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Tribal areas craving for FCR abolition

By Imtiaz Gul

Weekly Pulse, Islamabad April 10, 2007

Prime Minister Yousuf Raza Gilani’s promise to change the Frontier Crimes Regulation (FCR) on March 29 has sparked a countrywide debate as to whether at all the new government would be able to secure a consensus for change among all and sundry, particularly the people whom the issue concerns?

Let us first have a cursory look at what is FATA and how the FCR governs it. Despite being a legal-geographical part of Pakistan, FATA remains in the clutches of the political administration, which in cahoots with 35,000 odd tribal elders called Maliks perpetuate a system that requires even common Pakistanis to seek permission if they wish to visit these areas. The rules for foreigners are far more stringent.

At present, 12 MNAs -- all men -- represent the Federally Administered Tribal Areas (FATA) that comprise seven agencies (Khyber, Mohmand, Bajaur, Orakzai, Kurram, North Waziristan and South Waristan). Another six Frontier Regions (FRs) also are under the federal government control.

According to the 5th population census conducted in 1998, FATA’s population stood a little over 3.1 million, spread across about 27,222 square kilometers. The federal government runs the affairs of FATA through political agents (PA) who work under the provincial governor. The agents administer the respective areas under a special set of laws called Frontier Crime Regulation (FCR), introduced by the British colonial rulers way back in 1871 and re-enacted with additions in 1901.
The FCR comprises six chapters, 64 sections and three schedules, the FCR-40 being the most notorious among them.

The FCR 40 deals with collective responsibility issues, i.e. the PA can punish any tribe, or sub-tribe whenever he deems fit. This means if some body damages a government property in Area A, the PA can punish people from Area B on mere suspicion and impose heavy penalties. If a crime takes place in area C, the tribe living in the area is responsible for redemption, even though miscreants or rivals might be responsible for the act.
FCR 40 empowers the political administration to jail anyone for three years without assigning a reason.

Close to 35,000 Maliks – the privileged ones among the FATA populace – function as the bridge between the PA and the tribesmen whenever there is a problem or collective issue.
Essentially, the bureaucracy comprising a few thousand people, the Maliks, and the population are the three major stakeholders within FATA.  The former two mostly speak unanimously in favour of the system. They maintain that the existing system that stands on the FCR allows the tribesmen to retain their independence, and protect them against the downsides of the law of the land i.e. corrupt police, indifferent bureaucracy and tedious legal system.

I remember attending several meetings of a former Khyber Agency PA – Amjad Ali Khan – with tribesmen from the agency. One of the demands that resonated the most in those gatherings was the desire to get rid of the FCR.

 “Would you like to see the corrupt Pakistani police desecrate your homes, would you like them to intrude into your private homes the way they do it all over Pakistan,” was how Khan attempted to blunt the demand. On other occasions, deputies to Khan peddled similar arguments in areas like Jamrud and Landi Kotal.

It was the time (early 1995) when the Bajaur-based Mulla Sufi Mohammed’s Tehrike Nifaze Shariate Mohammedi (TNSM) was sweeping the entire area and political agents had issued instructions to block the movement by hook or by crook.

In fact the most vicious demand revolved around Islamic Sharia. (Even on March 31, a jirga of Ahmedzai Wazir tribes in South Waziristan   declared that any attempt to abolish the FCR in absence of a pre-arranged alternative system ie. Sharia, would not be acceptable.

Scores of discussions with residents in the Waziristan region, Khyber, Darra Adamkhel and Bajaur left no doubt that the “uncrowned kings” have simply been playing havoc with the lives of common tribesmen. They could, theoretically, drive even rich Maliks broke.
And in 2008, when Taliban forces have sunk most of the entire FATA region in a sense of uncertainty and insecurity, a common man in the tribal area, remains deeply embedded in search of justice and yearning for a system of governance that is participatory and protective, and not repressive and exploitative.

In the backdrop of this desire the FATA Grand Alliance, an alliance of various strands of tribal life, urged Prime Minister Yousaf Raza Gilani on March 31, to accept the proposed amendments made by a committee headed by Justice (retired) Mian Muhammad Ajmal, and rename FCR law as FATA Regulations.

Talking to media at the Peshawar Press Club, the alliance president, Zaman Dawarr, reiterated that the FCR law be renamed FATA Regulations, after necessary amendments so that the executive and the judiciary could be separated.

This demand, moderate and more realistic in nature, essentially factors in the possible bottlenecks that might affect attempts to transform FATA – both legally as well as politically.

Even on June 14, 2007, a Grand Tribal Jirga held in Peshawar representing various tribes drawn from all the seven agencies demanded a separate legislature for FATA to enable the people to chalk out policies that are more in synch with their culture and traditions rather than an import from Islamabad.

The gathering had also sought approval of the amendments to FCR suggested by Mian Mohammad Ajmal and their enforcement, followed up by proper legal system in FATA through extension of the writ of the courts to these areas.

Most of the other demands at the Jirga also revolved around issues of governance and socio-economic injustice i.e. jobs in the FATA Secretariat, introduction of local government system to FATA, extension of Zakat Act, setting up of Utility Stores, resolution of disputes on Pak-Afghan border by securing peace, inclusion of tribal elders, intellectuals and parliamentarians in the proposed Pak-Afghan Peace Jirga (held August 2007) allocation of cash share for the FATA in the National Finance Commission Award (NFC), payment of royalty to the tribal people on Warsak, Gomal Zam and other dams constructed on their lands.

Senator Hamidullah Afridi, now a federal minister, had also addressed the Jirga and condemned the Frontier Crimes Regulation (FCR) as a draconian law that had made the lives of people miserable. "We neither want the FCR, nor will we accept the laws of Thana (police station), courts and Patwari. We do not need those laws which have already failed to solve the problems of the settled areas.

It is evident that the time has come for Pakistan’s ruling elite – politicians, generals and bureaucrats to realise that continuing with the anachronism called FATA in this age is not feasible any more. Regardless of what FATA bureaucrats and their tribal appendages, events since the emergence of TNSM in the early 1990s and the consequent unrest – also witnessed in Nov-Dec 2007 in the Malakand region – offer ample evidence that governing these areas with the help of a system carved out of British expedience over a century ago – is neither desirable nor practical any more

(The author heads the independent Centre for Research and Security Studies, Islamabad.

Email: imtiaz@crss.pk