Moong Qabail: We The Tribe
By Shanzae Asif
CRSS and Moong Qabail
The Center for Research and Security Studies (CRSS) is one of the few civil society organizations that took up radio as a means for community-focused strategic communication on issues such as militancy, counter-radicalization, promoting democratic values, harmony, and tolerance in Khyber Pakhtunkhwa.
Moong Qabail (We the Tribe) is part of CRSS’ media advocacy and sensitization campaign on Frontier Crimes Regulation (FCR), in collaboration with USAID’s Citizen’s Voice Project, aiming for the provision of better human rights in Federally Administered Tribal Area (FATA), and its implications for the people of the embattled province through radio programs. The programs invited tribal elders, intelligentsia, journalists, lawyers and civil society to delve on the targeted topics.
The radio programs aimed at encouraging the people to raise their voice for democratic rights through collective campaigning for fundamental rights as equal citizens of Pakistan. It also endeavored to nudge FATA residents to collectively pressurize policy-makers and representatives in the governance and parliamentary structures and increase the locals’ ownership of the campaign for equal rights, legal-administrative reforms and promoting the political reforms discourse at the federal level. The purpose is to create space and lobby for accountability mechanism for FATA officials, sensitize officials of FATA Secretariat, FATA Parliamentarians, and Government Agencies to stop opposing the abolition of old legal-administrative structures and help bringing in reforms.
The main topics discussed and debated were FATA-past, present and future, and the governing law in FATA the FCR and its implications on the people of FATA since its enforcement some hundred years ago.
The tribal regions of North West Pakistan also called Federally Administered Tribal Areas (FATA) have historically posed a complex set of judicial problems. The special nature of tribal culture, indigenous justice system, and opposition to colonial rule has resulted in a series of acts and amendments to increase state control and the rule of law.
The Murderous Outrages Regulation was enacted in 1867 to give the British rulers additional powers to prosecute serious crimes such as murder. To contain Pashtoon opposition to British rule, the regulation took its present form primarily through the Frontier Crimes Regulation (FCR) of 1901. The prerogative of enacting these laws was twofold; effectively curb inter-tribal warfare whilst increasing state autonomy in order to quell Pashtoon opposition to British rule. In 1947, the Dominion of Pakistan added the clause that residents can be arrested without specifying the crime, a drastic move to strengthen state autonomy in the tribal regions.
FATA is under direct rule of the President of Pakistan under Article 247 of the Constitution. Although it is represented in the national assembly and the senate but the laws framed by the national assembly cannot be enforced here. Presently, there are 12 members of National Assembly and eight senators from FATA but without the power to legislate. It is governed under the FCR 1901. It is administered by Governor of the KPK Sardar Mehtab Abbasi as representative of the President of Pakistan, under the supervision of the Ministry of State and Frontier Regions (SAFRON) Lt-Gen (r) Abdul Qadir Baloch in Islamabad.
FCR has been in effect for over a century and continues to play a pivotal role in the judicial environment of the Northwest Territory. Presently, the people of FATA including lawyers, journalists, clerics, students and politicians are engaged in a debate about whether these laws should be amended or abolished completely and what should be the status of tribal region in the future. Note here that any debate regarding the future of the FCR has to remain mindful of the general legal exception that FATA has been afforded. Article 247 of the Pakistan’s Constitution provides that no act of parliament applies to FATA, unless the President of Pakistan consents; this also limits application of domestic and international human rights regimes to these areas.
In 2010, the Political Parties Joint Committee on FATA Reforms; an association comprising all the major political parties in Pakistan, got together and passed a set of 11 proposed reforms in the FCR. However, the people are apprehensive regarding the effectiveness of such a committee. Ibrahim Shinwari expresses doubts regarding any specialized FCR Council or committee being capable of neutralizing government influence, and pressure exerted by the influential using state machinery and tools of law.
In August 2011, President Asif Ali Zardari enacted a Presidential Order to amend the FCR. Widely viewed as the most substantive changes in the regulation, the reforms included new a time limit for the local administration to wait before informing that they have taken someone prisoner and placed new restrictions in the Collective Responsibility clause such as exempting children and elders from being taken into custody. The reforms suggested and salient features of the amendment enacted are provided in the appendix.
