THE hitherto “sacred” document of Frontier Crimes Regulation, a colonial era law of governance widely known as a ‘black law’, has undergone several significant changes when the president signed two regulations on Aug 12. Through one of the regulations, the president has made drastic changes in the FCR whereas through the other the Political Parties Order 2002 has been extended to the Federally Administered Tribal Areas (Fata).
Both these documents are of immense significance for the tribal people as till now there was no mechanism available to them for the enforcement of their fundamental rights. Similarly, the political parties were not allowed to function in Fata and the candidates contesting general elections had to contest in their independent capacity.
According to the details made public so far by the government, it is for the first time that a mechanism has been provided in the shape of Fata Tribunal for the enforcement of fundamental rights in the tribal areas. The government claimed that amendment has been made in section 55A of the FCR for setting up a Fata Tribunal which would exercise powers similar to the high court under Article 199 of the Constitution.
Although the tribal areas are part of Pakistan and the Constitution is applicable to these areas, but through Article 246 and 247 these areas have been assigned secondary status. Through Article 147 of the Constitution, the superior courts have been barred from exercising any jurisdiction in Fata. While the fundamental rights, enjoyed by people in the settled districts, were applicable to the inhabitants of Fata, but they had no forum where they could move for its enforcement.
“The steps taken by the government are positive and we hope that in future more political and judicial reforms will be made in Fata. The amendments in the FCR include various important things especially the scope of the provisions related to collective and territorial responsibility has been narrowed down,” said advocate Samiullah Afridi, the general secretary of Fata Lawyers Forum.
He said that although they were in favour of the extension of the jurisdiction of superior courts to Fata, but the setting up of Fata Tribunal was also a positive step. However, he added that independent and legal minded persons should be appointed to the tribunal so that the issues related to tribal people could be effectively addressed.
The FCR in its present shape was introduced in 1901 and since then no noteworthy changes could take place in it. Former president Farooq Ahmad Laghari had introduced certain reforms when the government of Benazir Bhutto was dissolved in 1996 and the caretaker government of Malik Meraj Khalid was in power. The then government had made a historical decision by extending the right of adult franchise to Fata. Till then the system of limited franchise was in vogue in Fata and except the notables and maliks ordinary tribal people had no right of franchise.
Similarly, the then government had made certain amendments in the FCR through which for the first time right of appeal against the judicial decisions of the political administration was give. Through those amendments in early 1997 the commissioner FCR was empowered to hear appeals. Furthermore, an FCR Tribunal was introduced comprising the provincial home and law secretaries with powers of revision regarding orders of the FCR commissioner.
In the present amendments the government has now announced to limit the scope of one of the most oppressive section 21, dealing with collective responsibility of a tribe or its members. It is stated that from now onward it would be applied step wise and initially only the close family members of an offender could be arrested. But even in that case certain categories of relatives could not be arrested which include women, elders above 65 years of age and children below 16 years.
One major objection to this amendment by the legal circles is that the government had not considered the universal definition of a child in this section as under the UN Convention on the Rights of the Child every person below 18 years of age is considered a child. Furthermore, the Juvenile Justice System Ordinance 2000, which was extended to Fata in 2004, and the Anti terrorism Act 1997, recently extended to Fata, also define every person below 18 years of age as a child.
Moreover, in a civilised society there is no room for such laws which provide for detention of an innocent person for the wrongdoings of his family members.
Of late, the Peshawar High Court started to assume jurisdiction in different cases related to Fata especially that of illegal detentions. During last couple of years the high court has heard dozens of cases of illegal detentions. However, in May 2010, the Supreme Court in categorical terms ruled that the superior courts had no jurisdiction in Fata.
The government has announced that the powers of the administration under section 40 of the FCR has been curtailed and instead of three years a person could only be detained under this section for two years.
Legal experts said that section 40 was one of the most misused provisions of the FCR.
Under the said section the political agent in his capacity as deputy commissioner could require a person to execute a bond for maximum of three years for good behaviour or for keeping the peace in an area. The administration could detain a person under section 40 till such time when the required bond is executed.
However, the political agents or the APAs used to victimise persons by not accepting the guarantors produced by them as sureties. These officials consider it their discretion to accept or reject the sureties. When they intend to keep a person imprisoned they normally do not accept his or her sureties.
Some of the oppressive provisions of the FCR are section 21 (collective responsibility), 22 (territorial responsibility), 23 (imposing fines on community where culpable homicide is committed or attempted), 32 (removal of any village on military grounds) and 33 (prohibit erection of hujra or using a building as a hujra).
The FCR is still suffering from various lacunas. The administrative officers have been functioning as judicial officers in the tribal areas in violation to Article 175 of the Constitution guaranteeing separation of judiciary from the executive.
It would be in the interest of tribal people that the government should not stop the reform process with only these two regulations rather it should make efforts for bringing them in the mainstream by bringing them at par with the citizens of other parts of the country in social, political and judicial fields.