The Frontier Crimes Regulation (FCR):
A Socio Political Assessment

Sarfraz Khan*
 & Abdul Hamid Khan**

Abstract

The Frontier Crimes Regulations (1901), a colonial legacy, has been an administrative framework, governing the so-called tribal areas along the Durand Line. According to Articles 246 and 247 of the Constitution, neither the Parliament of Pakistan nor the Provincial Assembly of Khyber Pakhtunkhwa can legislate for FATA. The President of Pakistan issues decrees in matters related to the Tribal Areas and in this respect the Governor, Khyber Pakhtunkhwa, acts as the Agent to the President. For the purpose of administration, the FCR is the only available tool in the hands of the Political Agent/Deputy Commissioner to maintain writ of the state. All offences are dealt under the Pakistan Penal Code (PPC 1898) and procedure is provided by the Criminal Procedure Code (Cr. PC) and Civil Procedure Code (CPC) as the case may be. In dispensation of such acts the Presiding Officer is assisted by the Council of Elders or Jirga, nominated by him, for the purpose. Responding to criticism by legal experts, Human Right groups and the tribesmen, to the FCR in general and its provisions pertaining to collective responsibility, various governments initiated reforms. Numerous committees and various reports recommended reform to improve different administrative and legal dispensations. The most recent has been introduced in August 2011, wherein the Political Parties Act was extended to FATA and the FCR was also amended. Despite the same, the Regulation, yet an inappropriate legal-cum administrative arrangement failing in guarantying the rights of the tribal people, is still in vogue. In fact, due to the so-called Special Status of FATA, the areas lag behind the rest of the country so far as social, political and economic development is concerned. The jurisdiction of the higher courts i.e., High Court and Supreme Court, have not been extended and judicial powers still are centered in the office of Presiding Officer, defying justice and fair trial. This legal vacuum has drastically jeopardized peace and the socio-political development of the tribal belt. In these circumstances, the special status or status quo in FATA needs to be re-visited.

Introduction

The Frontier Crimes Regulation is a specific administrative and legal framework promulgated to control the erstwhile Tribal Areas, now the Federally Administered Tribal Areas (FATA), Pakistan. The main purpose has been maintenance of law and order, besides resolution of conflicts and disputes among the tribes or persons within a tribe. The Regulation was enacted and put in place at the disposal of the Deputy Commissioner/ Political Agent serving under the supervision of the Provincial Government through the Divisional Commissioners. In all the seven Political Agencies and six Frontier Regions (FRs), for all practical purposes, the Political Agents, and Deputy Commissioners (FRs)  have to act on the  advice and recommendations of the Council of Elders, the nominated tribal Jirga. However, the final decision lies with the presiding officer and not the Jirga. Numerous reports, various Commissions and Committees, recommended to successive governments, to bring in reforms in the Tribal administration and most importantly in the FCR. Some advocated strengthening of the current Political administration to maintain status quo. Still other recommended amendments in or abolition of the FCR altogether, considering it obsolete, outdated and irrelevant, and instead, urged extension of the Constitution and jurisdiction of national court system to FATA.   

