Constitutional status of FATA

According to Articles 1 and 2 of the 1973 Constitution, the Federally Administrated Tribal Areas (Fata) are a part of Pakistan. However, according to Articles 51, 59 and 247, it is under the direct executive of the president.

Articles 8 to 28 deal with the fundamental rights of the citizen. If any of this right is violated then the judiciary will protect it from violation. However, it is very strange that being ‘citizen’ of the country, the people of Fata are deprived of all these fundamental rights in violation of articles 8-28 of the constitution. Fata is still being ruled under the British-made Frontier Crime Regulation (FCR) of 1901, which violates the fundamental rights of the tribal people.

The law states that three basic rights are not applicable to Fata residents, appeal, wakeel and daleel. Similarly other FCR articles violate the fundamental rights of the citizens of this area. Clause 21 deals with collective punishment and under section 22-23, fines are imposed on the entire tribe/family for the crime of a single person.

The Fata people request that article 247 (7) of the constitution be amended and the courts’ jurisdiction be extended to Fata. In this regard PPP Senator Farhatullah Babar, moved a bill in the senate.

Article 247 of the Pakistani Constitution provides that no Act of Parliament applies to FATA, unless the President of Pakistan consents. Only the President is authorized to amend laws and promulgate ordinances for the tribal areas. The elected representatives thus have no say in administration of FATA. It also repeals the jurisdiction of Pakistan's courts over FATA. By inference, this also limits the application of fundamental rights to FATA.

Article 247 and the Federal Crimes Regulation have been condemned by several jurists. Late Chief Justice of the Supreme Court, Justice Alvin Robert Cornelius, said that the FCR is "obnoxious to all recognised modern principles governing the dispensation of justice" in the case of Sumunder vs State (PLD 1954 FC 228).)

History of FCR

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.

In new system

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.

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”.

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.

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.

Fourth, FATA remained not a viable area economically. 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.