FATA and FCR amendments - Page 2

Almaas Ruby · #11 Wednesday, September 09, 2009

thank u so much for the material that u have provided.

well, just wanted to know whats the way to understand the key terms related to the specific domain of law?
is it possible for a novice like me in the field to know the issues and alike in depth, coz i am totally from a different background?

regards!

Islaw Khan · #12 Thursday, September 10, 2009

Quote:

Originally Posted by Almaas Ruby

thank u so much for the material that u have provided.

well, just wanted to know whats the way to understand the key terms related to the specific domain of law?
is it possible for a novice like me in the field to know the issues and alike in depth, coz i am totally from a different background?

regards!

dear almas

i posted the full text of FCR inorder that u read it. after reading it completely inshALLAH u will become familier with many things if u find any confusion in any part or section of FCR u ask me.

then come to the discussion regarding its amendmend or tottaly replacing with any other law......

go through the text a couple of time must.

regards.

Islaw Khan · #13 Thursday, September 10, 2009

Quote:

Originally Posted by Almaas Ruby

thank u so much for the material that u have provided.

well, just wanted to know whats the way to understand the key terms related to the specific domain of law?
is it possible for a novice like me in the field to know the issues and alike in depth, coz i am totally from a different background?

regards!

@almaas and all others

before averything one must know a bit history of FATA.

HISTORICAL BACKGROUND.

1838--1842 this was the period of Amir dost muhammad khan in Afghanistan.
the First afghan war was fought during this period in the year 1842.

then come the period of IRON AMIR that is Amir Abdur rahman...18888--1905
in between these two amirs was the period od SHAH SHUJA.

Durand line was Demarcated in 1893. by sir mortimer durand.

its 1400 miles long ranging from Chitral to Pashin/chaman/koh e sufaid.

britain made FCR in 1901 for this tribal area....
FCR 1901 was actually acted upon in 1919.

Almaas Ruby · #14 Thursday, September 10, 2009

hi again

just a few queries....

whats "schedule third..schedule fifth etc? not getting them.

whats the job of additional district magistrate, magistrate and DC.

whats meant by this compound set of words?
the [Provincial Government]10

Islaw Khan · #15 Thursday, September 10, 2009

Quote:

Originally Posted by Almaas Ruby

hi again

just a few queries....

whats "schedule third..schedule fifth etc? not getting them.

whats the job of additional district magistrate, magistrate and DC.

whats meant by this compound set of words?
the [Provincial Government]10

well
schedule is that part of an act where some details relating to a particular section of the act is provided. this the manner in which some acts are performed....for example look at the 1st schedule here it is related with section 2 clause b powers of magetrate. ok

i am posting the admininstrative setup or organogram of FATA then u will know magetrates etc in the act.

Islaw Khan · #16 Thursday, September 10, 2009

FATA ORGANOGRAM

FATA

Federal Government(President/SAFRON division)

Governer(Governer secretariat)

Agencies(P.A's, APA's,TEHSILDARS)

there is commissioner FCR

FATA is headed by PA....Political agent

then APA Asst political agent

the TEHSILDAR/Political Naib TEHSILDAR

then political moharrar

the elders and maliks and khasadars, frontier corpe and voluntee lashkars for the help of administration.

DCO or magetrate in settle districts but he is called PA APA in FATA.

Islaw Khan · #17 Thursday, September 10, 2009

why FCR is called BLACK LAW

Because of sections 8,11, 21, 22.

section 8 related to refrences of cicil cases to council of elders or jirga

section 11 is criminal refrence to council of elders ot jirga.

section 21 and 22 is of Collective tribal responsibility....that is the whole tribe will be responsible for the act done by any member of the tribe. the tribe either to produce the member for punishment of his crime or the whole tribe will suffer if the member is not produced.

amendment discussion is all abt these sections especially.

Islaw Khan · #18 Thursday, September 10, 2009

ADMINISTRATIVE SYSTEM

Under the Constitution, FATA is included among the “territories” of Pakistan (Article 1). It is represented in the National Assembly and the Senate but remains under the direct executive authority of the President (Articles 51, 59 and 247). Laws framed by the National Assembly do not apply here unless so ordered by the President, who is also empowered to issue regulations for the “peace and good government” of the tribal areas. Today, FATA continues to be governed primarily through the Frontier Crimes Regulation 1901. It is administered by Governor of the NWFP in his capacity as an agent to the President of Pakistan, under the overall supervision of the Ministry of States and Frontier Regions in Islamabad (Khan, 2005).