Whatever the stance on the mechanism for reforms may be, the people of FATA, almost unanimously want an exigent end to this black law. The major contention with the FCR is that it is an outdated, ill intended law; it was enacted to protect the British Empire and its interests. It is indifferent to Islamic injunctions. This claim has been supported by a plethora of tribesmen in FATA as well. At the same time, many agree to continue with some of the elements of the FCR such as the Jirga system. The only aspect which needs attention is that the members of the Jirga should be humane and honest individuals. FCR is silent on the rights of women.
The existing situation presents a system that denies the residents of FATA their basic civil and political rights as citizens of Pakistan and as granted to the people of all other provinces. A report presented by Afzal Khan Mohmand, highlighted that FCR is a set of laws which is condemned by every community of FATA, including political and religious parties. It allows the rich to get away with crimes, whereas the poor and dispossessed are left to face the brunt.
Frontier Crimes Regulation (FCR)
FCR was framed by the British to subjugate the tribal people living in the North Western part of the territory. Changes were made in the FCR from time to time beginning from 1928, 1937, 1938, 1947, 1962-63, 1995-97, 1998 and 2000 but none facilitated the people of FATA. In 1977, Adult Franchise was granted under the Political Party Order and under the FCR people were granted the right to appeal against the actions of the Political Agent with appellate authority being the Commissioner FCR. However, some meaningful amendments were made in 2011, but unfortunately the reforms brought little relief to the people and have not been not been implemented in letter and spirit at the behest of the bureaucracy and the administration.
FCR comprises 64 sections or articles but the most harmful are Sections 34, 40 and 21 to 30. Section 40 deals with the powers of the administration to detain a person for years on mere suspicion while sections 21 to 30 deals with the Collective Responsibility clause. Homes and property of the tribesmen are demolished under Section 34 of the FCR. Section 32 of the FCR allows for entire villages to be razed to the ground.
According to Basheer Safi, “specific procedures were not followed while framing the FCR. A tyrannical law was framed and handed down to the executive with no proper judiciary. Presently, the FATA administration is using it as a tool to pressurize the people of FATA”. Taj Mahal Afridi asserts “that all these sections are misused by the administration for their vested interests.” An accused has the right to appeal and prove that he is not guilty but there is no such provision under the FCR. All the powers are vested in one person in violation of human rights. The FCR violates basic human and civil rights of the people of FATA but the government of Pakistan is not ready to do away with it.
However, Bazaar Gul Afridi sees some good in the FCR and opines that “most of the people want judiciary and administration to be separated in FATA and have remedial measures against exploitation by the political administration. It is a sad fact that most of these tribesmen are ignorant of their rights and do not know that there are so many positive sections in FCR beneficial to them.”
People cite examples from the early 1990s, when section 34 of the FCR, was used to demolish many homes within the Agency. The destruction was left unaccounted, further deepening anti state sentiments within the region. Section 32 of the FCR allows for entire villages to be razed to the ground and even properties in the settled areas are destroyed and especially if the state requires that particular land. Provisions like these are clear fault lines in the governance and make the state vulnerable to populous hate and rebellion. An interesting aspect presented by Gul Hussain’s report was that many of the younger residents of the Mohmand Agency equate FCR with traditional Islamic law and many hold FCR responsible for people joining hands with the Taliban/militants.
Taj Mahal Afridi, a lawyer, explained section 40 of the FCR. Section entails that all those people who could not be approached by the government were issued a notice to ensure the assurance of four Maliks to live in the area. If he failed to get the assurance then he was liable to spend three years in jail. We called for its implementation when the militants were infiltrating our region but the administration did not make use of it. But when their interests are endangered Section 40 of the FCR is evoked. Numerous complaints have been filed with the Political Agent in this regard but administration remains silent.
However, the main emphasis of the people in the studio and outside was that the FCR is cruel and unjust. Among many other injustices one is that the accused is not given a chance to defend himself. Moreover, the entire family and tribe of the accused are punished, under section 23 of the law. Callers such as Saad ullah Khan from Orakzai Agency and Mukamil Shah from Gul Bahar regretted the lack of rights and focused on the fact that innocent people are arrested and persecuted without recourse to legal defense. They appealed to the government of Pakistan to abolish this law. Maulana Ashraf Ali contends that firstly, those responsible for enforcing the FCR are themselves not competent enough to deal with the interrogation of the accused; secondly punishing others who are not directly complicit in the illegal act is not in keeping with Islamic justice and human rights.
