Nadeem Mumtaz Qureshi

Published — Tuesday 12 November 2013
ARABNEWS

It sounds like something out of Ripley’s Believe It or Not. Pakistan, in the scheme of things, is a young country. But the laws, which govern it, are old. Very old.

Consider for example the country’s criminal law known as the Pakistan Penal Code. The British Raj enacted it in 1860. Then called the Indian Penal Code it was renamed when Pakistan was created in 1947. Or consider the Code of Criminal Procedure — which regulates the functioning of all criminal courts in Pakistan. It was enacted in 1898. The list goes on, and on.

The Raj ended in 1947 when the subcontinent was partitioned creating the new nations of India and Pakistan. It made sense at the time for Pakistan, as it found its feet, to retain the legal and administrative structure left by the Raj. Today, 67 years later, the same laws remain on the books. Yes, some minor modifications have been made. These are largely superficial to do with definitions, terminology and temporal adjustments. But, in essence, the entire legal system of Pakistan remains as the British left it.

The British were invaders and occupiers. Their intention was to control and subdue the locals so they could further their business interests with a minimum of fuss. This was the primary objective of the legal and administrative structure they put in place in the subcontinent. The Penal Code, for example, allowed the police to arrest anyone at will. No warrant was necessary. No proof of wrongdoing needed. Interestingly, UK legislation has none of these transgressions. Its driving principle is the protection of individual rights.

That the British legislated in one way at home and another in the colonies is not surprising. What is surprising is that we in Pakistan continue to run our lives by an alien code. Especially outrageous is the Frontier Crimes Regulation known widely by its acronym — FCR. The FCR applies to the areas that are now called FATA — Federally Administered Tribal Areas — home to the fiercely independent Pashtun. The British discovered early that they would not be fully able to control the Pashtun. So the FCR was born.

But at the same time it gave the British the right to intervene brutally and vindictively as needed in FATA. Formalized in 1901 FCR authorizes collective punishment; the family or the entire tribe of a suspect can be imprisoned until such time as he gives himself up. People walking on the street can be arrested for “intending” to commit a crime. There is no right to a trial, or to legal representation or to appeal. A government appointed “political agent” is judge jury and executioner.

In 2011 — 110 years after it was enacted — it dawned on Islamabad that the FCR needed to be updated. Some terminology was changed, fines were adjusted for inflation, and women, children and the elderly were excluded from collective punishment. Other than that it remains as it was.

While FCR is especially odious, the quality of one sidedness it reflects, of imbalance between the power of the state and that of the citizen, permeates the entire legal structure of the Raj. That this structure should continue to remain our law in Pakistan today when we have been free for 67 years is unconscionable.

SOURCE: ARABNEWS