Opinion

Integrating FATA

FCR goes against all basic standards of human rights and is rightly called a black law by rights groups globally

Arshad Mahmood October 01, 2015

The writer is a child rights activist and development practitioner with a Masters in Human Rights from the London School of Economics. He tweets @amahmood72

I am quite excited about the proposed amendment to the Constitution’s Articles 1, 246 and 247 to bring Fata into the mainstream. The proposed 22nd Amendment Bill is, no doubt, a step in the right direction. However, there is definitely a need to ensure a comprehensive consultative process with all key stakeholders so that this important amendment is thoroughly reviewed and enjoys the support of every segment of society and state. On May 1, the Fata Reforms Commission (FRC), established by the governor of Khyber-Pakhtunkhwa (K-P), submitted its recommendations to the government. Although the FRC had held consultations with various stakeholders, there is still a feeling that more widespread discussions are required.

There is little doubt that the Frontier Crimes Regulations (FCR) goes against all basic standards of human rights and is rightly called a black law by rights groups, globally. There has been a long-standing perspective in civil society that in order to be able to bring Fata into the mainstream, the FCR would have to be abolished and reforms will need to be introduced through amendments in Articles 1, 246 and 247 of the Constitution. In August 2011, the then president Asif Ali Zardari introduced the Frontier Crimes (Amendment) Regulation 2011. The nation was informed that major changes have been made in the FCR; that children under 16, women and the elderly will not be arrested under its collective responsibility clause and there will be a right to appeal against the judgments of political agents. Yet, while going through this particular law, one comes to the conclusion that there has been no major change in the FCR. It is high time that it is repealed altogether, under the proposed 22nd Amendment Bill. Similarly, the Actions (in Aid of Civil Power) Regulation 2011, with its inhumane procedures that are in complete violation of fundamental rights, should be repealed as well.

The opportunity of bringing Fata into the mainstream was missed earlier when the matter was not addressed while formulating and passing the historic 18th Amendment. When the parliamentary committee was established for framing this amendment, Fata reforms were part of its terms of reference. Surprisingly, however, no provisions were made in the 18th Amendment with respect to Fata, which basically means that its people are still not considered full citizens of Pakistan in the presence of Article 247. In addition, Article 1 needs to be amended in order to give Fata the status of a full federating unit, by declaring it a part of K-P, or giving it the status of a separate province in accordance with the right to self-determination of its people. Article 247 describes the manner in which the area is to be administered: “Under Article 247 (3), no act of Parliament is applicable to Fata or any part thereof unless the President of Pakistan so directs. The Governor of [K-P] acts as the ‘agent’ to the President of Pakistan.” In a similar vein, the tribal areas are excluded from the jurisdiction of the Supreme Court and the Peshawar High Court.

Recently, a politician from Fata on a talk show questioned the effectiveness of the extension of jurisdiction of the superior courts to incorporate Fata, since courts in Pakistan, in any case, take ages to go through cases. However, it should be remembered that the role of superior courts is not only to provide justice in routine criminal or civil cases. It is also to ensure the enforcement of the fundamental rights enshrined in the Constitution in accordance with Article 199 (14), and 184 (3) and (5). Not a single human rights provision in the Constitution can be applied to Fata without amendment in Article 247.

Despite repeated commitments, successive governments have failed to extend to the people of Fata their rights as enshrined in the Constitution and in accordance with Pakistan’s international obligations, being party to the International Bill of Human Rights, the International Covenant on Civil and Political Rights, the Convention Against Torture, the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child. The president, government and parliament must look into the Fata reforms issue in light of the demands of the people of the tribal areas. Amendments must be made in Articles 1, 246 and 247, not only to bring Fata into the mainstream, but also to ensure protection of the fundamental rights of its people. The jurisdiction of the superior courts must be extended and parliament must be empowered to legislate for Fata and all relevant laws of the country should be applicable to the region.

Published in The Express Tribune, October 2^nd, 2015.

