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).