The current Government of Pakistan, following the beginning of its term in 2008, announced political, administrative and legal reforms in the Federally Administered Tribal Areas (FATA). More than two years later and after deliberations by government committees, examination of the entire system of governance in FATA, and in response to recommendations from inside and outside the government, the President of Pakistan enacted amendments to the Frontier Crimes Regulation (along with the extension of the Political Parties Order to FATA) on August 27, 2011. The Frontier Crimes (Amendment) Regulation, 2011 significantly altered the existing Frontier Crimes Regulation, 1901 (Regulation No. III of 1901), one-hundred-and-ten years after its introduction. Although minor changes were made to the regulation by previous governments, nothing was as substantial as the amendments included in the 2011 reforms.
The Frontier Crimes Regulation (FCR) came into force on April 24, 1901 as a legal, judicial, administrative and governance framework for the predominantly Pakhtun-inhabited North West Frontier area of British India, bordering Afghanistan. The area served as a kind of buffer zone and the FCR was developed to counter Pakhtun opposition to British rule and to protect the interests of the British empire.
Today, the tribal areas are divided into two categories with distinct legal regimes: areas under administrative control of the federal government and areas under control of provincial governments. The tribal areas under the administrative control of the federal government are referred to as the Federally Administered Tribal Areas (FATA), including seven agencies1 (quasi districts) and six frontier regions2 (tribal areas adjoining settled districts).
The second category of tribal areas, as indicated above, is today referred to as Provincially Administered Tribal Areas (PATA). These areas are governed respectively by the provincial governments of Khyber Pakhtunkhwa and Balochistan. The difference between FATA and PATA is in their system of governance and controlling authority. FATA is governed and managed by the federal government, with the governor of Khyber Pakhtunkhwa and subsequently the FATA Secretariat as its agent. The FATA Secretariat, located in Peshawar in Khyber Pakhtunkhwa province, acts as the primary government headquarters for FATA. PATA, alternatively, is adjacent to and administered directly by the respective provincial governments.
Due to the mountainous and hilly terrain, it has always been difficult to manage and control the tribal areas. This was particularly true in the nineteenth and twentieth centuries, when access and communications tools were much more limited than they are today. These and other limitations served to effectively prevent the enforcement of a governance system similar to that maintained in the settled areas of British India.
Given the administrative challenges, the British government decided to control and administer the tribal areas by proxy with the FCR, through local tribal leaders and chieftains which were commonly known as khans and maliks. The regulation was a comprehensive law, addressing administrative, legal and judicial life in the tribal areas. The FCR was originally designed to consider social, cultural and political traditions in the region in an attempt to limit resistance and societal conflict between the British and the Pakhtun population.
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The Amended Frontier Crimes Regulation, 2011
The Frontier Crimes Regulation (FCR) is an old law. Although modest modifications were made by the government in previous decades, the substance and structure of the regulation have remained essentially the same. Prior to 2011, the FCR was amended in 1928, 1937, 1938, 1947, 1962, 1963, 1995, 1997, 1998 and 2000. However, all amendments were minor in nature and substance.
For example, in 1997 the word “commissioner” was substituted for “court of the commissioner” and the definition of the word “Governor” was added. Likewise, in 1962, punishment by forfeiture of property in the case of conviction under Section 302 or 306 of the Pakistan Penal Code (XLV of 1860) was added to the FCR. Alternatively, the power to revise decisions made by the commissioner was removed from the regulation in 1997. The regulation’s Second Schedule was amended in 1995 and 1998, adding offences related to the Customs Act of 1969, the Prohibition (Enforcement of Hadd) Order of 1979, the Employment of Children Act of 1991 and the Control of Narcotic Substances Act, also of 1997.
In August 2011, however, the President of Pakistan Asif Ali Zardari signed and enacted the first-ever substantive amendments in the history of the FCR.3 The 2011 presidential order substantially altered the FCR, including amendments, insertions, substitutions and omissions. Many of the amendments were made in a detailed manner, inhibiting common readers and researchers from easily understanding their meaning and their impact on the FCR and the legal regime governing FATA. The text that follows this executive summary is the definitive updated legal text of the Frontier Crimes Regulation, incorporating all 2011 amendments.
