DETENTION of two women along with five children, one of whom only one-and-a-half-year-old, under the colonial era law of the Frontier Crimes Regulation (FCR) has surfaced, raising concern about the misuse of the law by the tribal administration. The women and children have allegedly been detained for the last over two months at the Peshawar Central Prison on the orders of the assistant political agent (APA) of Bara, Khyber Agency.

One of the women is identified as Ms Aasia wife of Shah Wali, who has been detained along with her three children -- Hamza (about one-and-a-half-year-old), Miss Aleena (five years) and Abdur Rehman (10 years). The other female is Ms Gulalai wife of Niaz Muhammad. Her two daughters -- Saima (two-and-a-half years of age) and Najroba (four years) -- have also been detained with her.

Their counsel, Shan Asghar, said that they had been sent to prison on Sept 17 on the order of the APA. He said that they were charged under section 11 of the FCR (sending a case for trial to council of elders) and section 121-A Pakistan Penal Code (conspiracy to wage war against Pakistan).

The detainees are Afghan refugees and have presently been residing in Bara tehsil of Khyber Agency. Mr Asghar said that officials of the administration along with the khasadar force had raided the residences of the detainees. Apparently, the raiding team was searching for the male family members and when they could not be found, the women and children were taken into custody.

Section 21 empowers the political authority to seize all or any member of a hostile or unfriendly tribe and also seize all or any property belonging to them. However, for that purpose the administration is required to seek prior approval of the concerned commissioner.

Two separate writ petitions, filed on behalf of the detainees, have been pending before the Peshawar High Court. The petitioners have also alleged that the raiding team had taken away some jewellery and cash from their residences and had not returned it back.

A two-member bench comprising Chief Justice Ejaz Afzal Khan and Justice Mazhar Alam Miankhel heard preliminary arguments in the case on Nov 16. The bench has now put on notice two respondents in the case -- the Khyber Agency’s political agent and the APA, Bara -- and also sought the relevant record.

This is not the first time when women have been imprisoned under the FCR. In 2004 over 30 women and children belonging to the family of a notorious outlaw, Arsal Khan, were taken into custody under the FCR after the administration failed to nab the outlaw. While different human rights organisations had raised voice for their release, those detainees had remained imprisoned for over a year.

About that detention the administration had claimed that they were in protective custody as the inhabitants of Lakki Marwat Frontier Region (FR) had turned violent towards them due to kidnapping of several persons by Arsal. It was added that they were imprisoned so that they could not be harmed by the people of that area.

Ever since conflicts have started in different tribal regions the misuse of FCR has been on the rise by the respective administrations. Several instances of detaining juveniles under this regulation have been reported. During last couple of months the high court has tackled several cases of juveniles detained under the FCR.

There are also instances of invoking the infamous section 21 of the FCR against entire tribes. The most interesting order was passed by the political agent of South Waziristan Agency, in his capacity as district magistrate, on June 14, 2009, ordered the detention all members of the Mehsud Tribe.

Following that order dozens of Mehsud tribesmen were arrested and sent to different prison in the province. Most of the male members of the tribe had gone into hiding so as to avoid arrest.

The prime minister announced repealing of the FCR soon after taking vote of confidence in 2008. Similarly, the president in Aug 2009 announced making drastic changes in the FCR so as to make the law human friendly. However, both those commitments have not been fulfilled so far.

It is evident to all that in sheer disregard to the Article 175 of the Constitution, guaranteeing separation of judiciary from the executive, the executive officers have been acting as judges in tribal areas under the FCR. Furthermore, the appellate forum of commissioner under the FCR is also presided over by an executive officer. The revisional forum is that of a tribunal comprising the home and law secretaries of the province. These executive officers are part and parcel of the same system and have been sharing the same mindset.

While the high court continues to provide relief to scores of persons detained under the FCR, more and more petitions are being filed in the PHC, which also exposes the massive misuse of the notorious regulation.