Pakistan Warring in FATA and Balochistan

By Najam Sethi

01 March, 2013

The nature of the relationship of law and politics in FATA/PATA and Balochistan continues to raise pertinent questions. Is there an army/military operation in one or both areas/territories? What laws and constitutional provisions apply to them? Are fundamental rights and high court jurisdictions equally applicable or threatened in both? The answers to such questions are pivotal in determining political solutions to the crises in both regions.

The army chief, General Ashfaq Kayani, admits that there is an on-going army operation in FATA/PATA. The Attorney General, Irfan Qadir, says the army is acting in "aid of civil power" (AACP) under the umbrella of Constitutional Article 245. Where and when this happens, all fundamental rights and high court writ jurisdictions under Article 199 are suspended and terrorists/insurgents/militants can be detained for as long as military operations continue. Furthermore, says eminent lawyer Ahmer Bilal Soofi, the Tehreek-i-Taliban (TTP) is waging war against the Pakistan state and can be classified as the "enemy" under Defence of Pakistan Rules 1965. "Moreover", he adds, "given that the superior courts of Pakistan have consistently interpreted the term 'enemy alien' expansively, the armed non-state actors operating in FATA/PATA can be equated with 'enemy aliens' who cannot sue or proceed to court save under the permission of the Government of Pakistan".

Contrary to the situation pertaining to FATA/PATA, General Kayani also claims that there is no military operation in Balochistan and that AACP/Article 245 is not being applied in that province. This implies that the writ jurisdictions of the High Courts are alive and kicking and fundamental rights are enforceable. That is why the Supreme Court has been insisting that the "missing persons" of Balochistan be coughed up by the military intelligence agencies and detentions outside the scope of these fundamental provisions are illegal.

But there remains a grey area of law when acts of terrorism amounting to waging war against the state occur outside the "operational" limits of FATA/PATA. One case in particular is interesting and illustrative. This relates to a group of 11 alleged terrorists linked to the TTP who are accused of having participated in the terrorist attack on GHQ in Rawalpindi and ISI's Hamza Camp in October 2009. All were acquitted by an Anti-Terrorist Court but only seven were released from Adiala jail Rawalpindi in 2010, four having died mysteriously in captivity. The seven were detained again in 2011, this time from Parachinar in Kurram Agency, an operational area in which AACP under Article 245 applies. Hence, the military argues they can be detained for as long as required. But human rights groups are challenging the military's version of events and the courts are still sitting in judgment.

This case is important because of two new developments. First, at the urging of the military, the government has tightened anti-terrorist laws by extending the detention period of suspects. Second, it has unfurled a "fair trial" law that enables civil-military agencies to tap electronically into all manner of communications and submit results as legal evidence in terrorist cases. But problems will arise if such harsh laws are used by the military agencies under the aegis of AACP/Article 245 on the pretext that the accused were picked up from FATA/PATA even when that is not the case in reality, as is the suspicion in the case of the seven Adiala detainees. For instance, it is common knowledge that certain sectarian and Jihadi organisations in Punjab, Sindh and Balochistan have training, ideological and operational links to the TTP in FATA/PATA. Are such terrorists liable to detention and prosecution under AACP/Article 245, along with other applicable laws?

There is one other issue that needs explication. It is often argued that if it is kosher to negotiate with the Baloch nationalists warring against the state in Balochistan with a view to bringing them back into the provincial mainstream, it is also right to initiate a dialogue with the TTP in FATA/PATA for the same reasons. In principle, of course, any dialogue that is state-inclusive is legitimate and any that is state-exclusive is not. But it is worth remembering that, despite waging war, the Baloch nationalists are seeking to defend, protect and enlarge their constitutional rights whereas the TTP is seeking to overthrow the constitutional order in Pakistan. Also, those who maintain private armies and are waging war with the state must submit to Article 5 (loyalty to state and constitution), Article 256 (forbidding private armies) and Defence of Pakistan Rules before talks can be held with them.

If the Baloch nationalists want an opportunity to participate in the forthcoming elections, they should be facilitated via a general amnesty, followed by appropriate accommodation and compensation by the government as happened in 1977-2002. Equally, if the TTP agrees to lay down arms and pledges loyalty to the constitution of Pakistan so that AACP/245 can be withdrawn, talks to rehabilitate militants can also be initiated. But if they don't, military operations to snuff them out must continue. - See more at: http://www.thefridaytimes.com/beta3/tft/article.php?issue=20130301&page=1#sthash.JGyvCR1D.dpuf

Source: http://www.thefridaytimes.com/beta3/tft/article.php?issue=20130301&page=1

URL: https://newageislam.com/islam-terrorism-jihad/pakistan-warring-fata-balochistan/d/10594