Business Recorder Editorial Dec 14, 2018

Tribal districts in legal limbo

Sometimes a change of government can produce strange and unexpected results. One such case is the tribal districts of Khyber Pakhtunkhwa (KP), once known as FATA. In the dying days of the previous government of the PML-N, the 25^th Amendment was hurriedly passed on May 24, 2018, barely a week before that government departed. The Amendment scrapped Article 247 that empowered the federal government and it alone to manage the affairs of FATA. After the 25^th Amendment was passed, a hurriedly drafted and promulgated FATA Interim Governance Regulation (FIGR) spawned a series of problems that were unanticipated. This hurried legislation ignored the recommendation of the Sartaj Aziz committee to leave Article 247 intact for five years to provide an interim arrangement through continuance of the structure inherited from colonial times until courts were established in the tribal districts and the judicial system was extended to the tribal districts. In other words, recognizing the sensitive and complex changes required to overcome the injustices inherent in the1901 Frontier Crimes Regulations (FCR) and usher in the norms of the constitutional, legal and administrative system in place in the rest of the country, the Sartaj Aziz committee suggested making haste slowly. After all the FCR and other colonial hangovers were all the tribal people had known for over a century. Introducing and having the new structures accepted by the local people was seen as a project that should be undertaken with due care and keeping the character and history of the tribal districts in view. Instead, the PML-N government inexplicably rushed the whole process, promulgating the FIGR and under it allowing commissioners and deputy commissioners to act as judges and a council of elders to decide civil and criminal cases. These commissioners and deputy commissioners were actually the former political agents and assistant political agents with new labels attached. The Peshawar High Court (PHC) in its judgement of October 30, 2018 declared the FIGR ultra vires of the Constitution since it violated the constitutionally binding principle of the separation of the judiciary from the executive. The PHC gave the KP government one month to establish a system of justice in conformity with this principle by November 30, 2018. Since the KP government failed to meet the deadline, the tribal districts found themselves in a constitutional, legal and administrative limbo. Now the KP government has approached the Supreme Court (SC) in an appeal against the PHC judgement citing lack of the requisite resources required to establish institutions such as the police, prosecution, judiciary and prisons and asking for the FIGR to be allowed to continue for at least five years while these necessary steps are accomplished. The present state of legal uncertainty, administrative vacuum and institutional incapacity, the review petition argues, could generate public unrest and, in the light of recent history, snowball into an uprising and militancy. While the SC has accepted the KP government’s plea for an early hearing of the issue, confusion reigns supreme on the ground. Prime Minister Imran Khan constituted an 11-member task force on September 6, 2018 to identify the impediments and facilitate the merger process. Not much has come of this. As though this was not enough, the KP government formed its own inter-ministerial committee on November 27, 2018. This committee too faces dissolution now. Last but not least there is the apex committee comprising the senior political and military leadership in KP. The back and forth between this apex committee and the KP government has done little else but add to the confusion and lack of direction.

This whole debacle was entirely avoidable. Had the Sartaj Aziz committee’s perfectly sensible advice been heeded to leave the existing arrangements in place and incrementally implement the monumental task requiring huge funds to replace the colonial arrangements with new ones, both the present confusion and lack of direction and the threat emanating therefrom of tribal unrest could well have been avoided. Now once the SC has spoken, all stakeholders should soberly approach the sensitive task of transforming the tribal districts to normal areas as in the rest of the country with due diligence and care.