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Pakistan: Federally Administered Tribal Areas to Be Merged with the Province of Khyber Pakhtunkhwa

(Mar. 16, 2017) On March 2, 2017, the Federal Cabinet of Pakistan approved recommendations of a reforms committee to “bring the Federally Administered Tribal Areas (Fata) in the mainstream” by merging the tribal region with the province of Khyber Pakhtunkhwa.  (Federal Cabinet Approves Recommendations to ‘Mainstream’ Fata, DAWN.COM (Mar. 2, 2017).)  FATA is a constitutionally designated tribal region in northwest Pakistan that is made up of seven semi-autonomous tribal agencies and six frontier regions; it is an area that has faced enormous security and governance challenges, including religious militancy.  (Carin Zissis & Jayshree Bajoria, Backgrounder: Pakistan’s Tribal Areas, COUNCIL ON FOREIGN RELATIONS (Oct. 26, 2007).)

Current Constitutional Framework

Article 1(2) of the Constitution of Pakistan considers FATA to be a territory of Pakistan.  (The Constitution of the Islamic Republic of Pakistan (1973, as amended up to Feb. 28, 2012), art. 1(2), National Assembly of Pakistan website.)  The first clause of article 247 of Pakistan’s Constitution stipulates that the Federal Government of Pakistan will directly govern FATA.  Clause 3 stipulates that laws framed by Parliament do not apply to FATA unless so directed by the President:

No Act of … [Majlis-e-Shoora (Parliament)] shall apply to any Federally Administered Tribal Area or to any part thereof, unless the President so directs …; and in giving such a direction with respect to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to a Tribal Area, or to a specified part thereof, have effect subject to such exceptions and modifications as may be specified in the direction.  (Id. art. 247(3).)

The President is empowered to issue regulations for the “peace and good government” of the tribal areas, according to clause 4 of the article, and clause 7 stipulates that “[n]either the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area … .”  (Id.)

The FATA region is administered through a controversial British colonial era law known as the Frontier Crimes Regulation (FCR) 1901, which was subject to extensive reforms in 2011.  The Regulation comprises civil and criminal provisions, including collective punishment clauses that allow for the punishment of an entire tribe or family for the crime of an individual.  (The Frontier Crimes Regulations (Amended in 2011), § 21, Institute for Social Justice website; Administrative System, FATA website (last visited Mar. 8, 2017).)

Background on the Reforms Committee and Recommended Legal Reforms

In November 2015, the Prime Minister of Pakistan, Nawaz Sharif, set up a six-member FATA Reforms Committee “to propose a concrete way forward for the political mainstreaming of FATA areas.”  (Sartaj Aziz, History of FATA Reforms, THE NATION (Mar. 8, 2017a0.)  The Committee presented its report to the Prime Minister on August 23, 2016, and was directed by the Prime Minister to make the report public and also to present the report to the Parliament for discussion.  (Press Release, Press Statement by Mr. Sartaj Aziz, Chairman FATA Reforms Committee Islamabad, 02 March 2016 (Mar. 2, 2017), Ministry of Foreign Affairs, Government of Pakistan website; Government of Pakistan, REPORT OF THE  COMMITTEE ON FATA REFORMS 2016 (Aug. 2016), Ministry of States and Frontier Regions website.)

One of the subsequently approved recommendations was to “mainstream FATA in 5 years, in consultation with different stakeholders of FATA” and to pass a constitutional amendment “to enable the people of FATA to elect their representatives to the Khyber Pakhtunkhwa Assembly in the 2018 elections along with other consequential amendments.”  (Press Release, supra.)  Under the proposal,  the FCR will also be repealed and replaced by a new Riwaj Regulation for Tribal Areas, in which provisions related to collective or vicarious responsibility will be “omitted, thereby making an individual responsible only for his own acts.”  (REPORT OF THE  COMMITTEE ON FATA REFORMS 2016, supra, at 10.)  The approved recommendations also included the proposal that “[j]urisdiction of the Supreme Court of Pakistan and the Peshawar High Court should be extended to FATA through an Act of Parliament so that the inhabitants of FATA can enjoy equal rights.”  (Press Release, supra.)  The recommendations also stated that “party based local bodies elections should be held in FATA soon after 2018 general elections.”  (Id.)

The Reforms Committee proposed abolishing the FCR and implementing a “blended judicial system” that would extend the jurisdiction of the Supreme Court and the High Court to FATA but retain the “traditional Rewaj System,” a customary system of justice carried out through jirgas (tribal councils), as a “local dispute resolution mechanism.”  (Aziz, supra.)  According to Sartaj Aziz, Chairman of the FATA Reforms Committee, “the Rewaj Act will allow parties, if they so wish, to ask the Agency Judge (not the political agent) to appoint a jirga, whose decision will be appealable.  In addition, the new law will also ensure that the Rewaj System is consistent with fundamental rights laid down in the Constitution.”  (Id.)