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Submitted to: Sir Zagum Ali Mubbashir

Submitted by: Muhammad Jamil Kakar

Topic Name: FCR- An Imperial Black Law

Subject: Political Science


Course Code:
Roll Number: BH-GEO-0846-14
Dated: 2nd May, 2016

Government College University Lahore

S.no

Contents

1.

Introduction:

2.

Research Questions:

FCR versus 1973 constitution: comments.


Is FCR compatible to humanitarian laws?
Which legal setup should be adopted in FATA as substitute to FATA?
What are the repercussions of FCR?
FRONTIER CRIMES REGULATIONS: AN IMPERIAL BLACK LAW

3.

Rationale of the study:

4.

Literature Review:

5.

Conclusion:

6.

Bibliography:

Introduction:
This term paper examines the Frontier Crimes Regulation (FCR) from various perspectives.
it is basically imposed on FATA people at the time of British, it explains the comparative
analysis between FCR and 1973 constitution as well as differentiation between them ,either FCR
or 1973 constitution drains tribal areas toward peace and betterment .thereafter, the crux to be
described, is inhuman laws in FATA, their implication and consequences which is caused by it,
moreover the suppression of women on the account of FCR.Coming to next perspective, that is
,the legal steps put on the shoulder of tribal areas,furthermore,the adoption of crucial steps either
brought any rectification or its just an overflow, and what sort of changes are required to alter
the lodged black law. Meanwhile It describes the various reformative processes and
developmental stages in the legal system of FATA.it throws light on amendment made by
different authorities in structure of FCR in different ages, furthermore, it explains why the FCR
was codified as a regulation of the government of India and became a law applicable to the tribes
of FATA.at last but not least, I will illustrate the repercussion which made its marks on the
account of FCR, as well as the sagging of society which legs it behind further.

Research Question
1. FCR versus 1973 constitution: comments.
2. Is FCR compatible to humanitarian laws?
3. Which legal setup should be adopted in FATA as substitute to FATA?
4. What are the repercussions of FCR?
5. FRONTIER CRIMES REGULATIONS: AN IMPERIAL BLACK LAW

Rationale of the study


From my point of view, there are many reasons which convinced me to study the FCR.
The first and foremost one is ,FATA, territory of Pakistan as well as considered to be the pillar of
Pakistan, still leg-behind ,though it has MNAs and MPAs but still the whole territory is
vandalized, because all the elected members of the national assembly are either from the family
of Maliks or bureaucrats who are ruling the tribal people. Basically they are exploiting their own
agendas and rules over the people of the agency.
John Gaultang rightly quoted: Imperialism needs structure not Guns. The case study of
FCR highlights all those structures which abolished the right of appeal, wakela and daleel in
FATA. Focus is made over those inhuman laws which are contrary to humanitarian values in
today post-modern scenario. The ultimate aim of studying FCR is to mention that how periphery
was bleeded to feed the center.
It is the need of time to reject all those fallacious claims that no other legal system suits in
FATA besides FCR. The pessimistic picture of any tribal residents which is depicted since a
century as optimized. In short past, present and future of FATA is disclosed.

Literature review:
The 1973 constitution which is considered as protector of fundamental rights of citizen
holds dichotomy and aberration with regard to FATA and its people. Article 1 of 1973
constitution declares that FATA is the part of Pakistan. Moreover, the fundamental rights are
guaranteed in articles from 8 to 28 while Islamic principles have been assimilated in article 2-A.
which shows that fundamental rights of citizens are thoroughly protected. Whereas, FATA has
different dimension because article 247 has rendered null and void these provision for FATA and
a separate administrative system is emplaced. That is, president is not only constitutional figure
head but also the chief executive for FATA, the only executive authority extended in FATA, so,
all constitution reneged to facilitate FATA and imposed bureaucratic rule instead of constitutional
rules and democratic rights. Being the citizens of the country whose population enjoy all these
provisions, except FATA.
Additionally, Article-8 provides that any law inconsistent with the chapter on
fundamental rights shall be void to the extent of such inconsistency. FCR being totally
inconsistent still holds the ground. It discriminates both in civil and criminal matters, classifies
citizens, and does not provide any proof for conviction or a civil decree, and gives no right of
defense by a right of appeal. The judicial powers are exercised by the executive without any
check and balance system.
Furthermore, Article-9 protects life and liberty but under FCR hundreds of people are
arrested and detained every year without any charge or trial. In fact, liberty has no meaning in
FATA except statelessness, lack of accountability and responsibility and the rule of might is
right. After that Article-10 provides security, apprehension and detention. But under FCR,
grounds are neither shown nor can be asked. Thereafter, article-11 prohibits slavery and child
labor. It is true that slavery does not exist in the classical sense where the master would have
command over the life of slave. But in terms of liberty and free consciousness, the worst type of
slavery is prevailing. Child labor is not seen with negative feelings. Generally, children are
subjected to labor by parents for economic reasons.