Until 2002, decisions related to development planning in the tribal areas were taken by the FATA section of the NWFP planning and development department, and implemented by government line departments. In that year, a FATA Secretariat was set up, headed by the Secretary FATA. Four years later, in 2006, the Civil Secretariat FATA was established to take over decision-making functions, with an Additional Chief Secretary, four secretaries and a number of directors. Project implementation is now carried out by line departments of the Civil Secretariat FATA. The NWFP Governor’s Secretariat plays a coordinating role for interaction between the federal and provincial governments and the Civil Secretariat FATA.

Each tribal agency is administered by a political agent, assisted by a number of assistant political agents, tehsildars (administrative head of a tehsil) and naib tehsildars (deputy tehsildar), as well as members from various local police (khassadars) and security forces (levies, scouts). As part of his administrative functions, the political agent oversees the working of line departments and service providers. He is responsible for handling inter-tribal disputes over boundaries or the use of natural resources, and for regulating the trade in natural resources with other agencies or the settled areas.

The political agent plays a supervisory role for development projects and chairs an agency development sub-committee, comprising various government officials, to recommend proposals and approve development projects. He also serves as project coordinator for rural development schemes.

Islaw Khan · #19 Thursday, September 10, 2009

An FR is administered by the district coordination officer of the respective settled district, who exercises the same powers in an FR as the political agent does in a tribal agency.

Interference in local matters is kept to a minimum. The tribes regulate their own affairs in accordance with customary rules and unwritten codes, characterised by collective responsibility for the actions of individual tribe members and territorial responsibility for the area under their control. The government functions through local-level tribal intermediaries, the maliks (representatives of the tribes) and lungi holders (representatives of sub-tribes or clans), who are influential members of their respective clan or tribe (Shinwari, undated).

All civil and criminal cases in FATA are decided under the Frontier Crimes Regulation 1901 by a jirga (council of elders). Residents of the tribal areas may, however, approach the apex courts (Supreme Court of Pakistan and Peshawar High Court) with a constitutional writ challenging a decision issued under the 1901 Regulation.

FATA elects members to the federal legislature through adult franchise. The system of devolution introduced elsewhere in the country in 2001 by means of provincial Local Government Ordinances (LGOs) has not been extended to the tribal areas. A separate LGO for FATA has been drafted and is awaiting promulgation. A system of partial local-level governance does, however, operate through councils in the tribal agencies and FRs. Elected councillors are involved in various aspects of development planning and decision making.

FATA is divided into two administrative categories: ‘protected’ areas are regions under the direct control of the government, while ‘non-protected’ areas are administered indirectly through local tribes.

In protected areas, criminal and civil cases are decided by political officers vested with judicial powers. After completing the necessary inquiries and investigations, cognizance of the case is taken and a jirga is constituted with the consent of the disputing parties. The case is then referred to the jirga, accompanied by terms of reference. The jirga hears the parties, examines evidence, conducts further inquiries where needed, and issues a verdict which may be split or unanimous. The political agent, or an official appointed by the political agent for this purpose, examines the verdict in the presence of parties to the case and members of the jirga. If the verdict is found to be contrary to customary law or tainted with any irregularity, the case may be remanded to the same jirga for re-examination or the verdict may be rejected and a fresh jirga constituted. Where the verdict is held to be in accordance with customary law and free of irregularities, it is accepted and a decree is issued accordingly. An aggrieved party may challenge the decree before an appellate court, and a further appeal may be lodged with a tribunal consisting of the home secretary and law secretary of the federal or provincial government. Once appeals are exhausted, execution of the verdict is the responsibility of the political administration.

In non-protected areas, cases are resolved through a local jirga at the agency level. Local mediators first intervene to achieve a truce (tiga) between parties in a criminal case, or to obtain security (muchalga) in cash or kind for civil disputes. Thereafter, parties must arrive at a consensus concerning the mode of settlement—arbitration, riwaj (customary law) or Shariah (Islamic law). Once the mode of settlement is agreed upon, mediators arrange for the selection of a jirga with the consent of the parties to the case.

Where arbitration is selected, a jirga is nominated by consensus and given an open mandate (waak), with the understanding that its decision will be accepted by all parties. Here, the decision of the jirga cannot be challenged. In cases decided according to customary law or the Shariah, however, an aggrieved party may challenge the jirga’s decision before another jirga of their own choice. The new jirga does not hear the case afresh but only examines the original decision to see whether it deviates from customary law or the Shariah. Further appeal may be referred to a third jirga and its decision is final.

Implementation of jirga decisions in non-protected areas is the responsibility of the tribe. The jirga may mete out punishment to an offender, imposing a heavy fine. Occasionally, more serious measures may be taken such as expelling an individual or a family from the area, and confiscating, destroying or setting fire to homes and property. In such cases, the entire tribe bands together as a lashkar (army) to enforce the decision.

