PAKISTAN: Frontier Crimes Regulation -- Infringing Human and Child Rights by Abdullah Khoso

Introduction
During the time of the British Raj in the subcontinent of India, a set of civil and criminal laws, rules, and regulations were established ostensibly to maintain law and order in the land, but essentially to ensure that the people of British India remained in the total control of the government. However, in the mountainous areas of the North West Frontier, the region known as the Federally Administered Tribal Areas (FATA) and Provincially Administered Tribal Areas, now a part of Pakistan, a special set of rules and regulations were devised that effectively placed the people of the region under the dictatorial rule of the Political Agent, and his cohorts -- the khans and maliks (tribal leaders or chieftains) -- who chose to support the British in their endeavour to subjugate the unruly yet fiercely independent tribes of the Frontier.

After Independence, and the birth of a sovereign Pakistan, it was hoped that the Constitution of 1973 would herald a new era of freedom for the people of this country to flourish and progress. However, unlike the rest of Pakistan, the Constitution was not applied to the region of FATA, whose people continued, and still continue, to suffer the indignities and cruelties of the archaic British laws under the Frontier Crimes Regulation (FCR), established in 1901 in their present form.

Eventually, a ray of hope shone brightly for the people of FATA when, on 29 March 2008, the Prime Minister of Pakistan Makhdoom Yousuf Raza Gilani, in his first speech to the National Assembly of Pakistan, vowed to repeal the FCR which he termed ‘the Black and Obsolete Law of the 20th Century’1. Following the prime minister’s March announcement, on 14 August 2009, the President of Pakistan Asif Ali Zardari, also declared that the draconian laws of the FCR will be abolished or amended.2 Since these announcements, a committee has been constituted to look into the matter and make recommendations.

There is a need to support the complete abolition and repeal of the 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. The FCR is a direct contravention of the Constitution of Pakistan, 1973, as well as the Juvenile Justice System Ordinance (JJSO), 2000, the Universal Declaration of Human Rights (UDHR), 1948, the Covenant on Civil and Political Rights, 1966, and the Convention on the Rights of the Child (CRC), 1989.

This position paper reviews the status of the FCR, in the light of human and child rights organizations’ recommendation that the FCR should be repealed forthwith, since the present government announced in 2008 and 2009 that it will either be repealed or amended. It also highlights the contradictions between the FCR with child rights and human rights, and especially how the FCR are a direct contravention of the Constitution of Pakistan, the JJSO, UDHR, and CRC.

Overview

FATA comprises seven independent tribal agencies and six smaller frontier regions in the northwest of Pakistan. The agencies include Bajaur, Mohmand, Khyber, Orakzai, Kurram, North Waziristan and South Waziristan. These agencies are further divided into Assistant Political Agencies, subdivisions and tehsils. The six frontier regions are comprised of Bannu, Dera Ismail Khan, Kohat, Laki Marwat, Peshwar, and Tank. These regions are also called settled areas and the District Coordination Officers are responsible for the administration of these regions. Their headquarters are known as the FATA Secretariat in Peshawar which reports to the Governor of KP.

According to Article 248 (3) of the Constitution of Pakistan, FATA comes directly under the control of the President of Pakistan. However, the federal government is given partial control over the governance of the area through the Governor of Khyber Pakhtunkhwa (KP) province (formerly the North West Frontier Province) who is nominated by the President of Pakistan.

Ever since Pakistan allied with the United States in the ‘War on Terror’, much of FATA is effectively controlled by groups loosely known as the ‘Pakistani Taliban’, although the Pakistan army is waging a counter-insurgency war in the area to assist the state to regain control over the region.3

FATA shares a boundary with Khyber Pakhtunkhwa and the Punjab in the east and Balochistan in the south, whereas in the west is the Durand Line beyond which lies Afghanistan. According to the census of 1998, the estimated population of the area was 3,176,000. About 4 per cent of the total population was living in towns and 96 per cent lived in the rural areas at that time. The area is mainly populated by Pashtun tribes.

The people of FATA have no separate legislative assembly but they are represented in the National Assembly of Pakistan by 12 independent elected Members of the National Assembly and in the Senate by eight senators who are elected by the 12 MNAs.

