FCR repeal under consideration

The government is considering option to repeal the Frontier Crimes Regulation (FCR) which, according to some Federal Ministers, is harsh and not conducive to good governance, official sources told Business Recorder.
The issue had been placed before the Cabinet on February 4, 2009 on the instructions of Prime Minister Yousaf Raza Gilani, but the entire members of the Cabinet were embarrassed when informed that the matter falls under the jurisdiction of the President. The Prime Minister in a meeting on March 31, 2008 had decided that a Cabinet committee be constituted to examine the FCR to make suitable recommendations. Accordingly, the PM constituted a committee, under the chairmanship of Farooq H Naek, Minister for Law and Justice.
Sources said that recommendations/proposals by the committee on FCR submitted a report to the Prime Minister on October 20, 2008 requesting approval and permission to place them before the Cabinet for approval. Sources said that the Prime Minister directed that the recommendations/proposals of the committee should be placed before the Cabinet.
They said that the Cabinet was informed that in consequence of examination of FCR and thorough evaluation of ground realities, local conditions, current state of insurgency and political considerations, the committee had formulated its recommendations.
The Ministry of Law and Justice had sought approval, in principle, of the recommendations of the committee on FCR so that the States and Frontier Regions Division may take further action as per provisions of Article 247 of the constitution.
The Cabinet was also informed that recent developments in FATA/PATA had shaken the system of governance that existed there. Hence, it was exigent to reform the system. Simultaneously, it was observed that the prevailing situation of law and order and existing socio-political realities on ground called for deeper deliberations.
Some Cabinet members were of the view that, given the recent demand of enforcement of Shariat law, it was not an opportune moment to initiate a process of change in the existing legal framework, sources said. Conversely, it was also advocated that FATA and PATA should be brought into the mainstream of Pakistan's political, social, administrative and legal systems. The problem needed to be dealt with head-on.
"Since the situation in FATA and PATA is negatively impacting on the whole country, it is essential that FCR, which is harsh and not conducive for good governance, be repealed and the law applicable in the settled areas be extended to FATA/ PATA," sources quoted some Cabinet members as saying.
The Cabinet heard the committee's recommendation and concluded that under article 247 of the constitution, the matter fell under the jurisdiction of the President.
The recommendations could be directly presented to the President, as had been done by the committee on PATA. The committee was, however, advised to keep the deliberations secret lest this report might generate negative fall-out.
Sources said the committee undertook clause-wise examination of FCR and after thorough deliberations, taking into account ground realities, local conditions, current state of insurgency, political considerations, proposed amendments in the Frontier Crimes Regulation, 1901, the salient features of which are as under: (i) Political Agent (PA) or DCO, as the case may be, shall, in civil matters, appoint Council of Elders with the consent of the parties; (ii) Accused shall be brought before the concerned authority within 24 hours after the arrest in conformity with the safeguards provided in article 10 of the Constitution; (iii) Double jeopardy principle may be adopted - No person to be punished twice as enshrined in article 13 of the Constitution; (iv) Right of bail may be given to the accused by introducing explicit provision of bail in line with the law prevalent in settled areas; (v) Women, children below 16 and aged above 65 shall not be arrested or detained under collective responsibility; (vi) Community fine only on the advice of Council of Elders (CoE) and will be applicable to members of tribe involved in an offence in any manner; (vii) Security for keeping peace to be brought in line with Section 107 Cr PC and its period reduced from 3 to 2 years; (viii) Right of appeal provided to appellate authority against the decisions of PA and DCO appellate authority will comprise a District and Session Judge or a person qualified to be appointed as a District and Sessions Judge as against Commissioner. It is a step towards separation of judiciary from executive; (ix) Action for false prosecution in civil and criminal matters to check the menace by providing adequate compensation in criminal matters and compensatory costs in civil matters payable to the defendant; (x) No person shall be deprived of his property unless adequate compensation for acquired property is paid on prevailing market value in accordance with law; (xi) Financial discipline in keeping record of all sums received and disbursed by the Political Agent and DCO and made subject to audit by Auditor General of Pakistan; (xii) Provision for jail inspections by the authorities ie Appellate Authority, Political Agent or DCO; and (xiii) List of laws in the second schedule has been proposed by adding different laws in force in settled areas including Political Parties Order, 2002.
Sources said that all these recommendations were discussed at a meeting chaired by President Asif Zardari a couple of days ago.