Shameful but true: Pakistan laws remain those of our British overlords

Published: December 9, 2013

Formalised in 1901, FCR authorises 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. PHOTO: FILE

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. It was enacted in 1860 by the British Raj, Lord Macaulay. It was earlier known as the Indian Penal Code but was renamed after the partition in 1947. It was considered as the Code of Criminal Procedure, the regulation which regulates the functioning of all criminal courts in Pakistan, which was enacted in 1898.

Other laws include

–           The Code of Civil Procedure, 1908

–          The Income Tax Act, 1922

–          The Frontier Crimes Regulation, 1901

–          Companies Act, 1923

–          Contract Act, 1872

–          Charitable Endowment Act, 1890

–          Electricity Act, 1910

–          Destructive Insects and Pests Act, 1914

–          Dramatic Performances Act1876

The list goes on, and on.

The British Raj ended in 1947 when the subcontinent was partitioned, creating the new nations of Pakistan and India. 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 in place. Yes, some minor modifications have been made. These are largely superficial and related to definitions, terminology and temporal adjustments. But, in essence, the entire legal system of Pakistan remains as the British left it.

One could argue that this is a good thing. The British were good administrators. They were, as the saying goes, ‘people who could make the trains run on time’. The laws they left behind are detailed, well written and comprehensive. They worked well, but there is a problem.

The British were invaders and occupiers.

Their intention was to control and subdue the locals so they could enhance 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 more or less at will. No warrant was necessary. No proof of wrongdoing needed.

The Income Tax Act authorised a civil servant to summon any taxpayer at any time and if the taxpayer failed to appear at the designated time, his bank accounts could be frozen and assets appropriated. Similar blanket to unchecked authority to arrest, punish, confiscate or restrict basic freedoms without recourse is granted by the legal system to the government.

Interestingly, UK legislation has none of these transgressions. Its driving principle is the protection of individual rights. The fact 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 (FCR).

The FCR applies to the areas that are now called Federally Administered Tribal Areas (FATA), homeland to the fiercely independent Pashtun. The British discovered early, in 1848, that they would not be fully able to control the Pashtun. So the FCR was born, a set of laws that allowed the Pashtun limited independence to live according to their Islamic and tribal traditions. But at the same time it gave the British the right to intervene brutally and vindictively as needed in FATA.

Formalised in 1901, FCR authorises 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, to legal representation, or to appeal. A government appointed ‘political agent’ is the judge, the jury and the executioner.

In 2011, a full 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 the 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 British Raj.

The thought that this structure continues to remain our law in Pakistan today when we have been free for 67 years, is unconscionable.

Nadeem M Qureshi

Nadeem M Qureshi

Chairman and founder of the political party Mustaqbil Pakistan, Nadeem has a business background and has studied engineering at M.I.T. in Cambridge Mass. and business. He also went to Harvard Business School in Boston. He tweets @NadeemMQureshi (twitter.com/NadeemMQureshi)

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.

  • Kublai

    You look like an older citizen. So what were doing all your
    life and up till ? Did you change any laws? Did you attempt
    to change ? We don’t need to know the Raj ended in 1947.
    We know that. We don’t need to know it’s 67 years later. We
    know that.

    Need to know what you have done to change these draconian
    outdated laws…Nothing..zero…except grind out articles like

    this one.Recommend

  • Parvez

    You have said something that is known to most but you have explained it well. What you have not touched on is the further complication caused by the Sharia court or Islamic injunctions introduced…….with the complexity of who’s Sharia do we follow ?
    If you are advocating ‘ reinventing the wheel ‘ it will only make matter worse, but if you are suggesting changes to be introduced then that makes sense.Recommend

  • goggi (Lahore)

    The modus operandi of Pakistani law underlies the very effective unwritten principle of “mil mila ke khayo” aur “muth rakho!”
    The antidote of every committed crime, either an ordinary traffic challan, a property dispute or a murder, is the always open “backdoor” of all Pakistani institutions with the invisible inscription “Ji Ayan Nu” ………… Bribery is the supreme and most respected law of Pakistan!Recommend

  • rasgullah

    The muslims too were invaders . The British were decent enough to leave. Recommend

  • NQ

    Well I respect the right of blogger to express his opinion I’d suggest him to do some research too before posting a piece on a public forum. Companies Act 1923, Income Tax Act 1923 have been long replaced.

