In Khyber Pakhtunkhwa (KP), a region of immense historical significance and rich cultural heritage, the shadows of unresolved injustices continue to cast a pall over the hopes of its people. For decades, the haunting echoes of abductions, kidnappings, and targeted killings have been resonating through the land. Promises of progress and change have been met with disillusionment as enforced disappearances continue unabated. Freedom of movement has been restricted and political mobilization stifled.
In June, a sit-in organized by the Pashtun Tahafuz Movement (PTM) in former Federally Administered Tribal Areas (FATA) which continued for almost a month, was called off after the government assured that PTM workers, allegedly abducted by security forces, would be released within a week. But the promise remains unfulfilled, and the fate of the victims hangs in the balance. Those at the forefront of this fight against enforced disappearances are met with state’s highhandedness. The arrest of Pashtun MNA Ali Wazir and PTM worker Alamzeb Mehsud further highlights the challenges faced by those advocating for change. The voice of poet Gilamaan Wazir, an active PTM member, was silenced when he was abruptly abducted near Peshawar Airport, and reasons for his abduction remain undisclosed.
Despite Pakistan’s shift from military rule to democratic governance since 2008, the harrowing crime of enforced disappearances continues to plague its citizens. Numerous voices, including political activists, students, parliamentarians, human rights defenders, journalists, and lawyers, have passionately raised concerns about this issue. The collective outcry against this grave violation resonates across the country. The halls of High Courts, the chambers of the Supreme Court, and the corridors of the parliament have echoed with the urgency to address this issue, yet, regrettably, the wheels of change seem hesitant to turn. The question that lingers, haunting the conscience of a nation, is why this dark chapter endures despite the clamor for change and the promise of democratic governance.
In June, a sit-in organized by the Pashtun Tahafuz Movement (PTM) in former Federally Administered Tribal Areas (FATA) which continued for almost a month, was called off after the government assured that PTM workers, allegedly abducted by security forces, would be released within a week. But the promise remains unfulfilled.
While the issue of enforced disappearances affects the entire nation, it is essential to recognize the concentration of cases in this particular region. The KP region has been a focal point of concern, as it has experienced a discernible surge in instances of enforced disappearances. This trend has prompted us to delve deeper into the underlying factors contributing to this unsettling phenomenon.
Since the inception of Pakistan in 1947, FATA remains an area of significant importance. To understand the current situation in these regions, it is crucial to trace back the historical roots that have shaped their governance landscape.
The legacy of European colonialism, with its inherent racial classification of people and territories, established a hegemonic system that enabled the exploitation of nations, marginalized classes, and communities. This hegemony, deeply rooted in the region, has had a lasting impact on the governance structures of KP and Ex-FATA.
The pivotal policy that set the stage for the current state of affairs can be traced back to Lord Curzon’s frontier policy, formulated during the British Raj. Under this policy, the territory previously managed by the Punjab region was deemed to be more effectively governed by the direct control of the government of India. Consequently, the British introduced the Frontier Crimes Regulation (FCR) in 1901.
While the FCR laws were lifted from KP in 1956 and from Balochistan in 1973, they remained in effect in FATA until 2018. These regulations, stemming from the colonial era, profoundly impacted the governance of the region. Under the FCR, governance was entrusted to appointed political agents who held substantial powers and authority over the local population.
One of the most egregious aspects of the FCR was the denial of basic rights to individuals. They were not allowed to present evidence or have legal representation in court, rendering them vulnerable to arbitrary decisions. Furthermore, the absence of the right to appeal a conviction in court gave rise to a culture of impunity. The FCR also authorized collective punishment, further violating the fundamental rights and dignity of the people. Additionally, property confiscation added to the oppressive measures imposed upon the population.