British View of the Tribal Areas

Tribal Areas (TA) were created by the British as a special administrative construct. Since 1947, it enjoys the same status as provided in Articles 246 and 247 of the Constitution of the Islamic Republic of Pakistan, 1973. The offences scheduled in the FCR are processed through the relevant sections as provided in the Criminal Procedure Code, 1898. The punishment and sentences handed down to the culprits, offenders and violators of law, are based on the findings and recommendations given in the Riwaj with slight difference from one Agency or Frontier Region (FR) to another. Customs and traditions are given more preference, to keep the overall tribal paradigm intact. Collin Davies, referring to the particular ethnic, social and religious values of individual tribes, in the tribal agencies and the institution of Maliki and the powers of the Deputy Commissioners under the FCR, notes, “Here (Tribal Areas), the controlling power is a Council of Elders or tribal Maliks, known as the Jirga through which agency all negotiations between the tribesmen and the British Frontier officials are carried out. The more democratic a tribe, the larger the Jirga. For this reason, a full Jirga often means nothing less than a gathering of every adult man. The tribal council is usually composed of certain number of influential maliks and mullahs who attempt to enforce their decrees by meting out punishment in the form of outlawry, heavy fines or the destruction of properties”. The British Indian colony, in the interest of the British Empire, had left the tribal areas out of the main legal and administrative apparatus of the colony due to its inaccessibility and more so because of its worthlessness in the context of procuring raw material or generating revenue. It was a liability in this context but as a colonial outpost, it was heavily fortified for which scouts and levies were raised from the concerned tribes. However, post-1947, this construct should have been undone with the passing of colonialism and that a free homeland to the Muslims of the Sub-Continent of India has now been made available after a long struggle. No   matter   how apologetically put in, the Jirga, for all practical purposes, has become a mere tool in the hands of the Political Agent/Deputy Commissioner in their respective jurisdictions. More so, the verdict can be set aside, at will, by the presiding officer who is both the judge and the executioner.

FATA Reform History

The Frontier Crimes Regulation consists of sixty three sections and three schedules. To make it operative and extend its order, the Presiding Officers appoint the Council of Elders which recommends and suggests different sentences, punishment and penalties, to be given by the Political Agents (District Magistrate)/Deputy Commissioners (FRs) and Assistant Political Agent (Additional District Magistrate). Various Human Rights Groups and the civil society, beside legal experts and ex-judges, question the validity of FCR in today’s world. Sections 8,11,13,17, 18, 19, 20, 21, 22, 23, 27, 28, 29 of the FCR in particular, most importantly 40, 45, 51 and 55 are target of bitter and harsh criticism, as these provisions infringe on the rights of the tribal people denying them equal treatment in matters relating to civil rights and freedom, available to the citizens of Pakistan. Even after the introduction of different sets of reforms in the overall system of governance in FATA and more importantly, in the FCR, the problem still exists and the FCR, as a colonial administrative framework, under which the British controlled the Pukhtuns as well as the Baluch areas along the Durand Line (1893), is still at work. It is a special Regulation meant for special circumstances and its provisions of collective-territorial responsibility empower the Political Agent and the Deputy Commissioner to punish a whole tribe for an individual act. While discussing the spirit of reform, one is at a loss to comprehend the knee-jerk approach while introducing reforms in the FCR. Various Governments, on different occasions intervened to reform the Regulation but did not abolish it, leaving the tribesmen in a situation that alienated them further. The whole reforms process has been piecemeal and unsubstantial.

Some more important reform interventions include:

FATA Reforms Committee Report on The Introduction of the Local Government Plan 2000 in FATA.

This document is an extensive and keen study of the present system of governance in FATA and the way forward by bringing administrative and legal changes. The report challenges the status quo maintained since the colonial era. At the same time it is wary of the introduction of the so-called Thana-Patwar culture of the settled area to FATA given its ill repute. The work mainly focusses on:

• The Special Constitutional Status of the FATA
• The Political Administration.
• Introduction of Local Government Institutions in Tribal Areas.

a.    Establishing FATA Council & Secretariat
b.   Establishing the Agency and FRs Council
c.    Establishing Tehsil Council
d.   The Union Council
4.   The Levy/Khassadar System.
5.   The issue of Women Seats/Participation
6.   Reserve Seats
7.   The Vote of No-confidence
8.   Revenue System

The policy options considered by the FATA Reform Committee included:

• The Creation of an Independent Tribal Province
• Securing Representation in the NWFP Assembly
• Establishment of a FATA-Council
• Creation of Separate FATA Secretariat.

 

Report of the Consultation Proceedings on The Frontier Crimes Regulations (1901) HRCP & Tribal Reforms and Development Forum 2004.

