Imagine that World War II has just come to an end. A new post-Hitler government has taken power in Germany and immediately announces that it will review the notorious anti-Jewish Nuremberg Laws. Three years elapse without much further discussion and then the head of state proudly declares that while the laws will stay, they will be amended to exempt minor and elderly Jews. Such a leader would hopefully be booed out of parliament, not lauded for his radical reforms.
This hypothetical situation is roughly analogous to what has happened with the Frontier Crimes Regulation (FCR). Soon after taking power in 2008, Prime Minister Yousaf Raza Gilani declared that his government would repeal the FCR. The latter then took a vow of silence about the colonial era law that codified the principle of collective justice and the separate status of the seven tribal agencies. Earlier this month, the government finally dusted off the mothballs from the FCR file and decided that those under 16 years and over 65 years of age would be exempt from the consequences of the FCR. The decisions of political agents can now also be overturned on appeal by a tribunal and political parties will be allowed to operate in the tribal areas.
All of these measures are improvements but they merely turn the FCR from outright barbaric to severely repressive. To applaud the government for making these small changes is like praising the Cowardly Lion in The Wizard of Oz for letting out the occasional yelp. The FCR is still a law of dubious constitutionality that needs to be done away with.
The three-member panel that will be set up to hear appeals will contain only one judge, giving equal power to a bureaucrat, and the citizens of Fata will still be beyond the jurisdiction of the Supreme Court. Section 21 of the FCR still allows for the confiscation of property and ban on letting residents move to settled areas while Section 36 permits the eviction of a person from his property or village. The idea of collective punishment, a human-rights affront if ever there was one, lives on under Sections 22 and 23 of the FCR.
There is a very good case to be made that the FCR should be declared unconstitutional. Article 247(7) of the constitution declares that the jurisdiction of the courts does not extend to Fata but this is in direct opposition to the principle that access to the courts is a right provided to all citizens.
Indeed, it is only thanks to military rule that the FCR still survives. In Dosso vs the State, a case heard by the Lahore High Court in 1956, it was ruled that the FCR was incompatible with explicitly guaranteed constitutional rights. Unfortunately, then president Iskander Mirza abrogated the constitution soon after the verdict and the government appeal to the Supreme Court ended up centering on the legality of the president’s action.
The issue was raised again in 1964, two years after constitutional rights were reinstated under a new constitution. This time it was the Balochistan High Court that ruled against the FCR in Muhammad Usman vs the State. This decision too was overturned, this time by a Shariat Appellate Bench, which argued that the law must stand as a matter of convenience but that many of its clauses were incompatible with Islam.
Since then there has been no legal challenge to the FCR. Given the PPP’s timidity, it may be time for the courts to once again decide if Article 257, which designates the president and his hand-picked appointees as the sole dispensers of justice in Fata, is a constitutional oddity that needs to be discarded.
Published in The Express Tribune, August 18th, 2011.