FCR - our failure to understand

. The writer is a retired professional currently based in Canada It is much safer to be feared than loved, if you cannot be both. Niccolo Machiavelli There is an intriguing coincidence at the very beginning of the story of the Frontier Crimes Regulation. In 1872, the same year in which Lord Mayo, the Viceroy of India, was assassinated by Sher Ali Afridi, the British introduced the first Frontier Crimes Regulation. The two events were not causally connected, and it would be misleading to suggest otherwise. Yet the coincidence captures the atmosphere in which the British were trying to govern India's north-western frontier: a region they regarded as volatile, fiercely independent and resistant to the ordinary machinery of colonial law. The British had already learnt that the Frontier could not easily be governed like the settled plains of India. Tribal loyalties were powerful, customary law was deeply rooted, and the authority of the jirga and tribal elders often carried greater weight than that of a distant magistrate. Conventional courts depended upon witnesses willing to testify, documentary evidence and elaborate procedures. In a society where tribal solidarity could make witnesses reluctant to appear, and where disputes could trigger cycles of retaliation, the British considered such machinery impractical. The FCR therefore did not emerge fully formed in 1872. It evolved through successive experiments in frontier administration. The early regulation was followed by revisions, including the Punjab Frontier Crimes Regulation of 1887. British officials such as CU Aitchison, LW Dane and WM Young were among those involved in developing the administrative and legal machinery. By the end of the nineteenth century, the British had come to regard the Frontier as requiring a system of its own. Then came Lord Curzon. Arriving as Viceroy in 1899, Curzon was determined to reorganise Britain's frontier policy. A committee headed by CL Tupper, then Commissioner of Rawalpindi Division, with AFD Cunningham, Commissioner of Peshawar Division, and EW Parker, Legal Remembrancer to the Government of the Punjab, examined the existing arrangements. The process culminated in Regulation III of 1901, which became the definitive form of the Frontier Crimes Regulation and would remain synonymous with colonial rule in the tribal areas. Curzon's creation of the North-West Frontier Province in the same year was part of this wider reorganisation of frontier governance. The British were not stupid. They knew what ordinary British-Indian courts looked like, and they knew perfectly well that the FCR departed from the principles of conventional justice. They chose that departure deliberately. Their calculation was simple: the Frontier was different; therefore, it had to be governed differently. That calculation was unquestionably shaped by imperial interests. The FCR gave extraordinary powers to the Political Agent and permitted forms of collective responsibility that would have been difficult to justify elsewhere. Yet it also incorporated institutions that already existed within tribal society. The jirga was not invented by the British. Customary law was not invented by them. The authority of the malik and the principle of collective responsibility were rooted in the social structure of the tribes themselves. The British appropriated these institutions and made them instruments of state authority. This is the uncomfortable part of the FCR story. It is easy, from the perspective of 2018, to look backwards and see only a colonial black law. Its harsh provisions certainly deserve condemnation. But to understand why the system survived for more than a century, one must first understand why the British created it in the first place. They were dealing with a society that did not fit neatly into the legal and administrative framework they had imposed upon the rest of India. Their answer was not to pretend that the difference did not exist, but to construct an exceptional system around it. The system could be harsh, and often was, but it was also rooted in a recognition that local customs and tribal institutions could not simply be wished away. The irony is that Pakistan inherited the FCR along with the Frontier in 1947. The British Empire disappeared, but the social, geographical and institutional realities that had produced the FCR did not. Pakistan retained the arrangement for more than seven decades, until the 25th Constitutional Amendment in 2018 merged the tribal areas with Khyber-Pakhtunkhwa and brought an end to the FCR. The abolition was historic and, in constitutional terms, overdue. No citizen should permanently live outside the protection of equal fundamental rights. But abolishing an old system does not automatically create the institutions needed to replace it. The real question was whether the tribal areas had first been equipped with the courts, police, education, infrastructure, local government and economic opportunities necessary to make the new order work. The British, for all the reasons that make their rule indefensible today, had at least recognised that the Frontier could not be governed effectively by simply transplanting the institutions of the settled districts. In 2018, we did precisely that, without first ensuring that the distance between the two worlds had been bridged by development, education, justice and effective local administration. The result of that haphazard merger is now difficult to ignore. Its consequences are visible across parts of Khyber-Pakhtunkhwa and Balochistan. The FCR may have disappeared from the statute book, but the conditions that had once persuaded the British to devise a separate system of frontier administration did not disappear with its abolition. A law can be abolished overnight; the historical and institutional realities that produced it cannot. Abolishing an outdated system is one thing. Replacing it with a functioning one is quite another. Perhaps Alexander Pope put the larger principle best: For forms of government let fools contest Whate'er is best administered is best