FCR and Islam
The FCR abuses the nature of tribal society and makes room for increased state coercion. According to Maulana Ashraf Ali, the residents of FATA are most resentful of Section 40 of the FCR which holds the whole tribe responsible for one man’s criminal act. FATA residents feel that the regulations are inhuman, incongruent with the spirit of Islam and its accompanying notions of justice.
Maulana Ashraf Ali pointed out that Quran has given us the principles that the crime of one person cannot be received by another. But there is a section called Ayela in our Shariat where the administration has the right to arrest a person who shares interests with the criminal. He conceded, though that the entire FCR was not repugnant to Islam, and the problems were more severe in certain sections. When asked how the FCR laws prevailed in post-colonial Pakistan, he claimed that this happened due to the absence of an alternate set of laws and unless an alternate system, which is both viable and robust, is proposed, these FCR laws will continue.
Should the issues surrounding the FCR laws be understood in the light of incompatibility with religious ideals, or should they be seen under the ambit of political administration? Maulana Ashraf Ali is in favor of the latter, and believes that members of parliament are responsible for institutionalizing reform. However, clerics should also participate and highlight those sections within the FCR which are repugnant to Islam.
Role of the Political Agent
Political Agent (PA) used to serve as a symbol of state authority. He was also the prime advocate of the tribal people. He was like a bridge between tribes and the government. Today, the role of the political agent is deemed as one that is corrupt and enjoys boundless power, allowing him to give preference to the Maliks contributing to polarization, corruption and inequity in FATA. The 2011 amendments, also failed to delineate between the executive and the judiciary, nor curtail the powers of the political agent.
Political agents use the FCR laws as a pivot to act out their own political vendettas. This is facilitated by Section 22 which makes it extremely easy to punish someone, even if they are innocent, by allowing persecution in the absence of satisfactory evidence. The rich, who have powerful contacts, can use the FCR to escape punishment as well as a personal tool to eliminate their enemies. Who suffers? It is those inhabiting the lowest rungs of the socio-economic ladder.
“The political agent (PA) is empowered to bail and provide guarantee to the accused but the problem is that the PA often detains the person and does not accept the guarantee. The PA has vast powers and can detain a person for years,” explained Basheer Safi.
Rustam Shah, a former ambassador to Afghanistan and former Political Agent, argues that the increasing role of the armed forces has resulted in reducing the role and power of a political agent. Thus the army emerges as a new perpetrator by destroying the entire system as well as the relative peace which prevailed some years ago.
According to Rustam Shah the PA has the powers under FCR to arrest a person after following a particular procedure. A political agent has to serve in three capacities; political agent, district magistrate and sessions judge. He can even impose curfew. But it should not be done indiscriminately. It is an abuse of authority. First he has to issue a notice about a culprit then he has to notify the whole area. After this procedure PA has to wait for some time before taking action.
It is widely believed that the funds received by the PA are not audited and there is no accounting of where they have been used. This is why many believe that FATA has suffered from lack of development. But Rustam Shah rejected this notion saying that this is the view of the people who are ignorant about the way FATA is run. The PA does not receive any funds and cannot undertake any project without the sanction of the federal government. However, what is important that competent people should be appointed as political agents for the system to work properly and justly.
People of FATA still prefer the Jirga system as a means to settle disputes and is also in continuity with tribal traditions. Shahab, host of the radio show, Moong Qabail, points out that the issue with the Jirga system is that the decision by the Jirga can be appealed only to the political agent, the same person responsible for appointing the Jirga jury. This means that the accused does not have the right to choose his lawyer.
Moulana Ashraf Ali averred that Jirga was permitted in our religion and in our traditions. But the important requirement is that its procedure and composition should not go against the spirit of Islam. To reach a compromise between two contending parties is a good thing. We cannot reject Jirga but what is important is that the composition of Jirga is above board. People who are appointed are honest and people of integrity. It was pointed out in the program that most of the time the Jirga members were appointed by the political agent and therefore could be biased. Abdul Kareem Mehsud added that “with the passage of time, our officials tried to corrupt the Jirga system. In many cases the elders were forced to sign on white paper and the decision was written later on by the administration.” Yet the general consensus among the people of FATA was for Jirga system to continue but with recourse for appeal to the apex courts.
