EXCEPTIONS TO THE FEDERAL FORMULA
There are a number of territorial entities in Pakistan that do not have the status of provinces and therefore are excluded to varying degrees from constitutional rights and protections.
Article 246 of the Constitution redescribes units that have a long history of administration as tribal areas within the provincial bounds of Khyber Pakhtunkhwa as Federally and Provincially Administered Tribal Areas (FATA and PATA respectively). Article 247 prescribes that the ‘executive authority’ of the federation will extend into these areas and that Parliament cannot legislate for them. In the case of PATA the President can make directions that are to be enforced by the Governor of KP. These also prescribe that ‘neither the Supreme Court nor any High Court will exercise jurisdiction’ in the Tribal Areas unless Parliament so prescribes by law. While FATA is guaranteed representation at the centre, these representatives cannot legislate for their constituents, owing to a bar contained in Article 247. Popular elections have been the mechanism for choosing representatives since 1996, although it was only through the 2002 Political Parties Act that political parties were enabled to field candidates for these elections.
The administrative acts promulgated by the federal or provincial governments escaped judicial review both by way of the bar contained in Article 247 as well as by the fashioning of doctrine that these Acts did not constitute law until 1995. A Supreme Court case in that year introduced the principle that such Acts would be justiciable on the guarantee that they are conducive to the peace and good governance of these areas.[394] Since then, the US campaign of drone warfare against the populace of FATA in particular has inspired challenges to the formal denial of fundamental rights protection under Article 247.
In the context that the Khyber Pakhtunkhwa Assembly ‘adopted a resolution urging the president and the federal government to ensure [an] amendment to the Constitution for extending the Supreme and High Court jurisdictions to the Federally Administered Tribal Areas’, the Peshawar High Court gave a powerful ruling decrying the continuance of drone attacks by the United States which had resulted in thousands of deaths by 2011.[395] [396] Specifically citing the court’s obligation ‘to safeguard and protect the life and property of the citizens of Pakistan and any person for the time being in Pakistan’ as a part of the jurisdiction conferred by way of Article 199, Chief Justice Dost Muhammad Khan provided further directions to the government to safeguard the sovereignty of all of Pakistan’s territory.
Importantly thus, fundamental rights guarantees were extended by this ruling to the people of FATA.11 In contrast, the Supreme Court refused to admit petitions related to drone attacks, citing its own lack of jurisdiction on issues of defence, security and foreign policy, and deemed executive action in these areas to be non-justiciable.FATA and PATA continue thus to be situated outside formal constitutional cover; systems of government and rule as well as the prevailing criminal law are provided by the 1901 Frontier Crimes Regulation (FCR). However, even the somewhat stable system of governance that was in place through the intermediation of a centrally- appointed Political Agent as per the FCR has undergone extreme fragmentation as a consequence of militant activity on the one hand, and the official war on terror, on the other.[397]
As noted in Chapter 2, the Northern Areas and Azad Jammu and Kashmir (AJK) have had a tenuous incorporation into the Pakistani state. Between them, the demands of the AJK population for representative government have been more readily agreed to by the Pakistani government. In 1974 a parliamentary system was established there. However, a Council for Kashmir Affairs with the PM of Pakistan and the PM of Azad Kashmir enjoying joint helmsmanship has also been vested with inordinate legislative and executive powers.[398] Nonetheless, an Assembly, a system of judicature and a Constitution replete with fundamental rights are the guarantee of the semi-sovereignty of AJK.
On the other hand, the status of the Northern Areas has generally been of living under heavy executive control via the auspices of the Minister of Kashmir Affairs and Northern Affairs. Some vestiges of indigenous legal systems have continued to operate.[399] After the 1974 Constitution for Kashmir was promulgated, residents of the Northern Areas also sought redress through that legal system. This situation altogether prompted a judgment from the Kashmir High Court[400] calling for the effective merger of Northern Areas within Kashmir and relied upon their once joined status to do so.
This was overturned at the AJK Supreme Court[401] and thereafter, in 1999 the Al Jehad case[402] at the Supreme Court of Pakistan extended cover of fundamental rights for residents of the Northern Areas and directed the central government to enact constitutional amendments to provide the people of the Northern Areas with the means to realise an elected Assembly and an independent judicial structure. A decade later, the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 provides for a replication of the structure of government of Azad Kashmir with some differences that more closely mirror the structure of government for the provinces. There is a centrally-appointed Governor, who is, along with the Prime Minister, a member of the Gilgit-Baltistan Council,[403] which has expansive legislative powers.III.