The revised text should help to eliminate confusion regarding the exact legal text of the FCR following the 2011 reforms. References to previous versions of the regulation and details regarding amendments made are included in footnotes, thereby facilitating comparative historical analysis. This document should be beneficial to FATA citizens, researchers, lawyers, journalists, civil society organizations, political party members, government officials and others exercising powers under the FCR.
Although ancient history in most other parts of Pakistan, tribal customs and traditions are still alive and well throughout the Federally Administered Tribal Areas. Due to the lack of modern facilities and conveniences, FATA life continues to be as traditional and basic as it was in pastoral societies prior to the industrial revolution. FATA is made up of difficult mountainous terrain and suffers from very poor transportation and communications infrastructure and over the past 100 years, neither the British nor subsequent Pakistan governments invested sufficient resources to adequately develop the tribal areas. As critics indicate still today, authorities have historically been interested only in maintaining order, peace and administrative expediency in FATA and have never expressed an appetite to intrude in the social, economic or cultural lives of tribal inhabitants.
Following subjugation of the plains of Punjab, British forces attempted to enter Pakhtun and Baloch regions of the tribal areas bordering Afghanistan. Their attempts, however, to expand the reach of the British territories to the northwest faced fierce resistance, due in part to sniper-style warfare in mountainous terrain and a lack of modern means of communication and transportation. As a result of these difficulties as well as the nomadic nature of much of the tribal population, the British opted for an alternative strategy.
As they were otherwise unable to establish effective government authority in much of the tribal areas, the British worked to adapt existing laws to the tribal context. After careful study of tribal customs and local power structures, the British learned that incorporation of tribal chiefs (khans or maliks) into the legal framework was necessary to ensure peace and governability in Pakhtun and Baloch areas. It was in this way that the concept of “collective responsibility” was introduced to FATA. In practical terms, the newly developed law placed singular responsibility with chiefs, making them accountable for illegal acts committed by any member of their respective tribes. To implement this strategy, existing civil and criminal laws were rescinded in 1871 from the tribal areas and the Frontier Crimes Regulation was introduced.
While many British laws from that time are criticized as being coercive and focusing solely on colonial interests, the FCR is viewed by most critics as even more harsh. In particular, the concept of collective responsibility (as opposed to the generally accepted principles of individual responsibility and liability) has been widely denounced as draconian, severe and cruel. Regardless, the new regulation proved to be an effective tool in the hands of the British authorities and has continued as the law of the land in the tribal areas, even after the partition of British India and the establishment of the nation State of Pakistan in 1947.
Constitutions and the Status Quo
Despite political dialogue regarding the rights of tribal people, Pakistan governments have maintained the status quo over time regarding FATA governance. As is often the case, it proved difficult to move away from the status quo given its suitability for both tribal chiefs and government officials. As a result, none of the Constitutions of the Islamic Republic of Pakistan have been fully extended to the tribal areas. The Frontier Crimes Regulation, however, is not a constitution, nor is the legal system defined in the FCR developed enough to be considered an adequate replacement for the Constitution of Pakistan.
Articles 103 and 104 of the Constitution of the Islamic Republic of Pakistan (1956) provided for the administration of “Excluded Areas” and “Special Areas” respectively. The Excluded Areas referred to nearly the same areas as are included in the Provincially Administered Tribal Areas (PATA) today. The Special Areas referred to what is now FATA. As is the case in Pakistan today, the provincial governor was responsible for administration of the Excluded Areas. Again like the current legal framework, Article 104 of the Constitution of 1956 provided the President of Pakistan with administrative control of the Special Areas. Legislative power was not exercised by Provincial Assemblies in Excluded Areas and the National Assembly was not given legislative power over Special Areas. Details regarding the governance and administration of these areas were provided in other laws as well, including the Province of West Pakistan (Dissolution) Order, 1970 and other laws extended to these areas by future governments.4
Articles 222 and 223 of the Constitution of 1962 also specify areas that are not part of a province in Pakistan. Article 223 described a legal arrangement much like today’s Article 247, dealing specifically with the administration of the tribal areas, then known as the Centrally Administered Tribal Areas (CATA). The word “centrally” was later replaced with “federal” in the Constitution of 1973, though the system of political control and governance remained the same. Still today, the Pakistan federal government administers FATA and PATA through the respective provincial governors. In FATA specifically, local “agencies” (districts) are managed locally by “political agents”, appointed directly by the Khyber Pakhtunkhwa governor. A political agent enjoys the judicial powers of a magistrate and is accompanied in meeting his obligations by an assistant political agent.
