By Yasmeen Aftab Ali
November 19, 2013
A semi-autonomous tribal region in northwestern Pakistan, bordering Pakistan’s provinces of Khyber Pakhtunkhwa and Balochistan to the east and south, and Afghanistan’s provinces of Kunar, Nangarhar, Paktia, Khost and Paktika to the west and north, FATA comprise seven tribal agencies (districts) and six frontier regions, and are directly governed by Pakistan’s federal government through a special set of laws called the Frontier Crimes Regulations (FCR).The Regulations were initiated in 1901 by the British, to counter Pakhtun opposition to British rule and to safeguard British interests in the area. Frontier Crimes Regulation; a body of law based on six chapters, 64 sections three schedules governs Fata, a British-era colonial Act that empowers a political agent to take all actions on behalf of the Pakistan government. The Regulations underwent amendments on August 27, 2011 vide an Executive Order of the President of Pakistan. The mentionable amendment in the Regulations is that the individuals may file an appeal with the Commissioner within 30 days against a decision or with the FATA Tribunal within ninety days for a review. Unfortunately the structure of the 1901 Regulations remained more or less the same i.e having a FATA Tribunal, Commissioner and Additional Commissioner, Political Agent or district Co-ordination Officer, Assistant Political Agent, Quami Jirga ( elders Jirga) and the Council of Elders (giving decisions according to local customs).
The concept of Quami Jirga too, was part of the 2011 amendments that includes tribal elders well respected in the area. However, the judicial authority of the Political Agent is not transferred to the Quami Jirga but simply states he listens to their recommendations on case to case basis. Ultimate judicial decision rests with him. There is no legal binding upon him to go by the advice of this Jirga. Commissioners, additional Commissioners Political Agents and Assistants to these agents all have jurisdiction over FATA exercising executive and judicial powers. No formal judicial system exists in FATA. Since the officials responsible for acting as judges run the day-to-day administration of an agency, there is a serious possibility of existence of a conflict of interest. No doubt, amendments of 2011 have given, for the first time in over a century, the political and legal right to the people of FATA, to challenge a decision taken however, a long road must be travelled to bring the laws to a level so they are at par with the rest of Pakistan.
On June 25th 2013, on the front page of The Nation an advertisement was placed by the FATA Grand Assembly Peshawar titled as “FATA Declaration”. This advertisement, by the tribal elders, religious clerics, political and social activists, students, women activists, lawyers, journalists, teachers and other citizens from FATA claiming to have come together from all seven agencies had adopted the Declaration. The demands in the Declaration are heart rendering. What we as citizens of Pakistan take for granted as our right, the citizens of FATA have been denied since 1947. I discuss here as many requested changes as possible.
The Constitution of Pakistan 1973 assures all its citizens the Fundamental Rights including right to fair trial, right to freedom of speech, right to access to information, liberty, dignity, equal protection under law, privacy of the home, so on and so forth. Similarly laws cannot be made that ignore the principle of double jeopardy, detention without legal counsel, retrospective punishment etc. The Declaration beseeches that these fundamental rights must be ensured for the people of FATA. (Article 247 of the constitution of Pakistan grants a special status to FATA, whereby no act of Parliament or the jurisdiction of the High /Supreme Judiciary is extendable to the region.)
Separation of Judiciary with the Executive as another request makes imminent sense as opposed to the de facto judges running also, the daily administration in FATA. The separation of powers in a democracy is to prevent abuse of power and to safeguard freedom for all. Interconnected is the demand that the jurisdiction of the High Court and the Supreme Court may be extended to FATA. This division of tasks ensures institutions as a check and balance thereby strengthening democracy and ensuring better justice in the society. The doctrine is associated with the French philosopher Montesquieu, and the clearest example of this is found in the American Constitution where the legislative power of the federation is vested in a Congress, the executive power is vested in the President, and the judicial power in the Supreme Court. Thomas Jefferson states, “The first principle of a good government is certainly a distribution of its powers into executive, judiciary, and legislative, and a subdivision of the latter into two or three branches.” (Stated to John Adams, 1787 ME 6:321)
Setting up educational institutions, vocational training centres, separate universities for men and women so that both genders can avail of a good education and progress as an individual and a society is another priority outlined. “Make me the master of education, and I will undertake to change the world.” (Gottfried Wilhelm Leibnitz) No positive changes can take place towards development, generally speaking without education.
Infra-structure development in a phase by phase basis is another justified demand of the Declaration. FATA a much ignored and backward area in Pakistan, it needs more educational institutions, better healthcare, more micro-investment and generally an improved quality of life for its people. A comprehensive development package to help bring prosperity and better job opportunities being another point incorporated. According to The Institute of Policy Studies, Islamabad it was in 2006 that the Pakistan Government launched a programme to develop the tribal areas.
The international agencies also showed interest in the project. The objectives of this Sustainable Development Plan (SDP) were multipronged; focusing on diversifying economic opportunities to make positive steps towards a general economic uplifting of the area. “The development targets were set forth by the SDP for 9 years - five years for actual development and 4 years for consolidation included taking the literacy rate to 34% and primary enrolment to 40%. The financial outlay for Sustainable Development Plan was estimated at 2.46 billion dollars. Of this, the government of Pakistan was to provide one billion dollars over the next five years in the form of an annual budget. It was expected that the donor countries would pay the rest of the money. While the donors including the US itself initially did pledge help, very little has materialized so far and the SDP stands stranded for now.”(The Institute of Policy Studies, Islamabad)
Press and Publications Ordinance and PEMRA Ordinance too are demanded to be extended to FATA. Women seats from tribal belt reserved in National Assembly and Senate, substantial amendment or annulment of FCR to recognize the Fundamental Rights of people of FATA, local governments to be established under FATA Local Government Regulation 2002……the list includes many valid demands, a right of every citizen of Pakistan.
Comprising of seven agencies of Bajaur, Mohmand, Khyber, Orakzai, Kurram, North Waziristan, South Waziristan; and six frontier regions (FRs) of DI khan, Tank, Lukki, Bannu, Kohat, and Peshawar- FATA continues to be a legacy of the system established by pre-partition British India. Why has FATA, a peaceful area pre 9/11 about which Pakistanis living elsewhere themselves and the international comity of nations knew little, not been integrated within Pakistan extending the writ of the State to the seven agencies as applicable in the rest of Pakistan?
Little has transpired to change the socio-politico landscape of FATA. No major initiative for the development of FATA was taken in 1980’s and in 1990’s except the introduction of adult franchise in 1997. This was not supported by extension of Political Parties Act to FATA, as a result; the impact was less significant in general uplift of the tribesmen.
Postscript: Pakistan needs to own FATA! The question is: when will it do so?
Yasmeen Aftab Ali is a lawyer, academic and political analyst. She has authored a book titled A Comparative Analysis of Media & Media Laws in Pakistan.
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