Understanding FATA And The FCR: A Historical Snapshot
It is a bold and admirable initiative by the Pakistani government to merge the Federally Administered Tribal Areas (FATA) with the province of Khyber Pakhtunkhwa. The region of FATA as well as the Frontier Crimes Regulation (FCR) (the law of the land in the region) are both part of the nation’s dark colonial legacy. With news of the merger arriving, it is imperative for us to understand the historical origins of FATA and the FCR to comprehend the present situation at hand.
The North West Frontier Province (modern day Khyber Pakhtunkhwa), as the name suggests, was the Frontier of the British Colonial empire in South Asia. It was unlike any frontier as it was the entrance for Afghanistan, a country where the British had suffered devastating defeats in various unsuccessful attempts to rule it. Moreover, it was the route which a hostile Tsarist Russia would have to take in order to enter India.
Due to these reasons, the British had firm geo-strategic and political reasons for dealing with the frontier province in a fashion different from Punjab or Bengal, and some of the differences we see today are results of those policies as well as the failure of the Pakistani states to reverse them.
The British had divided the North West Frontier Province, as Benjamin Hopkin calls it, into “civilized inhabitants” living in cultivated plains, and the “wild tribes” living in the hills. This led to a dualistic approach in dealing with the two areas, which was part and parcel of the infamous British policy of divide and rule. The area of the wild tribes came to be known as FATA. While these tribes were eventually under British rule, they were not necessarily under British control. Hence, the British had formed a bifurcated frontier, an administrative one to which their authority extended, and a political one till which their colonial empire extended. FATA was the frontier of the frontier.
Since the British viewed FATA in a different light, the laws and policies devised for it were of a different nature too. Hence we have the FCR, a draconian piece of legislation, which unfortunately continues to remain the law of the land in FATA. The FCR introduced measures such as collective punishment, according to which the entire family and in certain cases the entire tribe could be punished for the crimes of a single individual. The people of FATA have been denied the right of self-governance, as the governance framework comprises of political agents, who are representatives of the federal bureaucracy with sheer control, power and minimal accountability. Moreover, basic rights of a fair trial such as the right to legal counsel, the right to appeal and the laws of evidence are not recognised or applicable there. Therefore, the FCR as a legal instrument justifies the oppression and blatant violation of fundamental rights of the people of FATA.
FCR was a response to the growing problems faced by the British in the northern part of the frontier province, in the form of violence and lack of state control. Moreover it reflected the colonial state’s political vision of subjugating the people and denying them their basic liberties, a liberal paradox as they championed these rights back home. It was their attempt to “tame” the frontier.
However, the Pakistani state’s continuation of these oppressive policies has been a matter of national grievance. The Acts of Pakistani Parliament did not apply in FATA. Moreover, the jurisdiction of the Supreme Court and High Courts did not extend to FATA. Therefore no laws of Pakistan have been applicable in FATA and the FCR has reigned supreme.
The President remained the Chief Executive of FATA and administered it through the Governor of Khyber Pakhtunkhwa as his agent. The continuation of this colonial legacy has had detrimental social, economic and political effects on the area. The situation has worsened in the past decade, as the area has suffered from increasing militant activity and ongoing army operations. The current scenario adds to the political will of the state to assimilate FATA into Khyber Pakhtunkhwa and end its continued exclusion and isolation.
In light of the injustice committed against the people of FATA for over a century, the attempt by the government to merge it with the province of Khyber Pakhtunkhwa is an extremely delayed step, nevertheless one in the right direction. The integration of FATA in itself will be a challenge. There are years of social structure that will need to be demolished and reformed for new ones to be established. The Riwaj Act is to replace the FCR.
While the government proposes the Riwaj Act as a progressive piece of legislation, the name riwaj (tradition) could suggest the opposite. However, one must appreciate this move by the government, but simultaneously analyze critically the lengthy process to ensure an effective and fair integration.
Previously published in The Nation and republished here with permission.
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 he might be associated.
