Rationale of Repealing FCR
The other day some civil society organizations from Federally Administered Tribal Areas (FATA) have expressed their displeasure over the pace of political and administrative reforms in the tribal areas and demanded that instead of introducing the so-called reforms in bits and pieces, the federal government must repeal the Frontier Crimes Regulation (FCR) at once. Holding the FCR responsible for all the problems in FATA, these civil society groups from the region argued that without the repealing of the legal framework no development or reform could be introduced in the region. The arguments hold water as one cannot see any change whatsoever in the lives of the inhabitants of FATA after some superficial changes in certain clauses of the FCR by President Asif Ali Zardari as well as introduction of the Political Parties Act in FATA in 2010 and 2011 respectively.
It is important to note that Yousaf Raza Gillani soon after taking oath as prime minister in March 2008 had announced the annulment of FCR but despite the passage of five years the draconian set of regulations is still menacing the social, economic and political activities of the dwellers of FATA. The law that has always been termed as draconian by a large number of the tribesmen and outsiders for its repressive and merciless nature may not be technically termed as a legal framework or codified system of law because of its lack of true judicial character in which there is almost no inbuilt adjudication or civilized appellate mechanism. The respect of FCR from the tribesmen has been due mainly to fear of non-compliance instead of benefits of compliance.
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 tribesmen. Despite of it, against the popular perception that all the tribesmen want the FCR eliminated a good section of the tribal opinion leaders do not want it so. There are some tribal elders who even want the FCR to remain in vogue as it is necessary for the adequate governance of the tribal areas. Whereas, a large section of tribesmen want only those provisions of the FCR to be repealed which are repressive like the Section 40. Consequently, the government introduced some reforms to the FCR in 2010 but they have failed to make an impact. Only profoundly enlightened, educated and progressive tribesmen have been demanding of the complete annulment of the FCR as they have always considered the framework as the main stumbling block in the development of the tribal areas and attainment of the goal of positive social change in tribal society. Much of the vociferous campaign and struggle for doing away with the FCR has been from outside particularly Pashtoon intelligentsia of Khyber Pakhtunkhwa and Balochistan as well as from national human rights organizations. The outside elements asking for the annulment of the FCR have been demanding so either on the basis of Pashtoon nationalism or civilizing the governance system of the tribal areas while to quarantine the country from the rippling ill-effects emanating in tribal areas. Therefore, all these groups have been justified in their contention and the same cannot be termed as an outside meddling into 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 within the establishment to the annulment of the FCR. These elements within the country’s administration 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. Instead they have been of the view that any such move would render the whole territory really ungovernable. Their analysis and perception regarding the necessity of the FCR is grounded in their understanding of the tribal mindset. It may be mentioned that our tribesmen have time and again termed as ‘unruly’ by historians and contemporary writers like ex English Prime Minister Winston Churchill, who spent some time among them working as a war correspondent for a UK daily in early 19th century.
In fact, the English colonial rulers of United India, who formulated the FCR, had done so in the light of their experience with the tribesmen. Although the framing of the FCR had had the biases of the English rulers due to the reverses they had to face at the hands of the Pashtoon tribesmen, however, this cannot be made the basis to counter argue that there is no practical necessity of the regulations for the tribal areas.
The announcement for the annulment of the FCR from PM Gillani has come at a time when tribal areas had already become a theatre of Global War on Terror. Nevertheless, while the situation in the tribal areas has severely impacted the rest of the country especially the KP, there is a genuine need for doing something of significance regarding the tribal areas. Perhaps this has been the reason behind the announcement of the PM Gillani, thinking it the main cause of the problem in tribal areas
Keeping in view the above arguments, annulment of the FCR is a must. 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 not to leave any loose threads. In this regard the recommendations of FATA Reforms Committee comprised of hundreds of tribal elders, Pashtoon elders from KP, intellectuals, headed by a retired judge of superior judiciary which after threadbare jirgas and caucuses in all tribal agencies could be instrumental in developing a full scale legal framework for the tribal areas to replace FCR.
(The writer is a political commentator and researcher about to receive his doctoral degree in the discipline of International Relations while specializing in religious extremism and terrorism in Pakistan and Afghanistan: firstname.lastname@example.org)
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