Imperial Black Law Which Continues To Plague The Tribal Areas Of Pakistan
Introduction and Historical Background
Frontier Crimes Regulation (FCR) is a law governing the Federally Administered Tribal Areas of Pakistan. Tribal areas include 7 agencies, namely Bajaur, Khyber, Kurram, Mohmand, North Waziristan, Orakzai and South Waziristan, and 6 frontier regions of adjoining districts (Peshawar, Kohat, Bannu, Lakki Marwat, Tank and Dera Ismail Khan) which are territoriality in close proximity to the agencies. The region is governed by a mixture of customary tribal code pukhtoonwali and FCR.
FCR is a colonial legacy, which was promulgated by the British in 1901, originally drafted in 1871. Before 1871, there was no uniformity in the laws governing British India. Punjab had the Punjab Crimes Act which was its first Penal Code and Bengal, Orissa and Bihar had their own laws which differed from presidency towns of Bombay to Sindh. So in order to bring uniformity and to remove uncertainty, a charter was passed in 1833, with a purpose to give a cohesive shape to the laws and procedures. A commission headed by Lord Macaulay was formed to achieve this objective and a Penal Code was drafted by this commission in 1847, which was revised in 1860 by the second commission. The law was applied to all territories including the frontier districts.
The law failed to work in the tribal areas and remained enforced till 1871 only. According to the notes on Crime and Criminals by Elsmie who reported at the time of the annexation of Punjab in 1849-50, those crimes along with murder were committed per diem in the Peshawar district. The newly imposed Penal Code and British occupation made the tribal leaders furious. Also under certain circumstances and due to the honor code, murder in some cases was considered an obligation rather than a crime. The ordinary courts were unable to deal with the increased number of murders and dacoits. So to suppress the crime rate, Frontier Crimes Regulation of 1871 was promulgated.
The British realized that FCR would not function if they discredit the jirga system, which Lieutenant-Governor of Punjab at that time referred to as pis aller (last resort), which somehow needed to be integrated to curb the increasing crime rate. So the Code went through various reforms empowering the Council of Elders. Under the new reforms introduced in 1887, they could now award a sentence of rigorous punishment for up to seven years and offences punishable with death for up to ten years. More reforms were made which further increased the punishment from 7 years to 14 fourteen years. The final draft which rules FATA today consists of 63 sections and 3 schedules and was promulgated in 1901.
Judicial Structure and Constitutional Status
The setup which was proposed by British rulers to control and manage the people of the frontier belt was retained after independence. FCR was given a constitutional and legal status, under Article 1, 246 and 247 of the 1973 Constitution. It also made a territorial and geographical distinction between tribal areas, by dividing them into Provincially Administered Tribal Areas (PATA) and Federally Administered Tribal Areas (FATA).
According to the words of the Constitution, Tribal Areas are part of the territory of Pakistan and only the President can issue decrees related to their administration – the Governor of Khyber Pakhtunkhwa acts as the President’s agent in this regard. Supreme Court and High Court do not have jurisdiction to deal with any matter related to the Tribal Areas.
Under Article 142 (d) Parliament has the power to make laws, with respect to matters not mentioned in legislative lists, for such areas in the federation not included in any province.
Article 51 provides for representation of FATA in the Parliament, reserving 12 seats in the National Assembly, while Article 59 reserves 8 seats for FATA in Senate.
The judicial authority of Tribal Areas vests in the (District Magistrate)/Deputy Commissioner (DC) and Assistant Political Agent (Additional District Magistrate). Council of Elders is appointed by presiding officers who give recommendations and suggestions. To keep the tribal paradigm alive, most of the verdicts are given on the basis of riwaj. The final verdict is given by the Deputy Commissioner who has the right to set aside the punishment and penalties decided by the jirga.
A special tribunal has also been set up at Peshawar for the revision of cases, comprising of the Home Secretary and Law Secretary to the provincial government of Khyber Pukhtunkhwa. The tribunal is called the FCR Tribunal.
Sections Violating Human Rights and Constitution
Many sections of the FCR infringe upon human rights. They include:
- Section 2 dealing with the selection of jirga.
- Section 6 allowing the DC to pass sentences of whipping, which has otherwise been abolished in the rest of Pakistan via the Abolition of the Punishment of Whipping Act 1996.
- Section 8 and 11, according to which criminal and civil cases can be referred to the jirga for decision – the procedure mentioned in these also violates a person’s right to fair trial.
- Section 21 dealing with collective imprisonment, allowing the Deputy Commissioner to confiscate the property of any one member of a tribe or all, and blockade of the tribe whose behavior they found to be unfriendly and hostile.
- Section 22 and 23 dealing with the imposition of fine on all the members of a tribe for the crime of a single person.
- Section 36 dealing with removing a person from his or her residence or locality.
The law does not give the residents of FATA a right to fair and impartial judiciary, as enumerated in the preamble, section 2A and 175 of the Constitution, due to the overlapping of judicial and executive functionaries in FATA. It also debars their right of appeal to higher courts which is available to all other citizens of Pakistan.
Furthermore, it violates Article 4, which deals with the right to be treated in accordance with law; Article 9 and 10, which provide security of persons and safeguards as to arrest and detention; Article 13 providing protection against double jeopardy and self-incrimination; Article 14 which prohibits torture for the extraction of evidence and deals with the inviolability of dignity of a person; and Article 24 which provides the protection of property rights.
FCR has been reviewed by various commissions and committees, first commission formed after the creation of Pakistan was headed by Justice Sheikh Abdul Hamid and then by Justice SA Rehman in 1958, then it was reviewed by Law Reform Commission of 1967-1970, headed by Justice Hamoodur Rehman. A technical committee was also formed in 2005 under Justice Mian Ajmal. However, these commissions and committees failed to bring any changes and reforms in FCR. Some of the suggestions made by these commissions include the abolition of FCR which violates norm and basic human rights, Reduction in powers of Political agent and production of accused before a magistrate within 24 hours, so that bail could be provided for certain offences, an end to “collective responsibility clause” due to which all the members of tribe are punished because of the crime of single member, formation of an appellate tribunal to hear the appeals against the decisions of Political Agent and extension of jurisdiction of High Courts to FATA.
Reforms announced in 2011 have been the only major changes introduced in FCR. Under these reforms, the constitutional right of an accused has been enhanced. The accused now will be informed about the charges against him, will presented before the Assistant Political Agent (Magistrate) and can be released on bail. Protection has been provided to children under 16 and women and citizens above 65 against arrest and detention. The collective responsibility clause has also been diluted to some extent, though not abolished, and now includes only close relatives “plareena” – their property can still be confiscated and they can be arrested due to the hostile actions of the accused. The Political Parties Order 2002 has been extended to FATA under the new reforms.
The accused can object to the Council of Elders, can appeal to the Commissioner against the decision of the Political Agent and can file for the review of a decision with the FATA Tribunal.
The law still contains a number of problems and needs to be repealed altogether. The people of the tribal belt have been made to suffer by this black law for the last 130 years. The jirga system needs to be abolished which provides cover to customs like swara and ‘honor’ killing under the garb of riwaj. The reforms in 2011 diluted the collective responsibility clause but didn’t repeal it so it continues to punish the members of the tribe of the accused. Article 247 of the Constitution needs to be amended to extend the jurisdiction of the higher courts, so that every citizen of this country is treated equally and given the right to fair trial. Legal counsel and a right to a defense lawyer should be provided. All these steps are needed to be taken with extreme care and caution so that FATA can be brought at par with other territories of Pakistan.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which she might be associated.