For FATA residents the good news may be short lived
After
the passage of the 31st Constitutional Amendment from both the houses of the
Parliament as well as by the provincial Assembly of Khyber Pakhtunkhwa, the
merger of FATA with Khyber Pakhtunkhwa awaited just the assent of the President
of Pakistan. On Monday, the President did put his signatures on a key piece of
legislation, but it wasn’t the 31st Constitutional Amendment Act. Instead, the
President signed a questionable FATA Interim Governance Regulation of 2018.
The
draft of the Regulation, a copy of which is available with Daily Times, seems
to be old wine in a new bottle. Differences in the draft from the draconian
Frontier Crimes Regulations (FCR) it stands to replace are conspicuous by their
absence. Infact, in some places, the Regulation puts the FCR to shame with the
kind of draconian measures proposed in it.
The
15-page document starts with a statement of objective, which is ‘to provide for
an interim system of administration of justice, maintenance of peace and good
governance in the Federally Administered Tribal Areas and repeal of the
Frontier Crimes Regulation, 1901’. This good intention is very soon lost as the
text enters a very familiar, and a very dark territory.
The
Regulation converts the office of the Political Agent, that Tzar of FATA, into
that of the Deputy Commissioner. The Additional Political Agent becomes the
Additional Deputy Commissioner, and the Assistant Political Agent gets renamed
as the Assistant Commissioner.
The
tribal agencies get replaced by tribal districts and the frontier regions are
made sub-divisions.
The
Regulation continues to maintain the institution of the jirga as the Council of
Elders and as the Qaumi Jirga, just like FCR. Also, like FCR, too much
discretion has been put at the disposal of the Deputy Commissioner and the
Assistant Commissioner (who would also act as a judge in criminal cases, when
designated by the Governor).
Another
draconian aspect of the Regulation is the precedence it gives to the so-called
‘rewaj’ or local customs, to be determined by the Council of Elders. If history
is to bear witness, it is clear that such customs have almost always worked
against the interests of women and the poor. Whatever respite women might have
anticipated in the wake of the passage of the 31st Constitutional Amendment,
has been instantly evaporated after the signing of the Regulation.
Another
worrying provision of the Regulation entails the negation of any jurisdiction
of any civil court of the country to call in question anything being done in
the region. This also goes against the spirit of the merger, whereby the
judicial and law enforcement mechanism has to extend to FATA immediately.
The
requirement of time till such an extension may practically be possible owing to
the establishment of the required infrastructure is understandable, but this
kind of absolute blackout will stop the momentum of transition, if the state
has chalked out any roadmap to follow.
The
extension of the High Court and the Supreme Court jurisdiction, or even
provision for the right to appeal to the higher courts, is nowhere to be found
in the Regulation. In fact, the two-page long Supreme Court and High Court
(Extension of Jurisdiction to Federally Administered Tribal Areas) Act 2018
does not mandate any state authority to specify any roadmap for the extension
of jurisdiction. Instead, under its provisions, the judiciary cannot extend its
powers and establish its structures until the government notifies the higher
judiciary to do so, that too, in selected areas from time to time, not in the
entire region merged with Khyber Pakhtunkhwa.
Another
ridiculous and discriminatory provision of the Regulation entails prohibition
of establishment of new hamlets, village-habitations, towers or walled
enclosures on the frontiers of the country, without the prior permission of the
Deputy Commissioner. The Governor has the power to order relocation of villages
and settlements situated in close proximity of the border.
The
President has signed the Regulation under Article 247 of the Constitution
which, he must be fully aware, stands repealed by both the Houses of the
Parliament and the Provincial Assembly of Khyber Pakhtunkhwa with 2/3rd
majority. Technically, the repeal will not take effect until the assent of the
President, who has ensured that he will sign the 31st Constitutional Amendment
Bill after the Regulation.
Speaking
to Daily Times, an official in Ministry of Law and Justice said that the PMLN
government had probably enacted the Regulation ‘in good faith’ to prevent a
governance vacuum in the region. However, the government could have proceeded
with the Regulation after debating it in the elected legislative houses. This
way, it could have avoided the vacuum while taking elected representatives of
the Pakistani people on board its proposals for the interim setup.
The
timing of these developments is especially curious since the dissolution of
federal and provincial legislatures is just four days away, and the provincial
assembly of Khyber Pakhtunkhwa has already been prorogued, while the National
Assembly has adjourned its sitting on Monday, with its prorogation date
probably just 48 hours away.
Commenting
on the matter, Afrasiyab Khattak, a senior leader of the Awami National Party,
said that it was unfortunate that the government did not deem it necessary to
discuss the Regulation with opposition parties or debate it in the Parliament.
He said the Regulation was FCR reincarnated, and it had the bureaucracy’s
imprints all over the document.
Farhatullah
Babar, a senior leader of Pakistan Peoples Party, agreed and said that
bureaucrats had drafted the Regulation ‘in the darkness of the night without
discussion and debate’. He said the draft regulation was kept secret from
everyone, adding that those who managed to secure its copies did so through
informal channels.
“On
the one hand, the president is correctly divested of all executive and
legislative powers with respect to FATA, and on the other, the executive has
itself assumed powers to legislate the interim regulation,” Babar lamented, as
he pointed out the contradiction in the matter.
He
said that the political parties and the civil society should demand that the
interim regulation be placed before the Parliament for discussion before its
approval. But if the government does not table the Regulation before the House
for debate in the next two days, this won’t be possible until the new Assembly
is elected on July 25.
Further,
Babar emphasised that being an extraordinary legislation like military courts,
the Regulation should have a sunset clause in it. “If it is promulgated in its
present form, we should take it to the Supreme Court on the touchstone of violations
of fundamental rights,” he said, adding that since Article 247 had been struck
down by the Parliament, the Regulation could be easily challenged before the
SC. “A rigorous judicial oversight and heated parliamentary debate will put
some fear in bureaucracy and blunt its sharp edges”, he added.
The
Regulation is also significant in the backdrop of the summer offensive in
Afghanistan as announced by the Taliban. The inability to extend the
jurisdiction of law enforcement machinery as well as of the judiciary will go
to the advantage of militants who have already intensified their activities in
areas within Waziristan and other ‘tribal districts’. These militants have not
only increased targeted killings of civilians but also the attacks on the armed
forces of Pakistan.
Published
in Daily Times, May 29th 2018.
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