    Even after independence, an Australian lawyer Bronte Clucas Quayle was seconded to help Pakistan draft a new constitution and he was also awarded Sitara-e-Pakistan (third highest civil award in Pakistan). We do have a soverign parliament, if there’s any geniune need our law makers can amend or enact any law, changing laws just because they were made by British is ridiculous.

    Also, to understand things better, kindly read the Indian Independence Act 1947 and also search a little the status of a Dominions.Recommend

  • Salman Khurshid

    Interesting. By this logic all the people who write in the oped pages of the newspapers of the world should be ashamed of themselves. Here they are telling us of all thats wrong in the world without having done anything about it. How dare they!Recommend

  • Shakir Lakhani

    Am I wrong or isn’t this the same piece I read in KT sometime back?Recommend

  • MHZ

    Wow!
    I am amazed at the mediocrity of this answer.Recommend

  • Agnikul

    Our laws should follow Islamic values which are not in essence so different to Judaic-Christian ethics. Britain’s recently upgraded laws can again be the template as they do not contain the laws the author rightly points out as objectionable.
    Our more pressing problem is not bad laws, it is poorly applied laws. Laws have to be enforced promptly, universally, without exception, without fear, without favour to be effective. You cannot have politicians, generals, judges and policemen flouting traffic regulations. You cannot have different fundamental rights based on religion or gender. You cannot have different sets of laws for civilians and peacetime military. You cannot allow motorists to enter elite residential areas unchecked but have checkpoints for poor pedestrians. You cannot have electricity consumers prosecuted for stealing electricity and not have SDOs prosecuted for fraud when they cook up excess billing.Recommend

  • Asif Malik

    Experince tells that British enacted laws were more comprehensive and have less lacunas. They were written by best legal minds. As far as coercive3 or extreme actions are considered they are there for protection of society at large. Crircising Frontier Crimes Regulation is unjustified bcoz it was at that time need of the tribal society. I am sorry to say that quality of the article do not match with the profile of the writer.Recommend

  • shah

    lol….Muslims are here to stay you should reconcile yourself to it.Recommend

  • Kublai

    The British left because they had no choice. In WW 2 it
    was the Indian Army that saved the British in North Africa.
    And help free Italy from Mussolini. A new age was dawning.
    With great leaders like Gandhi, Jinnah et al. You are wrong

    They were shown the door. After that, they ended up being
    a little nation of little people. Smoking their pipes in threadbare
    tweed,…reminiscing about the Empire.Recommend

  • Nabeel

    The Muslims of the subcontinent are not foreigners. The vast majority are the descendants of local converts. And Pakistan is a Muslim country so there is no sense in cursing the “Muslim invaders” here.Recommend

  • Pappu

    This proves that laws made by intelligent humans are better than the laws of scriptures.Recommend

  • AF

    All of these laws have gone through major amendments throughout the years. Further the Apex Court and High Courts have also interpreted them.Recommend

  • Syed Owais Mukhtar

    I must ask, Kublai, what have you done before writing those lines,Recommend

  • Syed Owais Mukhtar

    Laws “enforced” not a single one is accepting itRecommend

  • Pappu

    Laws are made to be “enforced”. Laws are not made as per peoples wishes. Common sense.Recommend

  • Vikram

    Islam was spread by invasions or threats of war in those days. Many countries were converted within 20-25 years of invasions. In India Muslims were unable to convert whole India in 800 years. Most invaders fought wars with each other and killed each other. Many killed their own families. Aurangzeb even killed his brothers and put his father in prison. He even presented his father with head of his brother. Muslims invaded India to loot and convert. Muslims were killing each other after 50 or so years of inception of Islam.Recommend

  • Truthprevails

    Do you remember the people you praise were the one behind putting “No Indians (subcontinent nationals) and dogs allowed” boards outside most buildings?? Pls consider them decent now.Recommend

  • Katarina

    Same thing in India. There is the section 377 of the penal code and now the Supreme court decided that it is still in force. Very sad and backwards …

    http://en.wikipedia.org/wiki/Section_377_of_the_Indian_Penal_CodeRecommend