The report focused on the following:

• Constitutionality of FATA, an integral part of Pakistan and repeal of any law repugnant to the constitution of Pakistan.
• Amending sections of FCR contravening fundamental human rights of the tribal people.
•  Re-naming FCR as FATA Regulation.
• Transfer of legislative and administrative powers of the President of Pakistan under article 247 of the Constitution regarding FATA to the Parliament.
• Amending article 247 of the Constitution to extend jurisdiction of the superior judiciary to FATA. 
• Implementing recommendations of the FATA Reforms Committee.
• Separating executive, judicial and administrative organs in FATA.
• Protecting rights of women and children.
• Patriarchal and discriminatory nature of FCR against women and children.
• FCR an impediment to social change in tribal areas.
• Abolition of collective punishment and collective territorial responsibility.
• Repealing/amending all obnoxious sections in the FCR, violating universal justice or human rights principles.

FATA Strengthening and Regionalization of Administration: Draft Report 2006.

This is a very compressive and detailed report on FATA in the context of the situation rising in the region as a result of 9/11. Its main thrust seems to maintain the status quo and avoid drastic changes in the overall system of governance in FATA, at least for the time being. The recommendations are, in fact, very practical aimed at strengthening the existing system, as stated below in the Terms of Reference:

• Strengthen and rationalize the existing system of administration of the Tribal Areas at the field and secretarial levels and its linkages with the Provincial and the Federal Governments;
• Create an appropriate institutional framework for undertaking an accelerated development program which should be comprehensive, well planned and implemented in a transparent manner; and
• Coordinate the resolution of outstanding issues relating to the administration of FATA between the Provincial Government and the Ministries/Divisions of the Federal Government.

    
Pakistan’s Tribal Areas: Appeasing the Militants Asia Report No 125-11 December 2006.

This document, while criticizing the continuation of the colonial system in FATA, recommends among other, representation in Provincial Assembly, extension of jurisdiction of national court system, implementation of Article 8 of the Constitution besides curbing militancy and creating employment opportunities in FATA.

FATA Regulation 2008 FCR-Amendments 2008.

This is a very authentic amendment package, recommending substantial changes, particularly in the Jirga constitution and revision of the powers of the Political Agent/Deputy Commissioner, most importantly concerning bail and sections related to territorial and collective responsibility. Beside amendment in Article 247 (7), it also recommends appointment of Judicial Magistrate/ Civil Judge at each Agency and establishment of FATA High Court and extension of jurisdiction of the Supreme Court of Pakistan.

Article, “Special Status of FATA: Illegal Becoming Licit.

It is a keen insight on the legality of the FCR and the volubility of the special status of FATA. The writer talks about the legal position of FATA and notes the following:

• FCR (Frontier Crimes Regulation) 1901.
• Frontier Corps Ordinance 1959.
• PPC (Pakistan Penal Code).
• Cr.PC (Criminal Procedure Code).
• Riwaj.
• Other Laws.
• Tiga-Cease Fire-Truce.

While giving the genesis of the FCR it states “The first regulation,  known as the Frontier Crimes Regulation was introduced in 1871, followed by the Punjab Frontier Crimes Regulation of 1887, and the final version, the  the Frontier Crimes Regulation was promulgated in 1901. Frontier Crimes Regulation of 1901 provides for the referral of civil and criminal cases to Jirgas, appointed by Deputy Commissioners who may recommend blockade of tribes as penalties, community fines, prohibition in certain cases of the erection of new villages, the removal of established villages, where necessary to maintain law and order, regulation of hujras and imprisonment to prevent crime”.
Regarding legal intervention to reform the FCR, it recommends amendments in Articles 1, 246, and 247 of the Constitution of Islamic Republic of Pakistan (1973) including separation of executive and judiciary; representative Jirga and “legislation for FATA should be done by the Provincial Assembly, on the subject related to the Province, while the legislation on the Federal subject, should be done by the Parliament. Peace must precede all development initiatives”.
The only reform interventions worth mentioning, before the recent one in 2011, are those recommended by the Justice (Retired) Mian Muhammad Ajmal Commission 2002, focusing:

• Administrative Reforms.
• Financial Reforms.
• Judicial Reforms.
• Reorganization of law Enforcement Agencies (LEAS).