While most disputes are settled internally, more serious matters may require the calling of a larger jirga made up of maliks, elders, the political agent, members of the National Assembly and Senate, and occasionally even representatives from neighbouring agencies or FRs.

Although the jirga mechanism enjoys widespread favour, corruption has begun to enter the system. It is reported that the poor and more vulnerable segments of society cannot afford to convene a jirga. There are a number of requirements for a jirga to be held, including hospitality, which are increasingly beyond the reach of most ordinary people. There is also the grievance, now voiced more frequently, that in most cases jirga decisions favour the richer or more influential party.

Islaw Khan · #20 Thursday, September 10, 2009

History of FATA

The areas that today make up FATA were once part of the battleground on which the ‘Great Game’ of imperial domination was played out in the 19th century. For the British colonial administrators of India, effective control of the region was imperative for the defence of their Indian possessions, serving as a bulwark against Russian expansionism in Central Asia. It proved difficult, however, for the colonial government to establish its writ in the tribal areas.

Colonial administrators oversaw but never fully controlled the region through a combination of British-appointed agents and local tribal elders. The people were free to govern internal affairs according to tribal codes, while the colonial administration held authority in what were known as ‘protected’ and ‘administered’ areas over all matters related to the security of British India.

Although various tribes cooperated with the British off and on in return for financial incentives (Abbas, 2006), this quid pro quo arrangement was never completely successful. Throughout the latter half of the 19th century, British troops were embroiled in repeated battles with various tribes in the area (Hunter et al., 1840–1900). Between 1871 and 1876, the colonial administration imposed a series of laws, the Frontier Crimes Regulations, prescribing special procedures for the tribal areas, distinct from the criminal and civil laws that were in force elsewhere in British India. These regulations, which were based on the idea of collective territorial responsibility and provided for dispute resolution to take place through a jirga (council of elders), also proved to be inadequate.

Frustrated in their efforts to subdue the region, the British in 1901 issued a new Frontier Crimes Regulation that expanded the scope of earlier regulations and awarded wide powers, including judicial authority, to administrative officials. In the same year, a new administrative unit, the North-West Frontier Province, was created by carving out parts of the then Punjab province and adding certain tribal principalities. The province, as it was constituted at the time, included five ‘settled’ districts (Bannu, Dera Ismail Khan, Hazara, Kohat and Peshawar) and five tribal agencies (Dir-Swat-Chitral, Khyber, Kurram, North Waziristan and South Waziristan), and was placed under the administrative authority of a chief commissioner reporting to the Governor-General of India (Hunter et al., 1840–1900).

The institution of the ‘political agent’ was created at this time. Each agency was administered by a political agent who was vested with wide powers and provided funds to secure the loyalties of influential elements in the area. It was also during this period that the maliki system was developed to allow the colonial administration to exercise control over the tribes. Under this system, local chiefs (maliks) were designated as intermediaries between the members of individual tribes and the colonial authorities, and assisted in the implementation of government policies (GoP, undated [a]).

Despite these efforts, bolstered by repeated military campaigns, the colonial administration retained what was at best a tenuous hold on the area until the British quit India in 1947. Soon after Independence, the various tribes in the region entered into an agreement with the government of Pakistan, pledging allegiance to the newly created state. Some 30 instruments of accession were subsequently signed, cementing this arrangement. To the tribal agencies of Khyber, Kurram, North Waziristan and South Waziristan were later added Mohmand Agency (in 1951), and Bajaur and Orakzai (in 1973).

Accession did not subsume the political autonomy of the tribes. The instruments of accession, signed in 1948, granted the tribal areas a special administrative status. Except where strategic considerations dictated, the tribal areas were allowed to retain their semi-autonomous status, exercising administrative authority based on tribal codes and traditional institutions. This unique system, given varying degrees of legal cover in each of the country’s earlier constitutions, was crystallised in Pakistan’s Constitution of 1973.

The Following User Says Thank You to Almaas Ruby For This Useful Post:
litsoul (Thursday, September 10, 2009)

The Following 2 Users Say Thank You to Islaw Khan For This Useful Post:
Almaas Ruby (Thursday, September 10, 2009), litsoul (Thursday, September 10, 2009)

The Following 2 Users Say Thank You to Islaw Khan For This Useful Post:
jadoon khan (Sunday, September 13, 2009), litsoul (Thursday, September 10, 2009)

The Following User Says Thank You to Islaw Khan For This Useful Post:
litsoul (Thursday, September 10, 2009)