Pakistan’s leaders should be contemplating long-term solutions to the problem of violent anti-state actors being able to exert control over an area the way they have done in Fata. There is no doubt that the vacuum of power that militants needed to find refuge in Fata was created through inaction by successive governments, which failed to provide citizens of that region with equal rights to citizenship and access to justice.
Under Article 247 of the Constitution, parliament cannot create laws binding on Fata without presidential approval. Furthermore, neither the high courts nor the Supreme Court can exercise jurisdiction over matters concerning Fata. This was emphasised by the Supreme Court in a 2010 decision that was related to the Peshawar High Court taking up matters originating in Fata.
While Fata citizens are guaranteed certain fundamental rights, they have no ability to effectuate those rights beyond the political agent system and the recently-created Frontiers Crime Regulation (FCR) Tribunal, neither of which carry the same legal precedence and authority as the Supreme Court. Saroop Ijaz argues that Fata “is still an island of exceptionalism, where the State of Pakistan has never earnestly tried to establish its writ and hence extend rights”.
This is why many have called for an amendment or appeal to Article 247, arguing that Fata should be treated like any other province and its citizens should have equal access to justice as other Pakistanis. However, the alternative system for the tribal area was created, at first, in deference to the tribal people’s culture and to allow them the independence to function on their own. Therefore, a change in the legal regime controlling Fata must balance the need to close off the power vacuum that has been exploited by militants, along with the need to respect tribal culture.
While amending the Constitution can be procedurally difficult, changes must be made to the FCR, which was established in 1901 by the British. Despite its arcane provisions, the FCR continues to be a valid law applicable to Fata. However, former president Asif Ali Zardari created amendments to this law in order to minimise some of its harsher elements. Furthermore, the amendments created an internal appeals system to allow citizens to challenge the decisions of the political administration before a FCR Tribunal.
The problem with these amendments is that they have not been fully implemented yet and they do not go far enough so as to render the FCR obsolete. It was reported in June 28 by MNA Shahabuddin Khan that Nawaz Sharif would abolish the FCR altogether, however, we have seen no indication that the government has adopted such a progressive policy. While considering major changes to the FCR like abolition, the government needs to do a great deal more to effectuate the rights guaranteed to Fata citizens through Zardari’s amendments to the FCR.
The military may want to stymie this action, especially if it is considering military operations in Fata regions used by militants for sanctuary. As soldiers, not lawyers or prosecutors, it is understandable that the military would wish to avoid legal scrutiny of its potential future actions in Fata. Perhaps, it has learned a difficult lesson by being brought before the Supreme Court concerning missing persons in Balochistan and wishes to avoid any similar future controversies.
However, the military should encourage the government to bring Fata into the fold as part of a larger counterterrorism strategy. While soldiers will have to follow certain rules when Fata citizens are given the right to seek remedy at the Supreme Court, allowing the residents a path of justice outside their traditional institutions may thwart future threats like the militants finding refuge in Fata.
Some argue that such changes are not feasible until negotiations with militants are successful and the area becomes peaceful. However, without major changes that include granting greater rights to citizens and recognising Fata as a province of Pakistan, there can be little hope for long-term peace. If a power vacuum is left in the region, it will always be exploited by militant groups that pose a direct threat to the future of Pakistan as a nation.
Published in The Express Tribune, February 21st, 2014.