The generally preferred demands of the tribesmen regarding amendments in the FCR may be summed up as under. These, however, are not the final demands.

• Dispute resolution in accordance with Islamic Fiqh or Tribal Riwaj.
• Right of appeal in the High Court (FATA) to all the tribal people.
• Establishing a separate High Court for FATA.
• Imposition of maximum sentence of six month imprisonment or fine of Rs.50,000/- under Sections 22, 34 and 36 of the FCR.
• Repeal of Section 40 of the FCR.
• Furnishing of one year surety bond by both warring parties to keep peace. 
• Arrest of immediate family members (father, son, brothers) of the culprits instead of Qoom (tribe) under the territorial collective responsibility. Exempting retired civil servants, traders and students from arrest and non-closure of livelihood/economic concerns such as buildings, shops, businesses, trucks, petrol pumps and factories of the tribal people.
• Establishment of District level jails in FATA to lessen the financial burden upon the relatives of the inmates.
• Limiting of fine up-to a maximum of Rs. 50000/- considering the level of economic activities, poverty and unemployment in FATA.
• Not awarding rigorous imprisonment to prisoners, for crimes not yet proved.

These suggestions are meaningful but not sufficient since they invite attention to certain important areas affecting the lives of the people of FATA. Ordinary citizen of FATA is not pleased with the present administrative arrangement, particularly the FCR. The latest reforms introduced in August 2011 provide for:

• Protection of women, children and citizen above 65, from arrest under  the collective responsibility, provided in Section 21 of the FCR.
• Timeline for disposal of cases.
• Power of the appellate authority to review orders.
• The establishment of FATA Tribunal replacing the FCR Tribunal
• Compensation for property
• Simplification of procedure as provided in the Cr.PC removing confusion
• It bringing the FCR in line with the Pakistan Penal Code (Act XLV of 1860) and the Code of Criminal Procedure, 1898 (Act No. V of 1898).

Under this reform package, the system dispensing justice in FATA now comprises the FATA Tribunal, the courts of Divisional Commissioner, Political Agent and Assistant Political Agent, supported by the Council of Elders/Jirga.
The FATA Tribunal was established, in pursuance to the announcement of the reforms of August 2011 which began functioning on February 20, 2012. It is chaired by a retired Grade- 21 civil servant with one member of Grade-20 and a lawyer eligible to become a High Court Judge as a member besides a public attorney and a registrar.
Before the introduction of the FATA Tribunal, the FCR Tribunal, comprising of Secretary Home and Secretary Law, used to hear appeals against order of Divisional Commissioner, who had entertained appeals against cases decided by the PA of the agency or DC of the FR. In some cases, remedy was available in the office of the Chief Secretary against the order of the FCR Tribunal. The new quasi legal appellate forum is, though not empowered to take up suo moto cases like that by a High Court or the Supreme Court, however has the power to take up habeas corpus petitions which provide relief to the tribesmen against arrest without reason.
The FATA Tribunal also visits prisons and the courts of Assistant Political Agents and Political Agents to monitor the implementation of the reforms introduced in the FCR. It is added, that under Section 11, the accused has to be presented before the APA within 24 hours. All civil cases are to be disposed off within 105 days and criminal cases in100 days.
An interesting aspect of the Amendment 2011, is the timeline for different levels of these forums to decide cases. In this context, the APA has to decide the case within 30 days, against whose orders an appeal can be moved before the PA within 30 days and before the Commissioner, within 90 days.  Similarly the FATA Tribunal is bound to decide a case in 90 days. The FATA Tribunal is an appellate authority notified by the Governor exercising his power under Section 55 of the FCR.