The economy is chiefly pastoral due to the tribal nature of the society. Being a mountainous area, only ten per cent of the land is arable. The majority of the rural population depends on forestry, livestock, and crops (rice, wheat, maize). However, the parallel informal economy based on the trafficking of opium sustains a large percentage of the people of this area. The level of illiteracy is very high with only 40 per cent of men and 3 per cent of women able to read and write (CAMP 2009)4 . The total literacy rate was 17.42 per cent in the census of 1998 (Leghari 2009)5.

FATA lacks in almost every denominator of civil society; there are no banks (in the modern sense of the term) in the area; there is no adequate infrastructure to support sustainable means of transportation; no estimable developments have taken place in the fields of education, health, energy, or the agriculture sector over the last sixty-three years since Independence. There are only 33 hospitals and 301 dispensaries which cater to the entire region and which are, obviously, unable to meet the basic health needs of the population, (Leghari 2009).

The Frontier Crimes Regulations--Genesis

As mentioned in the Introduction, the FCR was born of the need of the British, at the height of their empire, to keep the various tribes that populated the area known as FATA, as a buffer between British India on the one hand, and Afghanistan and the Central Asian states on the other, where Russian encroachment was feared. The FCR encompassed “substantive and procedural law relating to criminal and civil matters” (Amnesty International 2008:………), and the intention was to establish the writ of the colonizers’ power which aimed to protect the interests of British India. The FCR “basically explains the relationship between the state and the tribes on the one hand through an indirect form of governance; and on the other lays down procedure for dealing with inter-tribal matters” (Khan 2008:….).6 The FCR, also known as ‘jackpot justice’7 were designed to tackle bad elements and pacify the angry tribes in the tribal areas on the Afghan border (Bangash 1996).8 In order to keep the tribal leaders happy, some of the customs and traditions prevailing in the region were retained in the FCR. (SPARC 2004, Hussain 2005 & Khan 2006)9 However, “such customs and traditions were twisted to suit the government plan of securing convictions” (Hussain 2005:……)

Before 1901, the colonial government had divided the tribal areas into six Frontier districts and regulated these under the civil and criminal laws applicable to the whole of British India. However, the tribes rebelled against these laws and to pacify them, the colonial machinery formulated the FCR.

The FCR was enacted as a special law in 1871 and new provisions and offences were subsequently added in due course (PLD 1958: 7310 & Hussain 2005)11 . When the law was amended in 1887, a seven-year sentence was introduced for a particular crime whereas previously the offence had only earned a fine. The law was enforced against both Pathans and the Baloch (Alaiwah 2008).12 In the amended FCR, Pushtun tribes were allowed to govern their society according to their own laws and customs. The tribal areas were given a semi-autonomous status subject to their compliance to colonial rule. The tribal elders (maliks) were made bound to “keep the border passes open for trade and strategic purposes in return for allowances and subsidies they could distribute among their tribes. Nevertheless, the tribal areas showed some of the strongest anti-British resistance on the subcontinent during British rule” (Rakisits 2008). After the ‘Tribal Wars’ in 1897-98, when the frontier tribesmen continued to attack the British Indian Army and criminal activities were on the rise, a Close Border Policy was adopted and implemented whereby a number of tribal agencies were established (including Mianwal) under the FCR of 1901, which were enclosed by a chain of posts and cantonments where the Pakhtun tribes were allowed to govern according to their own laws and customs (PLD 1958: 73 & Rakisits 2008). Much later, in 1944, questions had arisen about its application, and in 1946, validation of the FCR was challenged in the High Court of Lahore (Alaiwah 2008).13 Application of the FCR was also effectively challenged in Mianwali district and the noxious laws were removed from the area (PLD 1950: 221).

The FCR of 1901 was declared by notification in the Gazette (PLD 1950: 221) and contained the same rules as previous FCR’s as well as additional provisions. These regulations were enforced against the Pashtuns and the Baloch.

In 1947, Pakistan allowed the tribal territories to retain the separate administrative and legal structure that was coded into the FCR. The law was not changed in an independent Pakistan (Amnesty International 2008). The new setup upheld the Pakhtoon tribal justice system based on the Jirga (council of elders) to which the head of the various Agencies (the political agent in each case) used to refer civil and criminal affairs. Based on the arguments from opponent parties, the Jirga gave a verdict about the guilt or innocence of either party. Such verdicts were based purely on tribal rewaj (custom), rather than religion (Rakisits 2008).