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COMMENTS (13)

Zakir Mohmand | 9 years ago | Reply In my opinion and for my understanding the govt should provide all the basic human rights as mentioned in the constitution of Pakistan.Despite other facts the FATA residents living under the black law called FCR which treats the FATA people as unhuman. FATA people gave sacrifices since last fifteen years and faced militancy and terririsim for the protection of Pakistan.I suggest that govt should streamline the FATA according to the constitution of Pakistan and fundamental rights of humans (article 199).At the same time the Political Agency is judge,administrator and law maker..All these are against the Islam and constitution of Pakistan....

Malik Achakzai | 9 years ago | Reply The issue of FATA is never only the basic human rights; it's an area that's not merging into Pakistan mainstream because FATA doesn't come in the constitution of the country since the begining. Only 4 articles relate this land with the center. It's a good chance; as many political parties sings their anthems of 18th Amendments and NFC Award not practiced then what'll FATA get in return once coming into the circle of Pakistan constitution? Lets leave FATA remain the same and give the power of adult franchise to its people and they would decide their fate through the elected council relating themselves to Pakistan only in Currency, Defense, Communication and Foreign Affairs, rest things should be controlled by its own elected members. And it'll be an example for rest of federal unit to remain in a lesser centric force of Punjab ruled Pakistan.

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Nadeem Shahid | 9 years ago | Reply Mr. Arshad Mehmood a veteran human and child right activist in Pakistan always observes human and child right issues, laws keenly in the country. He has enlightened the actual issues of the people of FATA which is appreciable but the legislators must take the issue serious with out delaying this bill and it should be passed in both houses of parliament. Further more the government should allocate resources for implementation of this utmost need bill in order to implement the bill in its true sprit.

Hanif Ullah Jan | 9 years ago | Reply Integrating FATA This is with reference to the article "Integrating FATA" published in ET on Oct October 2, written by Arshad Mahmood. The said thought- provoking article has brought in to vivid lime light the miserable situation of the tribal’s .To stick to the colonial legacy of discriminatory and diversified administrative schemes for different parts of Pakhtunkhwa is not rationalistic politics. As Arshad Mahmood has pointed, amendment in the FCR in 2011 has wrought not an iota of change in the life of these people. The political administration is swayed by their own whims and caprices and they go even beyond the atrocities of FCR .One can just imagine areas around Peshawar in the context of development. Jamrud is more backward than Mardan and Noshehra although it is more near to Peshawar The reason is nothing other than FCR .Due to the great administrative reforms in Afghanistan, the FATA belt will sense the changes and this status quo for FATA can adversely affect the federation. The learned writer has been insisting on drastic amendments in the Articles 1,246 and 247.And that is the key to integrating FATA in to the mainstream of Pakistani state machinery .In no part of the civilized world, one can spot a country where such diametrically different administrative set-ups might have been in vogue and one at the cost of another .Mr. Arshad has pointed to the Fata Reforms Commission (FRC) and his fear is not unjustifiable that reforms cannot be brought in a closed tower without taking in to consideration the views and reservations of the very people or whom the Law is made .The learned writer has time and again pointed to the deplorable condition of Human Rights Violations in the FATA due to the inhuman nature of the Articles in the FCR and the exclusion of FATA in the Constitution of Pakistan’s Articles 199(14) and 183(3),(5). This is a blatant violation of human rights and any more silence in this connection is tantamount to crime. Corruption is rampant and the jirga is nothing but a pack of cultures .No land dispute has been solved amicably and the cases have been lingering on for decade’s .As they have no right to appeal in the High Courts, the Agency Administrators are at liberty to play with their fates. Mr.Mahmood has maintained a very logical and legal stance and advocates for rights of these miserable people .Quoting from the Constitution of Pakistan and other documents such as Action Regulation 2011, he has pointed out the inhumane and anti-human rights clauses and procedures and wonders how a state can treat its own people in such a way. To put in a nut- shell, Mr. .Mahmood is of the view that FATA people are fully aware of their plight and if they are not emancipated from the ugly claws of FCR, potential dangers are in store for the federation of Pakistan. Best Hanif Ullah Jan Bajaur Agency

