Tribal Areas: What will FCR be Replaced with?

Safdar Sial & Aqeel Yousufzai

The newly elected Prime Minister has announced to abolish the Frontier Crimes Regulation (FCR) system, in vogue in Federally Administered tribal Areas since 1901. This has initiated a new dialogue in the country. Although most of the political parties, tribal people and experts see the FCR as a mess of black laws where fundamental rights of the tribal people have been violated over decades yet there have surfaced up some reservations on its abolition or replacement as no one has yet seen any substitute. What will FCR be replaced with? Has the parliament any constitutional or legislative powers to do it? Will president facilitate this move? And will the US let political forces hold control of FATA instead of the president? Will the Maliks, civil and military bureaucracy let it happen? Will tribesmen be ready to accept any police or patwari system instead of their traditional jirga system? What if Taliban and religious extremist factions tried to fill legal void with Shariah system as had resulted in Malakand in case of PATA regulations?

The bottom line concern after abolition of the FCR will be how to deal with Taliban and Islamic militants who will ultimately demand enforcement of Shariah to fill the legal void. The religious parties will also stand beside them in that case. The National Assembly and the Senate members from tribal areas have declared in an informal statement on April 14 that the FCR, if abolished, should be replaced with Shariah system.[1]

A Retrospective Study

The British introduced a set of laws in 1901 called Frontier Crime Regulations to control the frontier province and Balochistan. They had brought most of the sub continent, from Delhi to Attock, under their control since 1900. However they faced strong resistance when they tried to bring NWFP and Balochistan under their dominance. Faqir Epi, Ajab Khan Afridi and Haji Sahib Taranga led the resistance movement in tribal areas.[2] The purpose of enforcement of FCR was to subjugate the tribal areas and Balochistan by any means, fair or unfair.

Even before establishment of Pakistan efforts were made to introduce certain reforms in tribal areas of Pakistan. During 1919, 1920 and 1935, committees were formed for this purpose but repots of these committees could not create consensus on most of issues.[3] 

The FCR was suspended in NWFP in 1937 by the then chief minister, Dr Khan Sahib; however it was abolished in urban areas of NWFP and Balochistan in 1956. But the people of Federally Administered Tribal Areas (FATA) remained in grip of the FCR.

Articles 246 and 247 in 1973 Constitution introduced two special chapters on FATA which explained the administrative rules and laws for the area. These two articles of the Constitution deal with the tribal areas – both the federally administered as well as the provincially administered tribal areas. The Constitution also states that the parliament cannot legislate for the tribal regions unless the president so directs. The irony is that legislators from FATA can take part in legislation for the whole country but not for their own regions. The power to repeal or introduce any regulation in the tribal regions thus rests with the president.[4]

During Benazir Bhutto regime a special committee was formed to report on FCR abolition, and the tribal people for the first time had appreciated its recommendations.[5]  The tribal people were granted the right to vote in 1997 under the orders of former president Farooq Leghari, and the first elections in FATA were held in the same year. The interest of the tribal people in the election remained marvelous. There were 1.6 million registered voters in FATA in 1993 and there were 298 contestants for 8 National Assembly seats.[6]

During Musharraf regime, another committee headed by Justice (Retd) Ajmal Mian undertook the tedious task to recommend some reforms for tribal areas, especially in FCR, in 2002. The commission worked out some reform recommendations that were also buried in the files.[7]

To Abolish or Reform FCR?

Opinion is divided over the FCR and system of administration in FATA, but most analysts agree that FCR should be retained with some amendments, particularly by making it appealable before a special bench of the High Court.[8] However there are some who advocate the abolition of the FCR.

On the issue of bringing about a change in administrative and judicial system of FATA, we have two schools of thoughts. The one called a semi Islamic–cum traditional school of thought, proposes to introduce a semi Islamic cum–traditional social and legal system, most likely on the pattern of Malakand division of NWFP. This school stands for minor changes in FCR and wants its replacement by Islamic laws, led by religious leaders Qazi Hussain Ahmad and Maulana Fazl ur-Rehman along with some of their like minded tribesmen. The other school of thought, which is called progressive and moderate, stands for a complete social change and is of the view that, tribal children want to adopt civilized life thereby ready to accept life under civilized laws and social set up, so that they may be able to go side by side contributing to modern civilization along with other communities both on national and international arena. They need some major reforms not only in FCR but also in entire administrative, judicial and political system.[9]

Abolition of the FCR would need its substitute instantly but neither the federal nor the provincial government has worked on it. Some experts on tribal areas are also advocating that abolishing the FCR can create a legal vacuum and a Malakand-like situation can surface up when following the Supreme Court’s verdict in 1995 that had declared PATA regulation as ultra vires of the Constitution, had led the region to an armed rebellion by Tehreek-e-Nifaz-i-Shariat Muhammadi calling for the enforcement of Shariah to replace the defunct PATA regulation – a problem that continues to haunt the government in Swat.[10] Meanwhile some term the abolition against local tribal traditions.

