January '07: The lure of the Federally Administered Tribal areas and the Frontier Crimes Regulation

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The lure of the Federally Administered Tribal areas and the Frontier Crimes Regulation
(January 2007)

The Frontier Crimes Regulation (FCR) forms the bulwark of the government machinery in the Federally Administered Tribal Areas (FATA) of Pakistan, which dates back its origin to the British colonial period in pre-partition India. Pakistan inherited the Tribal Areas as one of the successor states to British India after partition in 1947. The FATA comprise of 7 Agencies and 6 "frontier regions". The tribal areas have a semi-autonomous status, wherein special laws known as the Frontier Crimes Regulation (1901) are applied to administer justice in matters relating to interest of the state and public order. In cases where there are no direct stakes of the state involved, the tribes are left to their own usages and customs to settle criminal and civil disputes. British colonial rulers, in order to subdue the ever-refractory frontier tribes of the northwestern borderlands of British India, enacted the Frontier Crimes Regulation in 1901. The basic purpose of the FCR was security of the British territory that was situated adjacent to the Pashtun and Baloch borderland.

Imperial service on the frontier was a nightmare for the British officers, particularly in the federally administered tribal areas (FATA), hereinafter the "tribal areas" of Pakistan. A difficult terrain, surprise ambushes of a diehard enemy, and the lack of land revenue were some of the factors that repelled the British officers. Therefore, special allowances were paid to them for rendering services in the northwestern tribal areas of British India. Why in contrast do their present day successors have a career dream to obtain a posting in the tribal areas, at least once?

The FCR empowers the government authorities to arrest a person or members of a tribe, as the case may be, accused of the breach of peace or for the purpose of maintaining good behavior to execute a bond (sections 40, 41), failing which the accused or male members of his tribe can be imprisoned for a life term up to 3 years (sections 43, 44) without any right of appeal in any civil or criminal court (section 48). The term of imprisonment can be extended if the magistrate (political agent) is of the opinion that it should be extended further (section 45). The "Political Agent" conducts business with the border tribes on behalf of the central government of Pakistan. However, the FCR gives powers to the political agent - a civil servant - to act as prosecutor, investigator and judge in disposing crimes. He nominates members of a council of elders, locally known as Jirga (section 8), to enquire into a dispute. However, the findings of the council of elders are not binding by the political agent and any non-acceptance of the findings of the Jirga by the Political Agent cannot be questioned in any other civil or criminal court (section 10, 60). Under sections 20 and 21 of the said regulation, entire members of a hostile or unfriendly tribe can be put behind the bars, their property could be seized and confiscated and their houses can be demolished (section 33, 34). Fines can be imposed and recovered from the whole tribe of which the accused happen to be a member (section 22) and public emoluments of persons or a tribe guilty of or conniving at crimes can be forfeited under section 26. The provisions of the FCR are in violation of the Universal Declaration of Human Rights (UDHR) and the Constitution of Pakistan (articles 8-28).

Besides arbitrary and unbridled powers allotted to the political officials under the Frontier Crimes Regulation (FCR), financial attractions are the bedrock of a corrupt and intriguing administration in FATA. The absence of a transparent and accountable fiscal system works as a smoke screen for collecting illegal taxes in the name of welfare funds or Chanda (donation) by the political authorities in the different Agencies such as the Bajaur Welfare Fund, Momand Welfare Fund, Agency Development Welfare Fund (Khyber) and the South Waziristan Social Welfare Fund. These funds are never audited and the Political Agent, like the Mughal Mansabadar (district officer appointed by the Mughal kings in India) of the past, has the sole authority regarding its usage.

There are chains and barriers across roads at various locations in each district, read agency, to collect "taxes", prevent "smuggling", and control "anti-social elements". Cross-border trade, officially called smuggling, is the fundamental subsistence economic activity of the majority of the population in FATA. The administrative headquarter in each Agency is the transit center for goods that are meant for Afghanistan, and which instead boomerang into Pakistani markets after going through certain paper work at the Pak-Afghan border. Additionally, the political authorities issue permits to export food items such as dairy cattle, poultry, and wheat. The "taxes" collected on these commodities at various transit routes in FATA are estimated approximately in millions of dollars annually. But even the Central Board of Revenue (CBR) dares not to recognize such a huge loss to the national exchequer. There is a discreet silence in each responsible quarter of the government about this oversight, for obvious reasons.

