Although Pakistan has expressly recognized the Federally Administrated Tribal Areas (FATA) as its important constituent part under Article 1 of the constitution, yet Article 247 of the same specifically bars the jurisdiction of the superior courts in these areas. Similarly, it also provides that no act of Parliament shall apply to these areas. Sadly, Pakistan has somehow administratively abandoned this area through this formal constitutional declaration. Constitutionally, the FATA has sufficient representation in both houses of the Parliament. It is quite a paradoxical situation that FATA has been given representation in the parliament but, at the same, no act of this parliament applies to these areas. Therefore, one may absolutely fail to understand the rationale behind these conflicting and self-contradictory constitutional provisions.

Generally, rationalizing its own laxity and inaction on this issue, the government often describes the traditional mindset and non-subservient character of the FATA people as a major hurdle in the way of enforcement of any constitutional or legal reform in these areas. However, this dimension of the issue has always been exaggerated and overplayed by the successive governments in Pakistan. In fact, no political regime has ever made any significant effort to upgrade the legal status of this part of Pakistan, or otherwise sincerely tried to introduce any constitutional reform in these areas.

To effectively safeguard the vital security and strategic interests of the colonial state in this region, the British masters treated these tribal areas as a buffer zone between British India and Afghanistan. For this purpose, they introduced a set of special laws called the FCR (Frontier Crime Regulations) in this area in 1901. Instead of the welfare of the people, the primary objective of these regulations was to consolidate the British rule in this area. It is quite unfortunate that Pakistan is still governing this area through these more-than-a-century old regulations even after 68 year of its own independence. Not only did the FCR deprive the people of FATA their fundamental rights but also has taken away their basic legal rights like ‘Appeal, Wakeel and Daleel’. The Late Chief Justice of Pakistan, Justice A R Cornelius, in a judgment, has observed that the FCR is ‘obnoxious to all recognized modern principle governing the dispensation of justice.’

Presently, the very global concept of extraterritoriality necessarily relates to certain physical places like the foreign embassies, military bases of foreign countries and the offices of the United Nations. Under International law, these buildings and premises are exempted from the jurisdiction of the municipal law in any country. However, according an extraterritorial status to a part of its own territory, as Pakistan has done to FATA, is quite unprecedented in the contemporary world. Similarly, the word ‘tribal’ is commonly used for some small and scattered nomadic or cannibal clans living in the forests of Sub-Saharan Africa and Amazon. Presently, there is no such thing as ‘tribal’ in the political lexicon in the civilized world.

Although Pakistan exercises considerable influence over the affairs of the Azad Jammu and Kashmir, yet, with its own elected government and legislative assembly, technically and constitutionally this area is not a part of Pakistan. Likewise, Gilgit-Baltistan is also a semi-autonomous self-governing territory in Pakistan. Owing to its international obligation with regard to Kashmir dispute, Pakistan has yet not formally decided to annex theses territories. At present, there are fully-functioning and independent High Court and Supreme Court in AJK. Likewise, an independent Chief Court and Supreme Appellate Court are efficiently dispensing justice in the Gilgit-Baltistan. It is quite ironic that the people in these areas are comfortably enjoying their basic legal and citizenship rights despite the disputed nature of these territories but the FATA people have been deliberately deprived of these rights despite living in an area which is part of Pakistan constitutionally. Are these people being punished only for being the Pakistanis? As matter of fact, the FATA is more populous than AJK and its land area is almost double the size of the latter.

Presently, FATA is most deprived and least-developed area in Pakistan. With lowest per capita income in the country, two third of its population simply lives below the poverty line. The literacy rate is as low as only 17% among males and only 3% among females. Currently, almost half population has no access to clean drinking water. So far, no substantial endeavor has been made to promote the socio-economic wellbeing of the people in FATA. The much-advertised plan of the US to establish certain Reconstruction Opportunity Zones (ROZ’s), as an instrument to contain extremism in FATA, has never been tried to be materialized in reality. Instated of these ROZ’s, the ‘gift’ for the people of the area has been the UAV’s, alias the drones. Pakistan has also launched many full-fledged military operations in FATA during the last couple of years. Had Pakistan and the US spent the similar pecuniary resources on the socio–economic uplift of the FATA people, they would hardy have had any need for any military maneuvering in these areas.

The cost of abandoning the FATA has also been pretty high for Pakistan. At present, the FATA has virtually become a sort of ‘state within a state’. Commonly known as the Ilaqa Ghair (the lawless land), this area has become a focal point for many major illegal activities ranging from narcotics and contraband trade to the sale of illegal weapons and stolen vehicles. It has also been a major den for outlaws and escaped convicts from all over the country. Since the US invasion in Afghanistan, this area has rapidly turned into a potential hide-out for the militants and extremists from all over the world. These Violent Non State Actors have been playing havoc with the peace, stability and prosperity of Pakistan for a long time.

Now, introduction of some extensive legal and administrative reforms in FATA is quiet inevitable. In this respect, the eleven point reform recommendations recently evolved by the ten political parties of Pakistan are quite reasonable and worth consideration. The government must now initiate a gradual reform process to bring these areas at par with rest of the country. Besides this, the honorable return and rehabilitation of some two million IDP’s of North Waziristan is a major challenge for the government. As Pakistan Army has successfully concluded the Operation Zarb-e-Azb in FATA, therefore now the government must devise an efficient administrative and enforcement apparatus to effectively establish and consolidate its effective writ in these areas. Pakistan can hardly afford to fall this area a prey to militancy and extremism once again.

The writer is a lawyer and columnist based in Lahore.

mohsinraza.malik@ymail.com

@MohsinRazaMalik