Local Bodies Election
According to the findings of FATA Reform Committee, a private organization which has conducted a comprehensive study about FATA, almost all tribal people agree that local bodies’ elections in FATA may end many ills in the region. It is the best possible solution to find a way out of the present state of affairs. Dr. Ashraf Ali, the researcher of the report, is hopeful that after the assurance of Ministry of State and Frontier Regions (SAFRON) and the resolve of the new KPK Governor, prospects for local bodies’ elections in FATA are brighter than ever.
According to Dr Ashraf Ali, people of FATA are more aware now and after taking part in the general elections they have realized that elections give them the power to elect and not select. Local bodies will empower the people of FATA and give them an opportunity to demand their rights. The 2002 elections also made people realize that these elected people had some power and made them independent of political agent. The people believe that local bodies’elections are needed because people relate better to MPs chosen from local areas, rather than those residing in Islamabad, as this will bring about an end to hopelessness, militancy, terrorism and injustice. Elections and legislation will remove the vacuum that exists in FATA and that which has benefited the terrorists. Thus elections and better legislation will bring peace to FATA.
Jangrez Mohmand firmly believes that the “most important thing in FATA is local bodies’ election. They can play a vital role in controlling corruption and bring to the fore indigenous leadership. It can fill the vacuum created after 9/11 when the role of the privileged class was minimized. We need real local bodies’ elections to separate executive and judiciary. FATA Lawyer’s Forum sought help from High Court but it took an ambiguous decision. The court sent the decision to the president while it should have been sent to the parliament. We are disappointed and I wonder where we should go to seek justice.”
Amendments in the FCR
The FCR needs to be reformed and there are no two opinions on that. The next step is what should be the procedure adopted to make amendments. This question was raised by a caller, who wanted to know what procedure would be adopted in order to appeal in the apex courts? The solution proposed by Maulana Ashraf Ali was that MPs who are democratically elected should formulate a committee which keeps a check on the political agent and they should suggest reforms needed within the FCR.
A caller from Peshawar said that nothing would satisfy the people unless they are given the right to appeal to high Court and Supreme Court. “We have people who can resolve our matter referring to the Jirga system, but we still want our right to appeal against the local administration who has been exploiting us.”
Ijaz Mohmand, a lawyer from Peshawar believes that, “unless article 246 and 247 of the Constitution are amended, no lasting change can come in FATA. These amendments are not sufficient and a bill in this regard has been presented by our MPs in the National Assembly, with the amendments in article 246 and 247, human rights and civil rights will be granted to our people and higher courts will be extended here. We are hopeful now because provincial assembly, high court and Supreme Court have also passed the resolution and now we will move the resolution in the National Assembly.”
“In 1997 Adult Franchise was granted under the Political Party Order and under the FCR people were granted the right to appeal against the actions of the political agent with appellate authority being the Commissioner FCR. Later FCR tribunal was established to appeal against Commissioner’s orders. These rights were granted but due to lack of education and awareness the people could not benefit from theses amendment”, stated Abdul Kareem Mehsud. Hundreds of people are languishing in prison but don’t appeal for a bail because they are not aware of their rights and of proper procedure.
Mufti Ihsan ul Haq from Bajaur Agency lamented that FCR deprived poor people of their rights and therefore a system should be introduced which is for the welfare of the people; “when people are deprived of their rights, homes, property and liberty under Collective Responsibility, as a reaction they join hands with the accused and anti-state elements.” But times have changed and reforms are needed in FCR. People ask for amendments to be introduced along with a procedure that should be adopted to grant the right to appeal in the apex courts.
The amendments in 2011, did give people some relief. The Collective Responsibility clause has been reformed which exempts a child below 16 years and an elder of above 65 years from being arrested under Collective Responsibility and time period has been fixed for solving a case. FATA tribunal has been empowered to challenge the decision taken under the FCR, and also in the High court. Similarly the powers of political agents have been curtailed and he is forced to abide by the laws.
But legal experts are not satisfied with the reforms because nothing substantial happened following the reforms. According to Ijaz reforms were the first step, and then there was the FATA Tribunal and Political Parties Act. FATA tribunal has been challenged in the High Court and implementation of Political Parties Act depends on peace in the area, which is presently not possible. The reforms could not be implemented in any of the seven agencies and we challenge the administration to implement these reforms for the welfare of the people of FATA.
