to review the civil and judicial administration of the NWFP. The committee consisted of six members of legislature of whom no less than five non-official. Of the five non-official Indians one belong to UP, one to Madras, one to Bombay, one to Punjab and one to NWFP. It also included three English civilian members of Punjab commission. In the discussion the NWFP judicial system was criticized that the excessive use of certain provisions of the FCR have seriously affected the efficiency of the judiciary. But instead of recommending some suitable amendments, it understood the importance of FCR and opposed its repeal by stating:
“To repeal its civil sections would be to inflict grave hardship on the pathans, who rely on them for a cheap and expeditious settlement of their disputes by a jirga…. To repeal the criminal sections would be to undermine the forces of law and order and to deprive the Hindus, in particular, of one of their greater safeguards, in a land where passions are hot, blood feuds are endemic, legal evidence is exceedingly difficult to obtain, and refuge from the arm of the law is close to hand across the border. To repeal the trans-frontier sections would be to paralyze our whole system of trans-frontier control.”62

Justice Naimatullah Committee
In 1931 FCR was again examined by a committee consisting of nine members headed by Mr. Justice Naimatullah of the Allahabad High Court. The committee recommended that the dual system as prevailing the then North West Frontier Province should be discontinued in as much as the Deputy Commissioner should have no power to exclude the jurisdiction of the ordinary court, and if it was found necessary to retain the tribunal for the trial of offences, it should be presided over by the session judge, who should be assisted not by the council of elders but by jurors appointed out of a list carefully, prepared by the Government. The parties should be allowed to be represented by the legal practitioners and the provisions of the criminal procedure code should be applied to the proceeding before the tribunal. Only some specified offences should be referred to these tribunals and the rest of the cases should be tried in the ordinary courts. The Government, however, did not accept the recommendations of the committee and the position was allowed to remain unchanged.63

Sheikh Abdul Hamid Commission
After the establishment of Pakistan, a commission was appointed by the Government in 1958, headed by Mr. Justice Sheikh Abdul Hamid of the West Pakistan high Court to examine the judicial set up in the Quetta and Kalat divisions and to suggest changes, if any, so as to bring it in line with the constitution and the rest of the province, consistently with the local requirements. “The commission the withdrawal of the Frontier Crimes Regulation, 1901, in the two divisions, and the abolition of special areas (now Tribal Areas) but if for any reason, it was found necessary to retain these special areas, then the jurisdiction of the High Court and the Supreme Court should be extended to these areas”. The recommendations of this commission also did not find favour with the Government and so the special laws continued to operate in two divisions.

Law Reform Commission headed by Mr. Justice S.A. Rahman
The matter was again examined by the Law Reform Commission set up by the Government in 1958, headed by Mr. Justice S.A. Rahman of the Supreme Court of Pakistan. Although, he recommended the abolition of the special laws, yet, in view of the peculiar conditions prevailing in the certain parts of the province, the special laws might continue to operate. The ultimate aim, however, should be to replace these laws by ordinary laws. The commission also proposed amendments in the existing Jirga system. But the Government did not give any attention to it.64

Justice Hamood-ur-Rehman Commission
Another commission headed by Mr. Justice Hamood-ur-Rehman, Judge of Supreme Court and the then chief justice of Pakistan (1967-70), examined the working of these laws and recorded the following historic facts:
“They have neither expedited the trial of criminal cases nor have they proved a deterrent in the matter of serious crime. They have not inspired public confidence and it can hardly be said that they have advanced the cause of substantial justice. On the contrary, they are open to serious objections, on principle, as being in violation of the doctrine of equality before law, and constituting the usurpation of the judicial power by the executive at all levels. Apart from this, there are strong intransiged feeling and intrinsic hatred about the FCR, 1901, which had been applied to these areas, with ambivalent intentions of taming the tribal people. They had the effect of supplanting the regular procedures of ordinary court and thus violation the basic human right.”65

