I am quite excited about the proposed amendment to the Constitution of Pakistan to bring the Federally Administered Tribal Areas (FATA) into mainstream by making amendments in Article 1, 246 and 247 of the Constitution. The proposed 22nd Constitutional Amendment Bill, no doubt, is the step in the right direction however, there is definitely a need to ensure a thorough consultative process with all the key stakeholders so that this important amendment is thoroughly reviewed and enjoy the support of every quarter of the society and state. On May 1, 2015, the FATA Reforms Commission (FRC) established by the Governor KP, submitted its recommendations to the government. The FRC had consultations with different stakeholders however; there is still a feeling that more widespread consultations are required.
There is no second opinion that Frontier Crimes Regulations (FCR) 1901 is against all basic norms and standards of human rights and is rightly being called a black law by the rights groups globally. It was a long standing demand of the civil society that in order to be able to bring the Federally Administered Tribal Areas (FATA) into mainstream, the FCR would have to be abolished and reforms will need to be introduced in FATA through amendments in Article 1, 246 and 247 of the Constitution.
In August 2011, the then President Asef Ali Zardari introduced the Frontier Crimes (Amendment) Regulation 2011. The nation was informed that major changes have been made in FCR and now children below 16, women and elderly will not be arrested under the collective responsibility clause of the FCR and there will be a right to appeal against the judgements of the political agents. While going through the Frontier Crimes (Amendment) Regulation 2011 one comes to the conclusion that there is no major change in the FCR and that this is high time that the notorious FCR is repealed altogether under the proposed 22nd Constitutional Amendment Bill. Similarly, the Actions (in Aid of Civil Power) Regulation 2011 with more stringent and inhuman sentences and procedures in complete violation of the fundamental rights enshrined in the constitution and the international human rights laws should be repealed as well.
Earlier a great opportunity of bringing FATA into mainstream was missed by ignoring this important task in the historic 18th Constitutional Amendment. When the parliamentary committee was established for framing 18th constitutional amendment, FATA reforms were part of its terms of reference and there was representation from FATA as well. Surprisingly however, there was no amendment in the 18th Constitutional Amendment Act 2010 related to FATA.
In the presence of the Article 247 of the constitution the people of FATA are not the full citizens of Pakistan. Article 1 needs to be amended in order to give FATA the status of a full federating unit by declaring it a part of Khyber Pakhtunkhwa or giving it the status of a separate province in accordance with the right to self-determination of the people of FATA.
Article 1 of the Constitution of Pakistan, 1973, describes FATA as a part of Pakistan and 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 [KP] acts as the ‘agent’ to the President of Pakistan” but under Article 247 (7), the tribal areas are excluded from the jurisdiction of the Supreme Court of Pakistan and the High Court of [KP] until Parliament makes law in this regard however, the parliament is not fully authorized to do so.
A politician from FATA recently, while speaking in Television talk show, said that what good will it bring to FATA if the jurisdiction of the Superior Courts is extended as it take ages to decide cases in the Superior Courts of Pakistan. I think it’s a lame excuse and the role of Superior Courts is not only to provide justice in routine criminal or civil cases but also ensuring the enforcement of the fundamental rights enshrined in the Constitution in accordance with Article 199 (14) and 184 (3) & (5) about the enforcement of fundamental human rights. Not a single human rights provision in the Constitution is possible to be applied to FATA without amendment in Article 247 of the Constitution.
This is unfortunate that despite repeated commitments, the successive governments have failed to bring FATA into mainstream and ensure the people of FATA their rights enshrined in the Constitution and in accordance with Pakistan’s international obligations being party to the international bill of rights, including the International Covenant on Civil and Political Rights, ratified on April 17, 2008, and other important human rights treaties such as the Convention Against Torture, Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC) etc.
The president, the government and above all the parliament should look into the FATA reforms issue in light of the demands of the people of FATA and Pakistan’s international obligations and should recommit themselves to bringing genuine reforms in accordance with the wishes of the people of the FATA. Amendments shall be made in Article 1, 246 and 247 of the Constitution not only to bring FATA into mainstream but also to ensure protection of the fundamental rights of the people of FATA. Similarly, jurisdiction of the superior courts should be extended and the Parliament shall be empowered to legislate for FATA and all relevant laws of the country shall be applicable to FATA without any condition of extension by the president.
The writer is a human rights activist and development practitioner with a Masters in Human Rights from the London School of Economics (LSE) and tweets at @amahmood72
This article was published in Express Tribune on October 02, 2015 http://tribune.com.pk/story/965774/integrating-fata/