After years of struggle and grievance against the heinous colonial-era system, some significant development took place when the Pakistan People’s Party (PPP) government, in August 2011, made amendments to the Frontier Crimes Regulation (FCR). However, a peculiar timeline emerges when we examine the events leading up to this amendment. Just one month prior, in June 2011, the Action in Aid of Civil Power Regulation 2011(AACPR) was implemented, which had been introduced in 2008. It is noteworthy that this regulation was applicable not only in FATA but also in PATA.
The introduction of the AACPR 2011 has been attributed to the military, which has faced criticism for opposing the amendments to the FCR. Amnesty International raised concerns, stating: “the Pakistan army was strongly opposed to these FATA reforms, and they were only approved by the president in August after the armed forces had been given sweeping powers and protections under the AACPR in June of the same year.” These gave military sweeping powers and replaced FCR, despite the elected representatives in the Parliament not being able to play a meaningful role in the affairs of FATA. Unfortunately it does not end here.
Despite the historic and long-awaited amendment passed by the National Assembly in 2018, merging FATA into KP and negating the effects of the FCR, the region still finds itself in the shadows. This amendment aimed to align ex-FATA with the laws and regulations passed by the provincial assembly of KP, operating under the constitution of Pakistan.
While this step was hailed as a positive development, the ground reality has proven to be different. Many common people remain unaware of the changes and the implications they bring. In addition, the matter concerning the regulation of the Action in Aid of Civil Power, which had significant implications for governance and rights, has yet to be adequately debated and addressed.
It did not take long for further complications to arise. The KP Actions (in aid of civil power) Ordinance, 2019, was issued by the provincial governor on August 5. The anticipated positive changes have taken an unexpected turn, as the regulation implemented in 2011, originally applicable only to FATA, has been extended almost identically to encompass the entire Khyber Pashtunkhwa (KP) region. Surprisingly, this ordinance was passed without the knowledge or involvement of the KP assembly.
The present ordinance diverges from the Qanun-i-Shahadat (Evidence Act) by deeming statements from armed forces members as sufficient evidence for convicting individuals, and by permitting the admission of all evidence collected by the internment authority without adhering to standard rules of scrutiny. This ordinance imposes harsh penalties, such as the death penalty, life imprisonment, and fines, for various offenses. Importantly, it denies abducted individuals or those in military custody the legal rights of appeal, access to legal representation, and the right to be heard before a court.
In terms of terminology, the ordinance defines “action in aid of civil power” as measures that involve the mobilization of armed forces to provide support to civil authorities. These measures continue until a written order for withdrawal is issued. The “defined area” refers to the specific region designated by the provincial government where armed forces are requisitioned to secure the territory and maintain peace.
Under this ordinance, provincial governments or their authorized representatives are granted the power to act as the interning authority. This authority allows them to detain individuals, even beyond the defined area. This controversial ordinance was initially declared unconstitutional by the Peshawar High Court but the decision was later suspended by the Supreme Court. The Supreme Court formed a three-member bench to hear the petitions filed by the government of Khyber Pakhtunkhwa and the federal government in relation to the Peshawar High Court’s order. The Supreme Court suspended the High Court’s order until November 15 and announced that a larger bench would be constituted to examine the matter’s constitutionality.
Despite arguments presented in the Supreme Court, the Peshawar High Court declared the ordinance illegal, the controversial ordinance granting power to the military remains in effect. This situation highlights the existence of different laws within the same state, perpetuating the marginalization and continued colonization of these areas. It contradicts the establishment’s own claims that the regions have been cleared and safe for the residents.
Furthermore, the state’s response to peaceful protestors and human rights activists, particularly those associated with the Pashtun Tahafuz Movement advocating for their fundamental rights, has been harsh. The people of Khyber Pakhtunkhwa (KP) continue to live in a state of fear. Unfortunately the people of KP find themselves lost in a series of transitions, encompassing the eras of British colonization, dictatorial rule, and democratic shifts. From the oppressive FCR and Shariat systems to subsequent regulations and ordinances, the recent developments have further complicated the situation. In simple words, contrary to expectations, it was not the merger of FATA into KP, but rather KP that was merged into FATA.
