TRIBAL AND NORTHERN AREAS OF PAKISTAN: CASE OF CONSTITUTIONAL NEGLECT

1
TRIBAL AND NORTHERN AREAS OF PAKISTAN CASE OF
CONSTITUTIONAL NEGLECT!

• Presentation at SZABIST, Islamabad Campus
• by Dr. Tariq Hassan on 30 March 2009

2
Overview

• Breakdown of law and order in the tribal and
  Northern Areas of Pakistan
• Prescriptive approach
• Political authorities Military intervention
• Civil society Increased economic aid
• What is needed is a diagnostic approach
• Purpose of the presentation is threefold
• Constitutional analysis
• Conclusion and Recommendations
• Methodology Discourse

3
Territories of Pakistan

• Pakistan is a Federal Republic whose territories
  include
•  
• (i) the Provinces of Baluchistan, the North-West
  Frontier, the Punjab and Sindh
• (ii) the Islamabad Capital Territory, hereinafter
  referred to as the Federal Capital
• (iii) the Federally Administered Tribal Areas
  and
• (iv) such States and territories as are or may be
  included in Pakistan, whether by accession or
  otherwise.
• Art. 1(2), Pakistan Constitution. Art. 1(3),
  ibid., provides that the Parliament may by law
  admit into the Federation new States or areas on
  such terms and conditions as it thinks fit.

4
Federal Republic

• A republic is a state or country that is not led
  by a hereditary monarch. The word originates from
  the Latin term res publica. The term republic
  denotes a democratic setup.
• A federal republic is a federation of states with
  a republican form of government. A federation is
  the central government. The states in a
  federation also maintain all political
  sovereignty that they do not yield to the
  federation.

5
Instruments of Accession

• Tribal and Northern Areas have mostly joined
  Pakistan through Instruments of Accession.
• The courts in Pakistan have recognized the
  validity of Instruments of Accession
•  
• Indian Independence Act, 1947, recognised the
  peculiar status of the Indian States and
  incorporated the said options in its provisions.
  The Accession to one of the Dominions was to take
  place by executing a document, called Instrument
  of Accession. Such an Instrument of Accession was
  signed by most of the States laying down the
  terms and conditions and the mutual obligations
  of the States and the respective Dominions which
  they wished to accede to. Strictly speaking the
  execution of such an Instrument of Accession
  shall be considered as a covenant between two
  independent States. The consequences flowing
  therefrom shall render obligatory on the part of
  both the parties, the State and the Dominion to
  implement the commitments made therein. On the
  strict point of view such obligations may not be
  the subject matter of a dispute in the Municipal
  Courts of B Pakistan yet such obligations once
  having been merged into the jurisprudential
  fabric of the polity of Pakistan and the former
  Rulers having attained status of ordinary
  citizens the said obligations could be enforced
  through a Court of law (1990 Civil Law Cases 560
  Peshawar High Court).
• However, there is no reference to the Instruments
  of Accession in the Pakistan Constitution.

6
Official Map of Pakistan
http//www.pakistan.gov.pk/ministries/ContentInfo.
jsp?MinID6cPath59_283_744ContentID3716
7
Tribal and Northern Areas

• Tribal and Northern Areas are Constitutionally
  Disadvantaged Areas of Pakistan
• Tribal Areas are included in the Constitution but
  merely as administered territories
• Northern Areas are not even mentioned in the
  Constitution
• Unlike the other federating units (Provinces),
  these areas do not maintain any political
  sovereignty under the Constitution.

8
Tribal Area

• Art. 246.-In the Constitution-
• (a) "Tribal Areas" means the areas in Pakistan
  which, immediately before the commencing day,
  were Tribal Areas, and includes-
• (i) the Tribal Areas of Baluchistan and the
  North-West Frontier Province and
• (ii) the former States of Amb, Chitral, Dir and
  Swat

9
Federally Administered Tribal Areas (FATA)

• Art. 246(c) "Federally Administered Tribal
  Areas" includes
• (i) Tribal Areas, adjoining Peshawar district
• (ii) Tribal Areas, adjoining Kohat district
• (iii) Tribal Areas, adjoining Bannu district
• (iv) Tribal Areas adjoining Dear Ismail Khan
  district
• (v) Bajaur Agency
• (va) Orakzai Agency
• (vi) Mohammad Agency
• (vii) Khayber Agency
• (viii) Kurram Agency
• (ix) North Waziristan Agency and
• (x) South Waziristan Agency.