The 2011 political reforms included numerous and extensive amendments to the Frontier Crimes Regulation. The legal concepts and overarching structure of the regulation, however, remained essentially untouched. While most critics and many FATA citizens argue that additional political reforms are needed, the 2011 amendments to the FCR did introduce new concepts, strengthened pre-existing substantive and procedural law, and made some gains in terms of the political and human rights of FATA citizens. Some of the more substantive reforms included in the amendments are:
- Protection of women, children below 16 and citizens above 65 from collective responsibility arrest or detention5
- Prohibition against arresting an entire tribe under the collective responsibility section6
- Fixed time limits for the disposal of cases
- Provision for independent appeals process7
- Appellate authority power to review and revise decisions and orders8
- Strengthening the FATA Tribunal9
- Power to transfer cases to the assistant political agent10
- Concept of bail11
- Introduction of jail inspections
- Reference to council of elders and Qaumi Jirga12
- Acceptance of local customs and traditions (Rewaj)13
- Fines on communities in the case of murder
- Forfeiture of public salary for being involved in a crime14
- Arrest by authorities other than the political agent15
- Checks on arbitrary power to arrest16
- Punishment and compensation for false prosecutions17
- No deprivation of property rights without adequate compensation18
- Audit of political agent funds by the Auditor General of Pakistan.19
Strengthening the FATA Tribunal
Although the FATA Tribunal was originally introduced in amendments made to the FCR in 199720, the 2011 reforms enhanced the independence and visibility of the court. After both 1997 and 2011 amendments, verdicts made by a political agent could be appealed to the commissioner of the adjacent settled district. Subsequently, the commissioner’s verdicts could be appealed to the FATA Tribunal. Both iterations of the appellate authority were empowered to review decisions, decrees, orders and sentences made by a political agent or commissioner. Following the 2011 reforms, the overall FATA judicial hierarchy is as follows:
- FATA Tribunal
- Commissioner and additional commissioner21
- Political agent or district coordination officer
- Assistant political agent
- Qaumi Jirga (tribal elders jirga)
- Council of elders22 (for giving decisions according to Rewaj)
According to Section 48 of the 1997 FCR, however, membership of the FATA Tribunal was limited to the secretaries of federal Home and Law Departments. The 2011 amendments, however, brought the court out from under direct administration of the federal government and placed two retired bureaucrats and one lawyer on the FATA Tribunal. The reforms specify that the membership of the FATA Tribunal must consist of a chairman and two other members. The chairman must have been a civil servant of not less than BPS-21 rank and must have experience in tribal administration. One of the other two members must also have been a civil servant of not less than BPS-20 rank and also have tribal administration experience. The third member must qualify to be appointed as judge of a High Court and must be familiar with Rewaj (tribal customs).
2011 reforms also provided the FATA Tribunal with the power to review its own decisions by request of any individual. Critics of the reforms would have liked, however, to see the extension of the jurisdiction of the high courts to FATA or an appellate court headed by more independent individuals, recommending the appointment of retired justices instead of former government officials. Subsequent to the reforms, the new FATA Tribunal was constituted and began operations. As of 2013, however, FATA citizens continued to be largely unaware of the enhanced right of appeal provided by the 2011 reforms.
As indicated above, the FATA Tribunal is a the highest appellate forum under the Frontier Crimes Regulation and may review the decisions of the appellate authorities below it. Specifically, if the FATA Tribunal is approached within ninety days following a decision, judgment, decree, sentence passed or order made by an appellate authority (i.e. commissioner, additional commissioner, political agent or district coordination officer), it may review the decision. Below the FATA Tribunal, the commissioner or additional commissioner is authorized as the appellate authority for cases decided, decrees or sentences passed by the political agent, assistant political agent or district coordination officer. Appeals to the commissioner must be filed within thirty days following the contested decision, decree, sentence or order.
Therefore, one significant impact of the 2011 amendments to the FCR is that citizens now have two mechanisms at their disposal to contest actions and decisions of the political administration. An individual may file an appeal with the commissioner within thirty days and also with the FATA Tribunal within ninety days by filing for review. According to the amendments, the FATA Tribunal may also review any of its own decisions upon the application of any aggrieved person if such review application is filed within thirty days of the decision. Applications for review may be accepted by the FATA Tribunal if there is any mistake or error in the case or for any other sufficient grounds.
