Earlier this week, the National Assembly, in its dying days, has passed a historic piece of legislation, which has been long overdue. Specifically, with the support 228 votes – to the exclusion of JUI(F) and Pashtunkhwa Milli Awami Party – the Parliament passed the Thirty First Constitutional to merge FATA as a part of Khyber-Pakhtunkhwa. This bill, once passed by the provincial assembly of KPK, will finally extend a meaningful measure of our constitutional promise to the disenfranchised 5 million people living in our tribal belt.
Democracy at least in its puritanical form, imbibes the ideals of justice, equality and a full measure of fundamental rights that are essential to the nurturing of human potential. The quintessential promise of democracy, and the key to its continuing success as a governance model, rests in the idea that each man and woman, irrespective of cast, creed, culture or religion, shall be afforded a deliberate and equal voice in the perpetuating State structure. Absent this premise, the foundation of democracy crumbles upon itself, deprecating to a model of governance that is indistinguishable from authoritarian rule.
This promise of democracy – a constitutional democracy – has escaped the people our tribal belt (FATA). Shrouded in centuries of tribal warfare, rugged terrain, archaic customs, political disenfranchisement and a parallel judicial structure, the tribal areas of Pakistan seem frozen in time as a relic of history long forgotten by the modern age.
Even after almost seven decades of independence, FATA residents continue to exist outside the embrace of our constitutional protections, as foster-children of an imperfect democratic edifice.
In its still un-amended form, Chapter 3 of Part XII of the Constitution includes special provisions relating to the governing and management of the “Tribal Areas”. Specifically, in this regard, Article 246 of the Constitution defines, inter alia, the territories that constitute the “Federally Administered Tribal Areas” (FATA). Furthermore, Article 247 stipulates that “the executive authority of the Federation shall extend to” FATA. Importantly, the Constitution only extends the “executive authority” of the Federation to the tribal areas, thereby excluding the jurisdiction of the legislature to these areas.
Further clarifying the specific exclusion of legislative authority over the tribal regions, in its unamended form, Article 247(3) of the Constitution specifically enunciate that “no Act of the” Parliament shall apply to FATA, “unless the President so directs”. In fact, the Constitution allows the President to direct that a law passed by the legislature shall only apply to a specified region within the tribal area, or shall “have effect subject to such exceptions and modifications” as deemed appropriate.
In simpler terms, the Constitution of Pakistan has itself withheld the promise of democracy, and the right to be governed in accordance with free adult franchise, from the people of the Tribal Areas. These provisions of the Constitution ensure that the laws and governance structures of the Tribal Areas operate, for the most part, at the discretion of one individual: the President – who the people of the Tribal Areas did not (directly) elect.
In virtually all modern democracies across the world, wherever the governing document (i.e. the Constitution) imbibes a particular constitutional officeholder with excessive executive authority, a corresponding power to review such executive actions is usually vested in an independent judiciary. However, contrary to such constitutional and democratic norms, Article 247(7) of the Constitution of Pakistan declares that “the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area”, unless the legislature specifically extends the same through a law.
Under the Constitution of Pakistan, at the moment FATA is governed through a special set of laws called the Frontier Crimes Regulations (FCR). This draconian legislative instrument includes provisions where crimes committed by an individual can result in collective punishment for the family or tribe members, and where non-traditional/parallel judicial structures (jirgas) can determine the guilt and punishment in civil as well as criminal matters. In the circumstances, the entire ambit of ‘Fundamental Rights’, as guaranteed by the Constitution of Pakistan – including the right to be dealt with in accordance with the law (Articles 4 and 5), security of person (Article 9), safeguards as to arrest and detention (Article 10), protection against double jeopardy or self-incrimination (Article 13), the inviolability of the dignity of man (Article 14), freedom of movement (Article 15), protection of property rights (Articles 23 and 24), and the equality of citizens (Article 25) – are frequently denied to the residents of FATA.
The new constitutional amendment will amend six different constitutional articles (including Article 247), to extend our constitutional rights and judicial review to the residents of FATA. Also, the amendment (merging FATA into KPK) will reduce the number of seats in Senate from 104 to 96, and increase the seats in KPK assembly to 145. Most importantly perhaps, the amendment promises that ‘free and fair’ elections will be held in FATA “within one year” from the 2018 general elections.
All across human history, the only forms of government that have resisted transferring power to the local people, or encouraged a long-winding plan for democratic transfer of power, have been authoritarian rulers or colonial masters. This amendment, and including of FATA residents into the fold our constitutional protections has already been delayed for too long. For too long have residents of FATA been living under the colonial state, government by the President of Pakistan (their Viceroy). And an end to this regime must be welcomed by all conscientious citizens of Pakistan.
We must welcome this monumental moment for the people of FATA, and rejoice in their finally getting their share of our democratic constitutional protections. We must welcome the inclusion of people of FATA into the fold our fundamental rights. And with it, we must reclaim the promise of Pakistan, and extend its empire to the Tribal Areas.
n The writer is a lawyer based in Lahore. He
has a Masters in Constitutional Law from Harvard Law School.
All across human history, the only forms of government that have resisted transferring power to the local people, or encouraged a long-winding plan for democratic transfer of power, have been authoritarian rulers or colonial masters. This amendment, and including of FATA residents into the fold our constitutional protections has already been delayed for too long.