The Provisional Constitution Order of Pakistan 1947 had no special provisions for the tribal and special areas. However, “[I]n Chapter 2 of the Constitution of 1956, in the territorial clause on Pakistan, the Tribal Areas and Frontier Regions were mentioned along with … [KP]’. In the Constitution of 1962, higher judiciary had jurisdiction over Tribal Areas/Frontier Regions but later on an amendment was made in Article 223 (5) to erase the jurisdiction of higher judiciary over the Tribal Areas. The Constitution of 1973, for the first time, made a territorial and geographical division of the Tribal Areas by bifurcating them into Provincially Administered Tribal Areas (PATA) and Federally Administered Tribal Areas (FATA) (HRCP 2005). 14

The FCR was amended once again in 1954, but interestingly, in April 1962, when the law was extended to Shahdadkot (in district Larkana), Sukkur, Sargodha, and Shikarpur, it was withdrawn immediately (Alaiwah 2008). 15

Before 1970, FATA had no regular court procedure. In 1970, jirga (informal assembly of elders) type court procedures were initiated, but they were not well-structured. Until 1978, Assistant Political Agents could not exercise powers under the FCR but later they started wielding powers (HRCP 2005).

FCR and the Constitution of Pakistan

The major fault lies in the “step-motherly treatment of the Federation towards this tribal region”16 through the Constitution of Pakistan, 1973, which gives space to the FCR to violate the fundamental rights of citizens of Pakistan living in FATA. In Article 1 of the Constitution, FATA is part of Pakistan and in Article 247, are described the manners and methods by which the area should be administered by which the executive authority of the Federation is extended to FATA, and the Governor, on the direction of the President of Pakistan, executes business. “Under Article 247 (3) of the Constitution of 1973, no act of Parliament is applicable to FATA or any part thereof unless the President of Pakistan so directs. The Governor of [KP] Province acts as the “agent” to the President of Pakistan”17 but under Article 247 (7), tribal areas are excluded from the jurisdiction of the Supreme Court of Pakistan and High Court of KP. Courts cannot exercise any power in the jurisdiction of FATA (SPARC 2004). Under Article 199 (14) and 184 (3) (5), the High Courts and the Supreme Court can ensure the enforcement of fundamental human rights in the whole of Pakistan, but since FATA is excluded from the Courts under Article 247, enforcement of fundamental rights is not foreseen (Hussain 2005). Under Article 2-A and 175 of the Constitution, an independent judiciary has to be established in the area but there is no single such court in FATA (SPARC 2004). Neither the Pakistan Penal Code 1860, nor the Code of Criminal Procedure applies to FATA (Amnesty International 2008). It is “[t]he systematic denial of the legal and judicial reforms in the Federally Administered Tribal Areas (FATA), indeed, an institutionalized Taliban style of justice in the FATA region and the absence of the edifice of the State structure or governance created the necessary conditions” (AITPN 2006). 18

The Political Agent or the Assistant Political Agents of the various Agencies have been functioning beyond the territorial jurisdiction of the High Court of Peshawar. They are “both the judge and the jury”.19 The political agent, the most powerful person in the agency, is selected from the Civil Service of Pakistan, and he is responsible for managing the administration in each agency of FATA, and is accountable to the KP Governor (Rana 2009).20 The Agent “assigns the jirga, supervises over trials and awards punishments without even the technical possibility of revision by a regular court of law…grants tribal elders the status of malik (with the consent of the governor) on the basis of male inheritance. But the [agent]… can also arbitrarily withdraw, suspend or cancel a malik’s status if he deems the individual is not serving the interests of the state. Maliks receive financial privileges from the administration in line with their tribe’s cooperation in suppressing crime, maintaining social peace, and in general supporting the government. The state relies on the services and collaboration of these maliks to administer FATA. Like the British before them, the Pakistan state rewards the loyal Maliks with a special status, financial benefits and other official rewards” (Rakisits 2008). 21

The major fault lies with the provisions of the FCR which do not correspond to the basic norms of justice (Bangash 1996). It is considered a black law having draconian provisions which deny the fundamental rights of the tribal people (Rana 2009). These constitutional rights are: the right to be treated in accordance with the law (Article 4), security of persons (Article 9), safeguards as to arrest and detention (Article 10), protection against double jeopardy, self-incrimination (Article 13), inviolability of the dignity of man, prohibition of torture for extracting evidence (Article 14), protection of property rights (Article 24), and equality of citizens (Article 25) (SPARC 2004).

