By Muhammad Utmani
The F.C.R. (Frontier Crime Regulations) 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, and their main objective was to protect the interests of the British Empire. Over a century later, the laws continue to be applied to FATA residents by the Government of Pakistan.
As everyone among us knows that these TRIBAL agencies were not under the British rule, actually the so called settled areas i.e. of Khyber pukhtunkhwa were under British Raj and this law was enacted for these areas not for the now FATA. It was implemented in FATA after the birth of Pakistan.
Khyber Pass in FATA the Gate Way to Central Asia in 1840.s Little has changed there after It being Given Status of FATA in 1901 and FCR Imposed on it by Rooskeeple and British Viceroy Lord Curzon and in Connivance with Sahibzada Qayum Khan first Political Agent of Khyber Pass
Main points in the law:
(1) You 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 area for a crime committed by his or her relative, spouse, or even a person from the same tribe and area (Amnesty International 2008).
(3) Under the draconian Frontier Crime Regulation (FCR) of 1901, 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 powers by the Political Agent which often resulted in serious human rights violations.
(4) Under the FCR, suspects are tried by the 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 but 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) Again, among the most damaging provisions in the FCR is the “seizure/confiscation of property and arrest and detention of an individual without due process, barring a person in the tribal areas from entering the settled districts”. This provision also falls under section 21 of the FCR mentioned above, which is known as ‘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 and can also be arrested and their properties seized.
Moreover, the FCR says that arrested persons will not be permitted to contact the Government of Pakistan and nobody from Pakistan may contact or trade with these people.
(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 and development in the region, the Political Agent has been ruling the tribal region with absolute authority with the help of black laws and he is beyond the reach of 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.
Officers of Khyber Rifles the Armed Wing of Political Agent who Imposes The FCR , since the Time of British Raj in 1893 to Today on FATA . Now this force is Under control of Punjabi Dominated Army Officer of Pakistan Army who control FATA from Central Government of Islamabad Dominated by Punjabi’s to Tune of 70%. FATA is In fact a Territory Governed Directly by Islamabad
The repercussions of FCR
Late Chief Justice of the Supreme Court, Justice Alvin Robert Cornelius, said that the FCR is “obnoxious to all recognised modern principles governing the dispensation of justice” in the case of Sumunder vs State (PLD 1954 FC 228).
The Frontier Crimes Regulations of 1901 has been certified as “draconian”, “black laws”, “illegal”, “unconstitutional” and “un-Islamic” by the people and the courts. The FCR was enacted by the British colonialists as an instrument of subjugation of the local people and to check any rebellion by the pukthoons in this region.
According to SPARC’s annual report 2009, in December 2009, it was reported that 14 children were detained under the FCR. In 2004, the annual report of SPARC had reported that about 70 children had been detained under the same law. In 2004, during a visit to Haripur Central Prison, 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 was discriminatory and un-Islamic. On 29 July 2002, the Lahore High Court ruled that the Frontier Crimes Regulation was no more in existence following the Baluchistan High Court’s judgment of 1979 and hence, detention under the FCR was “illegal”.
In the same order, the Lahore High Court directed the release of Qimat Gul of the FATA who had been detained for about two-and-a-half years without any right to defend. The Political Agent of Bajaur Agency had implicated him under the FCR and had detained him when he protested against forcibly grabbing of his land by some influential persons in the village.
The biased Federation of pakistan
The major fault lies in the “step-motherly treatment of the Federation towards this tribal region” through the Constitution of Pakistan, 1973, which gives space to the FCR to violate the fundamental rights of citizens of Pakistan living in FATA.
In Article 1 of the Constitution, FATA is part of Pakistan and in Article 247, are described the manners and methods by which the area 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
The insufficient amendments:
(1) The extension of the political parties order : not seen yet. 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) Right to appeal : it is also not implemented yet. The case of kurram agency and Peshawar high court.
The Role of FATA MNAs
In the history of FATA all the elected MNAs ( Members of National Assembly) are either from the family of these bureaucrats, who are ruling and exploiting the tribals with both hands or the MALIKS who are benefited from the autocratic decisions of these bureaucrats. So how can one expect that they will abolish FCR or amend the parts which are causing 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 region of FATA, whose people continued, and still continue, to suffer the indignities and cruelties of the archaic British laws under the F.C.R
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, 1973 in the same manner that the rest of Pakistan enjoys.