NationalVolume 12 Issue # 15

Anatomy of the latest FATA reforms

The country should get ready for another bout of political and, possibly, security crisis as the federal cabinet ultimately arrived at the decision, which it should never have, regarding the reforms in FATA, specifically the merger of the Federally Administered Tribal Areas (FATA) with the Khyber Pakhtunkhwa (KP) province. Although the decision to merge FATA with KP taken by the federal government is vague and is not comprehensive as it provides only for the merger over the next five years. In fact, the merger over five years was originally recommended by the Advisor to PM Nawaz Sharif, Sartaj Aziz and the FATA Reforms Committee. However, the PTI, ANP, PPP, Jamaat-e-Islami (JI) and certain other political groups were demanding immediate merger. Whereas, the JUI-F and PkMAP, two key coalition partners of the Pakistan Muslim League-Nawaz (PML-N) have been vehemently against the merger. The JUI-F very rationally has been suggesting that the merger of FATA with the province should be subject to a referendum in FATA. We would go a step further and would suggest that the merger must be linked to a referendum in both FATA and KP. The vague decision by the PML-N government to merge FATA with the KP province is aimed at shifting responsibility from the present government’s shoulder and let the next dispensation implement it.

The present decision to merge FATA is seemingly not going to be implemented. In other words execution of the policy decision regarding the merger would be very difficult to implement. There are different reasons for that. For instance, for implementing the proposed reforms, amendments in various articles and clauses of the 1973 state constitution would be required. This would entail political consensus between the major political groups having representation in parliament. As the PML-N and the PTI, two of the main parties having representation in the parliament, would be very difficult to bring together. In case most of the parties are able to arrive at the draft constitutional amendments to make FATA part of the province, it would require considerable time. If things were to be rushed this would be akin to sowing the seeds of future conflict. Another important feature of the reforms which were given the go-ahead by the federal cabinet in its special meeting held on March 2, regarding determining the future constitutional and political status of FATA, is the repeal of the Frontier Crimes Regulation (FCR). The FCR is the legal framework, through which the affairs of FATA have been managed to date since it was first implemented by the British colonial rulers of India in the year 1901. Ironically, the FCR would be replaced by another proposed legal framework termed the Tribal Areas Riwaj Regulation. This is, indeed, strange. If a specific legal framework has been designed for FATA, then what is the need for merging the region with KP? Because KP has its provincial assembly, which is authorized to legislate laws for the province. There is an inconsistency, rather conflict, in the two proposed reforms, that is, merging FATA with KP and also having a separate legal framework for the former. How could one province have two sets of legal frameworks and how would the provincial legislative assembly deal with this situation? This would be analogous to the once prevalent system of having two sovereign entities within a state, known as diarchy. If FATA is merged with KP and the Tribal Areas Rewaj Regulation is also enforced, that would be a grave mistake resulting in an explosive situation. Having a specific legal framework for FATA to replace the existing FCR at the time of merging it with KP is tantamount to saying that FATA has a special status and its residents want to be governed by their specific customary laws. If these customary laws have to be codified in the Tribal Areas Rewaj Regulation so the laws have to be implemented within the territory through a legislative body. This legislative body could have to be created in FATA and the regulations could not be enforced through the legislative assembly of KP. By proposing to have Tribal Areas Rivaj Regulation is to admit that having a separate constitutional and political entity in the shape of a separate province or regional authority is indispensable. But the real issue in FATA has been to replace the colonial and draconian FCR with another code of law. By the way, sans a few dreaded provisions like the 40 FCR, which has largely been reformed through the FATA Regulation 2012 by former president Asif Ali Zardari, much of the FCR incorporated the customary or Rivaj laws.The best option, thus, would have been to repeal the FCR and replace it with a modern, civilized legal framework. In fact, the proposition of the Tribal Areas Rewaj Regulation means that the government is not in the mood to take a drastic, but much-needed, step to change the social and economic complexion of FATA.

One is of the view that a new legal order incorporating the ultraconservative customs and mores would be able to address the multi-dimensional and multifarious problems of FATA. In the approved set of reforms by the PML-N government for FATA another important point is the extension of the jurisdiction of the Peshawar High Court and Supreme Court of Pakistan to FATA. This was urgently required as according to the provision of the 1973 Constitution, both the courts did not have any jurisdiction in the tribal areas making it a lawless territory. However, again in the presence of the proposed Tribal Areas Rivaj Regulation what would be the effect of the extension of the PHC and SCP, the courts which act according to the Constitution of Pakistan, not according to a specific legal framework, is anybody’s guess. Then, according to the approved reforms by the federal cabinet, a modified jirga system will remain intact for both civil and criminal cases. This is really strange. Because then what is the need of making FATA part of KP, where the jirga does not have any legal status? Moreover, if a jirga were to remain relevant, then what would be the purpose of the extension of the PHC and SCP? Strangely, the PML-N government has contradicted its own oft-repeated announcement that the first-ever elections for the local government in FATA would be held in 2017. On the contrary, according to the approved set of reforms, the local government elections in FATA would be held after the 2018 general elections. What is the logic of contradicting its own stance and what would be the rationale of holding local government elections after the 2018 national elections is best known to the government. However, the PML-N has failed to provide any explanation in this regard. Otherwise, holding of the local government elections immediately is the most important step to initiate the much-needed reconstruction and rehabilitation process in FATA. Above all, the role of local governments in FATA for establishing the state writ is cardinal. Threadbare analysis of the reforms for FATA, recently approved by FATA, reveals that there are not only several inconsistencies and dichotomies, but it has many such proposed steps which are simply very difficult to implement.