What is difficult to understand is the reluctance to make the proposed changes in the FCR

While a section of the Fata population has welcomed the proposed changes in the Frontier Crimes Regulation (FCR), another section has expressed dissatisfaction. In normal times such differences might not have mattered but in the situation created by a prolonged armed conflict this is not a good omen for the reform effort

An unfortunate consequence was the ANP chief’s angry rejection of the reform package on the ground that his party, senior partner in the Frontier coalition, had not been consulted. Now, presumably after the governor’s declaration that the question of Fata’s integration with the settled areas has been deferred, the Frontier chief minister has said that the confusion/misunderstanding has been cleared. 

However, in view of the ANP’s strong demand for the tribal belt’s earliest possible merger with Pakhtunkhwa (NWFP) the issue is unlikely to die down. One does not know what Governor Owais Ghani meant when he said that the mistake committed in the Malakand division would not be repeated. Such statements do not inspire confidence because Pakistani authorities’ record of learning from their mistakes is pretty dismal. 

That this is not the time to expect the tribal population to compromise their autonomous status is obvious; the ongoing conflict has sharpened their sense of a distinct identity and not dulled it. But this will not justify any step that amounts to shutting the door on the tribal people’s entry into the national mainstream. Let cautiousness not mean giving up progress altogether. 

It is in this context that the decision to allow political parties in Fata, one of the major proposals revealed so far, should be viewed. Although some political parties have already been active in the tribal belt the effort to force the pace in this direction may raise a controversy. Effective political parties can undermine tribal loyalties and threaten the privileges of tribal chiefs and the new cleric-warlords. The latter know this too well and that is why political party cadres were targeted in the Malakand division. 

Another important proposal envisages the elimination of FCR provisions that allow inhuman punishments and treatment of suspects. That women and children should not be thrown in prison is a reform measure that should have been carried out long ago. The provision of bail facilities will also be welcomed as a forward step. But it seems it has not been possible to take a forthright stand on the issue of collective liability for offences. 

The concept of punishing a whole village or a tribe for a crime committed by one of its members militates against the basic norms of justice. Now it is said the family of an offender will be liable for punishment. This is unlikely to be accepted as a happy or even rational compromise. 

A similar compromise is evident in the proposal to set up a tribunal “with the powers of a high court” to hear appeals from decisions by jirgas/political agents. This is no doubt an improvement upon the formula reportedly advanced by the pro-FCR bureaucracy under which the appeals were to lie with the provincial home secretary. But is the establishment of a high court bench in Fata really so difficult that a stand-in institution has been thought of? 

Even more important than the nature of the appellate forum is the body of laws, procedural as well as substantive, that will be applied. One should indeed like to know more about any changes that are proposed to be made in the rules/procedures under the FCR. 

Maybe the undisclosed provisions of the FCR amendment have some commendable features, in which case the sooner they are revealed the better. In particular one is interested in finding out whether any thought has been given to the insufferably bad conditions in Fata prisons and lockups. The freedom allowed to political agents to send convicts to prisons in settled districts also needs to be reviewed. The authorities of these jails should have the possibility of satisfying themselves that the wretches given in their custody have had the benefit of due process. 

The present installment of the FCR reform thus has all the features of a halfway house. Such houses can be good or bad depending upon the side they open on, and this one will satisfy the people only if it opens on to the highway for post-tribal social development.