Reforms 2011

The reforms undoubtedly, are important but not sufficient as Human Right activists, civil society and legal fraternity have rejected them because there is no provision for an appeal in the High Court as well as in the Supreme Court of Pakistan, which deprive the tribesmen of their legal rights as provided in Part II of the Constitution of the Islamic Republic of Pakistan, regarding Fundamentals and Principles of Policy guaranteeing fundamental rights. The FATA Lawyer Forum (FLF) even opposed the composition of FATA Tribunal. To them the non-tribal beaurocratic Appellate Forum is a continuation of barbarous practice, namely the FCR, hence, not competent to provide legal relief to the tribesmen. The Frontier Crimes Regulation operative in FATA heavily relies, on the powers of the Political Agent/Deputy Commissioner in case of FR and the Maliks, to administer and dispense legal matters of Agency through a nominated Jirga or Council of Elders. Given its heavy administrative and judical mandate, the FCR is held to be unfair, unjust and even draconian, more so, when the sections 21 and 40 regarding collective responsibility are taken into account.

FATA Tribunal

In pursuance to the reforms announced by the Government in August 2011, the FATA Secretariat moved a summery to the Governor for appointment of Chairman and members of FATA Tribunal in light of the Section 55 (2) and (3) of the Amended FCR notified on 27th August 2011. Consequently, exercising the power under Section 55 of FCR (Amended) Regulation 2011, the following were notified.
Mr. Shah Wali Khan                               Chairman
Mr. Pir Fida Muhammad                         Member   
Mr. Akbar Khan                                     Member

The terms, conditions, pay and allowances are allowed at par with Finance Department letter No. SO (B&A) FD/FS/3-60/2011dated 1-12-2011. The Chairman has to draw a lump sum monthly salary of Rs. 200,000 while the two members, Rs. 150,000 each with house rent, POL, and other usual allowances of a civil servant.
The following are the salient features of the FCR (FATA Tribunal) Rules 2012.

• The Tribunal will be stationed at Peshawar. Presently it occupies a rented building, i.e., House No. 140, Street No.1, New Shami Road, Peshawar.
• No court fee has to be paid by the applicant. However, for restoration after an ex-parte decision, cost shall be borne by the respondent.
• The Registrar of FATA Tribunal maintains five different kinds of registers for record.
• The daily ‘Cause List’ during a visit to the Tribunal contained thirteen cases, fixed for hearing. Many litigants, along with their counsels, were present.

Between February 20 2012 and August 2013, the FATA Tribunal decided 441 cases, both civil and criminal, which is an encouraging sign indeed.  It is added that before the establishment of FATA Tribunal, which began functioning on February 20, 2012, the pendency of old cases before the defunct FCR Tribunal has been 216. Since then, additional 315 cases were instituted making the total to 531, out of which 441 cases were disposed during the month of August 2013 alone. This demonstrates the level of interest of the people and the efficiency of the FATA Tribunal.

Pendency of old cases before 20/2/2012	216
Fresh Institutions from 20/2/2012 to 31/08/2013	315
Total cases for Disposal	31
Disposal during the period 20/2/2012 to 31/08/2013	441
Current pendency	90