10
Provincially Administered Tribal Areas (PATA)

• Art. 246(b) "Provincially Administered Tribal
  Areas" means --,
• (i) the districts of Chitral, Dir and Swat (which
  includes Kalam) the Tribal Area in Kohistan
  district, Malakand Protected Area, the Tribal
  Area adjoining Mansehra district and the former
  State of Amb and
• (ii) Zhob district, Loralia district (excluding
  Duki Tehsil), Dalbandin Tehsil of Chagai District
  and Marri and Bugti tribal territories of Sibi
  district.

11
State Actors

• Legislature
• Representation
• Government
• Participation
• Judiciary
• Access

12
Legislative Representation National Assembly
(1/3)

• Art. 51. National Assembly.- (1) There shall be
  three hundred and forty-two seats of the members
  in the National Assembly, including seats
  reserved for women and non-Muslims. (1A) The
  seats in the National Assembly referred to in
  clause (1), except as provided in clause (2A),
  are allocated to each Province, the Federally
  Administered Tribal Areas and the Federal Capital
  as under-
• The Federally Administered Tribal Areas 12

13
National Assembly (2/3)

• Art. 51(3) The seats in the National Assembly
  shall be allocated to each Province, the
  Federally Administered Tribal Areas and the
  Federal Capital on the basis of population in
  accordance with the last preceding census
  officially published.

14
National Assembly (3/3)

• Art. 51(6) deleted Notwithstanding anything
  contained in this Article, the President may, by
  Order, make such provision as to the manner of
  filling the seats in the National Assembly
  allocated to the Federally Administered Tribal
  Areas as he may think fit.
• Section 10 of the Constitution (Seventeenth
  Amendment) Act, 2003 (3 of 2003), validated the
  substitution of clause (1) of Art. 51 and
  addition of clause (1A) thereto, (w.e.f. December
  31, 2003). Item 3 of the schedule to C.E.O. No.24
  of 2002 substituted clause (1) of Art. 51, in its
  present form, (w.e.f. August 21, 2002), in place
  of the clause as adopted in 1973 and added clause
  (1A) thereto.
• Section 10 of the Constitution (Seventeenth
  Amendment) Act, 2003 (3 of 2003), also validated
  the omission of clause (6) of Art. 51, (w.e.f.
  December 31, 2003). Item 3 of the schedule to
  C.E.O. No. 24 of 2002, also omitted the said
  clause (6) of Art. 51, as adopted in 1973,
  (w.e.f. August 21, 2002). 

15
Legislative Representation Senate

• Art. 59. The Senate.- (1) The Senate shall
  consist of one hundred members, of whom-
• (b) eight shall be elected from the Federally
  Administered Tribal Areas, in such manner as the
  President may, by Order, prescribe
• Art. 2 of the Legal Framework (Second Amendment)
  Order, 2002, C.E.O. No. 32 of 2002, omitted the
  words " by direct and free vote" appearing after
  the word "elected" in sub clause (b) of clause
  (1) of Art. 59, (w.e.f. October 26, 2002) and the
  said words shall be deemed to have always been so
  omitted.

16
Qualification for Membership of Parliament

• Art. 62. Qualifications for membership of
  Majlis-e-Shoora (Parliament).-A person shall not
  be qualified to be elected or chosen as a member
  of Majlis-e-Shoora (Parliament) unless-
• (c) he is, in the case of Senate, not less than
  thirty years of age and is enrolled as a voter in
  any area in the Federally Administered Tribal
  Areas, from where he seeks membership in that
  Assembly

17
Legislative Restrictions

• Art. 247(3) 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 no Act of
  Majlis-e-Shoora (Parliament) or a Provincial
  Assembly shall apply to a Provincially
  Administered Tribal Area, or to any part thereof,
  unless the Governor of the Province in which the
  Tribal Area is situate, with the approval of 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.
• Compare this to Art. 370(1), Constitution of
  India, which, inter alia, provides that the power
  of Parliament to make laws for the State of
  Jammu and Kashmir shall be limited to(i) those
  matters in the Union List and the Concurrent List
  which, in consultation with the Government of the
  State, are declared by the President to
  correspond to matters specified in the Instrument
  of Accession governing the accession of the State
  to the Dominion of India as the matters with
  respect to which the Dominion Legislature may
  make laws for that State Provided that no such
  order which relates to the matters specified in
  the Instrument of Accession of the State shall
  be issued except in consultation with the
  Government of the State.

