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Wednesday, 15 October 2008

Modifying the FCR in Pakistan's Tribal Areas: A Long Term Strategy to Fight Terrorism

“WE cannot rein wild horses with silken braids,” wrote John William Kaye, secretary of the political and secret department of the India Office, justifying the special set of laws he helped draft to control the unruly tribesmen of Fata. Modernity may finally have caught up with the Frontier Crimes Regulation (FCR) though. A report in this paper on Monday revealed that a federal cabinet committee has recommended “drastic changes” in the FCR. While this is a step down from Prime Minister Gilani’s pledge to repeal the FCR, the proposed changes go some way in blunting the worst effects of these draconian laws.

For one, it has been recommended that the power of the political agent — whose decisions were constitutionally shielded from judicial review — be pared down. The recommendations have not gone so far as to suggest that the constitutional ouster of the jurisdiction of the high courts and the Supreme Court be amended. However, it has been suggested that a three-member tribunal, with high court-like powers and consisting of members familiar with tribal administration, be set up to review decisions of political agents or district coordination officers. Moreover, it has been suggested that if the parties to a civil dispute agree, the matter should be settled by a council of elders, albeit one selected by the political agent. These compromises should go some way in curbing the most persistent criticism of the FCR: that the political agent is a power unto himself. The second set of important changes that have been recommended focus on extending the constitutional guarantee of fundamental rights to the people of Fata. In addition, the political agent’s right to arrest minors, women and the elderly under collective punishment rules will be curtailed. Again, a compromise straddling the dialectic of custom and statutory law has been mooted: the political agent will retain the right to arrest immediate male relatives of persons suspected in subversive acts against the state.

It appears then that the government has not been able to decisively break from the traditions of the past. There is some merit to the argument that given the security situation in the tribal areas, now is not the time to be experimenting with administrative codes that are untested. However, there is no doubt that a permanent solution to the crisis of militancy in Fata must include political and administrative reforms. One way of balancing the security needs of the moment with the genuine human rights demands of the tribesmen would be to issue a firm timeline for the process of fully incorporating the tribal areas into the political and administrative mainstream of the country. If we expect the tribesmen to give up the ways of their ancestors, we must be ready to hand them the protections of modernity. (Dawn)

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