Grave injustice is often done to hapless citizens because members of the Jirgas are not neutral and vote in favour of members of their own clans or sub clans. There are no checks and balances with the political agent being the executive head, as well as the magistrate, Sessions judge, and revenue magistrate. With most of the powers concentrated in a single office, the justice system is invariably taken for granted (Bangash 1996). The decisions of Jirgas “are obnoxious to all recognised modern principles governing the dispensation of justice”. (PLD 1954: 228) 22

One of the worst aberrations of the FCR is the collective punishment clause no. 21, which is imposed on anyone in the tribal area for a crime committed by his or her relative, spouse, or even a person from the same tribe and area (Amnesty International 2008).

Again, among the most damaging provisions in the FCR is the “seizure/confiscation of property and arrest and detention of an individual without due process, barring a person in the tribal areas from entering the settled districts”. (Rana 2009) This provision also falls under section 21 of the FCR mentioned above, which is known as ‘Collective Responsibility Clause’. Under this clause, if an offence is committed by one person, his or her whole family/tribe is made responsible for the act and can also be arrested and their properties seized. Moreover, the FCR says that arrested persons will not be permitted to contact the Government of Pakistan and nobody from Pakistan may contact or trade with these people.

In section 6 of the FCR, sentence of whipping is allowed which has been abolished in Pakistan through the Abolition of the Punishment of Whipping Act 1996.

Under section 23 of the FCR, all the members of a village are considered responsible for a murder if a dead body is found in their village. Under section 22 and 23, fines are imposed on the entire community for the crimes of a single person. In section 56, if fines are not paid by relatives, then the property of an offender is sold to realize the amount due.

Under the FCR, publishing of a newspaper, journal or any other publication is not allowed (Shinwari 2005). 23

The only positive provision in the FCR, in the view of human rights organizations, is that it does not provide for the death penalty (Amnesty International 2008: 5) whereas sentence of death penalty is awarded by the courts throughout Pakistan.

From time to time, the FCR has been challenged in the courts on the grounds that the regulations negate fundamental human rights. In most cases judgments have been passed against the FCR, and even against the provisions of the Constitution which stop High Courts and the Supreme Court from intervening in the judicial and administrative affairs of FATA. In 1975, the Supreme Court of Pakistan in the case of Chaudhry Manzoor Elahi versus Federation of Pakistan said that the High Courts are authorized to intervene in the tribal areas. In 1979, the Balochistan High Court termed many provisions of the FCR as un-Islamic.24 On 29 July 2002, the Lahore High Court termed the FCR as void law after the Balochistan High Court's judgment of 1979, and therefore, detention under the FCR was unlawful. In the same order, the Lahore High Court directed the authorities to release Qimat Gul who had been detained for more than two years without any right of defence. Qimat Gul was detained under the FCR because he protested against the illegal occupation of his land by some influential person of the area.25

In another case, in 2006, Ijaz Khan had filed petition number 2038 of 2005 against his warrant of arrest issued by Bara Khyber Agency inside the constitutional jurisdiction of the High Court of Peshawar, and had termed his warrant of arrest as being against the provisions of Chapter-I, Part-II of the Constitution in which the liberty, security, dignity and freedom of a person has been fully secured and guaranteed, and also under the Charter of Human Rights. The High Court had declared the arrest of the petitioner illegal, without lawful authority, and without jurisdiction (PLD 2006).26 This is not the only case that sought help from the courts; many such people have been arrested in the constitutional jurisdictions of the High Court of Peshawar, and have been sentenced, although their sentences have been challenged in the High Court Peshawar.

Amending or repealing the FCR

Civil society has demanded for some time that the FCR should either be repealed or be overhauled extensively so that constitutional as well as international human rights guarantees can be enjoyed by the people of FATA. Some inhabitants from FATA have advocated repeal of the law, while others desire that it should be amended as per international standards, but the process of its implementation should be slow (Amnesty International 2008) so that the system may not be disrupted abruptly. In fact, it is hoped and expected that the Parliamentary Committee on Constitutional Reforms will amend Article 247 of the Constitution which deprives parliamentarians from intervening in the affairs of FATA or from any legislation connected to FATA. Thus, senators and MNAs from FATA can involve themselves in legislation related to the whole of Pakistan with the exclusion of their home region, FATA.

