The leader of one band of the Nez Perce people, Chief Joseph has rightly said “Treat all men alike. Give them the same law. Give them them an even chance to live and grow”.
It is a matter of fact that the constitution of Pakistan ensures inalienable rights to all the citizens of Pakistan. FATA today is formally a part of Pakistan but more closely resembles a colony whose population lives under laws and administrative arrangements that set it apart from the rest of the state. How great injustice is this that being the citizens of the country whose population enjoys all the constitutional provisions but the tribesmen is excluded from this because Supreme Court jurisdiction still not exist. Why, are the tribesmen not the citizens of this country? If yes, then why this dual system and discriminatory laws exist in the country?
According to the articles 1 and 2 of the constitution of 1973, federally administered tribal areas (FATA), is a part of Pakistan .However, according to the articles 51, 59 and 247 it is coming under the direct executive of the President. Articles 8 to 28 of the 1973 constitution are deal with the fundamental rights of the citizen of the Pakistan. If any of these rights are violated then the judiciary will protect it from violation. Its people are entitled to equal protection of rights, however, it very strange that FATA peoples are deprived from those entire fundamental rights which the others citizens have by implementing a black law called “FCR”. The laws that exist under the FCR are harsher than in the rest of Pakistan. The FCR has its origins in the Murderous Outrages Regulation (FOR) which was enacted by the British Empire to prosecute crimes in British India. The Murderous Outrages Act 1877 was specifically devised to counter the opposition of the Pashtuns to British rule, and their main objective was to protect the interests of the British Empire. The laws are currently applied by the Government of Pakistan to FATA residents.
The Frontier Crimes Regulations (FCR) comprise a special set of laws of Pakistan which are applicable to the Federally Administered Tribal Areas (FATA) of northwestern Pakistan. The law states that three basic rights are not applicable to the residents of FATA – appeal, wakeel and daleel (the right to request a change to a conviction in any court, the right to legal representation and the right to present reasoned evidence, respectively.
Article 247 of the Pakistan Constitution provides that no Act of Parliament applies to FATA, unless the President of Pakistan consents. Only the President is authorized to amend laws and promulgate ordinances for the tribal areas. The elected representatives thus have no say in administration of FATA. It also repeals the jurisdiction of Pakistan’s courts over FATA. By inference, this also limits the application of fundamental rights to FATA.
Similarly there are other articles in FCR which violates the fundamental rights of the citizens of that area. Such as clause No. 21 of the FCR deals with collective punishment and similarly under section 22-23 of the FCR fine will imposed on the entire tribe/family for the crime of a single person.
Article-9 protects life and liberty but under FCR hundreds of people are arrested and detained every year without any charge or trial.
Article-10 provides for safeguards against arrest and detention, Under FCR grounds are neither shown nor can be asked for the notorious section 40 of FCR is always put into action where under a three years term of imprisonment without any charge or commission of offence is as routine in FATA which is normally repeated for a second term.
Article-11 prohibits slavery and child labor. It is true that slavery does not exist in the classical sense where the master would have command over the life of slave.Article-12 provides protection against retrospective punishment, But this is violated everyday as there is no check upon the authorities and therefore tribesmen are punished without recourse to law and its essential pre-conditions.
Article-13, gives protection against double punishment and self-incrimination Under FCR persons are arrested and they are handed over to the joint interrogation team where they are kept in torture cells for months and hence extracting a confession of self-inculpatory nature is a normal phenomenon.
Article-14, forbids the violation of dignity of man, privacy of home and torture for extracting evidence. Under FCR dignity of man is a mere myth. Imagine, there are no limitation is provided and hence they are kept as prisoners for indefinite period. No grounds for arrest are necessary.
Articles-15, 16 & 17, respectively guarantee the freedom of movement, assembly and association. Due to tribal structure and lack of state authority movement is restricted as the individual can move on his own risk.
Article-18 is for freedom of trade but under FCR and the so called collective territorial responsibility business premises and trade centers are closed every day in FATA. The huge markets and the whole of bazaars are demolished in the operation.
Articles 23 &24 is for Protection of Property Rights, As regards property rights, no security what so ever exists in FATA. The authorities can deprive a person as well as a tribe of their property without compensation.
Article-25, speaks of equality of citizens and their entitlement to equal treatment. But tribesmen of FATA are un-equal in every respect. There is no judicial system for them. Civil and criminal courts depend on the sick Jirga system, which is always under the thumb of authorities All of these articles are violated on daily bases in FATA.
It’s the time for the government of Pakistan to think and act seriously on the matter. It’s the time to ensure the equal rights to the citizen of FATA, all those rights which is enjoyed by the citizen of Punjab and other provinces. It’s a time when FCR must be discarded and thrown into the Dustbin and the patriotic tribesmen should be treated as citizens of Pakistan. The following step must be taken
- Abolish FCR immediately
- Separation of judiciary from executive
- Extension of jurisdiction of High court and Supreme court
- Establishment of Rule of Law not Rule of Man
- Establishment of industrial free zones
It’s a human right which must be ensure as Robert Ingersoll once said “Give to every human being every right that you claim for yourself”
Writer: Eng.Kifayat Ullah
The writer is a lecturer by profession in Deptt of Electrical engineering , UST ,Bannu KP. He can be reached at firstname.lastname@example.org
THE PASHTUN TIMES