Amendments Made in the FCR

The FCR has not been amended, except few changes, from time to time to remove the defects and lacuna brought to the notice of the government by different quarter. However, President Farooq Ahmad Khan Laghari, in 1997, made an amendment in FCR on the forceful demand of tribesmen, whereby for the first time, right of appeal was given against any judgment pronounced under FCR. The power of revising the PA’s decisions rests with an FCR Commissioner, appointed by an aggrieved party66 but cannot “set aside the finding on any question of fact by a council of elders (FCR jirga) accepted by the deputy commissioner (Political Agent).” Revision is allowed only if there is “material irregularity or defect” in the proceedings or on an “occasion of a miscarriage of justice.”67
Similarly section 55-A was added to the FCR through which an FCR tribunal was established which have the powers of revising the verdicts given by the Commissioner in the appeals filed before him. The FCR tribunal comprises of the provincial law secretary, the home secretary and the chief secretary of the province. Under this section the secretaries of Home and Law Departments were given the power to revise and in case of difference of opinion between them, refer the case to the Chief Secretary which shall be decided according to the opinion of the majority. Given the skeletal nature of FCR rules for granting an appeal, the scope of review is limited.68 Moreover, this is not satisfactory and would not change status quo, as the Commissioner, Home secretary and Law secretary and Chief Secretary all are part and parcel of the same bureaucracy and they would therefore, lend full support to the political administration against the affected tribesmen.69

What should be done?

After the Pakistan military’s unsuccessful operations in FATA, donors have increasingly seen governance structures there as in need of reform if militancy is to be countered in the Pashtun belt on both sides of the Durand Line. The Musharraf government has responded to pressure, initially by pledging far-reaching change, including abolition of the PA system and administrative integration of FATA with the NWFP. But its actual position, as on almost all political problems, is beset with contradictions.
In April 2006, President Musharraf publicly announced his plan to end the present FATA system.70 A month later, he told the All Pakistan Newspapers Society: “We want to reinvigorate the political agent institution of FATA. (The) political agent will have an agency council composed of [a] few maliks and lungi holders, who will make developmental plans….the political agent and FATA secretariat will be reinvigorated, and a FATA Development Authority will be created”.71
Instead of initiating meaningful reform, the government has taken only cosmetic steps. For instance it created a separate governor’s FATA secretariat in 2002, ostensibly to eliminate bottlenecks created by multiple administrative tiers and lines of authority in administering FATA.72 All line departments in FATA were brought under the purview of this secretariat, including the staff of the defunct FATA Development Corporation.73
There is no dearth of public and private studies and reports on the need for FCR reform. Even the Musharraf government has recognised the need to amend the FCR as part of a broader package. In May 2005, the NWFP governor formed the FCR Reform Committee, headed by a retired chief justice of the Peshawar High Court and including former officials, journalists and lawyers to recommend such action. After extensive consultations in all seven agencies, it submitted its recommendations to the governor. While these have not been made public, committee members said they include abolition or modification of section 40, reduction in detention periods, changes in the collective responsibility clauses, prevention of the incarceration of women and children and introduction of more stringent accountability of the PA to the governor.74 But even if a few clauses were removed or changed, the fundamentally draconian character of the law would continue to impede due process and access to justice in FATA. However, the following steps should be taken.

Abolition of FCR
The tribal people are as civilized people as others but for the last 130 years they have been facing the cruelty of FCRs. These rules have ceased their human and basic rights. It is very astonishing that our government has a strong objection on POTO rules imposed by the Indian Government in Occupied Kashmir but the Government has no objection on FCRs that are already imposed in FATA since long time, which is many fold harsher than POTO.75 Through POTO the Indian Government has a right to arrest the relative of the accused but through FCR the Government has a right of not only to arrest the relatives of the accused but also destroy the houses and shops of the accused as well as his relatives, which is unjustified. There is no right to appeal in the higher judiciary except a revision appeal to the same bureaucracy. Therefore, it is suggested that FCR should immediately be replaced.

