At its core, the Frontier Crimes Regulation (FCR) — the set of rules governing the Federally Administered Tribal Areas (Fata) — is a hybrid judicial system the origin of which lies in the colonial master’s desire to maintain control over the “wild tribal landscape” and adjacent areas. The reduction of Fata and its inhabitants to “wild tribals” at the hand of the colonisers and even the rulers preceding them has still not changed. Fata is still seen as a “security space” which needs something more than a legal system to be governed.

Pakhtun tribal areas have been always categorised and treated as buffer zone by the Pakistani state, which continued with colonial policies to govern Fata. This approach worked successfully till 1979, but then the whole scenario in Fata changed. The old colonial administrative system of control and the state’s buffer-centric policy created a vacuum for disorder. This self-serving governance approach deprived large segments of the population from social uplift and economic empowerment, and thus created a vacuum for non-state actors and militarisation.

Times have changed but the colonial violence of the Frontier Crimes Regulation hasn’t

But in its everyday use today, this pluralistic judicial system remains an oppressive tool, offering little or no space for human rights to flourish. In pursuit of justice against one, retribution can and is often sought against many, none of whom have anything to do with the original sin. While protecting the rights of its residents is widely accepted as the state’s responsibility, interestingly in Fata, through the mechanism of the FCR, it is the tribal people who look after the border and protect the state.

There has been more discussion on how to eliminate the ‘evil’ within Fata rather than the cause of evil that surrounds it: the FCR.

The Raj’s desire for order

The FCR became part of the British apparatus in the Pakhtun border areas of the British Raj as early as 1901, imposed under the pretext of maintenance of law and order. Its basic aim was controlling and registering crimes on government roads, offices or other government installations and connecting passes.

Through the FCR, the British political agents administered 27pc of Pakhtun border areas, called the Illaqa-i-Sarkar. The remaining 73pc area, Illaqa-i-Ghair, was administered through customary tribal law, riwaj, with the help of tribal elders (jirga).

Through the FCR, the British political agents administered 27pc of Pakhtun border areas, called the Illaqa-i-Sarkar. The remaining 73pc area, Illaqa-i-Ghair, was administered through customary tribal law, riwaj, with the help of tribal elders (jirga).

Over the ages, the FCR morphed into an amalgam of riwaj and the British legal system. Its evolution has seen political brinksmanship, sometimes as agreements, and at others, through the state’s desire to tackle terrorism or growing radicalisation. Till date, the FCR remains a judicial system in permanent evolution.

The evolution of Fata as a space and the FCR reveals markers of willing negligence and conscious marginalisation through the ages. For the British, the notion of Fata as a territory was incongruous; the lines of division between the more modernised settled areas and the ‘barbaric’ tribal areas was the product of a flawed thought to control a pluralistic justice system. However, it failed to prevent violations of law and order back then and has failed even now.

The distance between the people and their administrative heads is symbolic in its own way. As critics maintain, there is a difference between the state-controlled Fata and Tata, the Taliban Administered Troubled Areas.

After the annexation of the six frontier regions in 1848, regular procedural as well as legal laws were enacted in the new territories of the British Raj in view of the lesser conviction rates there. A special law was thus introduced in 1871 for the Pakhtun region. The same regulations were re-enacted with minor modification in 1873 and 1876. However, newer clauses were inserted from time to time for more control over the ‘wild space’ ultimately resulting in the FCR 1901. The pattern has not ended and continues till date.

Pakistan’s tribal soldiers

Soon after the division of the subcontinent, Pakistan’s hold over the Pakhtun border areas became a bone of contention between Afghanistan and Pakistan. Owing to its geographical location and specific circumstances, successive civilian and military governments only brought about certain cosmetic changes in the FCR, but never tried to extend other administrative systems — those being debated and implemented elsewhere in the country — to Fata.

Instead, agreements were reached with tribal elders (maliks), whereby the same colonial system albeit with a few changes would be enforced in Fata. This appeasement of specific stakeholders through the undemocratic sarkari jirga and governing tribal people through the draconian mechanism of the FCR which created an inadequate and ill-structured administrative and judicial system. The Pakistani state would meanwhile strive for the control of border region with the perpetuation of the old colonial policies of controlling and suppressing tribal areas.

