Thursday, May 15, 2008, Jamadi-ul-Awwal 8, 1429    

Rationalising Anachronistic Law

Nauman Sabit

Prime Minister, Syed Yousuf Raza Gilani’s enthusiastic announcement of abolishing the Frontier Crimes Regulation, commonly known as FCR, has generated a meaningful debate about the final fate of this anachronistic law. The FCR, presently in vogue in the seven federally administered tribal regions and six frontier regions, basically explains relationship between the state and the tribes on the one hand through an indirect form of governance and lays down procedure for dealing with inter-tribal matters on the other. The FCR comprises a set of laws enforced by British colonialists in the Pakhtoon-inhabited areas to protect their interests. They were specially devised to counter the fierce opposition of the Pakhtoons to British rule. The FCR dates back to the occupation of the six Pakhtoon-inhabited Frontier districts by the British in 1848. The regulation was re-enacted in 1873 and again in 1876 with minor modifications. With the passage of time, as the regulation was found to be inadequate, new acts and offences were added to it through promulgation of the Frontier Crimes Regulation 1901 to extend its scope.
As an instrument of subjugation, the FCR was meant to discipline the Pakhtoon population and to establish the writ of the colonial authority. In drafting the regulation, the British relied upon some customs and traditions prevailing in the tribal belt, but these traditions were distorted to suit the government’s plan of securing convictions at will. Consequently, the law contains no concept of an independent, impartial judicial authority or a court of law to dispense free and fair justice. While the law incorporates the custom of trial by a jirga, the selection of jirga members is left to the executive authority and the findings of the jirga are not binding. This way the executive was made the ultimate authority and final arbiter to initiate trial, prosecute offenders and award punishments. Surviving the exit of the British and the independence of the country, the FCR negates constitutional provisions and international human rights practices in manyrespects.
While the Constitution of Pakistan protects the fundamental rights of citizens by giving them the right to approach the High Courts and the Supreme Court, the tribesmen convicted under the FCR, however, cannot file an appeal against the political agent’s judgment in the superior courts. This is due to Article 247 (7) of the constitution, which bars the exercise of jurisdiction of the courts in the Federally Administered Tribal Area.
Thus, while fundamental rights remain theoretically available to FATA residents, Article 247 (7) places a bar on the jurisdiction of the courts that precludes the enforcement of fundamental rights. Besides, there are numerous provisions in the FCR which makes it a brutal law. The seizure and confiscation of property and arrest or detention of an individual without due process and debarring a person in the tribal area from entering the settled district under Section 21, removal of a person from his residence or locality under Section 36, imposition of fines on the entire community for crimes committed by individuals under sections 22 and 23 are some of the provisions that make the FCR a draconian law.
According to the legal and constitutional experts, all the FCR provisions- substantive as well as procedural- e.g. selection of jirga members (section 2), trial procedure in civil/criminal matters (sections 8 & 11), demolition of and restriction of construction of hamlet, village or tower in the Frontier (section 31), method of arrest/ detention (section 38 & 39) security for good behaviour (sections 40, 42), imposition/collection of fine (sections 22-27), etc are in violation of the Constitution. They say that the FCR is contrary to Article 8 of the constitution, which provides that any law or custom or usage having the force of law, in so far as it is inconsistent with fundamental rights shall be void. He says the provisions of the FCR are violative of several articles of the constitution, such as Article 4 (the right of an individual to be dealt with in accordance with the law), Article 9 (security of person), Article 10 (safeguards as to arrest and detention), Article 13 (protection against double jeopardy, self- incrimination), Article 14 (inviolability of the dignity of man, prohibition of torture for the purpose of extracting evidence) Article 24 (protection of property rights) and Article 25 (equality of citizens). According to former Secretary Law and Justice Commission, Dr Faqir Hussain, Justice A. R. Cornelius referred to FCR proceedings as “obnoxious to all recognised modern principles governing the dispensation of justice” in the case of Sumunder vs State. In the decades following the promulgation of the 1956 constitution, the FCR has frequently come under review in the courts for repugnancy to fundamental rights. Successive judgments of the superior courts declared various provisions of the law void and inconsistent with fundamental rights. This judicial scrutiny, however, subsided with the Supreme Court verdict in the State vs Dosso, which justified the abrogation of the 1956 Constitution on the doctrine of “revolutionary legality”. No serious challenge has ever been posed to the FCR since the revival of the constitution in subsequent years. The result is that the FCR thrives despite its failure to meet the test of compatibility with international human rights principles and the Constitution of Pakistan.
Although Prime Minister’s commitment in his maiden speech to address the obsolete FCR is a welcome step, analysts warn that any move to repeal or introduce any regulation in the tribal regions would require delicate handling in order to avoid the legal vacuum combined with political fallouts. Moreover, in view of divided opinion over the FCR and system of administration in FATA, , the tribal people should be involved and consulted while introducing any law to govern their way of life.