FCR rule struck down
August 19, 2011
The PPP led government managed to get another feather in their cap by breaking out from the colonial hand-me-down by amending the 1901-vintage Frontier Crimes Regulations (FCR) and extending the Political Parties Ordinance (PPO) 2002 to the Federally Administered Tribal Agencies (FATA).
Considered always a black law the FCR was devised by British colonialists in 1848 as an instrument of subjugation meant to discipline the Pakhtun population and establish the writ of colonial authority. Innocent men, women and children become victims of the draconian regulations. Even family members were handed a jail term for no crime of their own under the FCR.
The two orders were signed by President Asif Ali Zardari with the promise that this would help mainstream the tribals living east of the Durand Line that separates Afghanistan from Pakistan. While amendments to FCR aim at abolishing some of the draconian provisions, political activity has been allowed into the tribal belt with the extension of the PPO to FATA.
Billed as “far reaching administrative, judicial and political reforms” in the tribal areas, these were announced on the eve of the 2009 Independence Day celebrations but could not be implemented till date, apparently owing to opposition from the establishment.
Anticipating criticism about this move being no more than just a half-measure towards mainstreaming the tribal areas, Mr. Zardari said the door had been unlocked and it is for the people of the region to decide how much more reforms they want in their system of governance. “Let it also not be forgotten that no one took even a single step in the last one hundred years to reform the FCR and give political rights to the people.”
There has been a persistent demand from various quarters for repeal of the FCR as there is no provision of “appeal, wakeel or daleel” (engaging a lawyer or reliance on reasoning) against the orders of the executive under the 110-year-old regime. Subject to the whims of the administration — each agency is headed by a political agent appointed by Islamabad — a person could be imprisoned for three years without trial and entire tribes could be arrested under the provision of collective responsibility.
According to Elected representative from Lower Kurram agency and Parliamentary leader of FATA Munir Orakzai major changes have been made in 17 points of the 72 points FCT. He told that this amendment has been made possible due to the unremitting work of committee which included 6 federal ministers. He said that further amendments would also be made in the time to come. He said that amending a 100 year old Colonial rule is a milestone.
According to FATA FCR reforms bill, now political activities have been permitted in the tribal areas and any action against any tribe will be taken in few steps and final decision will be announced within scheduled time.
Contrary to past practice an accused shall have right to bail and it will be mandatory to produce him before the concerned authority within 24 hours of arrest.
Women, children below 16 and those aged above 65 shall not be arrested or detained under Collective Responsibility.
Amendments in the FCR have been announced after 110 years as it was first announced in 1901 and under the reformed FCR, the women and children would be exempted from territorial responsibility.
Henceforth the whole tribe will not be arrested under the Collective Responsibility clause. Step-wise action will be taken - first immediate male members of family followed by sub-tribe and then by other sections of the tribe, he said.
Cases will now be disposed of in a fixed timeframe and checks placed on arbitrary power of arrest under the notorious Section 40A of the FCR.
Appeals will lie before Appellate Authority comprising Commissioner and a dedicated Additional Commissioner (Judicial) to be notified by the Governor.
The reforms envisage setting of a FATA Tribunal headed by Chairman and two other members out of whom one shall be a person who has been civil servant of not less than BPS 20 having experience of Tribal Administration and other member shall be a person qualified to be appointed as Judge of High Court well conversant with Rewaj.
The FATA Tribunal shall exercise power of revision against orders/judgments of Appellate Authority and shall have powers similar to High Court under Article 199 of the Constitution.
A new section has been added providing for action for false prosecution in civil and criminal matters. Under it the defendant will be entitled to adequate compensation in criminal matters and compensatory costs in civil matters.
No person shall be deprived of his property without adequate compensation as per prevailing market value in accordance with the procedure laid down in the Land Acquisition Act, 1894 procedure in settled areas.
For the first time the funds at the disposal of the Political Agent shall be audited by Auditor General of Pakistan.
Section 58A has been added to make provision for jail inspections by FATA Tribunal, Appellate Authority and Political Agent. Rules will be framed for regulating the Agency Welfare Fund.
The changes made envisage setting of a FATA Tribunal which shall have powers similar to that of the high courts. The FATA Tribunal shall have powers of revision against orders and judgments of Appellate Authority. Previously there was no such provision of appeal to a judicial authority.
In November 2004 the Senate passed a unanimous PPP Resolution calling for changes in the FCR.
The reforms hammered out after consultation with all stakeholders was approved in principle on August 12, 2009 in a meeting in the Presidency that was also attended by the Prime Minister. The meeting had left it to the President to announce it any time he deemed fit.
Pakistan’s tribal areas are unfortunately those areas which were used by various elements for their own designs, sometimes they are used for fighting war on terror, action against the Soviet union and used as NATO supply.
Despite the passage of 65 years establishment of Pakistan the tribal areas are still deprived of basic necessities of life and continue to live in dark ages. Although the rulers have collected billions of aid from world powers for development in FATA regions but still no measures have been taken for providing education, health and justice to the people of these areas.
After Independence several black laws of the British era came to end but unfortunately even after a passage of 100 years the doctorial rules continue to exist in tribal areas due to which the people of these areas are deprived of basic human rights. Due to limited authority of political agent a person could be made to serve a jail sentence for years without committing any crime. The political parties were also not allowed to operate.
With the FCR reforms political parties would be allowed to operate freely meaning that "a vacuum had been filled" and that parties would now liaise with tribal elders in order to carry out their activities in a peaceful manner.
Until now lawmakers representing the tribal belt were technically independents. Although some have been backed by political parties, the parties themselves were not allowed to operate on the ground.
Due to these factors the literacy rate of the area is near to nil and every day bombing of education institutes does not help the matter much. Due to the area being a no fly zone for the national media the true picture of these areas were not brought forward.
Despite the fact that the PPP regime has made several unpopular decisions but striking down the 100 year colonial rule is definitely a major achievement of this government.