Just imagine that you and all of your family members are behind bars, and your entire village has been razed to rubble because a distant clansman of yours has committed a crime. You are not allowed to appeal against your detention in any civil court. Worse, if you are arrested for a non-bailable offence, you will not be released if “there appear reasonable grounds for believing that you are guilty of an offence punishable with imprisonment of 10 years”. This can happen to you if you live in Fata, thanks to the Frontier Crimes Regulation (FCR).
John William Kaye, a civil servant in the East India Company, who succeeded John Stuart Mill as secretary of the political and secret department of the India office in 1858, once said of the “troublesome tribes” of Northwest India, “We cannot rein wild horses with silken braids.” Colonialism had a discourse full of such terms coined to justify draconian laws. The outcome of the discourse on the “troublesome tribes” was the FCR. The purpose was to control and rein the people of the area, with there being no consideration for any entitlements or rights of the ‘subjects’. Nothing more prudent has been said about the FCR than what was once stated by the celebrated Justice AR Cornelius: “Obnoxious to all recognised modern principles governing the dispensation of justice” (Sumunder vs State: PLD 1954 FC 228).
After independence, Khyber-Pakhtunkhwa (then NWFP) remained under the FCR till 1956 and Balochistan till 1973. Fata has never got the chance to be represented by those it elects. Parliament can’t legislate for Fata and the region has no provincial assembly or provincial representation. Despite continuous criticism, the FCR has remained operational for more than a century. In its current form, it is in gross violation of basic human rights. There is no separation of the executive and the judiciary and the Political Agent (PA) is judge, jury, prosecutor, investigator, police and collector, all rolled into one. The PA, who is the executive head of the agency, enjoys all the powers that courts do. Fata consists of seven agencies and six Frontier Regions (FR). Under Article 247 of the Constitution, the superior judiciary has no jurisdiction whatsoever in these areas.
Section 21 of the FCR deals with the “blockade of hostile or unfriendly tribes”. It states that if an accused cannot be arrested, then action must be taken against: 1) the sub-section of the tribe of the accused; 2) the section of the tribe of the accused; 3) any other section of the tribe of the accused. This section places collective responsibility on the entire tribe and is a gross violation of human rights norms. It was amended in accordance with Fata regulations, 2011 by exempting women, children under 18 years of age and people over 65 from its ambit. A tribunal was also established as a court of appeal against the decisions of the PA. But who can implement the tribunal’s decision in Fata against the will of the PA?
I believe that the FCR has played a part in the worsening law and order situation in Fata and has fuelled the conflict there. Citizens only feel bound to uphold the state’s writ when they feel that they have played a role in making the laws that govern them. That is only possible when laws are made based on the principles of collective utility, and not on collective punishment. There is a need for a paradigm shift in the relationship between the state and the citizens in Fata. The state must find ways to engage the people of the tribal areas and discard the FCR.
Article 247 serves as a bottleneck for any effective steps in the right direction. The superior court’s jurisdiction should immediately be extended to Fata. One such constitutional amendment bill, approved by the Senate Law and Justice Standing Committee, is still pending. The 22nd Constitutional Amendment Bill, submitted by Fata lawmakers to the National Assembly secretariat on September 2015, should be given serious consideration. It seeks to merge Fata into the Provincially Administered Tribal Areas (Pata) of Khyber-Pakhtunkhwa and extend the superior court’s jurisdiction to Pata.
Another solution could be to hold local government elections in Fata, with those elected having the mandate to decide the future status of the tribal areas. Holding a referendum is another option that could be considered. Any of these strategies can bear fruit as long as they create a sense of true ownership in Fata.
Published in The Express Tribune, December 21st, 2015.