Legitimising Fata reforms

With the Supreme Court and High Court (Extension of Jurisdiction to Federally Administered Tribal Areas) Act, 2018 having been passed, the government’s fresh initiatives on reforming the war-ravaged Fata have entered a new phase.

The bill, after being passed from the Upper House, will be sent to the president for approval before it becomes an act of parliament. This landmark achievement will usher in a new era for the marginalised people of the region who have been denied their fundamental rights for over a century now.

The political and judicial vacuum coupled with bad governance and massive corruption in state institutions in Pakistan’s tribal areas, that led people to lose confidence in the government, ultimately provided space to the non-state actors to capitalise on the disconnect between the two ends – the state and citizens. Resultantly, the tribal region of Pakistan that straddles Afghanistan became the hub of militancy.

This long-drawn-out militancy in Fata that later spread to the rest of the country has so far led to the deaths of more than 70,000 people and has left millions more displaced. The damage to Pakistan’s infrastructure is of more than $120 billion.

The extension of the higher judiciary into Fata is being seen by many as the right step towards ending the decades-long sense of frustration and deprivation felt by the people of the neglected tribal region over the years. This step will not only ensure their right to easy justice, but also bolster the confidence of the people of Fata in the reform process. The extension would improve predictability, an essential component of implementation.

Almost 49 judicial complexes would be built in all the seven tribal agencies and 42 tehsils around the tribal region – the process will cost around Rs14 billion. To be able to restore people’s confidence in the state and its institutions, the government needs to take immediate but concrete steps, given the short span of time at its disposal.

As a matter of fact, the Fata reforms require amendments to seven constitutional articles. These can all possibly be undertaken in a single bill, demonstrating the government’s resolve towards reforming the region. If there is a need for a longer debate on some elements of the reforms then certain priority articles should be amended as a matter of urgency.

The most important article is 106, followed by Article 247(3). The extension of the provincial assembly to Fata was approved by the federal cabinet as its second point on Fata reforms, back in March 2017. In line with this decision, the government introduced a bill in May 2017, proposing an amendment to Article 106 of the constitution so as to provide for the inclusion of a number of seats for Fata in the Khyber Pakhtunkhwa Assembly. This is now the most urgent legislative priority in the package.

Support for bringing Fata under the provincial assembly runs high amongst the residents of the tribal region. The support is seemingly driven by the widely held perception that the current authorities are unaccountable. Amending Article 106 will bring the government under an additional layer of democratic accountability in Fata. Secondly, including people in the political process and ultimately the decision-making process of their region will give them a sense of ownership of the system they are a part of. This is how the widening gap between the state and its citizens can be bridged.

The lack of judicial and legislative oversight is seen as the major contributing factor to the region’s current challenges. After judicial oversight now being addressed with the extension of the SC and Peshawar high court in Fata, a legislative extension remains top priority. This could simply be done by tabling a constitutional amendment using the same language as that introduced in May 2017. Any delay on this front may risk not meeting the expectations of the people of the region, while also vitally weakening the government’s narrative on Fata.

If the decision to delimit provincial assembly constituencies in Fata is not taken in due time by the Election Commission of Pakistan, the implementation of this reform would likely be delayed by another parliamentary term.

Again, if this element of the reform is to be implemented mid-term, filling the vacant seats through by-elections will become controversial, as it may potentially destabilise any sitting provincial government.

The second area for legislative intervention remains the amendment to Article 247(3), to make acts of parliament applicable in Fata. This could be done in two ways: a) by amending Article 247 (3) at the end of the transition period; or b) by amending it immediately.

However, the latter is the most viable option. This would, on one hand, ensure that the reforms take place in accordance with the current government’s intention and, on the other hand, prevent unexpected hurdles from derailing the process.

Additionally, the amendment would bolster the confidence of the people of Fata in the reform process and make them support the system which they would otherwise presume is meant for only the elite and privileged class. Parliament’s deliberative process would both legitimise the new laws extended to Fata and do away with the risk of legal lacunae.

The writer is a freelance contributor.

Email: khan45@gmail.com