Not only this, Article-12 provides protection against retrospective punishment. But this is
violated everyday as there is no check upon the authorities and therefore tribesmen are punished
without recourse to law and its essential pre-conditions. Section 12 (2) of the FCR is unique and
empowers Political Agent/Assistant Political Agent to award punishment higher than prescribed
under the law. This section is so clearly in conflict with article 12 of constitution that
retrospective punishment and any complaint thereof loses significance in FATA.
Whats more, article-13, gives protection against double punishment and selfincrimination. Meanwhile, persons are arrested and they are handed over to the joint
interrogation team under FCR where they are kept in torture cells for months and hence
extracting a confession of self-inculpation. And, Article-14, forbids the violation of dignity of
man, privacy of home and torture for extracting evidence. On the contrary, dignity of man is a
mere myth under FCR, Imagine, no limitation is provided and hence they are kept as prisoners
for indefinite period. None of the ground is necessary for the detention. Houses are confiscated
under section 21 of FCR, and then Para-military forces attack such houses. As a result, women
are subjugated and innocent children are extremely tortured.
Now, the next theme of my topic is inhuman laws in FCR : Frontier Crimes Regulation
was enforced in 1901 to advance the objectives of the Britishers in KPK, Baluchistan and all the
tribal areas. KPK got rid of it in 1956 on the commencement of 1956 constitution. Baluchistan
was also released from its clutches when 1973 constitution was enforced. Today FATA is the only
hostage of FCR.47 is the supreme law in FATA and other civil and criminal laws are not
extended yet. It serves all purposes both of procedural as well as substantive law. Neither
criminal procedure code (Cr., P.C) nor civil procedure code (C.P.C) or law of evidence is
applicable. No lawyer can defend any accused or plaintiff at a trial. No right of appeal to the
High Court or Supreme Court exists.
Until 1997, the Commissioner acted as a provisional court but in 1997 it was amended
and turned into appellate forum and the powers of revision of the Commissioners verdict was
given to the tribunal consisting of secretaries of Home and Law Department.as well as the
Deputy Commissioner must be satisfied from a police report or other information, that a dispute
exists which is likely to cause a blood feud or murder, or culpable homicide not amounting to
murder, or mischief as breach of the peace, or in which either of any of the parties belong to a

Frontier tribe; he may, if he considers that the settlement thereof in the manner provided by this
section will tend to prevent or terminate the consequences anticipated, secondly the order of
reference made under sub-section (1) shall state the matter or matters on which the finding of the
council of elders is required. Thirdly, on receipt of the finding of the council of Elders under this
section, the Deputy Commissioner may: Refer the case to council for a further finding; or refer
the case to a second council; another very cruel aspect of the FCR is, the restrictions placed on
the jurisdiction of civil courts. This has really made this procedural law as black law. Section 10
of the FCR states that: No civil courts shall take practice of any claim with respect to which the
Deputy Commissioner has proceeded under section 8 subsection (3) clause. No right of appeal
to Higher Courts .The denial of the right of appeal to Higher Courts was re-emphasized in
section 60 of chapter VII which states that: Except as therein otherwise provided, no decision,
decree, sentence or order given, passed or made, or act done, under Chapter III, Chapter IV,
Chapter V or Chapter VI shall be called in question in, or set aside by, any civil or criminal
courts; thereafter the
The whole fabric is based on the principle of collective tribal territorial responsibility.
The inhabitants of the whole area are held responsible for the complex cases of sabotage and
terrorism. Come what may, indiscriminate arrests are made. Every member of the concerned
tribe that comes across is arrested, vehicles are impounded, their business centers and shops are
locked up, for long periods, until and unless they find the culprit or pay the losses to compensate
the victims as well as pay lakhs of rupees as a fine to the authorities. It is still being considered a
powerful weapon in the hands of administration to show their efficiency. The last but not least,
The FCR absolutely ignores crimes against women, (not even a single woman reported a case
under the FCR so far), despite the fact that maximum crimes in FATA are related to women.
Honor killing, child marriage, swara marriage (a tribal custom to give women in marriage to the
aggrieved party in consideration for settling a dispute), exchange marriages and "bride price" are
still accepted norms in FATA without any legal remedies. Women are not represented in the jury
or justice system in the tribal areas.59
Moreover, International legal community considers the law governing the FATA i.e.;
Frontier Crimes Regulation, 1901 (FCR), to be deeply flawed as it does not ensure the human
rights protection. Universal Declaration of Human Rights of the United Nations set out civil,

