FCR in FATA

What is wrong with the Frontier Crimes Regulation?

Officially enacted in 1901, Frontier Crimes Regulation (FCR) has its origins in laws that were enacted by the British Raj in the Pashtun-inhabited tribal areas in the Northwest of British India. They were specifically devised to counter the opposition of the Pashtuns to British rule. The main objective of the FCR was to protect the interests of the British Empire. More than a century later, this law continues to be applied to FATA residents by the Government of Pakistan.

It is well known, however, that the tribal agencies (FATA) were not originally under the British rule. The FCR was initially implemented in the so-called settled areas of Khyber Pakhtunkhwa province that were under the control of the British Raj. FCR was only implemented in FATA after the birth of Pakistan.

FCR MAIN POINTS & CONCERNS

(1) Citizens are deprived of appeal, wakeel and daleel (respectively, the right to appeal detention, the right to legal representation, and the right to present reasoned evidence).

(2) One of the worst aberrations of the FCR is the collective punishment clause (No. 21), which is imposed on anyone in the tribal areas for a crime committed by him or her relative, spouse, or even any other person from the same tribe and area (Amnesty International 2008).

(3) Under the draconian FCR, the political agent or his deputy, the assistant political agent, enjoys unbridled powers – both executive and judicial. There is no regulatory mechanism to check misuse of power by the political agent which often results in serious human rights violations.

(4) Under the FCR, suspects are tried by a tribal jirga or council which submits its recommendations regarding conviction or acquittal to the political agent. The political agent makes a decision regarding conviction or acquittal and is not bound by the jirga’s recommendations. The orders of the political agent cannot be challenged before the higher courts. In effect, there is virtually no separation of the judiciary from the executive in the FATA.

(5) Among the most damaging provisions in the FCR is the clause permitting the “seizure/confiscation of property and arrest and detention of an individual without due process, and/or barring a person in the tribal areas from entering the settled districts”. This provision also falls under section 21 of the FCR, which is known as the ‘Collective Responsibility Clause’. Under this clause, if an offence is committed by one person, his or her whole family/tribe is made responsible for the act, can be arrested or have their property seized. Moreover, the FCR states that arrested persons will not be permitted to contact the Government of Pakistan and that no one in Pakistan may contact or trade with any arrested person in FATA.

(6) Under section 23 of the FCR, all the members of a village are considered responsible for a murder if a dead body is found in their village. Under section 22 and 23, fines are imposed on the entire community for the crimes of a single person. In section 56, if fines are not paid by relatives, then the property of an offender is sold to realize the amount due.

While the Constitution has virtually put the entire populace of the FATA region at the mercy of the President of Pakistan for any reform or development in the region, the political agent has been ruling the tribal region with absolute authority with the help of the FCR and other black laws. The political agent is beyond the reach of the law; he is above the law.

An example: On 29 June 2007, the Peshawar High Court ordered the Kurram Agency administration to immediately release 11 tribal maliks (elders) who were arrested on the order of Assistant political agent of Lower Kurram, Dost Mohammad on 17 February 2007 under the FCR and threatened the administration to initiate contempt of court proceedings if it failed to release the tribal maliks. Earlier in May 2007, the High Court had directed the Kurram Agency administration but the authorities failed to release the detainees.

FCR REPERCUSSIONS

Late Supreme Court Chief Justice Alvin Robert Cornelius, said that the 1901 Frontier Crimes Regulation is “obnoxious to all recognized modern principles governing the dispensation of justice” (Sumunder vs State, PLD 1954 FC 228).

The FCR has been characterized as “draconian”, a “black law”, “illegal”, “unconstitutional” and “un-Islamic” by the people and the courts. The FCR was enacted by the British colonialists as an instrument to subjugate the local people and to stop any rebellion by the Pashtuns.

According to the Society for the Protection of the Rights of the Child (SPARC) annual report, 14 children were detained under the FCR in 2009. In 2004, the SPARC annual report indicated that more than 70 children had been detained under the same law. During a visit to Haripur Central Prison in 2004, the SPARC team met with 21 women and children who were members of a fugitive’s family. The women and children had been convicted under section 40 of the FCR. They were arrested after the wanted man had escaped arrest.

In 1979, the Baluchistan High Court (the Shariat bench) held that the FCR is “discriminatory and un-Islamic”. On 29 July 2002, the Lahore High Court ruled that the Frontier Crimes Regulation had ceased to exist following the Baluchistan High Court judgment and hence, detention under the FCR is “illegal”.

In the same order, the Lahore High Court directed the release of Qimat Gul of the FATA who had been detained for two-and-a-half years without any right to a defense. The political agent of Bajaur Agency had implicated him under the FCR and had detained him when he protested against forcibly conviscating his land by influential persons in the village.

BIASED FEDERATION OF PAKISTAN

The major fault lies in the “step-motherly treatment of the federation towards the tribal areas” by way of the 1973 Constitution of Pakistan, which provides the space needed for the FCR to violate the fundamental rights of citizens of Pakistan living in FATA.

In Article 1 of the Constitution, FATA is named as part of Pakistan. Article 247 describes the manner and methods by which the tribal areas should be administered. Under Article 247 (3) of the Constitution of 1973, “no act of Parliament is applicable to FATA or any part thereof unless the President of Pakistan so directs”.

INSUFFICIENT AMENDMENTS

(1) The extension of the Political Parties Order has not yet been seen on the ground in FATA. A few months back, Pakistan Tehreek e Insaaf local leaders were arrested and tortured for holding a normal jalsa. Even Imran Khan couldn’t do anything against the authorities responsible for it.

(2) The right to appeal has not been implemented yet. See the case of Kurram Agency and the Peshawar High Court for more on this point.

THE ROLE OF FATA MNAS

In the history of FATA, all elected members of the National Assembly (MNAs) are either from the family of the bureaucrats ruling and exploiting the tribals with both hands or from the family of Maliks who are benefiting from autocratic decisions of the bureaucrats.

How can one expect that these interested stakeholders will abolish the FCR or amend the parts which are in violation of basic human rights?

After independence and the birth of a sovereign Pakistan, it was hoped that the Constitution of 1973 would herald a new era of freedom for the people of this country to flourish and progress. However, unlike the rest of Pakistan, the Constitution was not applied to the tribal areas, whose people continue to suffer the indignities and cruelties of the archaic British legal code under the Frontier Crimes Regulation.

There is a need to support the complete abolition and repeal of the FCR, so that FATA may be brought under the purview of the Constitution of Pakistan in the same manner as it applies to all Pakistan. The people of FATA deserve the same fundamental rights that the rest of Pakistan enjoys.