(This is the third & final part of a series of articles examining the Frontier Crimes Regulation in the context of the tribal areas of Pakistan)
Examination of FCR 1901
After the suppression of the revolt (was it the 2nd war of independence?) of 1897, far reaching changes occurred in the administrative set up of the Punjab. When Lord Curzon became the viceroy of India, he created NWFP as a new province in 1901, under a Chief Commissioner. A revised version of the FCR 1901 was introduced as part of the package of reforms for the administration of the tribal areas and the districts.
The revised version canonized the concept of collective responsibility, which had been applied by the tribes for the distribution of wrath and favors, much before the advent of the British. The new version accepted the fact that the scar of dishonor in the area of Badal or violation of Melmastia remained unrequited till redeemed by the individual involved, his family, his clan or by his tribe.
The heart of the amended FCR 1901, revolved around the new Section 21. This version of the FCR with a few minor procedural amendments is in vogue today. It is S.21 and a few other enabling sections, which draw the most criticism and as a result there have been vociferous demands either for the amendment of the FCR or its abolition.
Let us briefly examine the structure of the FCR 1901. To avoid a lengthy treatment, we shall focus on what I feel are some of its more controversial aspects.
According to sub section (4) of section 1, there are some special and discriminatory provisions that are applicable only to pathans and baluchis. The argument presented for the existence of such a discriminatory clause is that since these two people have peculiar traditions, therefore it is necessary to retain such provisions. If such a distinction were for the benefit of a person or people one would have no complaints. But as I will show, these clauses are barbaric and inhuman. As if the two people were beings of a lower category.
S.38, sub clause (4) is genocidal. It reads But this section gives a right to cause the death of a person against whom those portions of the FCR 1901, which are not of general application, may be forced. Meaning the pathans and the baluchis.
I find no parallel in any other existing law, which legitimizes the use of undue force as a normal administrative measure. It is the presence of this inhuman clause of law, which is responsible for there being no inquiries for the violence of state apparatus against its own people. Not even once!
Let us now examine S.38 (i). It gives a right to privately arrest anyone suspected of an offence under the FCR. This was a much abused provision, when the FCR was operative in the Frontier districts till its abolition in 1963. The Khans used it against the Hindu tenants to accumulate land and wealth with the tacit support of the administration.
If the above quoted clause is read with S.29 the possibilities of abuse increase manifold, as there is a bar to judicial over-sight, outside the system of political administration. This clause permits a punishment of 5 years imprisonment on grounds of suspicion alone!
Let us look at some of the other important clauses. Under S. 21, once the political agent has determined that a person or tribe is hostile, he has five apocalyptical options available.
- a) The seizure and arrest of the proscribed tribe members or any of them or their property.
- b) The confiscation of any such property and imprisonment of the persons seized.
- c) Preventing a tribe or individual of the districts, from any intercourse or communication with the proscribed person or tribe.
Under clause 31, tribesmen within 5 miles of the border of the district can undertake no hamlet or other construction.
Under clause 32, if on military grounds a village or habitation is found dangerous, it has to be removed. No hujra can be constructed or used without the approval of the political agent (S.33).
Under clause 40 the political agent can ask anyone to provide security, if it is determined by him that this would prevent murder, or sedition. If a person fails to do so or the political agent finds the securities inadequate, that person may be imprisoned for 3 years. Such period of imprisonment can be extended to a total of 6 years. It is for the political agent to decide whether the imprisonment is to be simple or rigorous.
After independence in 1947, the Muslim League administration in the NWFP, used the FCR against its political opponent the Red Shirts and their leader Abdul Ghaffar Khan.
In which civilized country is the use of excessive force permitted against its people as a normal routine? I am not aware of any post-operation inquiry into the use of force resulting in deaths in the tribal areas. Even today, many are dying in operations. Our press that comments on each and every violent death in the country is quiet in this matter. Is this moderation? Does such a policy create friends for the state? The answer is no.