Separation of Judiciary from Executive
Tribal areas have no separate judiciary and legal court system. Ll powers are vested in one person, the political agent and the administration. The combination of judicial and executive functions in the same authority has been the root cause of many evils. It goes against the fundamental principle of justice that “a prosecutor himself cannot be a judge.” No systematic legal system would be possible without a complete separation of executive and juridical powers in the areas. Therefore, the judiciary must be separated from the executive. About the peculiarity of the tribal judicial system Yahya Bakhtiar a renowned lawyer has rightly said, “There is no Wakeel (legal counsel) no Daleel (no argument) and no Appeal.”76

Extension of the jurisdiction of High Court and Supreme Court
The jurisdiction of High Court and Supreme Court should be extended so that the fundamental rights become justiciable in FATA. There should be an independent FATA high court, but if this not feasible at present, it is suggested that a high court bench for FATA should be immediately established within the high court of the NWFP.

Rule of Law should be established
In the tribal area “Rule of Law” should be established and “Rule of Man” should be abolished. It is high time that tribesmen are freed from the discrimination and constitution is made applicable to them in toto. New arrangements should be planned, based on the grant of human rights, with the encapsulated tribes. The milestone of slavery around their necks, the cruel and callous system of political administration riddled with the absurd anomalies must be replaced by a new framework ensuring equality, liberty and justice to end distrust and hostility before it explode with a vengeance.

Conclusion

After the departure of Britishers, apparently the chains of slavery were broken but in reality the tribes have become more and more the slaves of political authorities. They too had hopes and expectations of betterment in their lives, of getting rid from the clutches of the black laws, of better administrative treatment, of socio-economic uplift of their areas etc. but nothing new could take place regarding them. The only change that occurred was that vernacular officials replaced the English, remaining the administrative status quo unchanged. Among the most shameful legacies of the British imperialism in our country is the FCR. More than 130 years old, the FCR is the worst infliction on human rights and dignity that any oppressive imperialist regime would have invented to deny its subject not only of all rights but also self respect and dignity. Today even after 60 years of independence they are administered through the same regulations in much perverted form and the tribal voice for fundamental rights is groaning under them. The FCR might have served the colonial interests, but miserably failed in providing justice to common tribesmen. Most of its provisions are outdated and to a great extent very harsh which negates the basic principles of justice. A century of living under the system has, besides eroding traditional values and injecting many social and moral evils, dulled the sensibilities and lulled the otherwise brave and ferocious people to sleep. But the long delayed process of awakening and questioning, of awareness has started. The tribes especially the youth and educated classes are no longer prepared to accept their said plight as a fait accompli and be treated as red Indians. The winds of change sweeping the region have also reached FATA. There is strong desire in the enlightened elements of FATA to reform the system.

