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International obligations and Fata’s governance

Pakistan ratified the International Covenant on Civil and Political Rights (ICCPR) in 2010. The ICCPR entitles individuals for a fair trial, including the presumption of innocence, and safeguards from arbitrary detention and torture. The covenant makes states parties responsible for taking legislative, administrative and other appropriate measures to prevent human rights violations.

Pakistan submitted its ‘initial report’ to the committee under ICCPR in October 2015. In November 2016, the committee asked many questions regarding the human rights situation in Pakistan and adopted a ‘list of issues’. The committee will now examine Pakistan’s responses on the implementation of ICCPR in the country in July 2017.

In the very first paragraph of the ‘list of issues’, the UN Human Rights committee asked the government of Pakistan to provide information on the measures taken to ensure the direct application of the ICCPR in federal and provincial areas including FATA. The committee inquired into the measures taken by the government of Pakistan to ensure the jurisdiction of the highest courts to the entire country, including FATA. Before this, Pakistan in its initial report has claimed that upon ratification the ICCPR in 2010 by the government, it became applicable to the whole of Pakistan including FATA, and all the rights ‘embodied’ in the ICCPR and other international human rights instrument ratified by Pakistan are part of the substantive law of the country.

We should recall that in 2011, the military was called into Federally Administered Tribal Area (FATA) and Provincially Administered Tribal Area (PATA) when terrorists challenged the ‘writ of the state’ and took arms against the innocent civilians. Numerous powers of trial and detention were conferred on the military on 27th June 2011, when the president promulgated the Actions in Aid of Civil Power Regulations 2011 (AACPR), with retrospective effect from February 2008.

The AACPR legalised extended and indefinite detentions, gave the armed forces sweeping powers for search without warrant, seizure of property, and ‘interment’ for an indefinite time. Under the law, the armed forces can warn the civilians to ‘vacate’ an area. Unlike regular criminal law, AACPR makes the statements of suspects recorded by the security personnel ‘admissible’ and sufficient for the ‘conviction’ of terrorism suspects.

Under the regulations, internment centres were established to serve as ‘detention centers’ for the arrested terrorism suspects. The law provides an Oversight Board, comprising of four members, to review the cases of the persons interned for not more than 120 days, look into the conditions of the Internment Centre and to take cognisance of any complaint regarding ‘any torture or ill or degrading treatment’. But no one knows how the Oversight Board is functioning, how many cases of detainees have been reviewed and in how many cases of torture it has initiated any proceedings. It was conveyed to most of the petitioners in their habeas corpus writ petitions, filed in Peshawar High Court, against the enforced disappearance of their family members that the ‘missing persons’ have been kept in the Internment Centres established under the AACPR.

Military courts have the retrospective power to try terrorism suspects, including those held under Action in Aid of Civil Power Regulations of 2011 at internment centres across FATA

After the Army Public School incident in December 2014, military courts were established through the introduction of the 21st amendment in the constitution. These courts received retrospective power to try all those civilian terrorism suspects arrested previously and kept in the internment centres under the AACPR. It was alleged by the petitioners challenging the convictions orders of the military courts in the Supreme Court that those convicted were earlier subjected to ‘enforced disappearance’ and kept in unacknowledged detentions in the Internment Centres.

These are just some of the reasons why the AACPR is considered a ‘black law’ by human rights organisations and its provisions have been challenged before the Supreme Court for violating fundamental rights enumerated in the constitution. Various UN bodies too have expressed serious concern about the regulations.

In its concluding observations on Pakistan, the UN Committee against Torture, also called upon Pakistan to “repeal or amend the AACPR in order to abolish the military’s power to establish internment centres in FATA and PATA and ensure that no one is held in secret or incommunicado detention anywhere in the territory of the state party as detaining individuals in such conditions constitutes, per se, a violation of the convention.”

It is clear, therefore, that laws like AACPR have no place in a democratic society that values human rights and the rule of law.

On March 16, the government introduced two bills in the National Assembly in order to ‘mainstream’ FATA. One was the Tribal Areas Rewaj Act 2017 and second was the Thirtieth Constitutional Amendment Bills, seeking the extension of Peshawar High Court and Supreme Court of Pakistan jurisdiction to FATA. Interestingly, AACPR, which was earlier on the top of the list in the already extended laws, has not been mentioned in the 144 laws that the government wants to extend to FATA along with the Rewaj Act.

In July, when Pakistan’s implementation of the ICCPR will be examined by the UN Human Rights Committee, the compatibility of AACPR with Pakistan’s international human rights obligations will certainly come under discussion. Now is a good opportunity for the government to repeal AACPR to end the tyrannical regulations imposed in FATA.

Ahmad, Irshad. International obligations and Fata’s governance. Daily Times, June 8, 2017.

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