The much needed change to the Frontier Crimes Regulation

The British, in trying to establish effective control on the territory of sub-continent, used every suitable and unsuitable method. The Frontier Crimes Regulation (FCR) was the product of this desperation. It was applicable on areas, which were later named  Balochistan, Dir, Malakand and Federally Administered Tribal Areas (Fata), where apprehensions for resistance to British control existed.

After the bifurcation of the subcontinent in 1947, FCR was still viable legislation in almost half of Pakistan but it was eventually repealed by ordinary Pakistani law. Today only the territories of FATA are subject to FCR which is no small piece of land.  It consists of 6 districts and has approximately a population of 5 million. The district has remained the center of global attention owing to its location as its porous border is accredited for the infiltration of insurgents and the smuggling of drugs and goods.

FCR was enacted in 1901 and is known as the quintessence of draconian enactments. This can primarily be attributed to the procedures of the legislation whose unfairness and severity knew no bounds. Under FCR, No provincial assembly or Judiciary have authority in FATA. It is administered directly by the President of Pakistan and the Governor of respective province which is followed by the Political Agents and Local Tribal Elders (Jirga). The legislation enforces collective punishments and provides no considerations for elderly or minors due to which it violates fundamental rights.

Under section 23 of FCR, if a dead body is found from any village, the whole village shall pay for it in terms of fine. A convict is not punished individually but the whole family and tribe comes under the sword. Malaks-Tribal Elders- who form Jirgas-Tribal Court System- have arbitrary authority that is often abused. The decision of Jirgas which is followed by Political Agent’s approval cannot be challenged in any court. Political and assistant Political Agent have absolute power of executive and judiciary.

FCR has been amended many times in past. The most progressive of these was in 2018, when then incumbent President Asif Ali Zardari signed an amendment that curtailed the arbitrary powers of Political Agents and provided lenient measures for women and children under 16 by exempting them from collective punishment.[i]

Although, this amendment is likely to allow FATA’s people to stand equal to other Pakistani citizens, it has yet to be implemented. The plight in which people of FATA are suffering is mainly due to Malaks or Tribal Elders. They do not want to give up their power in favor of common men. It is cumbersome for masses of Fata to take stand against any acts of Malaks and this difficulty is aided by the absence of the right of residents of FATA to appeal to the courts of Pakistan. A new bill which has been passed by the National Assembly in 2018 remedies this by extending the jurisdiction of the Supreme Court of Pakistan and the High court to FATA.

Recently, the Legislators tabled a bill in Parliament to merge FATA with Khyber Pakhtunkhwa (KPK), the Northern Province of Pakistan. While it promises the much needed reform for the territories of FATA, the slow process of its enactment is already dissolving the hopes which its drafting had raised.

Political parties have every right of deliberating thoroughly on any issue concerning the country’s interest but they ought not to take much time to come up with solutions to tackle problems which address the fundamental rights of the masses. The long history of bloody, messy and endless wars in FATA must come to an end and prolonging the time it takes to enact relevant legislation is only allowing FCR more time to punish the people of FATA without cause. Given that the administration of Pakistan has recently been replaced, it can only be hoped that it considers the people of FATA worth the fundamental rights accorded by the constitution of the country and takes steps accordingly, to remedy the crimes of the FCR.

 

[i]  section 21.


The opinions expressed in this article are the author's own and do not reflect the views of LEAP Pakistan or Pakistan College of Law.

Mushtaq Hussain

Mushtaq is a student of the LLB programme of the University of Punjab, at the Pakistan College of Law. He can be reached at m_hussain_azad@yahoo.com.