Regions with constitutional drawbacks

 

Regions with constitutional drawbacks

Part I Tuesday, March 24, 2009 Dr Tariq Hassan While the legal community is pleased that the lawyers' movement has culminated in getting the judiciary fully restored, it is conscious of the fact that the journey for much needed judicial reforms in the country has just begun. But for now, the legal community's attention needs to be diverted to the more pressing issues raised by the civil strife brewing in the tribal and northern regions of Pakistan. The troubled tribal areas and northern regions of Pakistan are what I call the constitutionally disadvantaged areas. These areas are fast sinking into a state of anarchy with the continuing deterioration of the law and order situation there. While the government seeks to re-establish its writ through the strategic use of force, the civil society considers increased economic aid as a possible means of establishing peace in these areas. Both these are short-term superficial solutions. What is needed is a preliminary diagnosis of the underlying issues in order to find a durable long-term prescription for the problem. The starting point should be a constitutional analysis of the status of these areas. 1. The tribal areas The tribal areas, where the "great game" was played out amongst the imperial powers in the nineteenth century, are mostly situated in the north-western part of Pakistan. These areas enjoyed the status of "tribal areas" at the time of the independence of Pakistan from colonial rule in 1947. After independence, various tribal areas acceded to Pakistan through instruments of accession executed by them in favour of Pakistan. While acceding, however, these areas sought to retain their political autonomy. The instruments of accession granted the administration of the tribal areas to Pakistan but allowed these areas to retain their semi-autonomous status for the management of their other affairs. There is no reference to the instruments of accession in the Constitution but the Peshawar High Court has deemed the obligations thereunder to have been "merged into the jurisprudential fabric of the polity of Pakistan" (1990 CLC 560). Pakistan is a Federal Republic whose territories include the Federally Administered Tribal Areas (FATA) and such states and territories as are or may be included in Pakistan, whether by accession or otherwise. In addition to FATA, the tribal areas include the Provincially Administered Tribal Areas (PATA) of Balochistan and the North-West Frontier Province. While the tribal areas are an integral part of Pakistan, they retain their confederate status partly because of historical reasons and partly because of Pakistan's lack of vision and its failure to integrate them fully in its federal structure. These areas remain administered territories and are likely to remain so perpetually because the Constitution does not grant them the same rights and privileges as the four provinces, even though it does, in certain respects, protect the interests of FATA at par with the interests of the provinces and the Federal Capital Territory. The Constitution does not envisage the graduation of FATA to a full federating unit of the country through a gradual process of integration. Pakistan, having inherited the colonial legacy, continues its paternalistic rule over these territories through executive fiat.   Part-2 March 28, 2008 In addition to tribal areas there are other constitutionally disadvantaged territories in Pakistan. These comprise the Northern Areas comprising the Gilgit Agency, the Baltistan district of the Ladakh Wazarat, and the states of Hunza and Nagar, which are not even mentioned in the Pakistan Constitution. These territories do not have their own constitution like the state of Azad Jammu and Kashmir, which although an integral part of the country, is also not mentioned in the Pakistan Constitution. Furthermore, unlike Federally Administered Tribal Areas or Provincially Administered Tribal Areas these territories are not even autonomous or semi-autonomous. But like the tribal areas, most of these territories are under the administrative control of Pakistan. Northern Areas are administered by Pakistan under the Northern Areas Council Legal Framework Order, 1994 (LFO) and are for this reason also referred to as the Federally Administered Northern Areas (FANA). No government in Pakistan to date has ever taken any meaningful steps to address the wider issues of constitutional disregard and political deprivation of the Northern Areas. This lingering neglect has evoked judicial intervention at the highest level. In 1999, the Supreme Court of Pakistan in a landmark case entitled Al-Jehad Trust vs. Federation of Pakistan, held that the people of Northern Areas are citizens of Pakistan for all intents and purposes and like other citizens have the right to invoke any of the fundamental rights, and liable to pay taxes and other competently imposed levies. It further observed that these people are also entitled to participate in the governance of their area and to have an independent judiciary to enforce, inter alia, the fundamental rights guaranteed by the Pakistan Constitution. The Supreme Court, therefore, directed the Federation of Pakistan to initiate appropriate administrative and legislative measures within a period of six months from May 28, 1999, to make necessary amendments in the Pakistan Constitution and relevant statutes, orders, rules, and notifications to ensure that the people of Northern Areas enjoy their fundamental rights to be governed through their chosen representatives and to have access to justice through an independent judiciary, inter alia, for enforcement of their fundamental rights guaranteed under the Pakistan Constitution. Notwithstanding the Supreme Court judgment, the Northern Areas are still ruled by executive fiat from the Federal Capital Territory, Islamabad, through the Federal Ministry for Kashmir Affairs and Northern Areas (KANA), whose minister is its unelected chief executive. The Northern Areas Legislative Council (NALC), the region's elected legislature, is powerless, and its affairs are run by civil and military bureaucrats. It is this shared sense of constitutional neglect and political deprivation that may be a major contributing factor to the present civil strife in the tribal and Northern Areas of Pakistan. According to a recent Human Rights Commission of Pakistan report: "One way or the other, all problems are linked to the issue of the uncertain constitutional status of the Northern Areas" (HRCP Mission Report, 2005). This report also points out the glaring dichotomy and double standard in the treatment of Northern Areas in comparison to Tribal Areas: "… on the one hand Tribal Areas are not annexed completely to the territory of Pakistan and most of the laws of Pakistan are not enforced there, still the people of the Tribal Areas have been given representation in the Federal Parliament, Provincial Assemblies. On top of it the number of their representatives is much higher than any other area of Pakistan, in comparison to the ratio of population. On the other hand, the people of Northern Areas who claim to be Pakistani for all intents and purposes, are denied any constitutional status, rights or representation in any houses of Parliament or any Provincial Assembly. The greater injustice is that the so-called 'Legislative Council,' though a body elected by the local people, but their elected representative is still denied the right to the Chief Executive of the area or to preside over the sessions of this Council." The Supreme Court judgment in the Al-Jehad Trust case has cleared the path for remedying this wrong. All that is required is political will to implement the judgment of the court in respect of Northern Areas. The underlying principle of the judgment should be made the basis for initiating reform measures in the tribal areas as well. What is required is not just the strategic use of force or economic development as a possible means of establishing peace in the troubled tribal and Northern Areas of Pakistan. What is required is an integration of these areas into the body politic of Pakistan through a multi-faceted approach involving constitutional, legal,

 
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N A D E E M   M A L I K
Director Programme
AAJ TV
ISLAMABAD
00-92-321-5117511
nadeem.malik@hotmail.com 

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