References

• The 1956 constitution abolished the position of governor general and replaced it by the president as head of state.
• Article 247 (5) of the constitution states that the “President may make regulations for the peace and good governance of the Federally Administered Tribal Areas”. Article 247 (6) notes that the “President may by order direct that whole or any part shall cease to be the tribal area with the consultation of a tribal jirga”.
• The ministry is also responsible for other functions, including development plans; matters relating to the Durand Line; anti-subversion measures; administrative reforms, and payment of allowances to maliks. “Rules of Business”, Government of Pakistan, made available to Crisis Group.
• An agency is normally divided into two or three subdivisions, each under an assistant political agent. At the lowest tier of the agency administration is the tehsil (sub-district),supervised by the political tehsildar and naib-tehsildar. The tehsildar wields police, civil and revenue powers.
• Francois Teney-Renaud, “Post-Colonial Pluralism, Human Rights and the Administration of Criminal Justice in the Federally Administered Tribal Areas of Pakistan”, Singapore Journal of Comparative and International Law, 6 (2002).
• Crisis Group Asia Report N°86, Building Judicial Independence in Pakistan, 10 November 2004, p.i.
• Lt. Col. (R) Alam Zeb, “The Jirga System” PARD, Vol. No. 2 (spring, 2001), p.15.
• The jirga relies on the Pashtun code of honour (Pakthunwali), based on melmastia (hospitality), nanawati (hospitality cannot even be denied to a criminal or enemy) and badal (the right of revenge). The greatest tests of honour involve zar (gold), zun (women) and zamin (land). Settlements and punishments are derived from narkh (tribal precedent); the jirga can impose strong sanctions and punishments, including excommunication of a noncompliant person or clan, confiscation or girvi (mortgage) of property, fines and formation of a laskhkar (tribal militia) to punish the accused party.
• A case is referred when the political agent believes a crime has been committed or a civil dispute can lead to a blood feud or breach of peace. FCR (1901) sections 8, 11.
• The political agent may convict the accused in accordance with the jirga’s decision, refer the case back to the jirga for review or appoint a new jirga. He may acquit or discharge the accused at his discretion in criminal cases (Section 11, clauses 3 a-c) or halt proceedings arbitrarily in civil cases (chapter III, section 8, clause 3-e).
• Faqir Hussain, “Testing FCR on the Touchstone of the Constitution”, paper presented at the FCR consultation organized by the Human Rights Commission of Pakistan (HRCP), Islamabad, 4-5 October 2004.
• Crisis Group interview, Latif Afridi, lawyer and former member of the National Assembly from Khyber Agency, Peshawar, 11 May 2006.
• Crisis Group interview, Latif Afridi, Peshawar, 11 May 2006.
• See “State of Human Rights in 2003”, Human Rights Commission of Pakistan, Lahore, 2004, pp.33-37; also “Pakistan: The Tribal Justice System”, Amnesty International, at http://web.amnesty.org/library/index/ENGASA330242002.
• Crisis Group interview, former judge, Peshawar, 12 May 2006.
• “No appeal shall lie from any decision given, decree or sentence passed, order made or act done, under any of the provisions of this Regulation”, FCR (1901), section 48.
• Ibid., section 49.
• Ibid., section 50.
• Crisis Group Report, “Building Judicial Independence in Pakistan,” November 10, 2004.
• The sentence can be extended by another three years under FCR (1901), section 46 (6). Section 40 allows the political agent “to require a person to execute a bond for good behaviour or for keeping the peace” for a period “not exceeding three years”.
• FCR (1901), sections 31-34.
• Ibid., section 36.
• Crisis Group interview, FATA parliamentarian, Islamabad, May 2006. See also Crisis Group Report, Building Judicial Independence in Pakistan, op. cit.
• Crisis Group interview, former political agent and retired chief secretary of NWFP, Khalid Aziz, Peshawar, 13 May 2006.
• Crisis Group interview, Peshawar, 13 May 2006.
• Justifying the attack, Inter-Services Public Relations chief Major General Shaukat Sultan said: “The operation was launched after confirmed intelligence reports that a number of miscreants were getting terrorist training in a madrasa”. The militants retaliated with a suicide bomber killing more than 40 soldiers at an army base in Dargai, Malakand division, on 8 November. Anwarullah Khan, “82 die as missiles rain on Bajaur: Pakistan owns up to strikes: locals blame U.S. drones”, Dawn, 31 October 2006; Rahimullah Yusufzai, “80 killed in strike on Bajaur seminary: students major casualties”, The News, 31 October 2006; Ismail Khan, “Suicide attack on army base: 40 troops killed; search on for bomber’s aide”, Dawn, 9 November 2006.
