News from FATA (Federally Administered Tribal Areas) Lawyers Forum (Statement 12th August 2014) 

ISLAMABAD: The Senate on Monday allowed two private members’ bills to be moved, including a bill to extend the jurisdiction of the Peshawar High Court and the Supreme Court to the tribal areas for the enforcement of fundamental rights.

So far, under Clause 7 of Article 247 of the Constitution, the Supreme Court and High Courts are barred from exercising jurisdiction in the tribal areas. The Bill moved by PPP Senator Farhatullah Babar seeking to amend the Constitution, after admitted by the Senate was referred to the Committee of Law for examination and report.

According to the preamble of the Bill, the tribal areas under Article 1 (2) of the Constitution were part of the territory of Pakistan. Its people are therefore entitled to equal protection of rights but by ousting the jurisdiction of the superior courts, Article 247 (7) was a ‘grave impediment’ in the way of the tribal people in securing their fundamental rights.

The Khyber Pakhtunkhwa (KP) provincial assembly had also passed a unanimous resolution in May 2012 urging the federal government to adopt human rights protection measures for the tribal people by deleting Clause (7) of Article 247. Talking to media, Senator Farhatullah Babar said that the Peshawar High Court had in April this year also advised suitable amendments in Article 247 (7). He said that although it is not for the courts to dictate to the Parliament the PHC’s advice is significant to be heeded to ensure that tribal people secured their fundamental rights like citizens in other parts of the country.

He deplored that the federal government had recently filed an appeal in the SC against the PHC verdict thereby betraying its intention to deny the people of tribal areas their rights despite tall claims of mainstreaming them. “However, the government’s appeal in SC did not extinguish the right of the Parliament to go ahead with the legislation,” he said.

Bill to prevent torture, custodial deaths and custodial rape

Another Bill to prevent torture, custodial deaths and custodial rape, also moved by Senator Farhatullah Babar and admitted by the Senate prescribes stringent punishments for torture.

It defines ‘torture’ as an act intended to inflict physical or mental pain on a person in custody for securing a confessional statement or as a punishment for committing a suspected crime.

Those found guilty of torture would face up to ten years in prison and a fine up to Rs 1 million, or both with the amount of the fine going to the victim. Custodial deaths and custodial rape was punishable with life imprisonment and a fine of Rs 3 million. If the fine was not recovered, the guilty would have to undergo an additional 5 year imprisonment. The fine amount is to be paid to the victims or heirs of the victim.

No female shall be detained for extracting information on the whereabouts of an accused and only female public servants can take into custody a female accused. Any statement obtained through torture shall not be admitted as evidence and offences under this Act are non-compoundable and non-bailable.

Under Clause 9, any malafide complaint shall be punishable with imprisonment up to one year in prison or a fine up to Rs 100,000. The complainants can also seek remedy under any other civil law.

The statement of objects of the Bill states that Pakistan signed the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment in 2008 and ratified it in 2010. He said that both the signing and ratification of the Convention took place under the watch of former president Asif Ali Zardari, himself a victim of torture and inhuman punishment.

He said that ratification of the Convention obligated Pakistan to adopt legislation. He said that although the PPC contained some provisions but they neither defined ‘torture’ as clearly as in Article 1 of the UN Convention nor deem it a criminal offence as required by Article 4 of the Convention. After ratification it had become necessary to bring domestic laws in conformity with the UN Convention.

He said that the federal government was obligated to implement international conventions and treaties by virtue of items 3 and 32 of the Federal Legislative List.

End