Out of 12 National Assembly members from FATA, eight are in favour of reforming the FCR. Tribal elders and political activists belonging to the PPP, including three recently elected MNAs, forwarded two basic reforms in FCR and judicial system; abolishing the collective responsibility clause from FCR and right to repeal before higher courts.[11] The ANP has developed a complete set of reforms for FATA including constitutional, legal, administrative, political and economic measures.[12] Regarding FCR it states: “FATA is groaning under the colonial inhuman laws in the shape of Frontier Crimes Regulations. It is high time that this notorious law is abolished and replaced by regular laws of the land with some minor adjustments according to the requirements of the socio-cultural conditions of the area. Writ of the higher judiciary of the country should also be extended to FATA so that a proper judicial system is put in place and discrimination against the people of the area comes to an end. The myth of “Peculiarity” of FATA should not hinder the process of reform as the Provincially Administrative Tribal Areas (PATA) is being governed by the province in spite of its different historical development. It also merits mentioning here that the same tribes are being administered by regular provincial administration of Afghanistan on the other side of the line.”[13] 

The ANP provincial head and former chairman HRCP, Afrasiab Khattak, says there are needed about 80 percent changes in FCR.[14] He stresses upon the need to update the entire tribal system by extension of Political Parties Act to FATA. He further argues that many tribal people, living in Peshawar, Bannu, Hangu, Dir and other parts of the frontier province, are following laws of the country. So “there should be no hindrance in giving tribal people representation in NWFP Assembly.”[15]  

FATA Grand Alliance, an effective platform comprising of an educated class of the tribal people, also advocates reforms terming FCR a judicial and administrative exploitation of the tribal people. It suggests providing tribal people with a representative tribal council at agency level, which should be independent in its decisions and legislation. A PPP-backed MNA from Bajaur Agency, Akhwanzada Chattan, says it is fundamental right of the tribal people that the FCR is either demolished or reformed. The PPP Khyber Agency head, Waris Khan, however, opposes the abolition of FCR viewing the decision against traditions of the areas.[16] 

 Pir Noor ul-Haq Qadri, an MANA-elect from FATA, supports reforms in FCR but says tribal people and their representatives should be taken into confidence before taking any such decision. National Assembly member from Orakzai Agency, Munir Orakzai, argues that abolition of FCR will damage the jirga system where tribal people will be forced to pursue other judicial systems instead of their centuries-old jirga institution. However the recently elected president of Peshawar High Court Bar, Abdul Latif Afridi, opines that only official jirga will see its fate after FCR abolition and not the traditional ‘Olsi Jirga’.[17] 

The Jamat-e-Islami (JI) says that keeping in view their traditions, the people of FATA wanted to amend the FCR through an elected FATA council. The JI leader, Prof Ibrahim, said at a function at Millat Public School in Ghazi Beg, Mohmand Agency, on April 9 that sections 8, 11 and 40 of the FCR were “horrendous and un-Islamic” and political agents had “extreme” powers under the FCR, as they could for example order the demolition of a house without a court order and could send a tribesman to jail for an indefinite period. Prof Ibrahim said the tribal people were sick and tired of the Pakistani police and court system and wanted the enforcement of Shariah law in the Tribal Areas. He, however, revealed that the government’s decision to abolish the FCR without announcing an alternative legal system in the Federally Administered Tribal Areas (FATA) had created many doubts.[18]

Meanwhile JUI-F has also expressed its reservations on abolition of the FCR. Maulana Fazl ur-Rehman says he too was not consulted and warned that any such move would entail grave implications for Pakistan.[19] However it remains an important fact that announcement of  the abolition of the Frontier Crimes Regulation without actually knowing what the 1901 British law is going to be replaced with and more importantly what would be its implications has confused the tribal people. But on one thing they are unanimous that there should be reforms in the FCR and in overall tribal administrative, judicial and political system.

Some Dreaded Sections of FCR

Some of the draconian provisions in the FCR include seizure/ confiscation of property and arrest/detention of an individual without due process, debarring a person in tribal areas from entering the settled districts (section 21), removing a person from his residence/locality (section 36), fines on community for crimes committed by individuals (sections 22, 23), prohibition on erecting village, walled enclosure and their demolition (sections 31-33)[20], demolition  of a house or building on suspicion of being used or populated by thieves or dacoits (section 34), fines on relatives of a criminal and compensation of fines by selling his property (section 56) and no right to go to courts against political agent’s decision (section 60) etc.[21]  

The most dreaded section is Frontier Crimes Regulation 40, a preventive law pertaining to good conduct that has been grossly misused by the political administration to keep people under detention for longer periods of time than the stipulated three years for peace-keeping it provides for on non-acceptance of sureties by the accused. The other most controversial sections of the law pertain to collective responsibility and territorial responsibility. Section 21 (Collective Responsibility) empowers the administration to direct the confiscation of all or any member of a tribe and all or any property belonging to them or anyone of them, if the tribe, or any section or member of such a tribe, are found acting in a hostile manner towards the government or towards people in the country. Section 22 (territorial responsibility) empowers the administration to impose a fine on an entire village if there appear to be good reasons to believe that the inhabitants of the village have connived with, or abetted in the commission of an offence or failed to render assistance in their power to discover the offender or to effect their arrest.[22]