political, economic, social and cultural rights and freedom of individuals but unfortunately none
of these rights in the country are available to the tribesman.
It is matter of fact that FATA, s people are extremely subdued due to FCR but there is
roadmap to tackle down the problem, the very first is to abolish FCR because; now the tribal
people are as civilized people as others but for the last 130 years they have been facing the
cruelty of FCRs. These rules have ceased their human and basic rights. It is very astonishing that
our government has a strong objection on POTO rules imposed by the Indian Government in
Occupied Kashmir but the Government has no objection on FCRs that are already imposed in
FATA for long time, which are many folds harsher than POTO. The next step is: separation of
judiciary from executive, Tribal areas has no separate judiciary and legal court system. Legal
powers are vested in one person, the political agent and the administration. The combination of
judicial and executive functions in the same authority has been the root cause of many evils. It
goes against the fundamental principle of justice that a prosecutor himself cannot be a judge.
No systematic legal system would be possible without a complete separation of executive and
judicial powers in the areas.
Therefore, the judiciary must be separated from the executive. Otherwise, there will be
more problems, in brief several repercussions are caused by FCR, the utmost one is deprivation
of citizen from appeal and ratification, they are confined to specific domain. Secondly, the worst
aberration of FCR is the collective punishment clause(no 21) which is imposed on every
individual of that area if anyone of their relative is found guilty. Thirdly, due to FCR the political
agents enjoy unbridled power of executive and judiciary with their assistants. There is no check
and balance on misuse of powers by political agent, furthermore, under certain circumstances, all
the members of village are considered responsible for a crime if a dead body is found in their
village, as well as under section 22 and 23 :fines are imposed on the entire community for the
crime of single person.

Conclusion:
After the departure of British, apparently the chains of slavery were broken but in reality
the tribes have become the slaves of political authorities. They too had hopes and expectations of
betterment in their lives, of getting rid from the clutches of the black laws, of better
administrative treatment, of socio-economic uplift of their areas etc. but nothing new could take
place regarding them. The only change that occurred was that vernacular officials replaced the
English, remaining the administrative status quo unchanged. Among the most shameful legacies
of the British imperialism in our country is the FCR. More than 130 years old, the FCR is the
worst infliction on human rights and dignity that any oppressive imperialist regime would have
invented to deny its subject not only of all rights but also self-respect and dignity. Today even
after 60 years of independence they are administered through the same regulations in much
perverted form and the tribal voice for fundamental rights is groaning under them. The FCR
might have served the colonial interests, but miserably failed in providing justice to common
tribesmen. Most of its provisions are outdated and to a great extent very harsh which negates the
basic principles of justice. A century of living under the system has, besides eroding traditional
values and injecting many social and moral evils, dulled the sensibilities and lulled the otherwise
brave and ferocious people to sleep. But the long delayed process of awakening and questioning,
of awareness has started. The tribes especially the youth and educated classes are no longer
prepared to accept their said plight as a fait accompli and be treated as red Indians. The winds of
change sweeping the region have also reached FATA. There is strong desire in the enlightened
elements of FATA to reform the system.

Bibliography;
1) J.D. Akbarji,The Frontier crimes regulation
2) Latif Afridi,human rights and discriminatory laws
3) Javed chaudhary,The Life of tribal areas
4) 71 crisis groupinterview,lahore,2006
5) David M.Hart,Guardians of Khyber pass
6) Amanullah khan ,controversial FCR.