By Ali Hussain

Pakistan’s President Asif Ali Zardari has signed into law the country’s major constitutional reform package, the 18th Amendment, as the country faces a law and order crisis in its western Federally Administered Tribal Areas (FATA).

But beyond a call for the government to implement reforms announced by President Zardari last year to the draconian Frontier Crime Regulations (FRC), and to provide opportunities for national political parties to organise in FATA, the constitutional package is silent on introducing necessary constitutional reform to the tribal areas.

FATA needs an immediate extension of the Political Parties Act to those areas to bring the tribesmen to the mainstream politics, as well as reforms to the FCR and other steps for the social and economic uplift of the tribesmen.

Agents against change

According to experts on the tribal areas, the main reasons behind the terrorism and extremism in those areas are political ignorance among the people and the region’s constitutional status.

Currently, the national president rules this tribal region directly. The federation’s step-motherly treatment of FATA has kept the region away from development. Under Article 247 (3) of the Constitution of 1973, no Act of Parliament is applicable to FATA unless the national president so directs.

Indeed, the governor of ‘Khyber-Pakhtoonkhwa’, the new name given to the North West Frontier Province (NWFP), acts as the ‘agent’ to the Pakistani president.

Yet it is the political agent, or his assistant in his absence, posted in each of the seven agencies and six frontier regions of FATA, who is the real boss on the ground. Under the FCR, the political agent or his deputy enjoys unbridled powers, both executive and judicial. He is both judge and jury.

Under the FCR, suspects are tried by the tribal jirga, which submits its recommendations on whether to convict or acquit to the political agent. The political agent then decides whether to convict or acquit, but is not bound by the jirga's recommendations. The orders of the political agent cannot be challenged before the higher courts.

There is no regulatory mechanism to check any misuse of the political agent’s powers, which often result in serious human rights violations.

Judge and jury

Indeed, the systematic denial of legal and judicial reforms in FATA has institutionalised Taliban-style justice in the region, and the absence of proper structure or governance has created the conditions which have led to war.

FATA is divided into two administrative categories – ‘protected’ areas that fall under direct control of the government, and ‘non-protected’ areas administered indirectly through the local tribes.

Under the FCR, the local administration has the unchallenged authority to arrest and detain anyone without specifying the charges. The accused cannot get bail. Contrary to all civilised laws and jurisprudence, the FCR provides for collective punishment of the accused’s family members or blood relatives, instead of punishing only the guilty.

Family members or blood relatives are handed a jail term for no crime of their own. Innocent men, women and children become victims of this black law. Children as young as two years old have been convicted under it.

In ‘non-protected’ areas, the tribe has been vested with the responsibility of implementing the jirga decisions. The jirga often mete out punishment to an offender with a heavy fine. More severe forms of punishment include expelling an individual or a family from the area and confiscating, destroying or setting fire to homes and property.

Under the FCR, tribal prisoners have had to serve two or more sentences for the same crime, whereas Article 13 (a) of the Constitution of Pakistan states that no person “shall be prosecuted or punished for the same offence more than once”. Many tribal prisoners complained that they remained in jail even after serving their sentences because they were unable to furnish large bails to political agents.

A democratic no-man's-land

There has been no attempt to provide access to the rule of law for the people of FATA. The Constitution itself provides the biggest hurdle to the access of justice, as Article 247 (7) states: “Neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area, unless Majlis-e-Shoora (Parliament) by law otherwise provides.”

No legislation passed by Parliament is applicable to the FATA region without the assent of the President under Article 247 (3) of the Constitution.

Under Article 247 (3), FATA has been excluded from all legal reforms that Pakistan has witnessed since 1947. Pakistan has enacted many laws relating to administration, social, economic, political and judicial reforms to cope with changing social needs, but these have been denied to the people of FATA due to Article 247(3).

On April 16th this year, a cross-party conference organised by Jamat-e-Islami on ‘Why FATA is deprived of constitutional reforms’ asked the government not to adopt the recommendations of the parliamentary Constitutional Reforms Committee until reforms in FATA are included in amendments to the Constitution.

The conference called on the government to bring FATA into mainstream politics. Participants were unanimous that the government had failed to fulfill its promises about extending the Political Parties Act to tribal areas, and proposed a ‘FATA Legislative Council’ to empower tribesmen to play their role following their tribal traditions.

A roadmap for progress

FATA needs to be given the status of a province. If not, then the FATA Legislative Council – the Gilgit Baltistan-style constitutional structure – is the most valid demand for the tribal areas.

It would not only help the government of Pakistan to bring the region under its administrative control, but would also leave very positive impacts on Afghanistan’s situation.

There is a dire need to take practical steps to do away with FATA’s draconian laws and bring the people of the region into the mainstream politics of the country.