Abolishing FCR

By

Dr. Ghayur Ayub

The usually unemotional Yusaf Raza Gilani showed unusual emotions when he presented his first-100-days political program on the floor of the National Assembly, promising his countrymen to execute it in time. The message received thumping applause from all corners of the august hall. An important item in his ambitious plan was the abolition of Frontier Crimes Regulation commonly known as FCR. The PPP, for the last few years, has been hinting to bring the tribal governing system in line with governance of that in settled areas. The termination of FCR may be considered as the first step in that direction which is in vogue in seven federally administered tribal regions and six frontier regions. It basically explains relationship between the state and the tribes through an indirect form of governance and lays down procedures for dealing with inter-tribal matters.

Such a sudden announcement took everyone, including his coalition partners, by surprise. It seems the authors of the prime minister's speech had no understanding of the Federally Administered Tribal Areas (FATA) and the laws that govern it. Otherwise, they would have at least mentioned a replacement to this 1901 British Law; a law which kept the wild tribes in check for two hundred years in the most difficult circumstances. The authors not only ignored its basic principles but also failed to highlight the implications it would have on the tribal legislators, the Maliks, the public and the religious custodians.

ANP was quick to respond by acknowledging that its leadership had been consulted about generalities but not on the specifics. According to its provincial president, Afrasiab Khattak, "˜FCR is the most investigated and non-implemented law'. The other coalition partner, Maulana Fazlur Rehman reportedly told Dawn that he had not been consulted and warned that any such move would entail grave implications for Pakistan. Earlier on the floor of the National Assembly, he added spice to his fiery speech when he stood up to respond to PM's declaration on reformation in religious Madaris. His fierce opposition to abolition of FCR could have been the result of anger over the reformation rather than the FCR itself. This suspicion was strengthen by an ANP leader, who expressed surprise over what he described as somersault of Maulana Fazlur Rehman insisting that JUI (F) was fully in the picture when the issue of FCR was added to the premier's list. But than, as we all know, Maulana is known for pushing square messages in through round slots.

In the recent past, FCR has been criticized by human rights activists, the civil society and a vast section of the tribal people. The draconian nature of some sections of the law, chiefly the Frontier Crimes Regulation 40, is a preventive law pertaining to good conduct of people and peace-keeping in the region. It has been grossly misused by the political administration by detaining people for longer period than the stipulated three years with no provision of accepting sureties by the accused.

The other controversial sections of the law pertain to collective and territorial responsibilities. Section 21, which deals with collective responsibility, empowers the administration to direct the confiscation of all or any member of a tribe and all or any property belonging to them or anyone of them, if the tribe, or any section or member of such a tribe, are found acting in a hostile manner towards the government or towards people in the country. Section 22, which deals with territorial responsibility, empowers the administration to impose a fine on an entire village if there appear to be good reasons to believe that the inhabitants of the village have connived with, or abetted in the commission of an offence or failed to render assistance in their power to discover the offender or to effect their arrest. Recently during electioneering, I got a firsthand experience of this section when I found that a whole tribe was ordered to pay Rs 20 millions as punishment when a few miscreants of that tribe disobeyed an official order.

As opposed to this, the Article 246 and 247 of the Constitution of Pakistan deals with both federally administered FATA and the provincially administered PATA. The Constitution states that the parliament cannot legislate for the tribal regions unless the President so directs. It is interesting to find that legislators from FATA can take part in legislation for the whole country but not for their own regions. The power to repeal or introduce any regulation in the tribal regions thus rests with the President. That is why; any move to repeal or introduce any regulation in the tribal regions would require delicate constitutional handling and that seems impossible in 100 days as promised by the PM. We should not forget as to what happened in the provincially administered Malakand region following the Supreme Court verdict in 1995 declaring PATA regulation as ultra vires of the Constitution. That decision created a legal vacuum which led to armed rebellion by Maulana Mohammad Soofi of Tehrik-i-Nifaz-i-Shariat Muhammadi. He cleverly called for the enforcement of Shariah to replace the defunct PATA regulation; a problem that haunts the government in Swat.

Keeping this in mind, it is important to avoid taking legislative action which repeats failures of the past. It is equally important to understand that in the tribal society of today, three groups of people stand prominent; first, the common tribal men; second, the Maliks; and third, the religious zealots. Baring a few exceptions, their interests are widely different. The first group has utopian inclinations and they are in majority. They would like to see FCR abolished bringing self respect to their life. Their view is shared by human right activists, NGOs and alike. The second group is self-centered and they are in minority. They would like to keep the status quo. Their view is shared by the FATA legislators. The third group, which has emerged recently, is the religious zealots who look at things differently as was seen in Malakand. This group would like to see FCR be replaced with Shariah. They are supported by Taliban who were swift in announcing support to PM declaration. One such supporter, Maulana Noorul Haq Qadri-a legislator from Khyber Agency, is heard to have been saying, "˜the move would be acceptable only if the government enforced Shariah law in FATA.' There is great similarity in his approach to that of Maulana Soofi of Malakand. Such intentions by people of the third group, can enhance trouble in places like Kurrum and Aurakzai agencies, where the zealots of two sects are already at loggerhead killing hundreds on the name of Islam.

Then, there is fourth dimension to a hasty repeal. Such action will create political problem vis-à-vis Durand Line Treaty inked between British Raj and Afghanistan in 1893. Some Pakhtoon historians and ANP leaders believe, the treaty reached its end in 1993 as it was valid for one hundred years. In their opinion, the international border between Afghanistan and Pakistan stands annulled. So repletion of FCR would open a Pandora box fueling political feud between two neighboring countries which are already at the lowest ebb.

It seems the authors of the PM speech on this issue were unaware of its legal, social, political and religious consequences. It is reported that the PM has constituted a three-member committee comprising of Rehman Malik, Syed Naveed Qamar and Syed Khurshid Shah that would firm up recommendations on abolition of the British colonial law. Without being disrespectful to any of these gentlemen, their knowledge about tribal culture, customs and psyche are questionable. Now that the PM has already caste the die on the floor of the National Assembly, it would be impossible to retrieve from his commitment. In that case, it would be advisable to make a broad-based committee comprising of historians, diplomats, politicians and stake-holders from tribal belt who should go into details of its plus and minuses and come up with solution based on short and long term interests ignoring a 100-day urgency. Such urgency could put us not only in social, political and cultural mess but also in long drawn legal brawl with Afghanistan which might end up in International Court of Justice.

One senior government official with extensive experience of tribal region cautioned rightly by stating that, "˜any drastic decision is a sure recipe for disaster.' Many of us will agree with him when he said, "˜It requires very delicate handling. Changes in the FCR are the need of the hour. But let's not create a Malakand-like situation in FATA where the state authority has already been challenged by different militant groups.'

The end.