Daily Times

The National Assembly (NA), with a resounding majority passed the Constitution (Thirty-first Amendment) Act, 2018 merging the tribal areas with Khyber Pakhtunkhwa. The amendment, inter alia, removes Article 247 from the Constitution that provides for the administration of the tribal areas vesting the executive authority in the President or Governors and excludes acts of parliament to these areas.  It was a historic development. For the first time in its history, residents of tribal areas were to have the same rights as other citizens of Pakistan. But it hasn’t happened yet — or since.

229 lawmakers in the NA voted in favour of the amendment and only one voted against it. In the Senate, the bill was carried with a thumping majority of 71 to 5. Since the bill aimed to change the geographical boundaries of KP, therefore, the bill needed the majority of two-thirds from KP assembly as well. 92 lawmakers voted in favour while seven MPAs against. These numbers suggest an overwhelming consensus.

Yet before the passage of this bill, the debate around the change in the constitutional status of tribal areas in the mainstream media remained polarised due to a host of reasons — including because of opposition by allies of the government in the centre, namely Jamiat Ulema-e-Islam-Fazal (JUI-F) and Pakhtunkhwa Milli Awami Party’s (PkMAP). Never mind the debate around it, if the numbers were there to amend the Constitution, why did the government defer the proposed change?

The committee on FATA reforms constituted by the government had already recommended in 2016 to integrate FATA with KP but with a transitory period of five years. The Committee had proposed a series of programs designed as affirmative action for mainstreaming issues concerning FATA, in the transition period, before it could be merged with KP. After that report, the government simply shelved the proposal causing discontent from representatives of FATA.

In most cases, what comes before such a major development is the development of public opinion regarding reforms around the proposed change. In this case however, it appears that the change was forced and rushed. It possibly culminated due to the pressure from the Pashtun Tahafuz Movement

The government in the centre comprising the Punjabi majority, showed an abundant lack of will and resolve to carry out the necessary reforms in tribal areas. It is evident from the fact that Supreme Court and High Court (Extension of Jurisdiction to Fata) Bill, 2017 has remained pending in the National Assembly with little inkling to take it up.

Ordinarily, what precedes such a major development is the development of public opinion for reforms around the proposed change. In this case, it appears that the change was forced and rushed. It possibly culminated due to the pressure piled up by the Pakhtun Tahaffuz Movement(PTM).

Politics in this case, as it often does, responded to the social currents generated from the unlikeliest of the quarters.  The amendment was nonetheless a step in the right direction. And it needed to be supplanted by series of administrative measures, to integrate the agencies and frontier regions into KP proper. That hasn’t happened — because the state has once again reneged on its promise.

Constitution (Thirty-first Amendment) Act, 2018 has still not been signed by the President. Article 247 remains as a blemish on our Constitution. Instead, the President, exercising powers under Article 247(5) of the Constitution, introduced FATA Interim Governance Regulations, 2018 that provide for “an interim system of administration of justice, maintenance of peace and good governance”. This is a broad day right robbery — robbing people of their dreams, aspirations and hopes.

These Regulations rebrand political agents as Deputy Commission conferring on bureaucracy extensive executive and judicial powers with a limited scope of appeal to Commissioner or Additional Commissioner if only authorized by the Governor. These regulations don’t extend the fundamental rights to the residents of FATA and vest sweepingly broad discretion with Council of Elders (presided over by the Deputy Commissioner) to adjudicate upon both civil and criminal issues.  Essentially, FATA Interim Governance Regulations, 2018 are The Frontier Crimes Regulations repackaged.

Our treatment of residents of FATA is no better than the treatment afforded by the founding fathers of the US to blacks. Despite the affirmative declaration that all ‘men’ are equal, they justified slavery — counting blacks both as 3/5th of humans and as property.  Even the 14th Amendment (1868) that extended equal protection of law did not create equality, especially in the south, as the era of Jim Crow followed.

So, any change in the enabling laws and formal structures needs to be followed by employing processes in society that enable inclusivity to truly emancipate the oppressed and marginalised from historical abuse. Forget processes, at present, we don’t even have the moral courage, to enact statutory changes that extend equal protection of the law to everyone.

The basic tenet of rule of law is that the state must enact laws every citizen is aware of and applies them prospectively so that citizens can plan their lives accordingly. But with FATA Interim Governance Regulations, 2018 we are only adding one Josef K after another to an endless count, who would continue being victims of unspecified authority and undefined crimes — insistent on reinventing invisible law and the untouchable courts. Kafka was prophetic in many ways!

As Bajour celebrated on the night the Constitutional Amendment was carried by the National Assembly — perhaps somewhere in that crowd, there was Manto’s Mangoo as well. Not realising the bill needs an assent from the President — he was jubilant that a new dawn had finally arrived. He was naïve and others did not know better either. Many like Mangoo in Bajour that night and since, still seek naya qanoon! A new dawn!

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, June 29^th 2018.