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Wednesday, 29 October 2008

FCR in Pakistan's Tribal Areas

What to do with FCR?

Prime Minister Yousaf Raza Gilani had declared last April that he would like to abolish the Frontier Crimes Regulation (FCR) in the Tribal Areas because it was “a barbaric colonial-era law that had ruled the tribal areas through the threat of collective punishment”. But Maulana Fazlur Rehman, whose party (JUIF) had joined Mr Gilani’s coalition, didn’t want the FCR abolished. In fact, there was such a variety of views on the subject that one did not hear of the planned ‘reform’ again after it was given over to a committee.

Surveys didn’t help either. A poll found that 39 percent of tribesmen wanted the FCR to be amended and 31 percent wanted it abolished. And old civil servants, who had served in the Tribal Areas, have been recommending a return to the system of the Political Agent, the linchpin of the FCR which doled out collective punishments that violate the fundamental principle of precise designation of the criminal. This view is gaining strength after the perceived failure of the military operations in the Tribal Areas against the terrorists.

A former ambassador and former consul at Afghanistan’s northern province of Mazar-e-Sharif has recommended a return to the old system in an article published recently. He says: “The deployment of the army in FATA has already weakened the established system of governance (the Political Agents). Despite the fact that many of us have strong reservations about the system, such as the powers of the Political Agent, it was in use for a long time and people are somehow used to it. It should be restored and given full support to ensure implementation of the new policy”.

We disagree. We believe that circumstances no longer allow for the revival of a system whose weaknesses were apparent for a long time. Territories administered with weak institutions are vulnerable to trespass and occupation. And the “non-success” of the military operations does not recommend a roll-back and a worsening of the disorder that had brought the army into the areas in the first place. Reading the political signs in Islamabad, one comes to the conclusion that parties which want to retain the FCR want to “Islamise” it, weaken the powers of the Political Agent and make punishments subject to appeal at a higher court.

Will that work? We suppose that the “rough justice” of the Political Agent is what is causing nostalgia about the old system. But the pro-FCR lobbies want this justice under sharia, presided over by ulema as a tandem authority. And if appeal is to lie over and above the authority of the Political Agent and his tribal jirga, where is that court to be located? And if it has to be established in Peshawar, then why should not the state of Pakistan amalgamate the Tribal Areas in the normally administered judiciary under the Federal Shariat Court?

The Tribal Areas have stopped being amenable to the system of the FCR established by British Raj in 1901. This started happening over 30 years ago when Pakistan’s national security establishment began using the Tribal Areas as the frontline territory for jihad and allowed the borders abutting on them to be punctured again and again till there was radical change in the indigenous economic and political forces there. The elements with the help of whom the Political Agent used to administer were superseded by new power centres. This state of affairs was quickly overtaken by “loss of territory” and those who controlled it used beheadings to get rid of the remnants of the old system.

Even the British had thought of changing the FCR. In 1919, 1920 and 1935, committees were formed for the purpose of reviewing it but consensus was not achieved. The condition of semi-lawlessness suited the Raj. But does it suit Pakistan? Today, one can hardly talk of law. The crisis is that of retrieving a territory being controlled by elements which’ve declared their own law there and are calling the area their “emirate”. The law can only come after the state of Pakistan has retrieved what belongs to it in the first place. No “interim” peace agreement that allows outsiders to rule the Tribal Areas in the name of sharia or anything else that stands outside the Pakistan system should be acceptable.

The erstwhile religious alliance of the MMA wanted to exit from the judicial system of Pakistan and enforce its inquisition-like “Hasba” laws but failed because the Supreme Court found them unconstitutional. A hot-house of sharia in the Tribal Areas with hand-cutting and “rijm” as its instruments of correction will destabilise the judicial system in the rest of Pakistan. Today we have 12 representatives of the Federally Administered Tribal Areas (FATA) sitting in the parliament while the parliament doesn’t have the power to legislate for FATA. Why not move towards consolidation instead of a split system? (Daily Times)

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