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RIGHTS-PAKISTAN: Harsh Colonial Law Set To Change

Ashfaq Yusufzai

PESHAWAR, Apr 9 2008 (IPS) - In May 2007, officials sealed a multi-storey shopping plaza belonging to three brothers from the Federally Administered Tribal Areas (FATA) because their tribesmen were reported to have abducted two former employees of the Pakistan Tobacco Company.

The Gul Haji Plaza on University Road in Peshawar, capital of the North West Frontier Province (NWFP), was closed under the archaic Frontier Crimes Regulations (FCR) introduced by colonial British rulers in 1901 in frontier regions jointly administered by FATA and NWFP.

The set of laws, which contravene international conventions, including the Universal Declaration of Human Rights, empowers political agents in the tribal areas – under direct rule of Islamabad – to take punitive action against a tribe if even one member acts in a “hostile or unfriendly manner” towards the government or persons residing in the country.

The three brothers Baz Gul, Majeed Gul and Haji Gul, belong to the Zarghonkhel sub-tribe of Afridi of Darra Adamkhel, a semi-autonomous frontier region that has long resisted control by Pakistan’s federal government.

The political administration accused the Zarghonkhel sub-tribe of harbouring the alleged kidnappers of the two retired employees, Muhabat Khan and Waheedullah, who were killed after their families refused to pay ransom. The kidnappers had demanded 1.6 million rupees (roughly 64,000 US dollars) each for their release. Their bodies were found near their village Adizai in the Matani area adjacent to Darra Adamkhel on Jun. 14.

“It was totally unjustified to seal a tribesman’s business in the city,” says Haji Gul, an ex-senator who represented FATA in the national senate till 2005. The Gul Haji Plaza is Peshawar’s biggest computer market with over 250 shops.

In May 2004, 15 children were among family members of a notorious outlaw Arsal Khan in the Lakki Marwat frontier region (in NWFP) who were rounded up and imprisoned for many years when the authorities failed to capture him.

On Mar. 31, the day he was sworn in, Pakistan’s new prime minister, Yusuf Raza Gillani, announced that his government plans to abolish the FCR. A committee has been appointed.

“The jurisdiction of the Supreme Court of Pakistan and high courts has not been extended to FATA under Article 247 of the constitution,” Waseem Ahmad Shah, legal correspondent of the oldest English-language newspaper Dawn says. Under Article 1, FATA is a part of Pakistan.

Citizens groups and rights activists have been calling on successive governments to streamline laws in the country. Pakistan which has been under army rule for a majority of its 60 years, voted in a democratic government in general elections in February 2008.

Political agents with both executive and judicial powers have invoked different sections of the FCR from time to time. The violation of fundamental rights under the constitution has gone unchallenged.

For instance, in the Arsal Khan case, five children were convicted by name for three years under the collective responsibility clause of the FCR (clause 21). They included Mohammad Siddique, 9 years, Khalil Mohammd, 3, Razmeena, 2, Wazir Azam, 6, and Islam Bibi, 7.

Some of the other oppressive sections of the FCR – clause 22 (territorial responsibility), 23 (imposing fines on a community where murder or culpable homicide is committed or attempted), 32 (removal of any village on military grounds), 33 (prohibit erection of Hujra -male guest house or using a building as Hujra) and 40 (execution of bond for good behaviour) – also need to be abolished.

The Peshawar High Court has begun to assume jurisdiction in certain cases under the FCR especially when the seized properties are in “settled” (NWFP) areas or individuals have been detained in prisons of settled districts. FATA falls outside the “settled” areas.

In a historic judgement in June 2006, the high court ruled that properties of a private limited company could not be attached in a settled area under the collective responsibility clause of the regulation. A two-member bench ruled that under section 21 of the FCR there was no absolute or unconditional discretion of the concerned authorities to take action against a tribe or its members.

Asfandyar Wali Khan, chief of the Awami National Party which has formed the government in NWFP and in Islamabad together with Prime Minister Gillani’s Pakistan People’s Party (PPP) says he would like to retain the FCR with some amendments – something that a vast majority of tribesmen would back.

“There are some reservations regarding the manner in which it should be done away with,” lawyer Noor Alam Khan, chairman of Voice of Prisoners, told IPS. “It requires very delicate handling”

The independent Human Rights Commission of Pakistan (HRCP) urges caution. “We are in favour of the gradual abolition of the FCR as its abrupt repealing might create anarchy in those areas,” Kamran Arif, the vice-chairman of the HRCP, said in an interview to IPS.

He suggests that first the discriminatory provisions of the FCR must be removed and it brought in line with the rule of law. Later, the jurisdiction of the superior courts should be extended to the frontier regions. “Proper judicial and administrative structures should be set up based on the principle of separation of powers,” he recommends.

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