In 2009, under the chairmanship of Senator Raza Rabbani, a Parliamentary Committee on Constitutional Reform was constituted. The committee, after reviewing Article 247 of the Constitution of Pakistan, recommended to the Federal Government of Pakistan that, “the Government should take immediate steps to implement the reforms amended by the president in respect of FATA, particularly about major changes in the FCR and providing opportunities to the National Political Parties to organize their activities in that area. The Government may also associate other parties who are stakeholders in the on-going consultations regarding administration of Tribal Areas” (2009: 19).27

In 2004, grave violations under the FCR surfaced when SPARC visited jails and saw innocent women and children languishing in prison. Immediately, on 19 November 2004, SPARC, along with other organizations, held a press conference at the Peshawar Press Club and organized a protest march from the Press Club to the Governor House against this tyranny. However, no one from the Governor House came to meet with the protestors to address their complaints and resolve the issue. On 10 December 2004, in a seminar organized by the Regional Directorate of the Ministry of Law, and Human Rights Organizations, SPARC brought the matter to the notice of the Governor of KP. However, the Governor did not accept that children had been detained under the FCR or that human rights violations were taking place under the FCR. In fact, in 2004, Senator Farhatullah Babar (PPP-[KP]) had taken serious notice of grave child and human rights violations in FATA and initiated debate in the Senate. Besides other faults in the law, the Senate pointed out that Pakistan was the only country in the world where entire villages and houses were knocked down on the pretext of collective punishment under the FCR (SPARC 2004).

On 24 November 2004, Dawn28 reported that Senator Farhatullah Babar produced a clipping in a meeting of the Human Rights Committee of the Senate about a three-year-old girl sentenced under the FCR. However, the FATA Secretary of Security denied the report and dismissed it as fictitious. The secretary said that “A political agent will be out of his mind to sentence three-year-olds under the FCR.” Consequently, the matter was not followed up. However, the Human Rights Committee expressed concern that the report may be true and demanded that such provisions of the FCR which permitted such actions should be abolished.

Later, on 1 December 2004, Dawn29 reported that the Law Minister had assured the Senate that the government, through consultations with tribal leaders, was working to amend the FCR.

In 2005, two committees were constituted on the FCR. 1) The Senate of Pakistan’s Standing Committee on Human Rights had constituted a sub-committee on the FCR which was comprised of Senator Farhatullah Baber, Senator Hamidullah and Senator Dr Saad. In August 2005, the sub-committee had submitted their final report along with recommendations to the main committee in which amendments were proposed in the FCR. (Daily Times 2005)30 The report of the subcommittee has not been made public yet.

2) The Governor KP also constituted a review committee under the Chairmanship of former Justice Supreme Court, Mian Mohammad Ajmal which submitted its report in 2006. The committee was asked to recommend necessary amendments and modifications in certain clauses of the law. In a workshop organized by CAMP in 2009, Retired Mian Ajmal said that the Committee has proposed many changes including that the name of the law should be changed. Besides a decrease in the powers of the Political Agent proposed by the committee, it was suggested that judicial powers should be “divided between the jirga and FATA Tribunal that will be on the pattern of Sessions courts and will be formed of members eligible to preside over high courts or shariat courts. Obsolete laws and sections have been completely removed and people [will] now have a right to ask for bail”. The Committee investigated the practice of the law in FATA in depth but since submission of its report in 2006, the state has not taken any steps to implement it as yet. Neither has the report itself been made public to date.

In 2009, under the chairmanship of Senator Raza Rabbani, a Parliamentary Committee on Constitutional Reform was constituted. The committee, after reviewing Article 247 of the Constitution of Pakistan, recommended to the Federal Government of Pakistan that, “the Government should take immediate steps to implement the reforms amended by the president in respect of FATA, particularly about major changes in the FCR and providing opportunities to the national political parties to organize their activities in that area. The Government may also associate other parties who are stakeholders in the on-going consultations regarding administration of the Tribal Areas” (2009: 19). 31

On 8 April 2010, the passing of the Eighteenth Constitutional Amendment was made public, but the government did not amend Article 247 which would have allowed parliamentarians to legislate and the Courts of Pakistan to exercise justice for the people of FATA.


