One would hope that the new PM will reconsider party inaction on FATA reforms, and get the necessary legislation passed in Parliament so that constitutional, administrative, and legal reforms are in place by end of his tenure
Trial by jury is a noble idea and works well in some countries but in our tribal mindset, where social status of a person plays a crucial role in people’s view of themselves the jirga is not expected to promote the objectives of justice. We know that not only in tribal areas but throughout the country the worst and most heinous crimes and violation of human rights are committed by jirgas and their decisions.
The government seems to have forgotten the FATA reforms package it had introduced in the National Assembly months ago. The package had included a constitutional amendment bill which would have given representation to the region in the KP Assembly and a new law, ‘Rewaj Act’ which would have replaced the centuries old Frontier Crimes Regulation or FCR as penal and procedural code for the region.
Though both pieces of legislation were well short of the objective of bringing FATA at par with other parts of the country, especially KP. The reforms were fiercely opposed by JUI-F of Maulana Fazlur Rehman and Pakhtunkhwa Milli Awami Party (PkMAP) member Mehmood Khan Achakzai who clearly want the status quo in the region to continue. PkMAP is a crucial part of ruling PML-N lead coalition in Balochistan, while Moulana Fazlur Rehman is a part of the Federal government.
Achakzai’s PKMAP has no foothold in FATA or adjoining KP. He wins whatever seats he does by playing the Pakhtoon card in Pashtoo speaking areas of Balochistan. Strangely JUI-F is his main rival there. JUI-F has considerable support in some agencies of FATA but knowing the constituency he represents we should ask ourselves whether as a nation we would like to follow the mindset he represents.
As already mentioned, the proposed package is well short of the needs of the region and the country. Sartaj Aziz lead a commission on the report in 2015 and had clearly demonstrated overwhelming support in the region’s merger with KP and the extension of all Pakistani laws and the jurisdiction of higher judiciary to the areas in the region.
The proposed 30th constitutional amendment bill does not propose any material change in the status of the region except its representation of KP provincial assembly. If the bill is passed and becomes part of the constitution, then FATA will send 18 directly elected members to the KP Assembly. Additionally, there will be four reserved seats for women and one for non-Muslims.
It means that despite the amendment all laws of the country, existing or future made either by the federal or provincial legislature will remain inapplicable in the tribal areas, both federal and provincial, unless the President, directly or through the relevant provincial governor directs it. In this way, the fact will remain that members from the tribal areas sitting in the Parliament or a provincial assembly may enact laws for the whole country or province but not for the areas they represent or the people who elected them. These representatives will have no control or say on the administration of the regions they represent.
The proposed Rewaj Act will have mixed consequences. The scrapping of collective responsibility, where the whole tribe or clan was held responsible and punished for the crime of an individual, and extension of the jurisdiction of the High Court and Supreme Court to the region are a huge step forward. However, incorporation of the jirga system into the proposed judicial structure is a regressive move. Trial by jury is a noble idea and works well in some countries but in our tribal mindset, where social status of a person plays a crucial role in people’s view of themselves the jirga is not expected to promote the objectives of justice. We know that not only in tribal areas but throughout the country the worst and most heinous crimes and violation of human rights are committed by jirgas and their decisions.
Despite the changes, division of tribal areas into protected and non-protected and A and B class will remain. No effort has been proposed for a major expansion of the protected areas. It is not clear how the proposed judicial system will work in the non-protected areas.
The proposed Rewaj Act will have mixed consequences. The scrapping of collective responsibility, where the whole tribe or clan was held responsible and punished for the crime of an individual, and extension of the jurisdiction of the High Court and Supreme Court to the region are a huge step forward
There has been no development so far on other measures suggested by the Sartaj Aziz lead committee. The committee had proposed that local government elections should be held in the region by the end of this year. However, almost five months have passed since the publication of the committee report but no legal or administrative moves are in sight to implement those proposals. There is no work on land settlement in the FATA region proposed by the committee and the resettlement of internally displaced persons from the region is happening at a very slow pace.
What is required is the fulfilling of the demands of the tribal parliamentarians, recommendation of Sartaj Aziz Committee, and wishes of the people of the region. Article 246 and 247 of the constitution should be scrapped, FATA merged with KP, and all references to tribal areas in the constitution are totally removed.
Nawaz Sharif lead PML-N governments, despite always enjoying two third majorities, have never displayed interest in for legal and constitutional reforms. All its measures in the area have been aimed at momentary firefighting or those with limited objectives to enhance the powers of the Prime Minister. 13th and 14th and proposed but doomed 16th amendments are examples of this. Sharia court, military courts, and speedy trial courts have been the hallmark of the Nawaz lead administration.
Shahid Khaqan Abbasi has displayed a different working style from his predecessor.He seems more hardworking and inclined to institutional decision making. One would hope that he would reconsider party inaction on FATA reforms, and get the necessary legislation passed in Parliament so that constitutional, administrative, and legal reforms are in place by end of his tenure.
The writer is a freelance columnist
Published in Daily Times, September 11th 2017.