THE recent debate on the Frontier Crimes Regulation (FCR) and the Nizam-i-Adal Regulations in the Malakand Area of the NWFP is a key example of the structural problems Pakistan faces.

While countries have had different personal laws for people from different communities, e.g. India and now in some cases the UK, criminal laws have always been uniform.

There is simple reasoning behind this people, according to religion, culture or other factors might disagree on inheritance, marriage or divorce laws, i.e. civil issues, but on issues relating to criminal offences, the state has always laid down a uniform law. Pakistan, of course, exhibits a different trend.

When Pakistan was created in 1947 it inherited two kinds of laws. British common law was for the regions known as the `settled areas` which corresponded to Sindh, Punjab, a few districts of the NWFP and Quetta, while the rest of the country was administered under the FCR (promulgated in 1901), as `unsettled` or `tribal areas`. The tribal areas were mostly on the frontier with Afghanistan and Iran where the control of the central British Indian government was weak. It was thought that these tribes were so ferocious and independent-minded that they would never accept civilian rule.

So as long as the border was safe and these tribes refrained from attacking settled areas, the British were happy to leave them to their ways. However, even after numerous agreements and treaties with the tribes, problems arose in the maintenance of law and order. Since these regions did not have any civilian administration, police and the like, it was very hard to ensure law and order by extending British Indian laws to the areas.

Under the British Indian government these frontier areas were excluded areas where the Indian Penal Code did not apply and Indian courts had no jurisdiction. The Frontier Crimes Regulation was the only law for these regions and the political agent (resident or non-resident) was the ultimate adjudicator. Pakistan inherited this system of governance and whereas the FCR was made inapplicable in the `settled areas`, it still remained in force in the Federally Administered Tribal Areas and the tribal regions of Balochistan.

The Provincially Administered Tribal Areas (Pata) of the NWFP, which for the most part comprise the former princely states of Dir, Swat, Chitral and Amb (Malakand Agency), were for some time after their merger with West Pakistan in 1969 administered under the Pata Regulations of 1975. These regulations were of a peculiar sort in that they extended some Pakistani common law provisions to the region while retaining some aspects of the previous administration. So while the Code of Civil Procedures (1908) was extended to Pata, the tehsildar could also constitute a jirga of Khans to adjudicate any case.

This inherently confused system obviously did not work and was open to many abuses. Finally in 1994, the Supreme Court declared the Pata Regulations as ultra vires to the constitution, making them null and void. Since then, until the promulgation of the Nizam-i-Adal Regulations in 1999, the regions of Pata were administered under a strange mix of local customs and Pakistani common law.

The Nizam-i-Adal Regulations of 1999 were partly a result of the agitation of the Tehrik Nifaz-i-Shariat-i-Mohammadi (TNSM) which had been clamouring for the enforcement of Sharia in Pata since 1994 and partly due to the unwillingness of the government to fully integrate these areas with the rest of Pakistan. The 1999 Regulations were not a complete enforcement of the Sharia but created an image that at least in major issues the tenets of the Sharia were being enforced. The Peshawar High Court and the Supreme Court retained their jurisdiction and an attempt was made to give the impression that a separate legal system was not being established.

At the moment the Government of Pakistan is contemplating wholesale revisions to the FCR and the Nizam-i-Adal Regulations. Whatever system of justice these changes might lead to, the larger question of the existence of not two, but three, legal systems in Pakistan remains — common law, FCR and Nizam-i-Adal.

Currently Pakistan is going through one of the most crucial phases in its history a number of districts are not under the control of the government, military action is being undertaken in parts of the NWFP and, until recently, in Balochistan, and sectarian violence and terrorism is rife in the country. In this environment when the country is falling apart the government should foster unity and coherence, rather than distinction and confusion. Having three different, and at times conflicting, legal systems in the country is no aid to national unity.

For example, it is ludicrous that the punishment for murder is different in Lahore as compared to Parachinar or Swat. Having multiple legal systems, especially criminal jurisdictions, creates a lot of confusion and allows people to play havoc with the system. I can still recall many incidents from my childhood of murderers fleeing to Fata so that the police could not arrest them.

Where in the 1980s murderers and other offenders were hiding from the government in Fata, now more dangerous terrorists are finding a safe haven there. The recent incidents in Swat also show how a different legal system can lead to some people thinking that they can pressure the government into enforcing whatever laws they like.

What Pakistan requires is a straightforward, non-contradictory system of law, which provides

for different personal law but uniform procedural and criminal law. For this change to take place, of course, both Pata and Fata have to be abolished and integrated with the rest of the NWFP. It makes a mockery of independence and democracy that citizens of Pakistan still exist in three different legal states.

The regions of Fata and Pata will remain backward, poor, illiterate, and continue to be violence-prone until there are concerted efforts to integrate them into the rest of Pakistan. The stroke of the pen merging them with the NWFP may not bring about the desired effect immediately but it would be a major first step in the right direction. Rather than amending the FCR and Nizam-i-Adal Regulations, the government should repeal them and integrate these regions by extending the laws applicable in the rest of Pakistan to them without any discrimination.

Adjustment to this change will indeed be complicated but it is better for the government to sort out hiccups in one system rather than three different and contrasting legal frameworks. Pakistan is beleaguered with a plethora of problems and solving this legal confusion will go a long way in cultivating unity in the country.nThe writer is a historian at Keble College, University of Oxford.

yaqoob.bangash@keble.ox.ac.uk