FCR, the JJSO and children and human rights

According to the Convention on the Rights of the Child (CRC), under Section 21 and 40, a child shall not be deprived of his or her liberty unlawfully or arbitrarily and if a child is arrested then his or her detention or imprisonment shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time. The child should be given a fair trial/hearing and be represented by legal counsel of his or her choice, and have the right of appeal against the conviction and sentence. However, all such rights are usurped by the FCR. The FCR also contradicts Article 8, 9, and 10 of the UDHR. FCR also violates provisions of the international covenant on civil and political rights, 1966.

In view of Pakistan’s international obligations in respect of various agreements ratified by the government of Pakistan, such as the CRC, and in order to rectify some of the oppressive laws imposed on the children of FATA through the FCR, on 22 November 2004, the Juvenile Justice System Rules KP were extended to FATA. However, beyond mere words on paper, the government made no infrastructural arrangements which are essential to the implementation of the law. Six years down the line, FATA does not have juvenile courts, a probation system, borstal arrangements, nor any system in place to protect the rights of juveniles. Rather, grave abuses of child rights have been witnessed in FATA even after the JJSO were extended to the region. (Amnesty International 2008)

The FCR applies to all residents of FATA irrespective of age or sex. Thus, these black laws are applied across the board, on young or old men and women, and children as young as two or three years old, in fact, even on infants. Women and girls are considered a commodity and their right to own or inherit property is not recognized under the FCR. Minor girls and women are given in ‘Badal’ by members of one clan or tribe to another in settlement of rivalries. The FCR, in fact, negates all the rights and guarantees granted to women in Islam, and by the laws of Pakistan. (Bibi 2005)32 The UN Committee on the Rights of the Child (CRC), in its concluding observations on Pakistan’s 2008 reports has expressed grave concern that the FCR is still in force in FATA.

According to SPARC’s annual report 2009, in December 2009, it was reported that 14 children were detained under the FCR. In 2004, the annual report of SPARC had reported that about 70 children had been detained under the same law. None of these children were being treated, or tried, under the set procedures of the JJSO.
In 2004, during a visit to Haripur Central Prison, the SPARC team met with 21 women and children who were members of a fugitive’s family. The women and children had been convicted under section 40 of the FCR. They were arrested after the wanted man had escaped arrest. The government, however, claimed that these women and children were, in fact, being kept in protective custody in order to shield them from any offence done against them by the people of Lakki Marwat whom the fugitive had allegedly enraged. In 2005, SPARC learnt that there were more than 25 women, children, and juveniles in the Central Prison, Dera Ismail Khan, who belonged to the Betani tribe, who had been arrested in lieu of the actual fugitive, who was himself a member of the same tribe. On the same pretext, an old lady was imprisoned under the FCR along with nine of her relatives including a one and a half year old girl. The elderly lady informed SPARC that the police of Lakki Marwat and Bannu had raided their home in the presence of the Assistant Political Agent of the Lakki Marwat Region and they had been arrested simply because they happened to be related to a notorious criminal (SPARC 2005).

In the same year, a journalist,33 Amir Mohammad Khan, visited the central prison, Haripur, to verify claims of civil society that under section 40 of the FCR the government has sentenced minor children on the pretext of being relatives of an alleged offender. He narrated the ordeal that “two year old Zarmina sits in her mother’s lap on the veranda in front of the barrack reserved for women prisoners at the Central Prison, Haripur. She begins to cry when she hears the sobs of two children nearby, seven-year-old Iran Khan and his eight-year-old brother Tahir Khan. Tears roll down the children’s cheeks as a sympathetic visitor to the jail asks them about their living conditions in the prison.” Unfortunately, there are more than 15 children, including girls and boys, who are less than ten years old and who are behind bars for crimes that allegedly have been committed by their fathers or other extended family members and in some cases even by someone from their tribe. (SPARC 2004).These children were sentenced to three years imprisonment under the collective responsibility clause of the FCR by the Assistant Political Agent North Waziristan. SPARC (2004) wrote in its report that agencies responsible for law and order in the region had failed to perform their duties therefore they were targeting innocent children and women to bargain with outlaws. “What is the difference between an outlaw kidnapping innocent people for ransom and the governmental agencies kidnapping women and children for their release?” (SPARC 2004) It was all up to the political agent who has the power to either release such innocent women and children or even award them a further three years imprisonment if the fugitive is not arrested during their internment.

There is a clear disparity between the FCR and United Nations standards and guidelines. In this system, there are no chances of a fair trial because the judiciary is not separate from the executive, which according to Article 37, and 40 of the UNCRC, is an open violation of children’s human and legal rights.