One of the key demands of the people of FATA is for regular courts. This would also help in separating administration from judiciary. According to Abdul Kareem Mehsud when a tribesman is arrested, he is hapless before the administration and unless there is a demarcation in courts and administration, things will not improve. Reforms are not implemented at the lower level and FATA Tribunal is not powerful enough to take action. It would be more productive to replace political agent with judicial officers who are familiar with our customs and norms. This would improve the prospects of justice for the people in FATA.
Basheer Safi highlighted that Sections 21 to 27 of the FCR are mutually dependent and their nature is that of cooperative dependability. He said in the presence of the military, our nature of collective liability has ceased to exist adding that these laws are draconian and violate basic human rights and results in massive injustices.
FCR and Militancy
FCR is responsible for militancy in FATA. If FATA was being governed under a humane and just law tribal people would have not been compelled to take up arms against the state and the children would be in schools and colleges and not suffering from ignorance and deceived by the militants. Professor Ijaz Khan of Peshawar University averred that FCR was already a weak law and after 9/11 it became weaker. When Taliban fled Afghanistan, they came to FATA because there was already a vacuum here due to poor governance, lack of development, with no judicial or administrative system working for the welfare of the people, illiteracy, and backwardness which helped the militants to make this region their safe haven.
A major cause for concern for the residents is that because of a tradition of embracing a person seeking refuge, allows criminals to go in hiding without facing the brunt of the law. Ibrahim Shinwari, a senior journalist deems “the FCR, the root cause of militancy and terrorism in the region. Had these laws been replaced by more humane laws with access to justice, the youth would not have strayed and strengthened the hold of militancy in the area.”
FCR and women
“Zar Ali, a social worker says “There are 16 laws for women in Pakistan but not a single law has been extended to FATA. FCR and tribal customs are harming women and we need reforms in the FCR to give them enough space to at least breathe.” The FCR is completely silent on women.
According to Zar Ali, unlike the rest of the country, the women in FATA have no representation either in the federal or provincial assemblies. There has never been a female political agent or a magistrate from FATA. In the last ten years of militancy the men of FATA are dying and women and children are left behind to bear the brunt. The women who after being displaced are forced to live in the camps where they are not only vulnerable to abuse but are exposed to situation for which they have never been prepared.
In case of collective responsibility as well the women were also arrested before the 2011 amendments. According to Samina Afridi a researcher, Section 30 of the FCR mentions women when referring to adultery other than that there is no mention. Most of the girls’ schools have been destroyed and life of women is severely restricted. In addition, the FCR provides legal cover to traditions which are against the interest of women and are cruel and inhuman. In response to a question Samina Afridi said, “Women are handicapped they cannot think for themselves and there are no schemes to help women who are faced with any tragedy. FATA women will be empowered only when she will be financially independent. I do not think women can be independent in FATA with mere grant of rights. Unless a woman is financially independent, she cannot support herself. Our state has legislated for women but due to FCR women in FATA cannot benefit from them.”
It is important that women of FATA are given a voice in decision making; they should be mainstreamed in the politics of FATA through women’s wings in the political parties and participation in the local bodies’ elections. Unless the women of FATA are empowered they will continue to suffer the draconian law which gives them no rights but makes them suffer the brunt of the FCR.
The FCR has been in practice in FATA for over hundred years, but now the people demand repeal of the law, mainly because they have come out of the dark ages, are educated and aware and detest the law.
Presently, the residents of FATA suffer discrimination largely facilitated by Article 247 of the Constitution. FATA has been isolated, and ignored. People of FATA are now demanding access to justice; fundamental rights and due process of law, as guaranteed by the Constitution of Pakistan. An organization which spearheads the campaign against FCR is the FATA Lawyers Forum, which not only raises awareness but helps formulate the demands of the people. There are no mechanisms to ensure implementation of the 2011 reforms because there is no separation of powers. The judiciary and the executive are interchangeable. Separation of the executive and the judiciary will churn the cogs within the judicial system.
The reforms which have already taken place within the FCR have not been properly implemented nor processed. The people demand transparency within the system, a separation between judiciary and executive, better control over their own system via local bodies’ elections, catering to the demands of the local tribesmen. This could be done by merging FATA with KPK and thereby bringing it under the ambit of the Constitution, or maintaining it as a separate province and giving it its due rights, empowering the residents with a right to appeal and approach courts, be it the High Courts or the Supreme Courts.
