The FCR committee constituted by the NWFP Governor, has held three working sessions so far. In the mean time, reports have appeared in the media, regarding the working of the committee.
This article indicates the trends in the committee and gives an idea of the types of issues confronting it. Although the committee will formalize its final recommendations after hearing all the stake holders, yet certain directions in which it is likely to move, are becoming visible.
The committee has held 3 meetings so far. The first meeting discussed the method of execution of its mandate and examined the process to be adopted for the reform proposals. Before reaching the desired outcome, it has agreed that the views of the tribesmen be obtained both formally and individually in case any tribesman desired to write to the committee. Some time during this process, the committee is scheduled to visit the agencies for consultations.
It may be noted that the ten notified members of the committee collectively constitute about 300 years of experience relating to the issue in hand. Although it is one composite committee and there is no formal classification of members into groups as such, yet members have become identified with a certain predominant approach to the reform issue.
What I classify as team A, performs the role of a devil’s advocate, who study any tentative proposal from the point of view of the political agent and the state interest, as they view it. It points out weaknesses and loopholes in any reform recommendation, which the team thinks will weaken the state and make administration of tribal areas, problematic. Team A, weilds a formidable armory of weapons based on arguments and anecdotal stories indicating common sense. Coupled with their administrative experience in FATA, team A commands a lot of respect in the deliberations.
The type of opinion rendered by some members, whom I term as team B in the Committee is composed of those, who are current or former political officers but are tribesmen themselves. They live amongst their tribes and their advice is well heeded. Team B provides pleasant vibes by providing anti venom treatment to the conservative intellectual input of team A.
Than there is team C, composed of tribal lawyers who are practicing advocates. Their symphony plays the music of human rights and high light instances of abuse of authority.
Team D comprises of those members, who test the argument on the yardstick of logic, constitutionality, internal coherence of the FCR and the security related aspects of reform.
All the teams believe in protecting Riwaj and not disturbing the tribal approach to life. Since the procedural law is based on a jirga system, it is quite evident that if the system is permitted to evolve, it will ultimately lead to the development of a jury system in the administration of criminal justice in tribal areas. Who knows this may one day be followed by the rest of the country, where the criminal justice system is based on a form of law dominated by the executive and driven by the prosecution and judges; a definite colonial legacy.
Many countries in the west, including the United States are instituting a new system of criminal resolution of matters called restorative justice. An examination shows that it is like the centuries old jirga system practiced in FATA; as in FATA, most personal acts of criminality are treated as tort and restitution made through monetary compensation to the injured party; this too is the principle followed under restorative justice.
Some of the major issues, which have drawn the attention of the committee are the following. The first one deals with the agency specific nature of the operation of the FCR. On the one hand, FCR lays down punishments as given in the PPC. On the other, each agency has its own version of the nature of an offence as laid down in its Riwaj . In Kurram agency, it is canonized in writing and is called Turizuna. It is quite different from the riwaj relating to penalties and punishments that are relevant in other agencies and frontier regions. When compared with the districts the same law applies to every one; only the state has the choice of law to apply.
Secondly, under the FCR, offences in administered area are dealt with under the FCR read with the PPC; the tribesmen self-administer themselves by applying the riwaj in the remaining tribal areas.
This is a very important distinction; only that area where government property is situated which includes roads, schools, hospitals, forts and camps etc are termed as administered areas. Such areas are less than 0th of the total agency area. Only in this area the PPC applies; the tribal levies known as Khassadars protect these installations based on territorial responsibility. Khassadars and the tribe in which an installation is situated are jointly and severally responsible for offences occurring within or on it. There is no concept of police. Neither is the tribesman desirous of having one.
How has this system of justice been able to curb crime? The figures, which are available for the administered areas of Kurram and Mohmand agencies, give the following picture from 2001 to 2003 (3 years); murders 219 and 27 respectively; abductions 9 and 7 respectively; highway dacoity 1 and 0 respectively; rapes 0 and 0 respectively. The figures are self explanatory and the readers can form their own comparisons with the crime rate in the districts. So there is evidently something good that is happening in the FATAs, which is keeping the crime rate low. That is their riwaj.
Although apparently the FCR covers, only a small portion of an agency but this could be misleading. When a person commits an offence and runs away the political agent normally apprehends him by applying massive indirect pressure on the tribe to which he belongs, by use of the provisions of S.21 FCR. It permits the arrest and detention of any tribesmen, who belongs to the offender’s tribe. In this way, the FCR can be effective through out an agency. Thus extending political control. It is under this section that the political Agents operate, when applying pressure to obtain compliance from a tribe. In the days to come, most of the committee’s attention will be focused on this and S.40 FCR. They are the key to a satisfactory reform proposal by the committee.
The committee discussions have noted certain lacunas in the application of law. Although the office of the deputy commissioner has been abolished but for the application of FCR in frontier regions (tribal areas attached to districts like Kohat FR or Peshawar FR), no system has been put in place. We have been casual in our approach. The problem could be resolved in one of 2 ways. Either the powers under the FCR be given to the DCO or the FRs should be attached to the contiguous agency. It is more likely that the government will exercise the later option.
A lot of discussion took place whether to adopt a new system of codified Riwaj law. Such a course is impossible to design given the complexity and the variation in the nature of offences. Here the tribes are most likely to be best served by observing their existing traditions. They are modern and open to change based on demands of equity rather than justice. An example would suffice to show the flexibility of riwaj in dealing with any contingency; this is a real life occurrence and occurred some years ago;
In the Mahsud belt of S.Waziristan, a man had developed a fetish liking for a married woman .One day she came out of her home and sat on a rock, after which she returned to her abode. The forlorn lover was watching her form behind a rock. As soon as she was gone, he came to the rock and started sniffing the scent where the women sat only a short while ago. Unknown to the lover, the woman’s husband was watching the doomed lover’s action. As soon as he saw the lover scenting the rock, he (husband) got offended and shot the lover dead.
The heirs of the deceased demanded full compensation for the dead person, which then was Rs. 20,000/=. The jirga investigated the facts and came to the conclusion that since the deceased at the time of his death was sniffing in the manner of a dog, therefore his family would be paid the blood money for a canine, which then was fixed at Rs.5!
The jirgas work on the basis of common sense. It is not possible for the committee to recommend a system, which would match such down to earth iterations. The trend of the committee seems to be to concentrate on the removal of anomalies; the need to focus on FATA and excising all the district era references in the FCR, (until the early 1960’s, FCR was applicable in the NWFP districts); bringing more precision into the application of S.21 and S.40 FCR; removal of some of the discriminatory and human right violating clauses.
It is likely that more checks and balances will be proposed to prevent the misuse of law; a better appeal and review mechanism is also likely to emerge from the committee’s efforts. It is still to pre mature to predict whether or not the committee feels inclined to create an oversight role for the superior judiciary.