Source: Statement provided by the FATA Tribunal

Conclusion

The recent reforms of August 2011seem a step forward, keeping in view the reforms intervention since 1947. The focus is to simplify the procedure, provide opportunity for review and revision, and to some extent, arrest the powers of the Political Agent/Deputy Commissioner FR with respect to collective responsibility and collective punishment. The new arrangement also places an inspection and monitoring mechanism at the disposal of FATA Tribunal to check malpractices and excesses on ground. If the initial decision of providing staff of 156 is implemented, then, as conceived, there will be a law officer posted in the office of every Political Agent and a Deputy Attorney to represent the government in each Commissionoriate. However, these reforms, in no way, treat Pakistani tribesmen at par with citizens living in the settled districts of the country. The FCR, with all its array of amendments, is a discriminatory Regulation, denying justice and fair trial to the inhabitants of FATA. Much has to be done, to abolish the FCR altogether, to give rights of appeal to the tribesmen in both, High Court and the Supreme Court, besides enforcing separation of Executive from the judiciary. Only this way people of FATA may be brought into the mainstream. FATA reforms history is knee-jerk at its best. All efforts, invariably, led to denial of rights and genuine empowerment of tribal people. The reforms history is not reflective of the will of the state to mainstream FATA and its people. The way forward can be amending the Constitution of Pakistan, particularly Articles 246 and 247, to abolish the special status of FATA. To ensure justice and fair trial extending the jurisdiction of the Superior courts is obligatory. Inhabitants of tribal areas have to be granted right to appeal before the High Court and Supreme Court of Pakistan. For this purpose, the creation of FATA High Court can be an option. Currently, executive powers of the Political Agent/ Deputy Commissioner (F.R) need to be separated from his/her Judicial powers. Reforms in the Jirga, or Council of Elders may be also introduced and the powers of Political Agent/Deputy Commissioner to nominate and constitute Jirga may be abolished to make it more representative. Legislation for FATA may either happen in the Provincial Assembly of Khyber Pakhtunkhwa or National Assembly and not through executive orders, issued by the President through the Governor, as given in the Constitution of Pakistan. It is imperative that people of FATA are brought into the mainstream social and development paradigm. This will ensure peace, which is a prerequisite for development. Though those powerful having stakes in status quo, prefer existing arrangement in the name of tribal autonomy and preservation of its culture, yet, various sections of society and rights groups within FATA, openly question the validity of the Frontier Crimes Regulation (FCR) and the special status of FATA.
    
Bibliography

Ajmal, Mian Muhammad., Proposed amendments in Frontier Crimes Regulation 1901, by FCR Reforms Committee.
Bangash, Mumtaz (ed.)., FATA Reforms Committee Report on the Introduction of the Local Government Plan 2000 in FATA.
Chaudhry, G.M., Summary of 2011 Amendments to the Frontier Crimes Regulation. www.fatareforms.org/summary-of-2011-amendments-to-the-frontier-cri...accessed 27-11-2013.
Davies, Colin., [1975]: The Problem of The North-West Frontier, 1890- 1908 With a Survey of Policy Since 1849. Curzon Press, London.
Federally Administered Tribal Areas (Strengthening and Regionalization of Administration) Draft Report, [2006].
HRCP & Tribal Reforms and Development Forum., [2004]: Report of the Consultation Proceedings on The Frontier Crimes Regulation 1901, HRCP & Tribal reforms and Development Forum.
Khan, Sarfraz., [2008]: Special Status of FATA: Illegal Becoming Licit. Central Asia Journal No.63., Area Study Centre, University of Peshawar, Peshawar.
Mohmand, Muhammad Iqbal Khan., F.A.T.A Regulation 2008 F.CR-Amendments 2008.
Notification No. FS/L&O/40FCR/433-49, dated 26-01-2012.
Notification FCR (FATA Tribunal) Rules 2012 FS/L&O/40-FCR.
Sahibzada, Imtiaz Ahmad., [2006]: FATA Strengthening and Regionalization of Administration Draft Report.
Statement Showing Pendency/Institution/Disposal of Civil/Criminal Cases before FATA Tribunal from 20-02-2012 to 31-08-2013.
Statement Showing Pendency/Institution/Disposal of Civil/Criminal Cases by FATA Tribunal during the month of August 2013.
Swinson, Arthur., [1967]: The North-West Frontier, People and Events, 1839-1947. Frederik            A. Praeger, Publishers: New York.
The Tribal Times 31 October 2013. The tribaltimes.com accessed 31-10-2013.
The Federally Administered Tribal Areas Local Government Regulation, 2002.