Arresting innocent children under the collective responsibility clause of the FCR is against Article 9 of the Constitution of Pakistan which states, “No person shall be deprived of life or liberty save in accordance with the law.” However, the collective responsibility clause of the FCR gives the administration the power to arrest and imprison all or any members of a tribe and confiscate all the property belonging to any of them.

Every child has the right to be presumed innocent until proven guilty, whereas under the FCR system, presumption of innocence is not considered. If a child is a relative of an offender therefore he/she is considered an offender too. Therefore, all arrested and detained children under the collective responsibility clause 21 are considered guilty before their trial starts.

HRCP Reports

In 2004, HRCP had called a consultative meeting on the FCR in Khyber, Mohmand and Kurram Agencies of FATA in which the following issues and grey areas of the FCR were pointed out (HCRP 2005):

• Life under the FCR is equal to slavery. No progressive activity is allowed by the political agent;
• The tribesmen cannot get loans from banks which is a major hurdle in economic activities and industrial growth;
• No agricultural improvement has been introduced into the area therefore the people have no alternative to the traditional poppy and bhang trade;
• Actions under the FCR cannot be challenged in the High Court;
• Accountability of the political agent and other officials is not allowed under the FCR and embezzlement of Kotal funds is also reported;
• The Political Agent and Assistant Political Agents are using FCR as a weapon and most of their activities are illegal; political agents have total powers as “power corrupts and absolute power corrupts absolutely”. Political Agents are abusing their powers for personal gain.
• The tribal system under the FCR does not meet the needs of the modern age. It is an outdated system. FATA is isolated from the international community;
• FCR should not be totally abolished but amended to stop its misuse by opportunists;
• Under the law, the political agent gives special remissions to those whom he personally favours and is thus not impartial in his duties;
• The Collective Responsibility clause should be amended and only Turbor and Tawan Sharik (a person who shares losses with others) may be considered under this clause;
• Houses are demolished against an offence of an individual and families are removed from areas which is an uncivilized activity;
• The Jirga system is corrupt and partial;
• It is common that jirga members sign on a blank paper and afterwards rai (decision) is written by the political administration according to its wishes;
• The original tribal system has lost its genuineness; in the given system social justice has become impossible and everybody is trying to win the favour of the political agent. Tribesmen have no freedom under the law;
• Consultations are held at private places (hujras) which creates difficulties for both parties (victims and offenders);
• “FATA is in the clutches of a triangle of civil bureaucracy, military bureaucracy and ‘babucracy’”;
• The Political Muharrir is often an illiterate person. He is not capable of writing a report. Though the FCR does not give any power to the Muharrir no one can speak with him for his or her rights;
• Even the ‘Babu’, Steno, Tehsildar etc. are given powers to effect arrests and detentions;
• Majority of problems are caused by tribesmen’s misuse of their discretion as provided for under riwaj. The Maliks are greedy and corrupt. They have caused most of the troubles;
• Political Muharrir and Babu of Katchery are corrupt and are very harsh on the people;
• “Territorial responsibility is a good provision but often thieves are sitting with the Tehsildar”;
• Riwaj cannot address the problems of the modern era. The rules of transport, for instance, have nothing to do with riwaj but are associated with riwaj.
• The philosophy of justice requires the separation of the judiciary from the administration but these are one under the FCR;
• Under the FCR people are oppressed and have no democratic rights;
• All powers are concentrated in one person, the political agent;
• The major question is that if the FCR is abolished, what law will be enforced and implemented in its place?
• There is a difference between the tribal system and the code of the Pashtun living in settled districts:
o The tribal economy is focused on basic necessities like food, employment and health while Districts’ focus on profits and luxury;
o The social set-up of tribes requires consistency and strength while Districts need sophistication, fashion and style;
o In religion, tribal life stresses on the fundamentals of religion while Districts focus on ceremonies and functions associated with religion in addition to the fundamental values. For example, tribal people do not have Eid-i- milad processions;
• Agency Council elections are not held in a proper format. A lot of enmity is created among tribesmen as one has to say openly that he will vote for such a person and not for such a person;
• The majority of people do not know under what provision of the FCR they are arrested, released, or released on bail;
• People in FATA do not know about the FCR and its negative impact on their lives and society;

Conclusion

This paper concludes that overall there is inadequate protection of human rights, and in some cases great abuse of human rights and child rights in FATA under the FCR. The Constitutional guarantees of the people of FATA as citizens of Pakistan cannot be enforced because the higher judiciary has been stopped from entertaining any appeal or request from the people of the region. Similarly, the right to challenge or appeal against the decision of the political agent is curtailed in section 60 of the FCR. An alleged offender is unable to seek relief from any other Pakistani courts. Notwithstanding, the Higher Courts of Pakistan have passed judgments which have intervened in those constitutional matters in which innocent men, women, and children have been victimized and abused under the FCR. There is also inadequate recording of the horrors of the outdated law on children and women.

