The Frontier Crimes Regulation (FCR) comprises a set of laws of Pakistan that are applicable to the Federally Administered Tribal Areas (FATA). The law states that three basic rights are not applicable to the residents of FATA – appeal, wakeel and daleel (respectively, the Right to Appeal detention, the Right to Legal Representation, and the Right to present reasoned evidence).[1]
The FCR has its origins in laws that were enacted by the British Raj in the Pashtun-inhabited tribal areas in the Northwest of British India. They were specifically devised to counter the opposition of the Pashtuns to British rule, and their main objective was to protect the interests of the British Empire. Over a century later, the laws continue to be applied to FATA residents by the Government of Pakistan.
Contents |
The FCR dates back to the occupation of the six Pashtun-inhabited frontier districts by the British in 1848. The regulation was re-enacted in 1873 and again in 1876, with minor modifications.[2] The 1893 unilateral demarcation of the Durand Line by the British as the border between Afghanistan and Pakistan, which divided Pashtun tribes across the border, caused further animosity among the Pashtun.[3]
The regulation was found to be inadequate to contain Pashtun opposition to British and government rule. So new acts have been added to it from time to time. The regulation took their present form primarily through the Frontier Crimes Regulation of 1901. In 1947, the then Dominion of Pakistan added the clause that residents can be arrested without specifying the crime.[2]
The FCR permits collective punishment of family or tribe members for crimes of individuals.[4][5] It permits punishment to be meted out by unelected tribal jirgas and denies the accused the right to trial by judiciary. Tribal chiefs can also be held responsible for handing over suspects charged by the federal government without specifying an offence. Failure to comply can make the tribal chiefs liable for punishment.[6] Human rights activists and the superior judiciary have argued that the regulation violates basic Human rights.[7]
The regulation denies those convicted of an offence by a tribal jirga the right to appeal their conviction in any court. It gives the federal government the right to seize private property in FATA and to convict an individual without due process. It lets the government restrict the entry of a FATA tribe member into a settled district in the rest of Pakistan. The discriminatory provisions of the regulation, both substantive as well as procedural - e.g. selection of jirga members (section 2), trial procedure in civil/criminal matters (sections 8 & 11), demolition of and restriction of construction of hamlet, village or tower in the North-West Frontier Province (section 31), method of arrest/ detention (section 38 & 39) security for good behaviour (sections 40, 42), imposition/collection of fine (sections 22-27), etc are in vilation of the Constitution of Pakistan. The FCR denies tribal residents: the right to be dealt with in accordance with the law; the security of person; safeguards to arrest and detention; protection against double jeopardy or self- incrimination; the inviolability of the dignity of man; prohibition of torture for the purpose of extracting evidence; protection of property rights; and the equality of citizens.[4]
Other articles of the Constitution of Pakistan, such as Article 247, ensure that FATA residents cannot overturn the FCR.
According to the FCR despite the presence of elected tribal representatives, the Parliament of Pakistan can play no role in the affairs of FATA.
Article 247 of the Pakistani Constitution provides that no Act of Parliament applies to FATA, unless the President of Pakistan consents. Only the President is authorized to amend laws and promulgate ordinances for the tribal areas. The elected representatives thus have no say in administration of FATA. It also repeals the jurisdiction of Pakistan's courts over FATA. By inference, this also limits the application of fundamental rights to FATA.
Article 247 and the Federal Crimes Regulation have been condemned by several jurists. Late Chief Justice of the Supreme Court, Justice Alvin Robert Cornelius, said that the FCR is "obnoxious to all recognised modern principles governing the dispensation of justice" in the case of Sumunder vs State (PLD 1954 FC 228).)[4]
After taking a unanimous vote of confidence on 29 March 2008, then Prime Minister of Pakistan, Yousaf Raza Gilani, expressed his government's desire to repeal the FCR.[8] However, no progress has been made on overturning the regulation.