Momad Ghat, Bajaur Agency: Junction on the road that leads to the Nawa Pass and Kunar province in Afghanistan

The marginalisation of the tribal areas since 1947 can also be read through a history of the region’s names and their acronyms. In the constitution of 1956, tribal areas were referred to as “Special Areas”. In 1962, the legal administrative system became the Centrally Administered Tribal Areas (CATA) while in 1973, the term ‘Centrally’ was substituted for ‘Federally’ — as it stands today. The governance system remains the same.

Tyranny of the FCR

Justice in tribal areas is dispensed through the insufficient traditional mechanism of the jirga and the colonial tool of oppression, the FCR.

The jirga has traditionally been the preserve of the tribal elders. On the other hand, the FCR has historically reinvented itself, recreating its principles of tyranny to even supersede the Constitution of 1973 as the law of the tribal lands. In an irony of sorts, as per Article 247 (7) of the 1973 Constitution, the Pakistani judiciary cannot exercise any jurisdiction in relation to a tribal area, nor can members of the elected Pakistani parliament frame any laws that apply in Fata. Only the president can wield any power over Fata; because Fata enjoys special status, the president can pass an ordinance and have it implemented through his governor in Khyber Pakhtunkhwa.

The saddening irony of our times lies in understanding that not a single clause of the much-hyped legislation to counter terrorism applies to Fata.

In fact, several provisions of the FCR conflict with the basic human rights provisions of the 1973 Constitution, but they remain part of the system of retribution. Consider FCR’s Chapter IV, which deals with penalties imposed on people charged with different crimes. Sections 21 to 27 of the FCR address the seizure and confiscation of property, as well as the arrest or detention of an individual without due process. The accused is barred from entering settled districts if charged with any crime against the state. Then there is the imposition of fines on an entire community for crimes committed by individuals.

Sections 40 and 41 of FCR’s Chapter V guarantee peace and provide clauses for maintaining good behaviour. According to the law, it is obligatory to execute a bond. If any person or tribe are alleged to be violating peace or have failed to execute a bond, the accused or their tribe can be imprisoned for up to three years under Sections 43, 44 without any right of appeal in any civil or criminal court (Section 48). Clause 40 of the FCR hands authority to the state to jail an entire tribe for an offence committed by an individual in their respective territory, regardless of who he or she might be.

Distance governance

Far away from Fata, the Fata Secretariat office is situated in Peshawar, the seat of the Khyber Pakhtunkhwa provincial government, constructed in a fortified building — for safety and administrative reasons, we are told — where officials and bureaucrats are hard to reach.

Then there are the seven political agents, or the administrative heads, of the agency/quasi-district. Appointed by the Khyber Pakhtunkhwa governor to exercise administrative power, the political agent is the authority where the executive and the judiciary merge. Additionally, he oversees decisions made by jirgas, is responsible for the development of the area and exercises control over economic routes.

But not all political agents are active or even live inside their agencies. The political agent of Khyber Agency resides in Peshawar, the one for Orakzai Agency lives in Hangu, while the political compound of South Waziristan is in Tank. The distance between the people and their administrative heads is symbolic in its own way. As critics maintain, there is a difference between the state-controlled Fata and ‘Tata’, the ‘Taliban Administered Troubled Areas’.

Recently, several initiatives were undertaken such as the FCR reforms committee which was formed in 2007-8 under the supervision of retired justice Ajmal Mian of the Supreme Court of Pakistan. Several amendments suggested by the committee were introduced in the FCR on Aug 15, 2011. Under these reforms, the Fata tribunal’s powers were made parallel to that of a high court; the collective responsibility clause was amended, thus exempting children, elderly and tribes from inhumane punishment.

But then again, these amendments are of no use as the federal government introduced the Regulation of 2011 (The Actions in Aid of Civil Power) for PATA and Fata, giving sweeping powers to the military.

With the launch of the military operation in North Waziristan, the need to include Fata in ‘mainstream’ Pakistan is a requirement that needs to be fulfilled if the sense of deprivation within is to be reduced. The tribal areas have witnessed several military operations since 2004 — supported by masses from across the country. In much the same way the country has supported the military operation, it is about time they support reforms within Fata. The abolition of the FCR is the first step; and disproportionate punishment needs to end.

Published in Dawn, Sunday Magazine, July 6th, 2014