ISLAMABAD – Pinpointing the military’s apparent failure and inability of the federal and provincial governments to tackle the militancy threat in tribal area, a document recommends merging PATA into Pakistan’s legal mainstream by removing a couple of articles of the constitution as well as certain regulatory acts.
It also terms the military’s counterinsurgency strategy as ‘poorly conceived’ proving counterproductive in PATA. “While the militants continue to present the main physical threat, the military’s poorly conceived counterinsurgency strategies, heavy-handed methods and failure to restore responsive and accountable civilian administration and policing are proving counterproductive, aggravating public resentment and widening the gulf between PATA’s citizens and the state,” says a recent report by the International Crisis Group (ICG).
It highlights the ineffectiveness of Pakistan’s government and the state institutions to effectively respond to the challenges posed by the militancy in the country’s northwestern part.
Titled “Pakistan: Countering Militancy in PATA,” the 48-page report has been released this week. “Neither the federal nor the KPK (Khyber Pakhtunkhwa) provincial government is fully addressing the security concerns of residents,” the document notes.
Against the backdrop of rising security challenges in PATA in the wake of ‘virtually unchecked’ powers delegated to the military as well as imposition of certain laws and regulations, the report suggests to the centre and the provinces to “reclaim political space ceded to the military.”
“In August 2011, President Asif Ali Zardari promulgated the Actions (in Aid of Civil Power) Regulation 2011 (AACP) for PATA and FATA (Federally Administered Tribal Areas), vesting the military with virtually unchecked powers of arrest and detention and further undermining fundamental rights and the rule of law. While the AACP provides legal cover for the military’s human rights abuses, the imposition of Sharia has made effective and accountable governance elusive.”
“Efforts to revive a shattered economy, once heavily dependent on tourism, have also faltered, and pressing humanitarian needs remain unmet because of continued instability and short-sighted military-dictated policies and methods. These include travel restrictions on foreigners, stringent requirements for domestic and international NGOs, abrasive and intrusive questioning at military checkposts and the military’s deep economic encroachment.”
“To overcome PATA’s rising security challenges, the national and provincial leaderships should reclaim the political space ceded to the military. Islamabad and Peshawar must develop and assume ownership over a reform agenda that ends PATA’s legal and political isolation, strengthens a deteriorating justice system, revokes laws that undermine constitutionally guaranteed fundamental rights and fully integrates the region into KPK,” the document states.
Its some of the key recommendations include the proposals to revise the draft Fair Trial Bill 2012 to: Empower only civilian agencies to investigate and gather intelligence, and exclude the Inter-Services Intelligence (ISI), Military Intelligence (MI) and other military-controlled intelligence agencies from the bill’s list of authorised entities, making any such data they acquire inadmissible in court. Include a provision for federal and provincial parliamentary oversight and require standing committees on interior and home and tribal affairs in the National Assembly and KP Provincial Assembly, respectively, or subcommittees formed under them, to inquire into complaints of unjustified invasions of privacy under the bill. Require the higher judiciary to oversee the provision and issuing of warrants under the law and hold lower court judges accountable if they issue warrants without justification or fail to ensure that warrants are not abused by state authorities. Integrate the PATA into KP fully by: Removing Articles 246 and 247 from the constitution, thereby ending PATA’s tribal status and allowing all laws passed by the national and provincial legislatures to be applicable. Merging PATA into the legal mainstream by abolishing the Nizam-e-Adl Regulation 2009; and abolishing the AACP for PATA and FATA, lifting all curbs on travel, including no objection certificate (NOC) requirements for foreigners visiting Malakand Division. Dismantling all state-supported tribal lashkars (militias), terminating the practice of delegating security functions to unofficial entities. Investigating the allegations of extra-judicial killings, torture, illegal detention and other human rights abuses in PATA and take disciplinary action against any security personnel, including senior officials, found responsible.
The reports’ significant recommendations to the Peshawar High Court and Supreme Court of Pakistan include the proposals to review the AACP and Nizam-e-Adl Regulation 2009 to determine their consistency with fundamental constitutional rights and principles, if they are not repealed by the government and follow through on pledges to hold military and intelligence officials accountable for illegal detentions and other human rights abuses.
According to the constitution’s Article 246, PATA means the districts of Chitral, Dir and Swat (which includes Kalam), parts of Kohistan and Malakand, the tribal area adjoining Mansehra district and areas of tribal belt in Balochistan
The FATA includes tribal areas adjoining Peshawar, Kohat, Bannu, Lakki Marwat, Dera Ismail Khan, Tank and the agencies of Bajaur, Orakzai, Mohmand, Khyber, Kurram, North and South Waziristan.
The first three clauses of the Article 247 state, “Subject to the constitution, the executive authority of the federation shall extend to the Federally Administered Tribal Areas, and the executive authority of a province shall extend to the Provincially Administered Tribal Areas therein.
The president may, from time to time, give such directions to the governor of a province relating to the whole or any part of a tribal area within the province as he may deem necessary, and the governor shall, in the exercise of his functions under this article, comply with such directions.
No act of [Majlis-e-Shoora (Parliament)] shall apply to any Federally Administered Tribal Area or to any part thereof, unless the president so directs, and no act of Majlis-e-Shoora (Parliament) or a Provincial Assembly shall apply to a Provincially Administered Tribal Area, or to any part thereof, unless the governor of the province in which the tribal area is situated, with the approval of the president, so directs; and in giving such a direction with respect to any law, the president or, as the case may be, the governor, may direct that the law shall, in its application to a tribal area, or to a specified part thereof, have effect subject to such exceptions and modifications as may be specified in the direction.”