IT is anachronistic that in Fata, millions of people are governed through a legal and administrative order that was evolved by British colonialists in the 19th century to strengthen and stabilise their hold over the region.

This primitive legal system, the Frontier Crimes Regulation (FCR), is anchored in the principle of collective responsibility and the prominence of the political agent who holds executive, judicial as well as law-enforcement powers. By retaining the FCR, Pakistan has chosen to treat the residents of Fata as separate from and unequal to the rest of the citizenry.

The FCR includes laws that not only reflect a primitive system of the administration of justice but also violate basic human rights. Particularly oppressive in this regard is Section 21 relating to collective responsibility and the blockading of an entire tribe.

Sub-section A of the clause authorises the “seizure, wherever they may be found, of all or any of the members of such tribe, and of all and any property belonging to them or any of them” for an offence committed by one or more members of a tribe.

The application of collective punishment thus disregards individual culpability and identifies the innocent with the guilty.

The genesis of the notion of collective responsibility as a means of governance in Fata can be traced to the early years of the British rule when Colonel Coke, who was in charge of the Afridis of the Kohat Pass, prescribed the procedure to be followed in case of trouble: “to close the pass at once, seize all Afridis to be found in [the] Peshawar and Kohat districts, sell their cattle, stop all allowances and, when the matter is settled, cause all losses to be made good, not from the confiscated allowances but from the allowances made from the time they may commence”.

Herbert Edwards, after becoming the commissioner of Peshawar in 1853, perfected the blockade technique by making it possible to bar an entire tribal group from entering the Peshawar market in case of any infractions. Thus, the notion of collective responsibility that had been envisioned by Col Coke became an important part of the FCR and remained the British rulers’ keystone until 1947.

The government of Pakistan inherited and maintained this, and while the clause relating to collective responsibility has recently been amended, the amendments do not appreciably change the essence of the earlier provision.

In drafting the FCR, it is said that reliance was placed on tribal customs and traditions such as the jirga and the idea of collective responsibility. Any such resemblance, though, is in name only as the FCR twists and distorts these institutions and empowers the executive authority to manipulate the jirga and its decisions and to award collective punishments, protect favourites and secure convictions.

The FCR has kept the tribes stuck in mediaeval times. The tribal areas have undergone great socio-economic changes since the enactment of the FCR but no corresponding changes in the legal and administrative order have been introduced. In the absence of state governance, the tribes have to rely on outdated concepts for maintaining some kind of societal order.

Though primitive and out of tune with the times, the tribal system tends to limit violence and restore balance. Each member of a tribal group knows that if he harms or kills someone, he creates a conflict with the victim’s co-liable group, which might result in blood revenge being extracted from any member of his group.

Disputes can sometimes carry on for years, even generations, as they are not dependent on individuals and collective responsibility involves ancestors and future generations as much as the currently alive.

While casualties are kept to the minimum, efforts are made to eliminate the most useful and important members of the opposing group. Tribal conflicts thus lead to a continuous brain drain by neutralising educated and dynamic individuals who would otherwise have acted as agents of change.

The wave of militancy currently being experienced in Fata has appreciably curtailed the application of the collective responsibility clause. However, it is still applied where the situation is relatively normal.

Last summer, the FCR section was invoked against two persons of a tribe near Peshawar and the ensuing process disrupted the normalcy of the area for months.

The accused had absconded and could not be traced, but the authorities insisted on their being produced. They were expelled from the tribe but this did not satisfy the authorities, as a result of which scores of innocent people belonging to the tribe were arrested and jailed, many vehicles of the tribe were impounded and the tribesmen barred from visiting Peshawar. Ultimately, the tribe had to pay the liabilities of the accused persons.

In its 2010 report, Amnesty International described the FCR as “an antiquated and draconian system of limited government with little or no recognition of or respect for human rights, the rule of law, due process, political representation or democratic institutions”.

The primitive tribal political and legal structure and its inherent system of collective responsibility has become a back-breaking burden for the millions of residents of Fata. The outdated structure is perpetuated through the prevalence of the equally outdated and draconian legal and administrative system of the FCR and its provisions of collective responsibility and punishments.

Fata has reached a critical point and its people have suffered for too long under an anachronistic colonial-era legal system.

The recent massive upheaval and consequent military operations and collapse of the governmental machinery have exposed the ineffectiveness of prevailing system of governance. The government must establish its writ not just by force of arms but by offering a new social contract to the people of Fata.

The writer is a retired army officer from Fata.