Another source of illegal funds at the disposal of the "agency administration" is the 'Teega Fund' composed of collective fines imposed on tribes for non-cooperation with the government machinery and deductions made from salaries of 'Khasadars' - a security force raised from local influential families - on the pretext of absence from duty form the "teega fund". There is no audit and no rules or regulations for the administration of this fund. The khasadar force has degenerated to such an extent that posts are sold outright and even the salaries of the khasadars fill the pockets of the higher officials of the "Levies" and the political officers. The khasadars are content to get a pension without salary and without the burden of duties.

The most intriguing component among the sources of illegal income in FATA is the contracting system for the execution of public works. The contractors are not pre-qualified and no tenders are issued for contracting a work. Contractors are nominated by the "political administration" for execution of development works. The agency officer or political agents as they are called, have the major say in the site selection for developmental work and contractual agreements. In the line of beneficiaries of development works stand influential elders (maliks), officials of the "line departments" i.e. education, health, public works, and the political administration and the contractors. No reliable statistics are available but federal funds and donor's aid money meant for anti-narcotics projects has produced unsatisfactory results in terms of development in proportion to the amount of allocation. In addition to the political authorities, there are other government departments that are also milking the FATA cow.

The Balochistan High Court, in Toti Khan v District Magistrate Sibbi and Ziarat termed the FCR repugnant to article 5 and void under article 4 of the Constitution of Pakistan. The Peshawar High Court, in Abdul Rauf v Government of NWFP, made a similar judgment and termed it void under article 4 of the Constitution. In Muhammad Ishaque Khosti v Government of Balochistan, the Quetta bench of the Federal Shariat [Islamic] Court declared the FCR un-Islamic and recommended its repeal. Despite these categorical judgments by the superior judiciary against the FCR, it still remains a decisive law in the administration of justice for a population of approximately 7 million.

The FCR absolutely ignores crimes against women, (not even a single woman reported a case under the FCR so far), despite the fact that maximum crimes in FATA are related to women. Honor killing, child marriage, swara marriage (a tribal custom to give women in marriage to the aggrieved party in consideration for settling a dispute), exchange marriages and "bride price" are still accepted norms in FATA without any legal remedies. Women are not represented in the jury or justice system in the tribal areas.

Even more important than the legalistic approach about FCR is its impact on the social development of the tribal areas. Considerable changes have taken place in the economic conditions of the people of tribal areas that require corresponding legal, administrative, and political changes. However, the FCR has arrested the growth of the tribal areas and is the major obstacle in the way of a smooth and peaceful transition. To retain and protect its vested interest, the administration, having the lethal weapon of FCR at its disposal, is the great patron of strengthening conservative and patriarchal values. It would be too unfortunate if the policymakers at the top fail to realize that the first step towards meaningful reforms in FATA is the amendment in or abolition of the FCR, turning the FATA into PATA (provincially administered tribal areas), and introduction of the local government system, so that the people are given a sigh of relief from an oppressive and inhuman administrative and legal yoke.

Government statistics show almost 60% of the population below the poverty line. Agriculture is meager and cannot become a source of subsistence for an ever-increasing population. Conservatism and illiteracy are rampant. There is a complete lack of trust between the political administration and the general public - even the mutual trust between the loyal maliks and the administration has been lost. As FATA attracts the attention of the federal government and major donors, it is extremely important to build a new system of governance that is primarily geared towards public service. It is essential to the concerns of stakeholders including major donors of financial aid for the development of the tribal areas. This is the least that can be expected from the government in order to address issues like poverty alleviation, social sector development and the gender question in FATA. The sooner this is done the better.

Muhammad Raza is a graduate of George Town University and is a political analyst based in Peshawar. He wrote this piece exclusively for Individualland.