Hanif Ullah | 9 years ago | Reply We want merger with KP province. we cannot live more under this Black law FCR.

qaziazizul haq | 9 years ago | Reply great, the writer show the black law (FCR) to the whole world, appricted it

Asmatullah Khan Wazir | 9 years ago | Reply Excellent writeup. The writer has done justice to the issue. Very rightly he emphasised that people of FATA must be made part of the consultative process which is usually restricted to intellectuals totally ignorant of FATA dynamics. The government must reach out to the ordinary tribesman and shall talk to them in a language they understand and this is the only way to win hearts and minds in FATA. No doubt the road to peace in Pakistan lies through bumpy FATA. Let's make this journey smooth by opening up FATA to rest of the world by reforming it and reforming it in a way acceptable to people who actually lives there.

Nasir uddin Mian | 9 years ago | Reply “Within a system which denies the existence of basic human rights, fear tends to be the order of the day. Fear of imprisonment, fear of torture, fear of death, fear of losing friends, family, property or means of livelihood, fear of poverty, fear of isolation, fear of failure. A most insidious form of fear is that which masquerades as common sense or even wisdom, condemning as foolish, reckless, insignificant or futile the small, daily acts of courage which help to preserve man's self-respect and inherent human dignity. It is not easy for a people conditioned by fear under the iron rule of the principle that might is right to free themselves from the enervating miasma of fear. Yet even under the most crushing state machinery courage rises up again and again, for fear is not the natural state of civilized man.” ― Aung San Suu Kyi, Freedom from Fear

Imran Takkar | 9 years ago | Reply Amendments shall be made in Article 1, 246 and 247 of the Constitution not only to bring FATA into mainstream but also to ensure protection of the fundamental rights of the people of FATA including children. The President, the government and elected representative of the parliament should look into the FATA reforms issue in light of the demands of the people of FATA and Pakistan’s international obligations and should recommit themselves to bringing genuine reforms in accordance with the wishes of the people of the FATA.

Sehar Shinwari | 9 years ago | Reply The writer has enlightened the actual issues of the people of fata which is appriciable but i believe law makers must not waist more time is delaying this bill and it should be passed in both the assemblies as soon as possible before a buch individualists start campaign against this bill and make it controvercial.

Rex Minor | 9 years ago | Reply On May 1, the Fata Reforms Commission (FRC), established by the governor of Khyber-Pakhtunkhwa (K-P), submitted its recommendations to the government. The Governor of KPK is not an elected individual from the autonomous territory of the Pashtuns which are not administrated by any account by the Government of Pakistan. Let Pakistan first establish a post colonial democraticaly elected system in their own territory by placing civil service, police and the army under the authority of the elected representatives of the people.. . Rex Minor

amina sarwar | 9 years ago | Reply The writer has accurately emphasized on the provision of basic human rights to the people of FATA through required amendments in relevant laws and legislations. More specifically, rights of the children must be prioritized as they have been consistently vulnerable to extremist ideology. There is an immediate need to support the complete abolition and repeal of the Frontier Crime Regulation (FCR), so that FATA may be brought under the purview of the Constitution of Pakistan, 1973 in the same manner that the rest of Pakistan enjoys.

iqbal detho | 9 years ago | Reply This article highlights the dichotomy of rights in Pakistan while one group of people living in one geographical area enjoys fundamental rights on other hand people in FATA denied their mere entitlement. Second still the forces of status quo or colonial mindset wants to keep artificial frontiers intact. Writer has validly raised the point of Pakistan's obligations under various human rights treaties. Once any country becomes state party to treaties it can not invoke provisions of internal law as justification for its failure to perform a treaty under Vienna law of treaties ,1969.

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