So are its people
The other day, the Senate Standing Committee on Law and Justice approved a constitutional amendment bill seeking to extend jurisdiction of the Supreme Court and the High Court to tribal areas to protect the fundamental rights of the people. The bill seeks to delete clause 7 of Article 247 of the Constitution which bars the superior courts from enforcing the fundamental rights of the people of tribal areas. The Bill was necessitated because under Art1, the Federally Administered Areas also constitute the territory of Pakistan and its people are entitled to the same protection of fundamental rights as are guaranteed to the people of other parts of the country. Two years ago, the provincial assembly of KPK, through a unanimous resolution, had called for deleting clause 7 of Art247 of the Constitution. Last year, Peshawar High Court also advised suitable measures to enable people of FATA to avail protection of the superior courts against infringement of their rights. So these legal reforms were already on the wish list of the people.
The tribal areas occupy a very anomalous position under the constitution. It is the president and not the Parliament who has the jurisdiction to enforce his decrees in tribal areas despite the fact that Parliament is sovereign over all areas falling in Pakistan. Parliament’s jurisdiction to make any law with respect to tribal areas is specifically excluded under Art247(3). The president can make any regulation for peace and good governance of tribal areas which ordinarily vests in the Parliament with respect to all other areas of the country. The superior courts too have been debarred from having any jurisdiction in any matter pertaining to the tribal areas. Thus this inherent discrepancy not only violates the fundamental rights of citizens but is also incongruent with the fundamental principles of law making.
It is an irony that in the 21st century, despite having a strategic location, FATA remains a “stateless“ entity, and normal state institutions like police, judiciary, democratic representatives, local government and municipal institutions, etc, do not exist there as they do in other parts of the country
Why should the tribal areas be any different from other parts of the country? Historically, the tribal people have been subject to isolation and backwardness because they were kept away from the mainstream by the Mughals and the British. The British entered the tribal belt in 1894 and attempted to prevent these tribesmen from plundering their territory. To appease them, different sets of rules in the form of the Frontier Crimes Regulations (FCR) were framed for them by the British in 1901 which allowed considerable powers to the local nobles so long as these local nobles were willing to remain loyal to the colonial masters. Due to the unchecked discretionary powers placed in the hands of the Jirga framed by these nobles and the violations of human rights, the FCR came to be known as “black law”. Till 1947, the FCR served the British interests eminently since the Pashtun tribes were regarded as a natural bulwark against foreign invaders. After Pakistan came into being, the tribal people were allowed to function under their own customs and traditions with minimum interference from the government which satisfied the tribesmen’s ego. But no efforts were made to substantially alter the tribal system. Today the tribal areas are divided into two categories with distinct legal regimes: areas under administrative control of federal government (FATA) which include seven agencies, and areas under the control of the provincial government, which include six frontier regions referred to as (PATA) composing tribal areas adjoining settled districts. Each FATA district is administered by a political agent (PA) wielding all the powers of judiciary, police and civil and criminal administration. The FCR under which he works is draconian in nature and is based on the principle of collective and territorial responsibility where people and tribes are often made to suffer punishment for the crimes of others. Political agents exercise their authority through tribal elders or ‘Maliks’ or Jirgas. Tribal councils are selected by the PA who is not required to abide by tribal councils decisions.
The FCR remained in force for about 110 years till President Zardari enforced The Frontier Crime (Amendment) regulation 2011, by which some minor changes were effected but the legal concepts and the essential structure of the system remained untouched. This amendment so far only exists on paper partially because of our lukewarm intentions to reform tribal society and partially because of the present insurgency. FATA is still a no go area for everybody except the terrorists. Elections for the seats of MNAs and senators from FATA are merely symbolic as these lawmakers, un-groomed in any political ideology, have never made any effort to legislate for bringing reforms to their own constituencies. Prior to 2013, the political parties were not authorised to operate in FATA. Now, despite the role of political parties, MNAs are mostly independent. It is strange and unacceptable that the Constitution permits the people of FATA to elect representatives to sit in Parliament and make laws but the laws enacted by Parliament are not applicable to Fata. Thus FATA MNAs sit in Parliament as dummies without any role.
It is an irony that in the 21st century, despite having a strategic location, FATA remains a “stateless“ entity, and normal state institutions like police, judiciary, democratic representatives, local government and municipal institutions, etc, do not exist there as they do in other parts of the country. Throughout history, FATA area has served as a trade corridor between Pakistan and Afghanistan and between India and central Asia. Before British colonisation of India, most central Asians crossed into the sub-continent through the Khyber Pass which is part of FATA. Geo-strategically this region occupies the most important link in the entire sub-continent.
The FCR remained in force for about 110 years till President Zardari enforced The Frontier Crime (Amendment) regulation 2011, by which some minor changes were effected but the legal concepts and the essential structure of the system remained untouched
The British did not touch the culture of the tribesmen but entrenched their customs and traditions through draconian laws like the FCR because it suited their own ulterior colonial goals. But what did we do for them after the formation of Pakistan, when they overwhelmingly voted for Pakistan? Did we at any time after winning freedom ever think of bringing them in the mainstream life of Pakistan, and to let them partake in state resources like any other region? They needed more resources to develop their arid and rugged terrain, where normal tilling and agriculture were not possible. The criminal neglect of the state led them to earn their livelihood through gun-running, drug trafficking, smuggling of contraband and worst of all kidnapping for ransom — none of which are permissible under the normal law of the land. No effort was ever made to extend the normal laws of the land to their territories even prior to its becoming a den of international terrorism. We brazen facedly carried the stigma of a part of our own territory being called and used as “Ilaqa-e-Ghair” where dangerous criminals, proclaimed offenders, serial killers and murderers found easy refuge. We lived with this anomaly as our national policy, which we still want to maintain. After 9/11 came another large influx of foreign elements and al Qaida into our tribal belt (being the only no-man-land on Earth and a safe sanctuary for terrorists), which changed the situation completely. After years of indecision, procrastination and delay, we had to put in the entire might of our armed forces to quell the horrendous mischief thus caused due to our years of criminal oversight of this region, in the course of which we have suffered immense loss of precious lives and property. Do we want to retrieve our sovereignty from a part of our own territory, allow the entire evil world to play havoc with our lives and with the lives of our hapless, poverty-ridden and shelter less tribal people who constitute about three percent of the population of the country? By a tragic irony, these people have been forced to live their lives in the most primitive environment amidst a cruel world where they cannot look up to any person or institution for justice or protection. Who is responsible if terrorists have made inroads in their territory and deprived them of their home and hearth?
A day in our lives had to come when we had to squarely face these questions, and that day has now arrived. “Revamping and reforming the criminal justice system” is already on the agenda of the National Action Plan, and its most auspicious beginning can be made by whole-heartedly and through a unanimous vote of all parties passing the 22nd Amendment to the Constitution allowing tribal people all the fundamental rights guaranteed to the rest of Pakistan along with extending the jurisdiction of the superior courts to the tribal people for the protection of all their rights.