HR situation in FATA: Sudy Underscores Need for Amending or Abolishing Article 247

The participants of a ceremony on the launch of a research report 'FATA, Between Constitutional Ambiguity and Violation of Human Rights' on Tuesday underscored the need for amending or abolishing Article 247 of constitution of Pakistan. The research study was launched by Centre for Governance and Public Accountability (CGPA). 

There was consensus amongst participants that meaningful governance reforms can't take place in Federally Administered Tribal Areas (FATA) without amending/abolishing Article 247. The Article violates many rights enshrined in the constitution of Pakistan and also international human rights covenants and treaties signed by Pakistan. 

Senator Farhatullah Babar briefed the participants on a private member constitutional amendment bill in Article 247. He introduced it in the Senate for extending Supreme Court's and High Court's jurisdiction to FATA. He also explained the bottlenecks in the passage of the amendment bill. Ajmal Wazir from political parties' joint action committee almost exhausted all democratic means for advocating an amendment in Article 247 in the constitution of Pakistan. He stated and FATA parliamentarians have no role in the legislation related to FATA. 

Ijaz Mohmand from FATA Lawyers Forum said that continuous disenfranchisement of the people of FATA from national and local governance paradigms poses serious challenges for the peace and stability of FATA. Shah Jee Gul Afridi, MNA from Khyber Agency, stated that FATA parliamentarians fully support the 11-point agenda of the political parties' joint committee on FATA reforms, which include an amendment in Article 247. Professor Ibrahim, member of political parties joint committee on FATA reforms, also demanded an amendment to Article 247 so the power of President to legislate for FATA can be transferred to parliament. 

From the outset of the launch, Asad Jamal presented a study and its recommendations in details. He stated that Article 247 of constitution of Pakistan directly violates many fundamental rights. These fundamental rights are not only enshrined in the constitution for all citizens of Pakistan, including FATA, but are also guaranteed in international agreements and treaties which Pakistan has ratified. These international agreements and treaties include the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Social Economic and Cultural Rights (ICSECR), and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). 

The study recommends: 

1. Constitutionally, FATA is an integral part of Pakistan and any law repugnant to the constitution should be repealed. The people of FATA are as much citizens of Pakistan as people of any other part of the country. The constitution must treat all the people equally. 

2. The legislative and administrative powers of the President of Pakistan under Article 247 (3) of the constitution regarding FATA should be transferred to parliament. FATA is represented by elected members in parliament and the people of FATA deserve to be duly represented. The decisions made and laws enacted in parliament should automatically extend to FATA. 

3. Article 247 (7) of the Constitution should be removed from the constitution to extend jurisdiction of the superior judiciary to FATA. Denial of superior courts' jurisdiction in FATA is a denial of fundamental rights available to the Pakistani citizens there. The denial of rights is blatant discrimination and should be removed from the constitution. 

4. Recommendations of the Political Parties Joint Committee on FATA Reforms (FATA Committee) and civil society organisations should be considered on priority basis and be given practical shape. 

5. Nomenclature relating to the tribal areas and its regulations is a perpetuation of the colonial legacy. FATA should be renamed appropriately. 

6. FCR-even after 2011 amendments-violates the fundamental human rights of the people of FATA. Further amendments should be made to ensure complete protection of citizen rights in FATA. 

7. Judicial powers should be taken away from political agents. A separate judicial institution under the supervision of the Peshawar High Court (due to geographic proximity) should be established until the people of FATA are given the opportunity to decide the future status of the tribal areas. This new judicial institution would consider findings of local councils of elders (Jirga) on case facts and pronounce binding judgements. Fundamental rights and other constitutional provisions should be protected by this new institution. 

8. If the official council of elders must remain an integral part of the FCR system (for resolution of disputes and adjudication of criminal cases), then selection of its members should not be controlled by the political agents. The council of elders must be independent of executive influence. 

9. FCR and constitutional provisions in violation of the fundamental rights guaranteed by the constitution and international human rights law should be repealed. Such provisions include those that violate the principle of presumption of innocence, apply collective responsibility, deny right to due process, and allow for destruction of property or detention without charge, among others. 

10. A constitutional or other legal mechanism should to be devised to determine how the people of FATA will decide the future status of the tribal areas. Article 48 (6) is one example. The mechanism should be designed to include voices of all people of FATA and could be a referendum or indirect representation through locally elected representatives (local representatives would need this mandate explicitly stated in local government legislation or regulation). Such a mechanism should be incorporated in amendments to Article 247 so that the status of FATA is decided once and for all. 

11. The Federation of Pakistan needs to revise the National Finance Commission (NFC) award and other budget instruments to ensure sufficient financial resources for democratic and economic development in FATA, including funds for effective implementation and enforcement of existing and new reforms in the tribal areas. 

12. FATA should have an elected local government system. This right is enjoyed by people in the four provinces and people in FATA should also have this right. The launching ceremony was participated by large number of civil society members, political parties' representatives, and journalists.