clip_3The FATA Regulations 2011 is a questionable executive decree which has been challenged before the SC[1].

The law has been widely criticized for its extremely harsh and unconstitutional provisions.[2]

The law is an executive decree and grants the actions of army since 2008 in the specified areas complete immunity, but the court has clearly been reluctant to take up for reasons not difficult to understand.

Actions (in Aid of Civil Power) Regulation, 2011 were notified[3] to authorise ‘the armed forces to take certain measures for incapacitating the miscreants by interning them during the continuation of the actions in aid of civil power’[4].

Regulations have been given retrospective effect from February 1, 2008. The regulations provide that anything done, action taken, orders passed, powers conferred or assumed or exercised by the Armed Forces before or after February 1, 2008 shall be deemed to have been validly done.[5] This is clearly an attempt to give ‘legal protection/cover’ to hundreds of cases of illegal detentions and extra-judicial killings in the tribal areas.[6]

The Regulation is vaguely worded and gives sweeping powers to members of armed forces, foremost being the power to detain, without charge or trial, any individual whenever it appears that detention of that person is expedient for peace in the area. The regulations make provision for individuals being charged with a punishable offence where there is suspicion that an individual is challenging the writ of the Federal Government. Any attempted actions threatening the ‘peace, safety or defence of Pakistan’ is also punishable.

The Regulations provide for interning suspects for unspecified period without production, before any court of law.[7]

The ‘Interning Authority’ under the Regulations 2011 may by itself or on a request from the victim or his relatives review the case of the person being held.[8]

Regulation 11 is in conflict with Article 10 (2) of the Constitution which makes it obligatory on authorities that every person who is arrested and detained in custody shall be produced before a magistrate within a period of 24 hours of such arrest and no such person shall be detained in custody beyond that period without the authority of a magistrate. Exception to the said binding procedure is only in cases when a person is arrested or detained under any law providing for preventive detention. However, Article 10 provides various conditions applied to preventive detention. Even if it is presumed that internment under the Regulations is a sort of preventive detention, therefore an interned person may not be produced before the magistrate, the conditions mentioned in Article10 have to be applied to it.

Contrary to Pakistan’s law of evidence the Qanoon-i-Shahdat Order, 1984, it is stated in the Regulation that a statement or deposition by any member of the armed forces is sufficient for convicting an accused.[9]

 

[1] “JI moves court against Fata regulations”,  http://dawn.com/2011/08/12/ji-moves-court-against-fata-regulations/

[2]  “Another Draconian law”, Waqqas Mir, The Pakistan Today, 21 August 2011  , at http://www.pakistantoday.com.pk/2011/08/21/comment/columns/another-draconian-law/

[3] Two identical sets of regulations, one by the President of Pakistan and the other by the Governor Khyber Pakhtunkhwa were notified for Federally Administered Tribal Areas (FATA) and the Provincially Administered Tribal Areas (PATA) respectively under Article 247(4) of the Constitution of Pakistan. The one applicable to FATA are available at http://www.scribd.com/doc/88071275/FATA-Actions-in-Aid-for-Civil-Power-Regulation-2011 .

[4] Preamble to the Regulation.

[5] Regulation 26

[6] “New regulations give legal cover to detentions in tribal areas”, Waseem Ahmad Shah, Dawn, 13 July 2011

http://dawn.com/2011/07/13/new-regulations-give-legal-cover-to-detentions-in-tribal-areas-2/;

[7]“Promise of a post-Adiyala Pakistan” Kamran Arif and Christopher Rogers, Dawn, 13 March 2012, at http://dawn.com/2012/03/13/promise-of-a-post-adiyala-pakistan/

[8] Regulation 10

[9] Regulation 19(2)