|
January '07: The lure of the Federally Administered
Tribal areas and the Frontier Crimes Regulation
Individualland spotlight is a monthly monitor on
political affairs printed on the 17th of every month
by individualland.com. Individualland would welcome
reproduction & dissemination of the contents of this
report after proper acknowledgment.
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.
|
|