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 It is an outdated system.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.
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• 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.