December issue 2004

Two-year-old Zarmina sits in her mother’s lap on the veranda in front of the barrack reserved for women prisoners at the Central Jail, Haripur. She begins to cry when she hears the sobs of two children nearby, seven-year-old Iran Khan and his eight-year-old brother Tahir Khan. Tears roll down the children’s cheeks as a sympathetic visitor to the jail asks them about their living conditions at the prison.

Convicted under Section 40 of the Frontier Crimes Regulation 1901 (FCR), the innocent Zarmina was sentenced to three years imprisonment at the North West Frontier Province prison. According to the official record, Zarmina was convicted on May 5, 2004, along with her mother Hukam Jana, seven-year-old sister Wazir Azam, eight-year-old sister Islam Bibi, three-year-old brother Khalil Muhammad and nine-year-old brother Sadiq Muhammad.

Zarmina and her family members were handed a three-year jail term for no crime of their own. They were sentenced for the alleged involvement of their father, Qadir Khan, and uncle, Arsal Khan, in a case of kidnapping for ransom. The NWFP government had launched a huge operation in their native Lakki Marwat for the two proclaimed offenders in which more than 100 houses of gang members and their relatives were razed to the ground.

The two brothers Iran and Tahir, however, were put behind bars simply because they happened to live in the neighbourhood and were visiting Zarmina’s family when the administration raided the house to arrest the alleged kidnappers. When they could not find the outlaws, the administration arrested 16 of their family members — including their aged mothers, children and wives — and sent them to jail under the Frontier Crimes Regulation.

According to the official record, 44 juveniles under 18 year of age are at present serving jail terms under the FCR in various jails in the NWFP. In addition, five children are confined to jail while their cases are being tried under the FCR. The Deputy National Coordinator of the Society for the Protection of the Rights of the Child, Arshad Mahmood, however, contends that more than 70 children are imprisoned under the FCR. He asserts that the official figure excludes those inmates who have crossed 18 years of age in prison and have now been shifted to the adult section.

Children are not the only victims of the draconian law. Many women have also been arrested and convicted under the FCR, 11 serving their terms in Haripur jail alone. The Central Jail DI Khan and Central Jail Peshawar also house many inmates convicted under the FCR.

The Frontier Crimes Regulation comprises a set of laws enforced by British colonialists in the Pakhtoon-inhabited areas. They were specially devised to counter the fierce opposition of the Pakhtoons to British rule, and their main objective was to protect the interests of the British.

The FCR dates back to the occupation of the six Pakhtoon-inhabited Frontier districts by the British in 1848. The regulation was re-enacted in 1873 and again in 1876, with minor modifications.

With the passage of time, the regulation was found to be inadequate and new acts and offences were added to it to extend its scope. This was done through promulgation of the Frontier Crimes Regulation 1901.

The British devised the FCR as an instrument of subjugation. It was meant to discipline the Pakhtoon population and to establish the writ of the colonial authority. In drafting the regulation, the British relied upon some customs and traditions prevailing in the tribal belt, but these traditions were distorted to suit the government’s plan of securing convictions at will.

Consequently, the law contains no concept of an independent, impartial judicial authority or a court of law to dispense free and fair justice. This is contrary to the mandate of the Constitution, and a vital safeguard is consequently altogether missing from the FCR.

Thus, while the law incorporates the custom of trial by a jirga, the selection of jirga members is left to the executive authority, and the findings of the jirga are not binding. This way the executive was made the ultimate authority and final arbiter to initiate trial, prosecute offenders and award punishments.

Surviving the exit of the British and the independence of the country, the FCR negates constitutional provisions and international human rights practices in many respects.

The very preamble as well as Article 2-A and 175 of the constitution provide for an independent judiciary in the tribal area, but judicial authority has been vested in the executive alone.

The constitution protects the fundamental rights of citizens by giving them the right to approach the high courts and the Supreme Court. The tribesmen convicted under the FCR, however, cannot file an appeal against the political agent’s judgement in the superior courts. This is due to Article 247 (7) of the constitution, which bars the exercise of jurisdiction of the courts in the Federally Administered Tribal Area (FATA).

Thus, while fundamental rights remain theoretically available to FATA residents, Article 247 (7) places a bar on the jurisdiction of the courts that precludes the enforcement of fundamental rights.

There are numerous provisions in the FCR which makes it a brutal law. The seizure and confiscation of property and arrest or detention of an individual without due process and debarring a person in the tribal area from entering the settled district under Section 21, removal of a person from his residence or locality under Section 36, imposition of fines on the entire community for crimes committed by individuals under sections 22 and 23 are some of the provisions that make the FCR a draconian law.

According to Dr Faqir Hussain, secretary Law and Justice Commission of Pakistan, all the FCR provisions — substantive as well as procedural — e.g. selection of jirga members (section 2), trial procedure in civil/criminal matters (sections 8 & 11), demolition of and restriction of construction of hamlet, village or tower in the Frontier (section 31), method of arrest/ detention (section 38 & 39) security for good behaviour (sections 40, 42), imposition/collection of fine (sections 22-27), etc are in violation of the Constitution.

He says the FCR is contrary to Article 8 of the constitution, which provides that any law or custom or usage having the force of law, in so far as it is inconsistent with fundamental rights shall be void. He says the provisions of the FCR are violative of several articles of the constitution, such as Article 4 (the right of an individual to be dealt with in accordance with the law), Article 9 (security of person), Article 10 (safeguards as to arrest and detention), Article 13 (protection against double jeopardy, self- incrimination), Article 14 (inviolability of the dignity of man, prohibition of torture for the purpose of extracting evidence) Article 24 (protection of property rights) and Article 25 (equality of citizens).
According to Dr Faqir Hussain, Justice A. R. Cornelius referred to FCR proceedings as “obnoxious to all recognised modern principles governing the dispensation of justice” in the case of Sumunder vs State (PLD 1954 FC 228).

In the decades following the promulgation of the 1956 constitution, the FCR has frequently come under review in the courts for repugnancy to fundamental rights. Successive judgements of the superior courts declared various provisions of the law void and inconsistent with fundamental rights. Such judgements were Dosso vs State (PLD 1957 Quetta 9), Toti Khan vs DM Sibi (PLD 1957 Quetta 1), Abdul Akbar Khan vs DM Peshawar (PLD 1957 Peshawar100), Abdul Baqi vs Superintendent, Central Prisons, Machh (PLD 1957 Karachi 694), Khair Muhammad Khan vs Government of WP (PLD 1956 Lahore 668) and Malik Muhammad Usman vs State (PLD 1965 Lahore 229).

This judicial scrutiny, however, subsided with the Supreme Court verdict in the State vs Dosso (PLD 1958 SC 533), which justified the abrogation of the 1956 Constitution on the doctrine of “revolutionary legality”. No serious challenge has ever been posed to the FCR since the revival of the constitution in subsequent years.

The result is that the FCR thrives despite its failure to meet the test of compatibility with international human rights principles and the constitution of Pakistan and children as young as the two-year-old Zarmina are convicted under this anachronistic law.