Inclusion of Elders and Tribal Representatives
While the jirga concept is not new in the tribal areas, the 2011 amendments did introduce to the FCR the Qaumi Jirga, a jirga consisting of respectable elders and representatives of the tribes. According to the reforms, “the political agent or district coordination officer23 may take cognizance of any offence or civil dispute in exceptional circumstances, if so recommended by a Qaumi Jirga of the tribe in the interest of justice and public peace”.24 The 2011 amendments do not, however, cede any of the political agent’s judicial authority to the Qaumi Jirga. Rather, the FCR now merely recommends that political agents consider the recommendations of the tribes involved in a particular case or dispute. As of 2013, implementation of this provision of the 2011 amendments was sporadic and not well monitored.
Legal References and Extensions
The Frontier Crimes Regulation is a single, composite law providing legal, administrative and procedural provisions for all governance, civil and criminal matters in FATA. The FCR is not, however, a self-sufficient law as it depends on concepts inherent in the Pakistan Penal Code (Act XLV of 1860). In addition, some laws governing the rest of Pakistan have been extended to and now apply in FATA25. While some are mentioned explicitly in the FCR text, other rules and regulations are periodically extended to FATA by the President of Pakistan, the Khyber Pakhtunkhwa Governor and the FATA Secretariat.
Political Rights and Future Reforms
In terms of citizen access to an independent judiciary in FATA, the most significant conceptual problem with the FCR is its unification of executive and judicial systems. In a setup similar to that of former executive magistrates in Pakistan’s four provinces, the local executive authority (political agent) in FATA exercises all judicial powers, serving as the final arbiter of justice in all cases, including those where he is the accused or otherwise involved. Commissioners, additional commissioners, political agents and assistant political agents are all executive officers with jurisdiction over FATA; all of them also exercise judicial power.
Critics argue that the likelihood of receiving a fair trial is decreased significantly when the same officials (de facto judges) who hear criminal or civil matters are also responsible for the day-to-day administration of an agency or frontier region. Similarly, the FATA Tribunal is made up of retired officers from the executive branch of government. As the simultaneous exercise of administrative and judicial power can represent an obvious and dangerous conflict of interest, some suggest the creation of an alternate, independent and formal judicial system for FATA. Most of those suggestions include the right to appeal to the High Courts and the Supreme Court of Pakistan as well as judicial independence at lower levels sufficient to protect fundamental and human rights.
Before and after the enactment of the 2011 reforms, some reformers expressed a preference to see the Frontier Crimes Regulation repealed as opposed to amended. The Human Rights Commission of Pakistan, for example, famously compared living under the FCR to living as a slave.26 In their view, the FCR is too flawed to be corrected and should be repealed and replaced by the executive and judicial systems governing the rest of Pakistan. Similarly, Pakistani and international civil society organizations and others working for political and human rights have recommended for years that FATA needs substantial political reform and that its citizens deserve to be brought fully under the jurisdiction of the Constitution.
The August 2011 reforms did not fully mainstream FATA into political and judicial life in Pakistan. The amendments, however, did disprove the longstanding belief that that 110-year old Frontier Crimes Regulation would never change. While modest in terms of their impact on the overarching legal concepts represented by the FCR, the 2011 amendments did make it possible for Pakistani political leaders and FATA citizens to imagine further reforms and improvements to the quality of democracy in the tribal areas.
Despite geographical and societal isolation, FATA citizens are increasingly aware of their political rights and responsibilities. Communications and access to information is improving and citizens demonstrate a growing desire to participate in civic life. FCR amendments and the extension of the Political Parties Order to FATA serve as undeniable proof that change is possible and that citizen grievances with the current system of governance in FATA can and will be addressed. Vast majorities of FATA voters as well as civil society and national political leaders stand firmly behind the reform agenda and frequently discuss further political, legal and governance reforms, including amendments to the Constitution.