Additionally, there would be representation of the local MPs from FATA within the assemblies so that the demands are heard, women should get their fundamental rights and political representation, and work should be done on restructuring and developing FATA etc. Development of educational facilities will empower the younger generation in FATA, enabling them to run for elections, spread awareness, tackle corruption and lack of representation and justness, and bring about tangible improvement within FATA. Even if recommendations are made, such as a recent draft proposal to hold local bodies’elections, the issue lies with the Presidency and the Center who fail to ratify and implement these recommendations – causing many to demand an abolishment of the FCR laws altogether.
The residents also demand more involvement of NGOs within FATA, to create awareness about the FCR, to empower through education and realization of their rights as women and as citizens of Pakistan. Militancy has further added to their problems, causing widespread displacement and youth joining the militants in order to seek revenge for the miseries caused to their lives and families and primarily for being treated as second class citizens by the government of Pakistan.
FATA’s Future Status
“For the first time in the history of FATA, members of national assembly (MNAs) were elected through popular vote. For the first time audit of the office of the political agent was carried out. “All the MPs from FATA, FATA Lawyer’s Forum and young people are making concerted efforts to bring a change. The recent verdict of Peshawar High Court is a good omen and now it is left to the parliament to decide about the future of FATA. Although there are divergent views about the future status of FATA but the constitution of an elected FATA Parliamentarian Council is a good suggestion to prepare the ground for the future vision,” feels Alhaj Shah Jee Gul.
Fundamental to any change in the status of FATA is the will of the inhabitants of the region. “The future of FATA will be good if it is according to the wishes of the local people and not imposed upon them. I personally think that the option of a separate province is simply not workable. We are too closely connected with KPK. If we merge with KPK then we will have greater legislative powers for our region. In the present scenario it is not good to have a separate status. As far as FATA council is concerned, it has been observed that such bodies are always under the influence of the government and are not independent,” says journalist Ibrahim Shinwari.
There are mixed opinion on FATA merging with KPK with a significant majority favoring uniting with KPK as this will bring greater financial prosperity and grant rights as citizens of Pakistan under the Constitution of Pakistan. Political parties will become functional here and FATA will be included in their manifestoes. It will empower the people of FATA, and bring development and progress to the area. The another significant opinion favors an independent FATA, mainly because the rest of Pakistan is doing no better and the rule of law, development and peace are not present here too. But the main theme of demand of the people is end of FCR and peace in the region.
Moreover, a substantial proportion of tribesmen in FATA hold the view that the solution lies in conducting elections at local bodies’ level. The people believe that local bodies’ elections are needed because people relate better to MPs chosen from local areas, rather than those residing in Islamabad, as this will bring about an end to despondency, militancy, terrorism and injustice.
Malik Khan Marjan was of the opinion that the only way for progress in FATA is through an elected FATA representative council and that the FATA Secretariat and political administration should be answerable to this council.
According to Dr Ashraf Ali, a member of the FATA Reform Committee, it is ironic that the democratization of FATA was undertaken in martial law regimes and nothing was done under civilian rule. He said that even though local council elections held in 2002, in Musharraf’s regime, were a sham, they had a positive impact on the people; they began to view the electoral process as capable of determining their fate. If the people dwelling in FATA do not participate in democratic processes than administration would be imposed upon them by the federal government and they would not have any say in the system. Rehman ullah, a journalist said that the local bodies’ elections made people realize that they had the capability to lead their own men and can be able administrators. Moreover, he said that local elections are more important as the elected MNAs reside in Islamabad and have negligible presence and involvement in FATA’s affairs. Hence, this gap can be filled by the local bodies’ elections and their elected representatives.
“Justice and education is the key to success for a nation. People of FATA are crying out for reforms. They have been robbed of everything. To win their hearts, we need reforms and devolution of power,” exclaimed Lal Badshah Safi.
Meanwhile, Ibrahim felt that all the political parties have a great role to play for bringing positive change in FATA by giving it priority in their manifestoes. Presently, the political parties do not have significant presence in the region and the MPs elected in the previous elections were independent and therefore did not enjoy party support. It is extremely important that political parties own FATA. Besides, an increased presence in the assembly can also help in winning the power to legislate for FATA, which they cannot do at the moment.
