Time to do away with FCR

Published: March 24, 2016

LAHORE: This is apropos the news item about 60 people’s detention and sealing of their property by the administration of South Waziristan Agency, under the territorial responsibility clause of the Frontiers Crimes Regulation (FCR), for the recovery of the five employees of the Fata Development Authority (FDA) and three security guards who went missing from the Toi Khula area of the South Waziristan Agency last week.

The incident has, once again, brought the draconian law, the Frontier Crimes Regulations (FCR), into the limelight. The FCR are nothing but a colonial carry-over which, as a plot, had been drafted by colonisers in 1901 to keep tribal people away from the mainstream, according to the judgment on the famous State versus Dosso case. Because the colonisers thought that tribal people had a natural instinct for fighting and kept great regard for being glued to their traditions, they deliberately left the area devoid of a proper governance structure so that the people’s fighting instincts could be reinforced. The colonisers had a vested interest in creating a buffer zone against the threats coming from Afghanistan. Fata’s lot, was, in other words, being nurtured as a non-recruited army by colonisers who would save the western borders of then India.

The FCR, in totality, is a draconian law in which the centre appoints a political agent who, in an all-embracing manner, regulates governance in Fata. He is the people’s legislature, executive and judiciary; it will not be wrong if the political agent be tagged as someone fulfilling the criteria of Thomas Hobbes’s sovereign, if one has studied his Social Contract Theory. The FCR are replete with clauses that are completely against the zeitgeist of the present age defined by democracy. For example, it has a territorial responsibility clause, according to which for any mishap, the administration can take the whole community to task for punishment under collective responsibility. The same clause is at play in the current incident.

It does not strike a chord of logic that for any rogue elements or acts, which exist in almost every society, the whole community should face the music. This is a blatant violation of fundamental rights, such as the right to due trial. The detainees in the present have nothing at their disposal for recourse. Although this is an issue of public concern, which should have invoked Article 184 of the Constitution of Pakistan 1973, prompting the Supreme Court to take suo-motu notice of the disregard of fundamental rights, one should not forget that the Court has no jurisdiction to Fata.

Though measures are afoot at present to ameliorate Fata’s predicament because of FCR under the National Action Plan, and options are being weighed about whether Fata should be merged with Khyber-Pakhthunkhwa (K-P) — in the case of which K-P courts will have jurisdiction in Fata or Fata will be equipped with its own governance infrastructure — these measures are being carried forward at a snail’s pace and it seems like they will hardly yield results. The only way to get rid of the FCR in Fata is if a victim of the FCR from Fata challenges it in court. A similar case took place in the early years of Pakistan, known as the State versus Dosso case. Dosso, a person from Balochistan, had committed a murder and had been convicted by Loya Jirga. The victim challenged the FCR on the basis that it had no regard for fundamental rights. There was a chance to get rid of the FCR in the case, but according to one theory, the then judiciary, in order to legitimise General Ayub Khan’s coup, stopped the case from proceeding further. Thus, Fata’s fate, which was to be decided in the case, was left in limbo; the consequences of which are still being borne by Fata’s people.

At present, the judiciary, fortunately, is fully independent, like it used to be in the early years of Pakistan, and I am hopeful that if such a case reached the judiciary’s doorstep at present, it will result in a good outcome for Fata in the form of repeal of the FCR.

Inamullah Marwat

Published in The Express Tribune, March 23rd,  2016.

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