• Ibid., p. 313
• James W. Spain, The Pathan Borderland, (Muton & Co. The Hague, 1963) p. 114.
• Pervaz Khan Toru, “Political Awakening/ Movements in NWFP under the British Raj,” Pakistan no. 27 and 28, (spring and Autumn- 1993), p.1.
• David M. Hart, Guardians of the Khyber Pass, (Vanguard Books Ltd., 1985), p. 106.
• Mumtaz Ali Bangash, Political and Administrative Development of Tribal Area (Area Study Centre, Peshawar University, Unpublished), p. 315.
• Ibid, p. 315-16.
• 71 Crisis Group interview, Lahore, 22 May 2006.
• See Government of Balochistan v. Azizullah Memon, PLD 1993 Supreme Court 341, 361. The judgment relied in part on the right to access to justice, as articulated in the Universal Declaration of Human Rights, Article 10, a right that has particular relevance for FATA. Teney-Renaud, op. cit.
• These include equality of citizens before law, equal protection of law, freedom of speech and expression, right to association, right to assemble peacefully, and right to form or be a member of a political party.
• Nayyar Zaman Momand, “Tribal Question-111,” The Frontier Post, Peshawar, July 11, 1996, p.6.
• Syed Abid Hussain, “Ban on Political Activities in Tribal Areas Flayed,” The Frontier Post, Peshawar, December 1, 1991, p. 7.
• Article 184 (3) says: “The Supreme Court shall, if it considers that a question of public importance has reference to the enforcement of any of the Fundamental Rights” have the power to make an order of the nature mentioned in Article 199.
• Latif Afridi, “Human Rights and Discriminatory Laws in FATA-1” The Fronteir Post, Peshawar, 11 December 1993, p.7.
• Ibid.
• J. D. Akbarji, “The Frontier Crimes Regulations,” The Frontier Post, Peshawar, February 22, 2000, p.7. Article-184: without prejudice to the provisions of article 1999, the Supreme Court shall, if it considers that a question of public importance with the reference to the enforcement of any of the fundamental rights conferred by chapter-1 of part-11 is involved, have the power to make an order of the nature mentioned in the said article.
• Latif Afridi, “Human Rights and Discriminatory Laws in FATA-11” The Fronteir Post, Peshawar, 12 December 1993, p.6.
• Ibid.
• Amanullah Khan, “Controversial FCR,” The Frontier Post, Peshawar, March 20, 1992, p.7.
• Ibid.
• Nayyar Zaman Momand, “Tribal Question-11,” The Frontier Post, Peshawar, July 10, 1996, p.7.
• Latif Afridi, “Human Rights and Discriminatory Laws in FATA-11” The Fronteir Post, Peshawar, 12 December 1993, p.6.
• Ibid
• Eng. Qyyum Afridi, “The Hill Tribes- 11,” The Frontier Post, Peshawar, September 24, 2000. p. 7.
• Salar Muhammad Ayub, The Manual of Jirga Laws with Frontier Crimes Regulations, 1901, (Irfan Law Book House, Lahore, N.P.D), p. 174.
• Sardar Aun Mohammad, “FCR, A Detested Law in the Eyes of the Tribesmen,” View Point, (July 2000), p. 25.
• J.W.Spain, Op. Cite., p. 145-46.
• J. D. Akbrji, “Administration of FATA,” The Frontier Post, Peshawar, 21st February, 1990, p.7.
• Salar, M. Ayub, Op. Cite., p. 175, 187.
• Ibid, p. 178.
• Ibid, p. 179.
• Bangash, Op. Cite., p. 329.
• Engineer M. Qayyum Afridi in The Frontier Post on October 1, 2000.
• See “State of Human Rights in 2003”, Human Rights Commission of Pakistan, Lahore, 2004, pp.33-37; also “Pakistan: The Tribal Justice System”, Amnesty International, at http://web.amnesty.org/library/index/ENGASA330242002.
• Dr. Babar Shah, “Constitutional Dichotomy along the Durand Line,” ( area study centre, Peshawar university, unpublished), p. 274
• Ibid.
• Ibid, p. 376.
• Bangash, Op. Cite., p.322.
• ibid, p. 323.
• Ibid, p. 324.
• “No appeal shall lie from any decision given, decree or sentence passed, order made or act done, under any of the provisions of this Regulation”, FCR (1901), section 49.
• Ibid., section 50.
• Crisis Group Report, Building Judicial Independence, op. cit.
• Sardar Aun Mohammad, 25-27
• See “FATA system to be abolished, says Musharraf”, Daily Times, 18 April 2006.
• “Text of Musharraf’s speech at APNS awards’ ceremony”, 26 May 2006, available at http://www.presidentofpakistan. gov.pk.
• The governor previously depended on the provincial chief secretary for line department personnel in FATA and on the home secretary for law and order.
• Prime Minister Zulfiqar Ali Bhutto’s government (1972- 1977) created the FATA Development Corporation. The Musharraf government abolished it in 2002.
• Crisis Group interviews, members of the FCR Reform Committee, Peshawar, May 2006.
• Latif Afridi, “Human Rights and Discriminatory Laws in FATA-1” The Fronteir Post, Peshawar, 11 December 1993, p.7.
• Mumtaz Ali Bangash, Political and Administrative Development of Tribal Area Op. Cite., p. 329.