FATA reforms: rhetoric or reality

There is no second opinion that Frontier Crimes Regulations (FCR) 1901 is against all basic norms and standards of human rights and is rightly being called a black law by the rights groups globally. It was a long standing demand of the civil society that in order to be able to bring the Federally Administered Tribal Areas (FATA) into mainstream, the FCR would have to be abolished and reforms will need to be introduced in FATA through amendments in Article 1, 246 and 247 of the Constitution. In his first speech to the National Assembly of Pakistan, Prime Minister Yousaf Raza Gillani announced repeal of the FCR. Similarly, in his address to the nation on 14th August 2009 the President of Pakistan Mr. Asif Ali Zardari announced political reforms in FATA including abolition of the FCR.

When the parliamentary committee was established for framing 18th constitutional amendment, FATA reforms were part of its terms of reference and there was representation from FATA as well. Surprisingly however, there was no amendment in the 18th Constitutional Amendment Act 2010 related to FATA. Article 1, 246 and 247 of the constitution are still intact and FATA has the same status as it had ever.

In response to the growing demand for reforms in FATA, in August last year the President introduced the Frontier Crimes (Amendment) Regulation 2011 and extended Political Parties Order 2002 to FATA. The nation was informed that major changes have been made in FCR and now children below 16, women and elderly will not be arrested under the collective responsibility clause of the FCR; there will be a right to appeal against the judgements of the political agents.

While going through the Frontier Crimes (Amendment) Regulation 2011 one comes to the conclusion that there is no major change in the FCR and even this regulation was introduced to divert attention from the Actions (in Aid of Civil Power) Regulation 2011introduced earlier same year with more stringent and inhuman sentences and procedures in complete violation of the fundamental rights enshrined in the constitution and the international human rights laws. Human rights activists consider it stringent than FCR as it has also introduced death sentence which was not a part of the FCR.

The long standing demand of extending the jurisdiction of superior judiciary to FATA has been ignored once again and the collective responsibility clause is still very much a part of the FCR. National laws will still require to be extended to FATA by the president and no legislation is automatically applicable to FATA unless extended there by the president i.e. the women of FATA will remain deprived of the recently enacted Women Protection (Criminal Laws Amendment) Act 2011 unless it is extended to FATA by the president.

Most of the political commentators and civil society representatives term the reforms inadequate as in the presence of the Article 247 of the constitution the people of FATA are still not the full citizens of Pakistan. Article 1 needs to be amended in order to give FATA the status of a full federating unit by declaring it a part of Khyber Pakhtunkhwa or giving it the status of a separate province in accordance with the right to self determination of the people of FATA.

Article 1 of the Constitution of Pakistan, 1973, describes FATA as a part of Pakistan and 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 [KP] acts as the ‘agent’ to the President of Pakistan” but under Article 247 (7), the tribal areas are excluded from the jurisdiction of the Supreme Court of Pakistan and the High Court of [KP] until Parliament makes law in this regard however, the parliament is not fully authorized to do so.

Under Article 199 (14) and 184 (3) & (5), the High Courts and the Supreme Court can ensure the enforcement of fundamental human rights. In view of the fact, however, that FATA is excluded from the Courts’ jurisdiction under Article 247(7), the enforcement of fundamental rights cannot be foreseen. Under the Article 2-A and 175 of the Constitution, an independent judiciary has to be established, but there is no court in FATA what to talk of an independent one. Not a single human rights provision in the Constitution is possible to be applied.

Only one solid positive step is the extension of the Political Parties Order to FATA that will be helpful for political parties in initiating their activities in FATA and subsequently putting issues like FATA reforms in the manifestos of mainstream political parties. This may result in some positive reforms including the status of FATA and the repeal of discriminatory laws in future. This is what the ruling alliance is telling the civil society when asked about FATA reforms knowing well that this will be meaningless without constitutional amendments.

With the above analyses one can safely come to the conclusion that the FATA reforms in its present shape are a gimmick or rhetoric and it is not going to bring any lasting changes in the lives of the people of FATA and is going to play no role in bringing them into mainstream and upholding their human rights.

This is unfortunate that despite repeated commitments, this government and the present parliament lost an important opportunity to bring FATA into mainstream and ensure the people of FATA their rights in light of the constitution and Pakistan’s international obligations being party to the international bill of rights, including the International Covenant on Civil and Political Rights, ratified on April 17, 2008, and other important human rights treaties such as the Convention Against Torture, Convention on the Elimination of All Forms of Discrimination Against Women (CESAW) and the Convention on the Rights of the Child (CRC) etc.

The president, the government and above all 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. 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. Similarly, jurisdiction of the superior courts should be extended and the Parliament shall be empowered to legislate for FATA and all relevant laws of the country shall be applicable to FATA without any condition of extension by the president.

The writer holds a Masters in Human Rights from the London School of Economics and is the Executive Director of the Society for the Protection of the Rights of the Child.
Published in Islamabad Dateline on January 31, 2012