President Mamnoon Hussain has formally assented to the 31st constitutional amendment bill, earlier passed by the Parliament and endorsed by the KP Assembly, perpetually removing the term ‘tribal area’ from the national lexicon of Pakistan. The constitutional and legal jurisdiction of all the organs of the government- the executive, the legislature, and the judiciary- now extends to the erstwhile federally and provincially administrated tribal areas in line with the other settled areas in the country. Thus Pakistan has reached an important milestone in its constitutional path to statehood. Constitutionally, there is longer any extra-territorial territory inside Pakistan where the country’s laws don’t apply. It is indeed a moment of immense pleasure for the long-deprived people of tribal areas who will now get their legal and political rights guaranteed by the Constitution. There has been no significant political opposition to the implementation of FATA reforms plan. All the major and mainstream political parties fully supported the constitutional amendment process in the Parliament to give effect to this constitutional reforms plan in the tribal areas. However, due to obvious reasons, only two small political parties (JUI-F and PkMAP) opposed the implementation of FATA reforms to preserve political and administrative status quo there. But luckily, the people of FATA, by and large, have welcomed these long-awaited constitutional reforms to their area.
The role of outgoing PML-N government in initiating and concluding the integration of tribal areas is really commendable. Indeed, a strong political will was required to perform this Herculean task. A six-member FATA Reforms Committee, chaired by Sartaj Aziz, was formed “to propose a concrete way forward for the political mainstreaming of FATA areas” in November 2015. This committee visited the FATA and consulted all the stakeholders before finalizing its recommendations. These carefully devised recommendations just paved the way for the political mainstreaming and integration of the FATA. Spanning over a transition period of 5 years, this Committee recommended the gradual merger of FATA with the KP province. Moreover, the political allies of PML-N like JUI-F and PkMAP also strongly opposed the immediate FATA-KP merger, so the PML-N government just postponed it. This delay bred dissatisfaction and unrest among the disillusioned tribesmen of FATA. PTI also strongly protested against this delay. On the other hand, the so-called Pushtun nationalist movement PTM also portrayed this delay as a deliberate attempt on the part of government to deprive FATA tribesmen of their due political and constitutional rights. The military leadership eventually intervened to ensure the immediate implementation of FATA reforms plan. So the Parliament passed the 31st constitutional amendment as soon as the FATA-KP merger plan got the nod from the National Security Committee (NSC) this month.
The repealed article 247 of the constitution provided that no Act of Parliament would apply to FATA area besides specifically barring the jurisdiction of the superior courts to this area. Therefore, it has been rather a paradoxical situation that FATA was given adequate representation in the Parliament but, at the same time, no Act of the same Parliament applied to this area. Now this constitutional anomaly has been rectified through the recent constitutional amendment. 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 has been governing this area through these more-than-a-century old regulations for 70 years. 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.’
The very global concept of extraterritoriality necessarily relates to certain sensitive 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 part of its own territory, as Pakistan had done to FATA, was 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. The cost of abandoning and neglecting the FATA has also been pretty high for Pakistan. The FATA virtually became a ‘state within a state’. Commonly known as the Ilaqa Ghair (the lawless land), this area became a focal point for many major illegal activities ranging from narcotics and contraband trade to the sale of illegal weapons and stolen vehicles. Similarly, after the US invasion in Afghanistan, this area rapidly turned into a potential hide-out for the militants and extremists from all over the world.
At present, 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 materialized in reality. The standard of living in the provincial tribal areas in Pakistan is by no means better than that of FATA people.
The 31st constitutional amendment alone would hardly help set things right in the tribal areas. As a matter of fact, this constitutional amendment is the first, and probably the most significant, step towards improving things in the erstwhile FATA and PATA. However, a lot of work will have to be done to bring these areas at par with the settled and developed areas in the country. A lot of pecuniary resources are required to properly execute the reform plan in these areas. We will have to build adequate number of government facilities, courts, police stations, schools, colleges, hospitals etc. in these areas. We will have to improve the dilapidated state of communications infra-structure there. We will have to uplift the socio-economic status of deprived and neglected tribesmen. Similarly, the complete rehabilitation of the IDP’s of North Waziristan is still another challenge for the government.
At this stage, the primary focus of development and reforms in tribal areas should be on three important things- improving the state of education, generating employment through extensive economic activity, and adequately maintaining the law and order. It is education which can help tribesmen assimilate and integrate with rest of Pakistanis after shedding their traditional mindset. In addition to mining and tourism, there should be a focus on the specialized industrialization to trigger economic activities in these areas. No sort of black economy should be allowed to flourish in FATA any longer. Pakistan Army has cleared FATA of militants and extremists after successfully conducting a number of military operations there. Now the civilian law enforcement agencies should take a hold of the FATA to keep peace and order in this area. Pakistan will have to be vigilant and cautious to stop its tribal areas from again falling prey to militancy and extremism.
The writer is a lawyer and columnist based in Lahore.