SEVERAL misconceptions attached to the recent reforms in the colonial era law of Frontier Crimes Regulation (FCR), 1901, have started vanishing after the draft of the amendments became public. The president promulgated the much praised Frontier Crimes Regulation (Amendment) Regulation 2011 on Aug 12 following which the government circles and several commentators termed it a historic development.

As the draft of the amendments was not made public, people mostly relied on the information provided by the government. The information gave birth to several impressions most important of which were the setting up of a Fata tribunal which would exercise powers similar to the high court under Article 199 of the Constitution and the reduction of the powers of the political administration in different cases.

It was expected that the Fata tribunal, which replaces the FCR tribunal, will be fully empowered to enforce fundamental rights in the Federally Administered Tribal Areas (Fata). However, the amendments proved otherwise as the limited powers extended to this tribunal were no match to the one exercised by the high court under Article 199.

Under Article 1 of the Constitution the tribal areas are part of Pakistan and the fundamental rights provided therein are applicable to Fata. However, through Article 247 the superior courts have been barred from exercising any jurisdiction in Fata, thus there is no judicial forum available for enforcement of the fundamental rights.

When the government made announcement about the reforms and it was stated that the tribunal would exercise powers similar to the high court the legal fraternity and hundreds of thousands of tribesmen had taken a sigh of relief that now they would be able to move that forum for the implementation of their rights. However, that was a mere misconception as the tribunal has very limited powers related to habeas corpus or illegal detention cases.

Before introduction of the present amendment, Section 55A of the FCR, incorporated in 1997, provided for the establishment of FCR tribunal with powers of revision against any decision given, decree or sentence passed, or order made by the FCR commissioner. That tribunal comprised of the provincial home and law secretaries and in case of any difference of opinion the case had to be referred to the chief secretary following which the majority view had to prevail.

Now, the said section 55A has been replaced with a new one which provides for the setting up of a three-member Fata tribunal. The chairman of the tribunal shall be a person who has been a civil servant of not less than BPS-21 having experience of tribal administration. Of the two other members, one shall be a person qualified to be appointed as a judge of the high court, well conversant with Rewaj (customs), and the other member shall be a person who has been a civil servant of not less than BPS-20 having experience in tribal administration.

Like the previous FCR tribunal, the Fata tribunal has the power of revision. Although, this tribunal is a judicial forum but it could not be termed an independent body as the members have to be appointed by the governor for a period of three years or during the pleasure of the governor. Unlike judges of the high court, who could only be removed through the Supreme Judicial Council under the Constitution, the members of the tribunal could be removed by the governor.

Another misconception is about powers of the political agents and assistant political agents. Interestingly, the present government has further strengthened the office of the political agent. Prior to the present amendments the political agents had not been directly assigned powers in the FCR and most of the powers were assigned to the deputy commissioner, district magistrate and additional district magistrate.

There was no mention of the political agent (PA) or the assistant political agent (APA) in the FCR. Following the enforcement of the 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.

Now, the government has included a section in the amendments through which the words “deputy commissioner” and “district magistrate” have been substituted with the words “political agent” or “district coordination officer” (related to frontier regions) or “assistant political agent”, as the case may be. Legal experts believe that this amendment is in clear violation to Article 175 of the Constitution which guarantees separation of executive from the judiciary.

Similarly, the powers of the political agent have also been enhanced under the most notorious section 21 of the 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 the commissioner, but now he could directly invoke the said section.

Some restrictions have been placed on the PA as three categories of persons have been excluded from arrest under the said section. These include women, children below 16 years of age and elders over 65 years of age.

Although, the Code of Criminal Procedure, 1898, has already been extended to Fata, but several of its provisions have very rarely been followed including the production of an arrested person before the political agent within 24 hours of his arrest. The production of an accused before the PA or APA within 24 hours of his arrest has also now been included in the FCR and made binding on the administration. Furthermore, the provision of bail, which was available in the CrPC, has also been included in the FCR through insertion of a new section 11-A.

Legal circles believe that instead of cosmetic changes the government should come up with real reforms in the FCR most important of which is to separate functions of judicial and administrative officers. Similarly, the infamous sections related to collective and territorial responsibilities, demolition of private properties and detention under the FCR need to be further diluted and improved.