The Fata Interim Governance Regulation (FIGR), 2018, recently promulgated by the President of Pakistan, finally drew curtain on the colonial-era Frontier Crimes Regulation (FCR) 1901, which was considered one of the most oppressive laws in the country.
The FCR was the only law which continued to draw criticism on the national and international level but survived for over seven decades since creation of Pakistan.
Section 3 of the FIGR, which was notified in the official gazette on May 29, provides for the repeal of FCR, which remained operational in tribal areas in one form or another for the last around 150 years.
Abolition of this black law, which was introduced by the Britishers for the people of settled districts and tribal areas, remained a longstanding demand of the tribal people. From time to time the colonial rulers introduced different laws with modification for parts of Khyber Pakhtunkhwa, which remained part of Punjab province till 1901.
Initially, The Punjab Frontier Regulation, 1872, was introduced which was modified later as The Punjab Frontier Regulation, 1876. A more comprehensive law, The Punjab Frontier Crimes Regulation, 1887, was introduced which came into force in Peshawar, Kohat and Hazara districts on March 10, 1887, through a notification issued by the Punjab government. Subsequently, it was extended to Bannu, Dera Ismail Khan and Dera Ghazi Khan districts on July 9, 1887.
The law empowered the local government to extend any of the provisions of the said regulation to any area adjoining the frontier districts, including the tribal territory.
The 1887 regulation included several oppressive provisions which were subsequently made part of the FCR with certain modifications, including the provisions related to collective and territorial responsibilities of the people of the areas where these regulations were introduced.
A committee was later constituted which put forward its recommendations in a report in 1899 for making changes in the 1887 Regulation. The said committee comprised of then commissioner of Rawalpindi Division CL Tupper, and then commissioner Peshawar Division AFD Cunningham and a legal ‘remembrancer EW Parker as its members.
In the light of the said report, subsequently the FCR 1901 was introduced. It was extended to the areas mentioned in the Third Schedule of the regulation. With the passage of time, the applicability of FCR was ended from the settled districts of Khyber Pakhtunkhwa and districts included in Provincially Administered Tribal Areas (Pata), but continued in Fata.
The powers exercised under this pro-bureaucracy law by the administrative officers in tribal areas were unmatched. The administrative officers were assigned excessive powers under the “territorial” and “collective” responsibilities related clauses.
These administrative officers, exercising judicial powers, were so powerful that they could order seizure of properties of members of a respective tribe even in the settled areas. The bar on jurisdiction of superior courts in Fata under Article 247 of the Constitution (now omitted) had aggravated the situation for the tribal people who were being treated as inferior human beings to that of rest of the country.
No noteworthy reforms were made to the erstwhile FCR. In 1997, then President Farooq Ahmad Khan Leghari had promulgated Regulation No II through which certain changes were made in this law. Under that amendment, a right of appeal was provided under section 48 under which an appeal against the order of the deputy commissioner could be made with the commissioner within 30 days.
For the first time an FCR Tribunal was introduced having revision powers against orders of the commissioner. Under section 55A, the FCR Tribunal included provincial secretaries of home and law departments as its members. In case there was a difference of opinion the issue had to be sent to the chief secretary.
Then PPP government in 2011 promulgated the Frontier Crimes (Amendment) Regulation, 2011, claiming that they had made drastic changes in the law to make it people friendly. However, those amendments were mostly cosmetic in nature.
Through those amendments the government had strengthened the office of the political agent. Prior to those amendments there was no mention of the political agent (PA) or the assistant political agent (APA) in FCR. Following the enforcement of FCR the colonial rulers and subsequently the Pakistani government had on different occasions issued notifications through which powers of deputy commissioner and district magistrate were delegated to the PAs and APAs.
In the 2011 amendments a section was included in FCR through which the words “deputy commissioner” and “district magistrate” had been substituted with the words “political agent” or “district coordination officer” (related to Frontier Regions) or “assistant political agent”, as the case may be.
Similarly, the powers of the political agent had also been enhanced under the most notorious Section 21 of FCR, dealing with collective responsibility of a tribe, or group of people. Previously, the political agent, in his capacity as deputy commissioner, could exercise these powers with the previous sanction of commissioner, but now he could directly invoke the said section.
Only few restrictions were placed on PA as women, children below 16 years of age and elders over 65 years had been excluded from arrest under the section. Another change made in FCR was that the FCR Tribunal was replaced with Fata Tribunal as the third and last judicial forum, and limited powers were extended to this tribunal. The three-member tribunal comprises a former civil servant as its chairman.
Although the FCR has now been replaced with FIGR 2018, several of the provisions of the repealed law have been incorporated into the new regulation. For the purpose of the new regulation, the political agent shall be termed deputy commissioner, additional political agent as additional deputy commissioner and assistant political agent as assistant commissioner.
Moreover, the governor has been empowered to confer powers of a district magistrate on the deputy commissioner. The deputy commissioner is empowered to refer a civil dispute to a council of elders (jirga) for inquiry. Similarly, a criminal matter shall be referred to a council of elders for receiving its findings.
Experts believe that following Fata-KP merger through the Constitution (Twenty-Fifth Amendment) Act, 2018, Article 247 of the Constitution is no longer available and the areas in Fata stand merged with KP. They believe that after the said amendment the legal position is that all the laws in KP are automatically applicable to the parts of Fata, which makes the status of FIGR questionable.
A legal expert said that this regulation was promulgated before the enactment of the 25th Amendment and hence it has no legal status now. He added that if challenged before the Peshawar High Court this regulation could not be justified on any legal ground by the government.
Published in Dawn, June 4th, 2018