Political and Human Rights
As of February 2013, truly representative governance (local as well as in parliament) and access to the high courts27 were high on most reformers’ wish lists. Accountable and transparent governance is also an aspiration of those living in FATA. While the 2011 amendments increased the political rights of citizens, the political administration (political agent and other executive authorities) maintains considerable power and discretion. The FCR, however, continues to contain an element of fear as regards citizen rights and access to power. Human rights advocates maintain that further reforms are required to hold local officials accountable for any improper administrative behaviour or corrupt practice.
The 2011 amendments to the FCR brought the regulation in line with the Pakistan Penal Code (Act XLV of 1860) and the Code of Criminal Procedure, 1898 (Act No. V of 1898). However, there are still concerns regarding its shortcomings and demands to bring the FATA legal regime into harmony with other Pakistani laws as well as the rights guaranteed by the Constitution. Many of the human and political rights protected by the Constitution continue to be denied to those living in FATA.
According to Part II of the Constitution (entitled “Fundamental Rights and Principles of Policy”), no law may be enacted that denies citizens any of the following fundamental rights: life, liberty, dignity, education, equal protection under the law, privacy of the home, right to a fair trial, freedom of movement, freedom of association, freedom of speech, religious freedom, access to information, or property rights, among others. Likewise, according to the Constitution, no law may be enacted that allows: detention without legal counsel, self-incrimination, double jeopardy, retrospective punishment, religious taxation, or discrimination regarding access to public places. Further reforms are necessary to ensure the protection of these fundamental rights for all FATA citizens. ҉
BY G. M. CHAUDHRY, ADVOCATE HIGH COURT
1 Bajaur, Mohmand, Khyber, Orakzai, Kurram, North and South Waziristan Agencies
2 Tribal areas adjoining Peshawar, Kohat, Bannu, Dera Ismail Khan, Lakki Marwat and Tank Districts
3 Published in the Gazette of Pakistan, Extraordinary, Part I, Islamabad, on August 27, 2011.
4 Province of West Pakistan (Dissolution) Order, 1970 (President’s Order No. 1 of 1970), going into effect on March 30, 1970.
5 See Section 21(c)(3) and 22(d), Amended Frontier Crimes Regulation, 2011.
6 See Section 21, ibid. Following 2011 amendments, male members of a family must be arrested first, followed by the sub-tribe and then by other sections of the tribe.
7 See Section 4, 5 and 48, ibid. Appeals shall be heard by an appellate authority comprised of a commissioner and a dedicated additional commissioner to be notified by the Governor.
8 See Section 55(A)(4), ibid.
9 See Section 55(A) and 55(AA), ibid.
10 See Section 5, ibid.
11 With some restrictions and at the discretion of the political agent, the 2011 reforms granted the right to bail to FATA citizens. The FATA Tribunal or the appropriate appellate authority also has the power to revoke the right to bail. See Section 11(a), ibid.
12 See Section 12(a), ibid.
13 See Section 8, ibid.
14 See Section 26, ibid.
15 See Section 38 and 39, ibid.
16 See Section 40(A), ibid.
17 See Section 55(AAA), ibid.
18As per prevailing market value in accordance with the procedure laid down in the Land Acquisition Act 1894 (as followed in the rest of Pakistan). See Section 56, ibid.
19 Though enacted, this amendment has not been implemented to date. As of February 19, 2012, no audit of political agent accounts has been reported having been performed by the Auditor General of Pakistan. See Section 58(2), ibid.
20Section 6 of the Frontier Crimes (Amendment) Regulation, 1997 (Regulation No. II of 1997)
21 In settled district, the functions and powers of the political agent are held by the district coordination officer.
22 Councils of elders existed previously in the tribal areas; the concept was not introduced as part of the 2011 reforms. However, the reference to the council of elders regarding the interpretation of tribal customs was new in 2011.
23 In the “frontier regions” of FATA, administrative authority lies with the district coordination officer of the adjacent settled district. Subsequently, the district coordination officer reports to the corresponding commissioner.
24 See Section 11(b) of the Amended Frontier Crimes Regulation, 2011.
25 See the Second Schedule of the Amended Frontier Crimes Regulation, 2011.
26 FCR: A Bad Law Nobody Can Defend. Human Rights Commission of Pakistan, Peshawar Chapter. July 2005. http://dtce.org.pk/dtce/FCR/Data/FCR%20Report.pdf
27The Peshawar High Court and the Supreme Court of Pakistan, for example.
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