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December 10, 2017

Fata after the UDHR


December 10, 2017

Besides the doctrine of vicarious liabilities, across the globe every person is only responsible for his acts and omissions; this is the universal principle on which all the civilised nations are in agreement. But Fata is still a place where people are collectively responsible for the acts committed by their neighbours, villagers or passersby.

Fata is a region where the constitutionally guaranteed fundamental rights are not available to the people and they have no access to the country’s constitutional courts. It is a region where hardly any pro-rights law operates and where the administrative, executive and judicial powers are enjoyed by bureaucratic lords called ‘political agents’. This tribal region is still governed under the draconian colonial law called the Frontier Crimes Regulations (FCR), considered by human rights activists and the country’s superior courts as being incompatible with the constitution and international human rights instruments, to which Pakistan is a state party.

Pakistan has consistently argued at various international forums including the United Nations Human Rights Committee that after we became a party to the International Covenant on Civil and Political Rights (ICCPR), the law was applicable to the whole of the country including Fata. At the same time, Pakistan has also kept the Actions (in Aid to Civil Power) Regulations (AACPR) in Fata, which has been seriously criticised by human rights activists and institutions, nationally as well as internationally, for being incompatible with Pakistan’s international commitments.

The AACPR is incompatible with the constitution and the country’s international obligations. Under this law, the state’s institutions can detain terrorism suspects for an indefinite time. The state can also investigate, proceed with trials and award convictions to the accused, something that is considered to be contrary to the principle of the independence of the judiciary since the convictions orders under the AACPR are not appealable in the country’s superior courts, and can only be reviewed by them.

Although the AACPR provides an ‘oversight board’, a body of four members to inspect the condition of internment centres, review the cases of interned persons and take cognizance of torture or ill-treatment, we don’t know how many cases have been reviewed to date. This then creates reasonable doubts of arbitrary detention and enforced disappearances, presumably curtailing the individual’s rights to right to life, liberty, a fair trial, protection from enforced disappearance and right to protection from the arbitrary arrest and detention.

The UN Working Group on Enforced or Involuntary Disappearances has in their recent report asked Pakistan that “accurate information on the detention of persons deprived of their liberty and their place or places of detention, including transfers, should be made promptly available to their family members, their counsel or to any other persons having a legitimate interest in the information”. Besides that, the Supreme Court, the high courts and the Commission of Inquiry on Enforced Disappearances have many times traced missing persons to the internment centres established under the AACPR.

Although Pakistan has argued before the UN Human Rights Committee that a ‘Jirga cannot exercise jurisdiction in criminal cases and there are strict punishments even for Jirga members who [make] decisions contrary to [the] law’, still the reality and practice of jirgas in Fata is alarming. We have witnessed the bureaucratic political administration acting in the capacity of the court and justifying honour killing in the name of local Rewaj. There are still some elite who are trying to impose the Rewaj Act, in order to keep the special status of Fata alive for some interests .

After 69 years of the Univeral Declaration of Human Rights, the civil and political rights of the inhabitants of Fata seem hollow, where NGOs are obliged to obtain NOCs for work, where people are time and again pushed to abandon their homes and take shelter in IDP camps, and where health and education need to be prioritised, where very few areas provide mobile phone coverage or internet facilities; and where journalists, media persons and human rights activists are seeking liberty to travel and observe independently.

A few months back, people from North and South Waziristan were repatriated to their homes. There has been little news of what facilities they have been provided for their livelihood, health, education etc.

Today, when civilised nations are enjoying universal civil, political, economic, cultural and other basic human rights, agreed and conferred under the UDHR, the people of Fata are still hoping and dreaming to be part of mainstream Pakistan. When the world is commemorating International Human Rights Day, in the 21st century, Fata’s men and women have no personal rights to enforce and have no access to family courts. They are allowed to elect their representatives only for the federal legislators but their representatives are not allowed to legislate for their area and people.

The state and government of Pakistan should mainstream Fata by repealing the FCR and AACPR, and should fully extend the constitution to this region along with all the enforceable fundamental rights. The internment centres should be repealed by allowing people the right to a fair trial. Pro-rights laws along with the complete institutional framework should be extended to Fata as they have been for the rest of the country. Fata needs to be be opened up now; removing curbs on the freedom of expression, on internet access, mobile phones, social media and on journalists and the civil society surely does not need time or reforms.

The writer is a Peshawar-based lawyer.

Email: [email protected]

Twitter: s_irshadahmad

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