NationalVolume 13 Issue # 05

Annuling FCR, Extending SCP, IHC jurisdiction to FATA

Recently as a part of the FATA Reforms Programme the federal government has declared that the legal framework known as the Frontier Crimes Regulation (FCR), governing the Federally Administered Tribal Areas (FATA), has been repealed and in its place Police Act 1861 has been extended to the region. This is, indeed, a significant development, but it remains to be seen that to what an extent this declaration is acted upon and what would be its consequences.


In another important development, the government has also announced the extension of the jurisdiction of the Islamabad High Court (IHC) to FATA. This is a more important step than the repealing of the FCR. The fact of the matter is that both the steps of repealing the FCR and extension of the jurisdiction of the IHC to FATA are mutually reinforcing. While some of the draconian clauses of the FCR like the notorious 40 FCR of “Collective Responsibility” of the tribe for crimes committed by an individual(s) have already been done away with during the last government of the Pakistan People’s Party (PPP), but the extension of the jurisdiction of a superior court of the country was never undertaken.


Obviously the two major steps with regard to introducing reforms in FATA of bringing the region under the law of Pakistan and of repealing the British colonial era (1858-1947) legal framework for FATA would have legal, political, economic and, most importantly, security-related consequences.  Another question of import here is whether a weak and corruption-tainted government with all its major allies against the FATA reforms in their present shape would be able to manage the change that would unfold after repealing the FCR and introducing the state’s laws in the region.


Striking down of the FCR has been a long cherished demand of various stakeholders, primarily due to its inhuman and tyrannical nature and its employment by the so-called political administration of the tribal areas and its handpicked tribal agents, maliks,  to oppress the inhabitants of FATA. While repealing the colonial era legal framework was generally desirable and highly in demand, the opinion of the residents of FATA in this regard has been divided. A large section of the inhabitants, particularly the tribal elders, have been against annulling the FCR. They have their own very solid reasons to so argue, but this cannot be accepted prima facie because the law has been a huge hurdle in mainstreaming FATA and bringing large-scale development in the region. It is important to note that the demand for repealing of the FCR in FATA has been more vociferous outside FATA than inside the region. There are different reasons for that ranging from the ignorance of the residents of FATA about their constitutional and legal rights, to fear of the authorities to speak according to their conscience. However, whatever may be the reason for the not so strong demand in FATA for repealing the FCR, the legal document, howsoever it may be deprecated, has had its value. It obviously needs large-scale changes but its blanket annulment is very debatable.


Coming to the outside elements’ demand for the annulment of the FCR, they have been demanding this either on the basis of Pashtoon nationalism or bringing civility to the governance system of the tribal areas, simultaneously wanting to quarantine the country from the rippling ill-effects emanating in the tribal areas. Therefore, all these groups have been justified in their contention and, they cannot be termed as external meddling in the tribal affairs. Even in international politics when a territory of a state is used against another the latter is justified to take appropriate action in its defence.


There has been some antagonism from certain quarters in the establishment to the annulment of the FCR. These elements within the establishment and those who are pro-FCR have a point to make. They have been genuinely feeling that the annulment of the FCR would create a legal and political vacuum in the tribal areas, which would be very difficult to fill due to the special conditions prevalent there. This writer, over the years, has come across a number of tribal elders and high officials having experience of the tribal areas, who argued quite vociferously against the annulment of the whole, or even part, of the FCR. They have been of the view that any such move would render the whole territory ungovernable. Their analysis and perception regarding the necessity of the FCR is grounded in their understanding of the tribal ethos.


The announcement for the annulment of the FCR by Prime Minister Shahid Khaqan Abbasi has come at a time when tribal areas have been stabilized to a great extent by the country’s security forces after they had become hotbeds of local, regional and global terrorist groups since a decade. Nevertheless, while the worst security situation in the tribal areas has severely impacted the rest of the country, especially the adjacent Khyber Pakhtunkhwa (KP) province, there is a genuine need for doing something significant regarding the tribal areas. Annulment of the FCR is thus a step in the right direction. Having said this, one is hesitant to contend that the FCR is the only, and major, problem behind the malaise in the tribal lands. While annulment, in toto of the FCR has been an option but the argument has been whether the government has done its homework on it? In order to have the FCR annulled, there should be an alternative system ready to replace it. But one fears that there is no such mechanism in hand with the government. Therefore, it is recommended that before venturing into repealing the FCR, the government should work thoroughly so as not to leave any loose threads.


The tribal society has not undergone any fundamental change in the right direction that could be termed as a transition from a tribal to a settled society. The chief reason for this has been absence of the efforts from the government side to develop the tribal society through investment and institutionalizing development in the last 70 years. Rather, all efforts of successive governments have been concentrated on reinforcement of the tribal structure and institutions.  Tribal customs and nous have been such that it has always been obstructive of change from within and only large-scale efforts from without, primarily by the government, could effect a real change. In fact, the strategic mindset within the Pakistani establishment has been too dominating regarding its policy on tribal areas. It always considered the tribal areas to serve as a buffer with Afghanistan and, thus, keep the irredentist claims of the latter at bay. During the process the establishment failed to realize that tribal areas could one day become a more serious problem for Pakistan than Afghanistan. In order to justify the policy of keeping the tribal areas ambiguous, the establishment has been misinterpreting Muhammad Ali Jinnah’s announcement he made in the tribal areas not to meddle with their customs and traditions.


Development means change and the process cannot coexist and dovetail with the status quo. So before annulment of the FCR,  the government should make efforts to change the dynamics of the tribal society and then any reforms would be of value and would work.