18
Administration of Tribal Areas

• Article 247.-(1) Subject to the Constitution,
  the executive authority of the Federation shall
  extend to the Federally Administered Tribal
  Areas, and the executive authority of a Province
  shall extend to the Provincially Administered
  Tribal Areas therein.
• (2) The President may, from time to time, give
  such directions to the Governor of a Province
  relating to the whole or any part of a Tribal
  Area within the Province as he may deem
  necessary, and the Governor shall, in the
  exercise of his functions under this Article,
  comply with such directions.

19
Regulatory Powers

• Art. 247(4) Notwithstanding anything contained
  in the Constitution, the President may, with
  respect to any matter within the Legislative
  competence of Majlis-e-Shoora (Parliament), and
  the Governor of a Province, with the prior
  approval of the President, may, with respect to
  any matter within the Legislative competence of
  the Provincial Assembly make regulations for the
  peace and good government of a Provincial
  Administered Tribal Area or any part thereof,
  situated in the province.
• (5) Notwithstanding anything contained in the
  Constitution, the President may, with respect to
  any matter, make regulations for the peace and
  good government of a Federally Administered
  Tribal Area or any part thereof.

20
Frontier Crimes Regulation (1/2)

• In addition to the extension and application of
  various federal laws of Pakistan to tribal areas
  through administrative regulations and orders,
  the Federally Administered Tribal Areas are
  regulated primarily through the Frontier Crimes
  Regulation, 1901 (FCR)a legacy of the British
  colonial administration in India, which continues
  to apply to Pakistan with certain modifications.
• See, Frontier Crimes Regulation (N.-W.F.P.
  Amendment) Act, 1954.

21
Frontier Crimes Regulation (2/2)

• The FCR is not considered to be at par with other
  parallel legislation in force in the rest of the
  country and does not appear to provide adequate
  constitutional safeguard for personal security.
• See, e.g., the following observation by the
  Supreme Court of Pakistan in Ch. Manzoor Elahi
  vs. Federation of Pakistan etc. As the Frontier
  Crimes Regulation, 1901 offends against accepted
  forms of legal process obtaining in
  Pakistan.sic It cannot be treated as law within
  the meaning of Article 9 of the Constitution As
  a result it must be held that the prisoner is
  entitled to be tried under the ordinary law of
  the land, viz., the Criminal Procedure Code and
  the Evidence Act ... The prisoner cannot be
  deprived of his constitutional safeguards under
  Article 9, by being swiftly taken away to the
  tribal area, without compliance with the
  statutory provisions of sections 85 and 86 of the
  Code of Criminal Procedure. P L D 1975 Supreme
  Court 66.

22
Judicial Restrictions

• Art. 247(7) Neither the Supreme Court nor a High
  Court shall exercise any jurisdiction under the
  Constitution in relation to a Tribal Area, unless
  Majlis-e-Shoora (Parliament) by law otherwise
  provides
• Provided that nothing in this clause shall affect
  the jurisdiction which the Supreme Court or a
  High Court exercised in relation to a Tribal Area
  immediately before the commencing day.

23
Extension of Courts Jurisdiction

• There have been several legislative enactments
  extending the jurisdiction of superior courts to
  the tribal areas Supreme Court and High Court
  (Extension of Jurisdiction to the Certain Tribal
  Areas) Act 1973 Supreme Court and High Court
  (Extension of Jurisdiction to the Certain Tribal
  Areas) Order 1970 and Federally
  Administered Tribal Areas (Exclusion of
  Jurisdiction of Federal Shariat Court) Order
  1984.
• The Federal Shariat Court also exercises
  jurisdiction over the Federally Administered
  Tribal Areas pursuant to a decision of the
  Supreme Court of Pakistan (See, State vs. Sajjad
  Hussain, 1993 Supreme Court Monthly Review 1523).

24
Change of Status of Tribal Areas

• Art. 247(6) The President may, at any time, by
  Order, direct that the whole or any part of a
  Tribal Area shall cease to be Tribal Area, and
  such order may contain such incidental and
  consequential provisions as appear to the
  President to be necessary and proper
• Provided that before making any Order under this
  clause, the President shall ascertain, in such
  manner as he considers appropriate, the views of
  the people of the Tribal Area concerned, as
  represented in tribal jirga.