It is also clear from reports prepared by former Justice Mian Ajmal, HRCP, etc.that the social fabric of Pashtun society in FATA has not given space to human rights values. Even minor children and infants, who have not committed any offence, are not spared, as they are arrested and sentenced simply because they are related to an alleged offender.

Thus far, the Constitutional Committee headed by Senator Raza Rabbani, has failed to amend Article 247 of the Constitution which would empower the National Assembly to formulate news laws based on the principles of human rights for the people of FATA.

It is of the essence, therefore, that the people of FATA themselves mount pressure on the government to exercise the required political will and commitment, which is all that is needed to free the tribal areas from the shackles of the FCR. It is hoped the current government will take up this issue on a priority basis. It is suggested that another constitutional amendment be passed which gives the power to amend and propose laws for FATA to the National Assembly of Pakistan. The National Assembly should initially and immediately remove the unlawful and unconstitutional provisions of the FCR. At the same time, the judiciary should be separated from the administration in FATA so that trials of juveniles and others could be executed according to the juvenile justice system and human rights standards.

Recommendations

• The jurisdiction of the Supreme Court, Parliament and High Courts should be extended to FATA by amending Article 247 of the Constitution. Lower courts should be established in FATA, i.e. Session Courts, District Courts, as per the law of Pakistan.

• Either FATA should have its own Chief Minister or the CM KP may have authority to exercise power over the region. The role of Governor must be reduced as in the four provinces of Pakistan. The prime minister of Pakistan should have authority to execute business in FATA.

• The FCR should be repealed and FATA should be governed under the Constitution of Pakistan and international norms of justice, including safeguards for fundamental human rights, such as freedom of expression and association, rule of law, access to justice, and sanctity of life and property, etc. for residents of FATA.

• The laws of Pakistan should be made applicable to the whole of FATA, in their entirety, including the JJSO and the judiciary should be separate from the administration.

• Though in a number of cases, the Supreme Court and High Courts have exercised jurisdictional powers in FATA and have demanded that the FCR be repealed, the High Courts and Supreme Court of Pakistan should be extended to the tribal areas. Each of the seven agencies should have their own courts, like district courts in settled areas of Pakistan, which serve as the court of first instance for the settlement of disputes on the basis of civil law and criminal law.

• A special FATA Bench of the Peshawar High Court should be constituted to hear appeals of the people. Questions of law and interpretation of the Constitution would be dealt with by the Supreme Court of Pakistan.

• In each agency of FATA, at least one parole officer and one probation officer should be appointed for legal cases pertaining to children.

• An educated and trained police force should be established in FATA, who would be equipped to deal with both victims and offenders in keeping with basic norms of human rights.

• Either FATA may have its own Assembly or the region should be provided seats in the provincial Assembly of KP province as well as have representation in the NA and Senate.

• Employment generation schemes must be introduced so that the population, most especially local youth, may not become prey to obscurantist forces such as the Taliban, who already seek to impose a tyrannical rule over the area.

• Extensive investment should be made in education, health, and transport in order to stabilize the economy of the region and assure the good health and well being of the people of FATA.

Mr. Abdullah Khoso is research fellow, his blog is abdulhumanrights.blogspot.com and his email address is abdullahkhoso@hotmail.com

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14 "A bad law nobody can defend" which was organized by Human Rights Commission of Pakistan. 2005: Qasim Karim Printers, Lahore
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18 'FATA: The dark region of Pakistan’ (2006) published with Asian Indigenous & Tribal Peoples Network. Accessed at http://www.aitpn.org/IRQ/vol-II/Issue-02/issue06.htm
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31 The Committee Report
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33 After the visit, he had written an article titled ‘Justice Denied’ for Newsline published in its December 2004 Issue.

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