WASEEM AHMAD SHAH
In a strange twist of fate hundreds of thousands of inhabitants of the Federally Administered Tribal Areas (Fata) were turned into aliens in their own country. Carrying the National Identity Card of Pakistan by these tribal people is no longer a guarantee of enjoying the fundamental rights enshrined in the Constitution of Pakistan.
The latest decision, taken by the administration and police in the start of Muharramul Haram, of banning the entry and roaming around of internally displaced persons (IDPs) in Peshawar has been drawing flak from different quarters. Banners have been displayed by the local police in parts of Peshawar city carrying a public notice wherein several instructions are mentioned for general public. At serial No 5 of the instructions it is mentioned that entry of Afghan refugees and IDPs and their roaming around in the city is banned.
Growing influence of militants in several tribal areas where the state had lost its writ and subsequent military operations had caused a large-scale displacement in these areas. Initially, they were termed as internally displaced persons (IDPs), but all of a sudden last year the government coined a new terminology of temporarily dislocated persons (TDPs) for them.
According to the data uploaded by the Fata Disaster Management Authority (FDMA) on its website, the total number of registered displaced families from different tribal areas was 638,144 of which 450,337 were verified by Nadra. Following return of IDPs to different areas the remaining displaced families, as recorded on Oct 5, are 195,532.
Experts believe that placing restrictions on the movement of a vast majority of people is a violation of the Constitution of Pakistan, which guarantees freedom of movement of an individual. “Every citizen shall have the right to remain in, and subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof,” states Article 15 of the Constitution.
Violation of the said article began soon after the displacement of inhabitants of tribal areas started. Restrictions were placed by other provinces on their entry and acquiring residences there.
The controversial order was issued through an executive order and was announced in a press conference a few days ago by the high-ups of police department. The officials stated that because of security concerns the decision was taken to ban entry of the Afghan refugees and IDPs in Peshawar during Muharram.
It has given rise to the question whether because of security concerns hundreds of thousands of people could be deprived of their fundamental right to movement. The decision was taken especially at a time when campaign is going on for integration of Fata with Khyber Pakhtunkhwa.
“This order was made in contravention to the Constitution of Pakistan as well as the International Covenant on Civil and Political Rights,” said Zar Ali Khan Afridi, chairperson of Tribal NGOs Consortium. He said that displaced persons were the citizens of this country enjoying equal rights.
He said that making such announcements at a time when tribal people had been campaigning for their integration with Khyber Pakhtunkhwa might be a conspiracy to create hatred among the inhabitants of tribal areas as well as that of this province. “Peshawar is considered a centre of Pakhtuns and making classifications among Pakhtun population of different areas is unjustified,” he said.
An advocate of the Supreme Court, Shahnawaz Khan, stated that under Article 15 of the Constitution reasonable restrictions could be imposed on right to free movement but that was subject to law. He added that normally such restrictions were imposed under Section 144 of the Code of Criminal Procedure, but placing restrictions on hundreds of thousands of people was questionable.
“If the administration is making classification among people than it is discriminatory. Classification should be reasonable and based on some rationale,” Shahnawaz said, adding that through the instant order the administration had been stereotyping the entire displaced population as well as all Afghan refugees and portraying them as a threat to security.
The UN drafted the Guiding Principles on Internal Displacement in 1998 which is a non-binding set of guidelines. These principles define IDPs as “persons or groups of persons who have been forced to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, and who have not crossed an internationally recognised State border.”
While displacement has been a recurring phenomenon in Pakistan so far the successive governments have even not been able to define it. In Pakistan, the law dealing with both natural and manmade disasters is the National Disaster Management Act (NDMA) enacted in Dec 2010. This law does not define “displacement” or “displaced persons”.
Different issues have been surfacing due to lack of clarity in the law. Unlike refugees, the IDPs are citizens of the country and entitled to fundamental rights mentioned in the Constitution just like other citizens. With the passage of time both the federal and provincial governments should have modified the law so as to include the definition and rights of IDPs in it.
Following the Constitution (Eighteenth Amendment) Act, 2010, disaster management is now a provincial subject and the provincial assemblies are now being empowered to make amendments to the NDMA 2010. It will now be appropriate for the Khyber Pakhtunkhwa government to make amendments to the law to clearly define IDPs, their rights and responsibilities to be carried out by the respective governments and authorities. Furthermore, the federal government should also make appropriate amendments for applying the law to Fata.