It is difficult to deny the large-scale implications of extending the jurisdiction of the Islamabad High Court and the Supreme Court to Fata and annulling the Frontier Crimes Regulation (FCR). Extending the jurisdiction of the superior judiciary to Fata is indeed a great leap forward in mainstreaming the region. Likewise, the annulment of the FCR at once would also be a huge development, but it remains to be seen whether these steps can be fully implemented. In order to plug the administrative vacuum in the tribal areas after doing away with the FCR, the Police Act of 1861 has been extended to Fata. However, it would be difficult to enforce.
The fact of the matter is that both the steps are mutually reinforcing. The British colonial era in India (1858-1947) legal framework for Fata, promulgated in 1901, has been a matter of intense debate in the country. Since the shifting of the entire leadership of al Qaeda and its global and regional affiliates in the aftermath of US-led Nato forces occupation of Afghanistan in 2011 and the rise of the Tehreek-e-Taliban Pakistan in the tribal areas in the year 2007, Fata emerged on the world media scene. Certain American leaders described the area as one of the most dangerous places in the world. Since then, reforms in Fata have been discussed at the policy, media and community levels. The crux of these discussions has been how to integrate Fata with the rest of the country and what reforms are needed in this regard. Repealing the FCR and extending the jurisdiction of superior judiciary have been the two most important measures pointed out.
The FCR that has always been termed draconian by a large number of inhabitants of the tribal areas and outsiders for its repressive and merciless nature may not be technically described as a legal framework or codified system of law. It is devoid of a true judicial character in which there is almost no inbuilt adjudication or appellate mechanism. The respect for FCR from the tribesmen has been due mainly to fear of non-compliance instead of benefits of compliance. Striking down of the FCR has been a long-cherished demand of various stakeholders. There are some tribal elders, however, who want the FCR to remain in vogue as it is necessary for the adequate governance of the tribal areas. Whereas a large section of tribesmen have wanted only repressive provisions of the FCR repealed. Only profoundly enlightened and progressive tribesmen and women have been demanding the annulment of the FCR.
It may be mentioned that Pashtun tribesmen have time and again been termed ‘unruly’ by historians and writers like the late English prime minister, Winston Churchill, who spent time among them working as a war correspondent for a UK daily in early 19th century, and writer Rudyard Kipling. In fact, the English colonial rulers of united India, who formulated the FCR, had done so in the light of their experience with the tribesmen. Although in the framing of the FCR the biases of the English rulers had been accommodated, with the passage of time there should have been progressive changes to the FCR which unfortunately could not take place.
But now while doing away with the FCR the decision-makers must keep in mind the tribesmen’s mindset, their modus vivendi, nature of the tribal society and its social stratification. First of all it should be understood that the tribesmen have a collective living, where individualism has no role and collectivism rules the roost. So any set of laws in vogue in rest of the country mainly based on individualism may backfire if implemented in tribal areas in the short run. Still it is much desirable, and for this the authorities must be adept in change management and conflict-resolution.
Published in The Express Tribune, October 12th, 2017.