Integrating FATA

I am quite excited about the proposed amendment to the Constitution’s Articles 1, 246 and 247 to bring Fata into the mainstream. The proposed 22nd Amendment Bill is, no doubt, a step in the right direction. However, there is definitely a need to ensure a comprehensive consultative process with all key stakeholders so that this important amendment is thoroughly reviewed and enjoys the support of every segment of society and state. On May 1, the Fata Reforms Commission (FRC), established by the governor of Khyber-Pakhtunkhwa (K-P), submitted its recommendations to the government. Although the FRC had held consultations with various stakeholders, there is still a feeling that more widespread discussions are required.

There is little doubt that the Frontier Crimes Regulations (FCR) goes against all basic standards of human rights and is rightly called a black law by rights groups, globally. There has been a long-standing perspective in civil society that in order to be able to bring Fata into the mainstream, the FCR would have to be abolished and reforms will need to be introduced through amendments in Articles 1, 246 and 247 of the Constitution. In August 2011, the then president Asif Ali Zardari introduced the Frontier Crimes (Amendment) Regulation 2011. The nation was informed that major changes have been made in the FCR; that children under 16, women and the elderly will not be arrested under its collective responsibility clause and there will be a right to appeal against the judgments of political agents. Yet, while going through this particular law, one comes to the conclusion that there has been no major change in the FCR. It is high time that it is repealed altogether, under the proposed 22nd Amendment Bill. Similarly, the Actions (in Aid of Civil Power) Regulation 2011, with its inhumane procedures that are in complete violation of fundamental rights, should be repealed as well.

The opportunity of bringing Fata into the mainstream was missed earlier when the matter was not addressed while formulating and passing the historic 18th Amendment. When the parliamentary committee was established for framing this amendment, Fata reforms were part of its terms of reference. Surprisingly, however, no provisions were made in the 18th Amendment with respect to Fata, which basically means that its people are still not considered full citizens of Pakistan in the presence of Article 247. In addition, Article 1 needs to be amended in order to give Fata the status of a full federating unit, by declaring it a part of K-P, or giving it the status of a separate province in accordance with the right to self-determination of its people. Article 247 describes the manner in which the area is to be administered: “Under Article 247 (3), no act of Parliament is applicable to Fata or any part thereof unless the President of Pakistan so directs. The Governor of [K-P] acts as the ‘agent’ to the President of Pakistan.” In a similar vein, the tribal areas are excluded from the jurisdiction of the Supreme Court and the Peshawar High Court.

Recently, a politician from Fata on a talk show questioned the effectiveness of the extension of jurisdiction of the superior courts to incorporate Fata, since courts in Pakistan, in any case, take ages to go through cases. However, it should be remembered that the role of superior courts is not only to provide justice in routine criminal or civil cases. It is also to ensure the enforcement of the fundamental rights enshrined in the Constitution in accordance with Article 199 (14), and 184 (3) and (5). Not a single human rights provision in the Constitution can be applied to Fata without amendment in Article 247.

Despite repeated commitments, successive governments have failed to extend to the people of Fata their rights as enshrined in the Constitution and in accordance with Pakistan’s international obligations, being party to the International Bill of Human Rights, the International Covenant on Civil and Political Rights, the Convention Against Torture, the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child. The president, government and parliament must look into the Fata reforms issue in light of the demands of the people of the tribal areas. Amendments must be made in Articles 1, 246 and 247, not only to bring Fata into the mainstream, but also to ensure protection of the fundamental rights of its people. The jurisdiction of the superior courts must be extended and parliament must be empowered to legislate for Fata and all relevant laws of the country should be applicable to the region. 

Published in The Express Tribune, October 2^nd, 2015.

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