25
Complaints as to interference with water supplies

• Article 155. -(1) If the interests of a
  Province, the Federal Capital or the Federally
  Administered Tribal Areas, or any of the
  inhabitants thereof, in water from any natural
  source of supply have been or are likely to be
  affected prejudicially by
• (a) any executive act or legislation taken or
  passed or proposed to be taken or passed, or
• (b) the failure of any authority to exercise any
  of its powers with respect to the use and
  distribution or control of water from that
  source,
• the Federal Government or the Provincial
  Government concerned may make a complaint in
  writing to the Council of Common Interests.

26
Other Constitutionally Disadvantaged Areas

• In addition to the Tribal areas, there are other
  constitutionally disadvantaged territories in
  Pakistan as well.
• State of Azad Jammu Kashmir?
• Northern Areas

27
State of Azad Jammu Kashmir

• The State of Azad Jammu Kashmir, which although
  considered an integral part of the country, is
  not mentioned in the Pakistan Constitution.
• Azad Jammu and Kashmir Interim Constitution Act,
  1974 passed by the Legislative Assembly of Azad
  Jammu and Kashmir with the approval of the
  Government of Pakistan.
• The Pakistan Constitution does, however, have a
  provision in relation to the State of Jammu and
  Kashmir, which is under Indias control When
  the people of the State of Jammu and Kashmir
  decide to accede to Pakistan, the relationship
  between Pakistan and that State shall be
  determined in accordance with the wishes of the
  people of that State (Art. 257).
• In comparison, the Indian Constitution applies to
  the State of Jammu and Kashmir with certain
  exceptions and modifications as provided in
  article 370 thereof and the Constitution
  (Application to Jammu and Kashmir) Order, 1954
  even though the area remains a disputed
  territory.

28
Northern Areas

• Northern Areas of Pakistan are not even mentioned
  in the Pakistan Constitution.
• The Northern Areas are now a single
  administrative unit, which was formed by the
  amalgamation of the Gilgit Agency, the Baltistan
  District of the Ladakh Wazarat, and the States of
  Hunza and Nagar in 1970. These areas have been
  specified in the Northern Areas Electoral Rolls
  Act, 1975.
• The Parliament has exclusive power to make laws
  with respect to matters for such areas in the
  Federation as are not included in any Province.
  See, Art. 142(d), Pakistan Constitution.

29
Non-autonomous Areas

• Furthermore, these territories are not autonomous
  or semi-autonomous like the Federally
  Administered Tribal Areas and Provincially
  Administered Tribal Areas. But like the Tribal
  areas, most of these territories are under the
  administrative control of Pakistan.
• Some of these territories, e.g. Gilgit and
  Ladakh, fall within the jurisdiction of the State
  of Azad Jammu and Kashmir. See, Shireen Dil Khan
  Niazi vs. Secretary Ministry of Defense, 1993
  Pakistan Legal Decisions 1 Supreme Court Azad
  Kashmir.

30
Administration of Northern Areas

• 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).
• Order No. l2 (34)/93-NA-I, Government of
  Pakistan, Kashmir Affairs Northern Areas
  Division, Islamabad, 12th June 1994. This is not
  an enactment like the Azad Jammu and Kashmir
  Interim Constitution or a Presidential Order
  under Art. 258 of the Pakistan Constitution. It
  is merely an executive order by the government
  without any reference to the source of its
  authority!
• 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.

31
Judicial Intervention

• This lingering neglect has evoked judicial
  intervention at the highest level.
• See, the1999 Supreme Court of Pakistan landmark
  case entitled Al-Jehad Trust vs. Federation of
  Pakistan (1999 Supreme Court Monthly Review
  1379).
• See also, Muhammad Riaz vs. Secretary Ministry of
  Kashmir Affairs, 2001 Supreme Court Monthly
  Review 901.

32
Al-Jehad Trust Case

• The Supreme Court in the Al-Jehad Trust case 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 28 May 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.
• The Supreme Court of Azad Kashmir has likewise
  afforded protection to fundamental rights of
  residents of the Northern Areas under its
  jurisdiction. See, Shireen Dil Khan Niazi vs.
  Secretary Ministry of Defense, 1993 Pakistan
  Legal Decisions 1 Supreme Court Azad Kashmir.

