Currently, reforms affecting the Federally Administered Tribal Areas (FATA) are being discussed calling for constitutional readjustments to mainstream FATA. In this regard, four points are mentionable.
First, the Frontier Crime Regulation (FCR) is a draconian law and the reasons are that FCR necessitates collective punishment – if a member of a tribe commits a crime, the whole tribe is held responsible and consequently punished – imposed by the British, as a colonial power, to handle the tribes.
This point takes one to the history of FCR which dates back to 1848 when the British India annexed the seven Frontier districts or agencies (Bajaur, Mohmand, Khyber, Orakzai, Kurram, North and South Waziristan) inhabiting Pashtuns. Initially, British India extended to these districts the ordinary civil and criminal law in force. However, compared to the rate of crime the rate of conviction under the ordinary criminal law was very low. Hence, the British devised a special law for the region in 1871 called the first FCR, which was modified slightly in 1873 and 1876. With the passage of time, the regulation was found insufficient. That was why new acts and offences were added to promulgate FCR in 1901.
Into FCR, “rewaj” (i.e. tribal custom or way of life) also got incorporated with the consent of the tribes settled in FATA in 1901. The tribes valued collectivism, a term echoed in the word “jirga” as well. In these tribes, there already existed a custom of collective revenge, which used to baulk a tribe at committing a heinous crime against the other tribe. In this way, an atmosphere of collective constraint or collective deterrence was prevalent amongst tribes helping them live in peace side-by-side one another. Against this background, collective punishment embedded in the FCR can be viewed as a synonym of collective revenge to produce a sense of deterrence in tribes. Hence, the tribal custom of collective revenge observed by the tribes to deal with one another was employed by the British as collective punishment to deal with all the tribes.
The term collective punishment expresses the nature of relationship existed between the British India – the part of India administered by the British – and the tribes in FATA. In 1901, the inclusion of collective punishment into FCR to handle the tribes dismisses the myth that the tribes were not under the control of the British. Instead, this point indicates that the British devised this mechanism to control the tribes in a better way, as the worse way was to hold an individual responsible and making efforts to bring him to justice. This point also implies that the British adopted the mode of collective punishment when they faced problems in adopting the mode of individual punishment.
Against this background, the proposed “Tribal Area Rewaj Act” delineates the nature of relationship between the state of Pakistan and the tribes of FATA by dropping the option of collective punishment but the act does not speak about forsaking the custom of collective revenge amongst tribes. In fact, the proposed act preserves the custom of collective revenge under the rubric of “rewaj”. That is, on the one hand, the tribes are demanding jettisoning the provisions of collective punishment from FCR while, on the other hand, the tribes are averse to dropping the custom of collective revenge from amongst them. Hence, whereas the “Tribal Area Rewaj Act” tends to amend the external relationship of the tribes with the state, the act preserve their mutual relationship.
Second, the Jirga system gives the tribesmen a sense of collectivism at both intra-tribal and inter-tribal levels. The proposed “Tribal Area Rewaj Act” will not only retain the Jirga system but also formalize it under the prevailing legal system by offering the Jirga the standing of a local court for both civil and criminal matters. A judge will appoint a Council of Elders called the Jirga, the decisions of which, as per “rewaj”, will have a legal binding on the contesting parties.
This aspect is bound to open a new area of discussion. That is, by offering itself as a hinge between old and new systems, the proposed act will offer a new experiment in an effort to include FATA into the national mainstream. In the literal term, the word “elders” means the people of age with supposed accrued wisdom and acquired experience, but who may be bereft of the understanding of law. The point is that the local culture expressed through “rewaj” not only brings along the Jirga system but also enfolds various centuries-old socio-cultural taboos, which may not stand apart from influencing the decisions of the members of the Jirga. Consequently, the decisions taken by a Jirga may not meet the need of justice defined by the prevalent legal system.
Third, history indicates that the tribes in FATA never made a concerted effort to join the national mainstream. For instance, in 1947, when Pakistan was founded and the tribes in FATA decided to join Pakistan, there was made no demand by the tribes to annul FCR and offer FATA a constitutional status on a par with the provinces to help it get mainstreamed. Instead, the tribes decided to join Pakistan on an understanding that they would continue regulating their lives according to “rewaj” enshrined in FCR. The spirit of this understanding was incorporated into the terms (of accession of Tribal Areas to Pakistan). The Quaid-e-Azam had to approve the same and thus the same has been enshrined in all the Constitutions of Pakistan including the 1973 Constitution. Similarly, in 1973, when the current constitution was being framed, the tribes in FATA made no substantial effort to get FATA’s constitutional status changed.
Fourth, FATA remained not a viable area economically. The British colonized India to exploit India’s agriculture produce (or land resources) for exporting raw material back to England to manufacture various products. In order to meet this objective, the British required fertile land which could be naturally or artificially irrigated by water to get the desired yield. To achieve the desired results, the British constructed the irrigation network in North-Western India, the area now constitutes the Pakistan of today. FATA’s land was not an area of priority that could be irrigated naturally or artificially to get an agriculture yield required to support England’s industries. Second, developing this area was an additional burden on the exchequer of British India. Hence, FATA could not get the requisite attention except a border area that should remain out of British India. The lack of economic viability of FATA was the major challenge faced by the British and the same challenge militated against the politico-economic development of FATA after 1947.
In 1947, Pakistan inherited FATA with its economic backwardness, one of its main hallmarks. Now, the economic insufficiency will be transferred to the next constitutional status. This point alone renders FATA a less convincing option to be an independent province but a more convincing option to join some other province such as the neighbouring province of Khyber Pakhtunkhawa (KPK).
FATA needs mainstreaming but not only politically or constitutionally but also economically and socially. The proposed “Tribal Area Rewaj Act” be framed in a way to dilute the custom of collective revenge. Delivering justice through the Jirga system be done only for an interim period. The merger of FATA with KPK is a better option. KPK must make arrangements for reforming its administrative structure, besides upgrading the financial base of FATA.
In 1947, when Pakistan was founded and the tribes in FATA decided to join Pakistan, there was made no demand by the tribes to annul FCR and offer FATA a constitutional status on a par with the provinces.