Perhaps the tribal pathan has been created to suffer! It is not a comment generated from the ethnicity perspective, but a comment from the human rights angle. Such provisions of law create hatred and violent reactions. It plays directly into the Badal conundrum of the Pathan. It would be a blind man or an eternal optimist, who would believe that the people of an area, whose loved ones become a mere statistic under the euphemism of co-lateral damage, would forgive and forget. The reaction of the affected will be one of hatred and revenge. Such laws weaken the state rather than strengthening it. This is a disturbing consequence of actions in tribal areas, Baluchistan, Afghanistan and I suggest even in Iraq. It is essential to deal with the people driven by an honour code in a different manner. Deft political handling rather than the use of force. The existing violent paradigm will not deliver peace.
Tribal Areas and the 1973 Constitution
It must be remembered that the tribesmen voluntarily joined Pakistan. There are many stories in this chapter, like the threat to the life of Nehru during his visit to Waziristan, Kohat and Malakand before partition. The tribesmen stood up united against his visit. Some say that a few British and Pakistani political officers, like Sheikh Mahbub Ali, used official powers to manipulate a violent reception against Nehru’s visit. Be as it may, what is important to note is that the tribesman and the people in NWFP opted to join Pakistan by the exercise of free-will.
The Quaid-e-Azam, at the time of the grand jirga of the frontier tribes, in 1948 made a promise to them. He committed that neither he nor his successors would interfere with the tribal way of life, without their consent.
The commitment is available in an adjunct to the Independence Act. Its principle is also reflected as a sub clause of the constitution in Art 247 (6). Although, the President has the powers to declare the cessation of tribal areas however, before doing so he has to obtain the consent of the jirga.
The Constitution recognizes the special position of the tribal areas and enunciates it in Art 247. The President is made in charge of the tribal areas. The Governor, NWFP acts as his agent in administering them.
No law passed by parliament is applicable to tribal areas, except through a special order of the President. For a national law to become effective in the tribal areas, a special process of consultation is laid down. As in some other matters, such a consultation has rarely taken place, except during the initial years of Pakistan. In a manner of speaking, the compact between the state and the tribesmen has weakened.
Lastly, Art 247 (7) blocks, the exercise of jurisdiction of the Supreme and High courts. Thus there is no right of appeal or review available to a tribesman under the FCR.
Lesson from history
This examination of the Frontier Crimes Regulation will be incomplete without one important observation referred to earlier. It has been found that tribal areas have been comparatively more peaceful, when government interference in any of its many forms is the least. History supports such a conclusion. Britain was at its weakest in the last decade of its rule in the sub-continent and shied from any major military action or stern policy initiative in tribal areas. Yet, coincidentally it was also the period of greatest peace and security in tribal areas (Spain: 188).
If the tribesmen were fanatical, why did they not take advantage of the weak British security presence, as most of the troops had been pulled out for war time duties? There was no shortage of religious zealots in tribal areas to light the flames for jihad. They were not energized to some other place for this duration. They continued to live ignored lives. They could not rally the tribes to launch attacks on colonial assets.
Why did this occur? The answer is clear; peace reigned because the state had reduced intervention in the dynamics of the tribal honor system.
Shouldn’t one draw lessons from this historical fact? Can this become the basis of an administrative philosophy for dealing with the existing war like conditions prevailing in the tribal areas?
The impact of administrative structures and nuances is a vast subject by itself and begs for a separate treatment. But I have a very strong hunch that the recipe for a reduction in the prevalent violence in tribal areas lies here.
Because of the above relationship between state activism and peace in tribal areas, it has led some to observe that the complete pacification and absorption of the tribal areas is just not possible (Barton).
What then are the conclusions regarding the future of the FCR? The North West Frontier Inquiry Committee of 1922 stated that if the FCR were repealed, it would paralyze the whole system of trans-frontier control (Spain: 147). The views of the British Political Agents were that the FCR was [is] one of the most valuable pieces of legislation ever to be enforced (Coen: 164). The Political Agents of to- day subscribe to this later conclusion. They too feel that without it, they will be unable to manage their jurisdiction.