Freedom of Expression
According to Qamar Nadeem, Article 18 of Pakistan Constitution grants freedom of expression to all the citizens and this right was given under the FCR to FATA after the amendments in 2011, i.e. political freedom and right to expression and information, but the fact remains that it is still on paper and actual implementation is still awaited. Jangrez Mohmand, a political worker alleged that, “leaders of major political parties do not take FATA seriously and are not willing to be the first to hold a political rally in FATA.”
Mostly, there is appreciation for the freedom for political activity, but there is a general lament that political parties do not come to FATA and hold rallies. Some corner meetings are taking place but not enough to make a difference.
Political worker Jangrez Mohmand said, “if one political leader takes the initiative to hold a rally then others will follow suit.” He confided that local speakers in a meeting were afraid to voice their concerns on certain issues. “If local people lack the courage to speak for their rights than how can others speak for us?” People have been arrested for taking part in protest rallies and for acting against the will of the administration; such is the situation of freedom of expression in FATA.
Abdul Salam, a political worker in Khyber Agency said that political parties cannot carry out its activities freely because of law and order situation. “Unless the operations are stopped and people start returning to FATA regular political activities are not possible.”
“Despite given freedom of expression, the people of FATA cannot access print and electronic media and radio remains their best source of information from the outside world”, said Advocate Qamar Nadeem. To help people enjoy freedom of expression, it is important to make them aware of their rights and privileges and for that we need powerful radio stations in FATA. There is no other source of information available to the people of FATA.
To provide the people of FATA with opportunities for media interaction and participation and access, Pakistan Electronic Media Regulatory Authority’s (PEMRA) jurisdiction should be extended to FATA is also one of the demands of the Reform Committee.
The common and continuous thread present in all the 12 radio programs aired by the CRSS was that the FCR is responsible for the all the ills being suffered by the people of FATA and it is primarily responsible for the situation prevailing in the region and it is time it was repealed.
It is unfortunate that in this modern day and age the people of FATA still continue to live under an archaic law, which has deprived them of their fundamental rights and civil liberties. They might hold Pakistani passports, yet the government fails to protect them and treat them as citizens of Pakistan.
FCR has taken away from the people their right to life, security, justice and expression among many other basic human rights. People have been arrested and sent to languish in jails for participating in protest in FATA. This has to stop. It is high time that the people of FATA are allowed to have a lawyer in case they are accused, be given a chance to appeal, as well as bring forth evidence to prove their innocence without having the whole tribe bear responsibility for individual acts. Recommendations have been proposed but not implemented due to corruption and injustice.
A plethora of different issues need to be dealt with, especially regarding procedural issues in terms of the office of the political agent, the FATA council, holding local body elections, representation of women, development, education and health facilities and the influence of the government within the ambit of the judiciary. The gist of the report based on the radio programs Moong Qabail is that FCR must go and people of FATA must be given their fundamental rights just as other citizens of Pakistan.
The eleven recommendations by the FATA Committee are as follows:
1) Peace in FATA should be guaranteed
2) Article 247 of the constitution should be amended.
3) Local bodies’ elections should be held in FATA
4) A comprehensive package should be developed and infrastructure development initiated, with special focus on education, health and employment.
5) The future status of FATA should be decided by its people.
6) Pakistan’s Electronic Media Regulatory Authority (PEMRA) jurisdiction should be extended.
7) The jirga system should be made more democratic and independent.
8) Actions in Aid of Civil Power Regulation should be abolished.
9) Executive and judicial powers should be separated.
10) Citizens should not be deprived of property; inheritance law should be extended.
11) Civil armed forces should be strengthened and professionalized.
Salient features of the amendments enacted in August 2011 are listed as follows:
- Protection of women, children below 16 and all people above 65 from collective responsibility arrest
- Prohibition against arresting an entire tribe under collective responsibility
- Time limits for disposing of cases
- Provision for a more independent appeals process
- Appellate authority power to review decisions
- Strengthening of the FATA Tribunal
- Power to transfer cases from political agent to assistant political agent
- Concept of bail
- Jail inspections
10 Voluntary references to a council of elders and Qaumi Jirga (people’s assembly)
- Inclusion of local customs and traditions (Rewaj)
- Fines on communities in case of murder
- Forfeiture of public salary for involvement in crime
- Arrest by authorities other than political agent
- Checks on arbitrary power to arrest
- Punishment and compensation for false prosecutions
- No deprivation of property rights without compensation
- Audit of political agent funds