33
Continued Neglect

• 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 regions 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 a major contributing factor to the
  present civil strife in the Tribal and Northern
  Areas of Pakistan.
• For details see, International Crisis Group,
  Discord in Pakistans Northern Areas (Asia Report
  No. 131, 2 April 2007).

34
Conclusion (1/2)

• 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.
• Human Rights Commission of Pakistan, Northern
  Areas of PakistanA Strong Yearning for
  Democracy, 17 (HRCP Mission Report, 2005).

35
Conclusion (2/2)

• 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.

36
Principles of Policy (1/2)

• Article 33. Parochial and other similar
  prejudices to be discouraged.--The State shall
  discourage parochial, racial, tribal, sectarian
  and provincial prejudices among the citizens.

37
Principles of Policy (2/2)

• Under the Pakistan Constitution, the State is
  required to, inter alia, (i) promote, with
  special care, the educational and economic
  interests of backward classes or areas and (ii)
  enable the people of different areas, through
  education, training, agricultural and industrial
  development and other methods, to participate
  fully in all forms of national activities,
  including employment in the service of Pakistan.
• Art. 37(a)(f), Pakistan Constitution

38
Recommendations (1/7)

• Recommend a seven-step approach
•  
• Administrative reforms. The concerned Government
  should
• Initiate change of nomenclature
• Term federally/provincially administered Tribal
  areas connotes primitive society under some sort
  of colonial rule
• Explore possibility of change of status as well
  through Presidential Order in consultation with
  the local jirgas
• Formulate and adopt a Tribal policy based on
  consultations with local jirgas
• Induct locals in administrative services

39
Recommendations (2/7)

• Political Reforms. The State should forge new
  political relationship based on respect for
  Tribal customs
• Provide full and meaningful political
  participation rather than ineffective
  representation
• New social contract (compact) with local jirgas
  (in place of instruments of accession where still
  valid)
• The peoples of tribal and Northern Areas should,
  irrespective of their legal status, retain some
  or all of their own social, economic, cultural
  and political institutions.
• Integration without assimilation

40
Recommendations (3/7)

• Legal reforms.
• Undertake a referendum in the Tribal areas
• To change name
• To ratify the new compact
• To establish a national commission (including
  locals) for undertaking administrative reforms
• To create local legislative councils for
  codification of customary law
• To streamline judicial process by setting up a
  proper two-tier judicial system based on the
  concept of jirga and loya jirga and limited
  recourse to the Supreme Court in matters
  involving corporal punishment
• Amend Constitution based on results of referendum
  and new compact
• The State should ensure that these peoples are
  able to enjoy their fundamental human rights to
  the same degree as the rest of the population of
  Pakistan, and that their laws, values, customs
  and perspectives are honored.
• Consider accession to ILO Convention Convention
  (No. 169) concerning Indigenous and Tribal
  Peoples in Independent Countries?
• Adopted on 27 June 1989 by the General Conference
  of the International Labour Organisation at its
  seventy-sixth session entry into force 5
  September 1991

41
Recommendations (4/7)

• Economic development
• Trade and not aid based development
• Grant geographically disadvantaged status and
  provide preferential treatment for limited
  duration to allow progressive development
• Provide access to national and international
  markets
• Indigenous resource focused development
• In cases in which the State retains the ownership
  of mineral or sub-surface resources or rights to
  other resources pertaining to lands, the
  Government should establish or maintain
  procedures through which it should consult these
  peoples, with a view to ascertaining whether and
  to what degree their interests would be
  prejudiced, before undertaking or permitting any
  programmes for the exploration or exploitation of
  such resources pertaining to their lands. The
  peoples concerned shall wherever possible
  participate in the benefits of such activities,
  and shall receive fair compensation for any
  damages which they may sustain as a result of
  such activities.

42
Recommendations (5/7)

• Social sector reforms
• Provide public health, education, and welfare
  facilities

43
Recommendations (6/7)

• Cultural preservation
• Promote and protect of cultural heritage
• The State should recognize the aspirations of the
  peoples of the tribal and Northern Areas to
  exercise control over their own institutions,
  ways of life and economic development and to
  maintain and develop their identities, languages
  and religions, within the Constitutional
  framework.

44
Recommendations (7/7)

• Civic responsibility. Foster civil society based
  on respect for human rights
• Extend responsibility for implementation of
  fundamental rights to local authorities in Tribal
  areas
• Mass awareness campaign through media
• Turn swords into plowshares!

45
Finally

• Thank you!