Olaf Caroe, had doubts on the issue. He remarked that perhaps the British had it all wrong, when it came to making a law for the tribal areas. It was the defects in the FCR that severed the integration chances of the tribal areas into NWFP. He concluded by remarking, that the pre-condition of integration of the tribal areas into Pakistan will depend on solving this puzzling requirement (Caroe: 356).
One final question and observation. If the tribesman is not playing the game of nationalism, then what exactly is he doing? The answer seems to be that he has been behaving in a particular manner, for the right to be free (Spain: 192).
The tribesmen live to lead a life defined by Pashtunwali. So what is the threat that can be projected from the Pathan in the present dialogue of the anti-terror paradigm? The answer from history is clear. If he is handled politically, with the minimum use of force, he is more than a match for Al Qaeda and its supporters. Active intervention conflicts with the honour code. When that happens, the conflagration becomes wider. When a situation is bureaucratized and defined by the drives of careerism on the one hand and the compulsion of defense-industry complex on the other; peace becomes a victim.
From these series of articles on the FCR, some important conclusions can be derived. These are;
- a) There is a need to carry out a review of the FCR. However, its implementation should wait the return of relative peace to the area.
- b) The FCR has a strong anti Human-Right tilt. For example the killing of a tribesman under S. 38(4) is permitted. This and other similar clauses need to be done away with.
- c) There is an absence of an independent, outside the loop judicial appeal or review process; it decreases accountability of the administrative heads. Amendments are needed to enlarge the jurisdiction of the Peshawar High Court for a specified list of areas, which is reviewed from time to time.
- d) The administration’s entry into the honor code of the tribes, which thus makes them liable to Badal. The assassination three days ago of Malik Faridullah on the Tank-Jandola road is a recent example of this linkage.
- e) The FCR challenges the concept of melmastia. If refuge has been given, compliance with government demands to renege insults the honour of a tribesman/clan. Therefore, the pakhtun social code encourages resistance. If he provides protection to his guest (who may be wanted for a crime), it is termed as an illegal act by the state. When he fights to protect his guest, he is termed as a harborer of criminals. Yes, there are some who have made a business out of this provision and have brought a bad name to the tribes.
- f) Peace and balance is restored to tribal areas when intervention from the government is least.
- g) Shifting of the administrative dialogue to violence leads to a similar reaction from the tribes.
- h) The introduction of uniformed forces into tribal area security bureaucratizes the situation making peace difficult. This is the great security paradox of tribal areas.
Pakistan is in a predicament today. Demands for reform and extending physical control to the international boundary to the west are being voiced, so that no sanctuaries for Al-Qaeda and its supporters are left. The lesson from history though is that policy changes for achieving greater control in the tribal belt
through military means will face resistance. There is a need for cautious and deft handling so that reform does not lead to loss of control.
- Pashtunwali, means the code of daily conduct, which a tribesman uses for regulating his life.
- FCR means the Frontier Crimes Regulation and is the basic instrument of the criminal justice system in the tribal areas of Pakistan.
- Nichols, Robert; Settling the Frontier Land, Law, and Society in the Peshawar Valley 1500-1900, Oxford University Press, Karachi, 2001.
- Caroe, Olaf; The Pathans 550 BC AD 1957, Oxford University Press, Karachi, 1983.
- Colinvaux, Paul; The Fates of Nations: A Biological Theory of History, Penguin Books, England, 1980.
- Spain, James; The Pathan Borderland, Mouton & Co, The Hague, 1963
- Coen, Terence; The Indian Political Service A Study In Indirect Rule, Chatto & Windus, London, 1971.
- Govt of India, Aitchison Treaties, Vol XI, Delhi, 1930.
- Ahmed, Akbar; Millennium and Charisma among Pathans: a critical essay in social anthropology,Routledge and Kegan Paul, London, 1976.
- Barton, Sir William, India’s North-West Frontier, John Murray, London, 1939.
- Govt of Pakistan, Frontier Crimes Regulation III of 1901, Karachi
- Govt of Pakistan, 1973 Constitution of Islamic Republic of Pakistan, Karachi.