The FCR has frequently come under review by the superior judiciary for repugnancy to fundamental rights. In a series of judgments the superior courts have declared various provisions of the law void as being inconsistent with the fundamental rights.[23] Justice A. R. Cornelius in the case of Sumunder v. State (PLD 1954 FC 228) referred to FCR proceedings as “obnoxious” to all recognized modern principles governing the dispensation of justice. He therefore concluded that in the circumstances, it was impossible to preserve public confidence in the justness of the decision made under the FCR. Many FCR sections are contrary to article 8 of the Constitution, which provides that any law or customs or usages having the force of law, in so far as it is inconsistent with the fundamental rights shall be void.[24] 

Legal and Judicial Reforms

• FCR should be comprehensively amended by taking out all draconian, arbitrary and anti-human provisions from it to provide a civilized law to FATA. To begin with some of the dreaded provisions in FCR particularly section 40 should be abolished immediately and may be replaced with appropriate ordinary law to prevent gap/void in legislation.

• Institutions should be developed and infrastructure put in place i.e. security forces, capable of maintaining peace as well as investigating offenses, would need to be raised. Similarly courts and prisons need to be established and their staff trained.

• The accumulation of executive and judicial functions in single authority should be done away with. The judicial functions at the trial, appeal and revision stages should be exercised by authorities working under the higher courts.

• As a measure of transition the district system established under High Court can utilize local jirgas as jury. This will provide the new judicial system with a semblance of relationship with local customs and traditions.

• The High Court can be made the court of ultimate appeal in cases under FCR. The jirga members should not be selected by the executive, and their findings, on facts of the case, be made binding, except when it is against law, equity or public policy. This transition should aim at ultimately putting in place the normal system of administration of justice in FATA.

• There can be, nonetheless, appointed an Agency Judge in every agency which can also work as an Appellant Court.

• The collective, tribal or regional responsibly should be restricted to a family. Family means the persons who, according to tribal traditions, are partners in profit and loss and in good or bad deeds. The arrest of whole tribe should be ended.

• The demolition of houses and buildings should not be allowed. However after a person is convicted, it should be left to discretion of his tribe either they demolish his house or not.

• According to tribal customs if the parties want their case to be decided according to Shariah, the Tehsil or Agency judge can include some religious scholars in the jirga.

• It requires very delicate handling. Changes in the FCR are the need of the hour. But let’s not create a Malakand-like situation in Fata where the state authority has already been challenged by different militant groups.

Administrative and Political Reforms

• The extension of the local government system to FATA should not be delayed anymore.[25] The proposed agency council, which has yet to be operational, falls far short of the very concept of local government since it is neither elected directly through a proper election system nor does it enjoy the powers of a district council. Moreover it totally excludes the participation of women from the entire process.

• The political agents who run these political agencies are in no way accountable to proposed agency councils. They should be made accountable in the suggested local government system. Nonetheless, the afore-mentioned system is quite close to local traditions and people of the area should have no problem in embracing it.

• FATA’s representation in the NWFP Assembly can be another major step towards the area’s integration in the national mainstream. FATA had representation in the provincial assembly of the former West Pakistan that used to sit in Lahore in 1950s but has been excluded from the provincial assembly that sits in Peshawar. By joining the provincial legislature the tribal people would advance towards adopting the culture of taxation since they would have ample representation.

• Extension of Political Parties Order 2002 to FATA will be another milestone for the people of the area who would gradually imbibe modern democratic political culture. Presently the religious political parties have a monopoly over the politics of FATA.

• FATA should not be a no go area for media, political parties, humanitarian organizations and right groups.

• The present duality of the administrative system in FATA has a crippling effect. The federal government administers FATA from above but at the same time almost all the provincial ministers are also functioning in the area. This administrative anomaly should be addressed to improve law and order situation in tribal areas.

• The total exclusion of women from the political process is also unacceptable. In the local bodies elections and general elections women are not allowed by jirgas to either become a candidate or vote for a candidate. The political representation of the women should be made secure.

To deal with the phenomena of bringing reforms in the tribal areas, it is quite timely, to set up a national commission on tribal affaires under the president or NWFP chief minister, to work and chalk out a complete plan for a reform package in the federally administrative tribal areas and to merge them with Pakistani society in a peaceful way. So far as the composition of this national commission on tribal affairs, should comprise of, professors, researchers, sociologists. Military strategists, legal experts, journalists, retired civil and military experts on tribal affaires, students, Maliks, politicians, both on national and tribal level. Beside its composition and task, this commission would need a fair time to produce a document to be enforced as a new social contract, which will bring about a complete social change to the tribal society.  Now, the ball is in the government court and every one hopeful and waiting that it will announce reconciliatory moves or confidence building measures in FATA, which will lead us to a path of tribal reconciliation and social change, rather to rely on a small parliamentary committee which, practically has got no role under the constitution to play in the affairs of these areas.