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Mainstreaming of FATA into Pakistani Media Legal Framework (report, Intermedia, 2011)

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Why political reforms in FATA will not work without media reforms. || Subscribe to our email newsletter at http://eepurl.com/qnf75

Why political reforms in FATA will not work without media reforms. || Subscribe to our email newsletter at http://eepurl.com/qnf75

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  • 1. Mainstreaming of FATA intoPakistani Media Legal FrameworkWhy political reforms in FATA willnot work without media reforms A Briefing Paper produced by INTERMEDIA Muhammad Aftab Alam and Adnan Rehmat Islamabad, November 2011 Listening to the Radio in Waziristan – Photo by Aurangzaib Khan
  • 2. The State of Media Freedoms in FATA and its Impacton Political Freedoms: Problems and SolutionsBackgrounderF ederally Administered Tribal Areas (FATA) is a semi-autonomous tribal region in the northwest of Pakistan, lying between the province of Khyber Pakhtunkhwa and Afghanistan. Due to its special status in the Constitution of Pakistan, it has been governed through a specialgovernance structure since 1901. As a result the people of the region do not have the same rights inpromise or practice as those the people in the rest of the country. The main reason behind this is thenon-existence of various legal structures essential for the FATA residents to exercise theirfundamental rights as enshrined in the Constitution. One of these legal structures, which have notbeen extended so far to the areas, is the Pakistan Electronic Media Regulatory Authority (PEMRA),which can guarantee access to information as enshrined in Article 19A of the Constitution andfreedom of expression as stipulated in Article 19.Unlike the rest of Pakistan where stupendous growth of media since the opening up of the airwavesto private ownership in recent years has radically changed the dynamics of how a pluralist mediaaccesses, processes, generates and distributes information, absence of an electronic medialicensing or regulatory authority for FATA has resulted in continued ‘information darkness’ in thearea relative to the rest of the country. The existing native and legal media in FATA – which is onlyradio as there is no local newspaper or TV – is state-run and extremely limited in outreach, virtuallyblanks out community voices and operates in practical denial of conflict that is consuming the livesof the region’s residents. Also mostly not available to people is news and information about localdevelopment projects and public works and the efforts to resolve people’s problems with assistancefrom both local and international resources.FATA is the theatre of conflict between Pakistani and international forces and militants of Talibanand Al Qaeda. The militancy, including military operations, in the region have displaced hundreds ofthousands from the FATA agencies and added a major socio-economic dimension to the regionalconflict. In such a situation, absence of independent, verifiable, relevant, pluralist and localinformation articulated by locals mostly generates rumors, unverified word-of-mouth informationand outsider accounts of local issues that may not be representative of the ground situation.What this Briefing Paper is AboutThis Briefing Paper aims at identifying the causes of the relative ‘information darkness’ in FATA in theabsence of indigenous independent local media and exploring mechanisms to improving awarenessand providing support to bring FATA into the fold of mainstream media in Pakistan so that residentsare guaranteed freedom of expression and access to information as enshrined in the Constitution.The Briefing Paper also attempts to explore the options to introduce private electronic media,particularly FM radio stations and TV channels, and the required regulatory structure in the FATAregion. This paper will be distributed to participants of a series of advocacy roundtables scheduledin the last quarter of 2011 to serve as a backgrounder on the subject and to inform the overalladvocacy effort planned in this project.Why the Need for a Briefing Paper?This Briefing Paper is part of a series of media development activities under a project, funded by the 1
  • 3. Foreign and Commonwealth Office of the United Kingdom (the UK) and being implemented by Intermedia (www.intermedia.org.pk), a Pakistani media development organization that works on advocacy, research and training on media issues to promote freedom of expression, access to information and a professional media. The project, in part, aims to help enlarge the space for promoting local community information programming in FATA that promotes conditions for stability and development in the region. As a part of the activities, Intermedia is organizing a series of policy dialogues with the stakeholders of FATA to explore the option to bring the region into mainstream Pakistani media landscape. To make the dialogues result-oriented, this Briefing Paper has been developed to provide technical background and preliminary findings/information on the issue. What the Briefing Papers Offers The first part of this Briefing Paper offers a short overview of the legal history of FATA and possible mechanisms to extend the operations of the laws of the land to the region. The second part provides an overview of the current state of media in FATA with an attempt to identify gaps between constitutional rights and guarantees and the ground situation and the triggers behind them. The third part of the paper explores practical options in legal terms that can possibly enlarge the conditions and guarantees of free and professional media space in FATA. A few preliminary recommendations are also offered at the end that can serve to inform the series of advocacy roundtables. These recommendations will be finalized after consultations with stakeholders and experts through a series of dialogues in the last quarter of 2011.2
  • 4. PART 1: Constitutional Status of FATAF ATA is situated between the Pakistan-Afghanistan border and the settled areas of Khyber Pakhtunkhwa (KP). FATA comprises seven tribal agencies and six FR (Frontier Regions). These agencies are: Bajaur, Mohmand, Khyber, Orakzai, Kurram, North Waziristan, and SouthWaziristan. The FR regions are: FR Peshawar, FR Kohat, FR Bannu, FR Lakki, FR Tank, and FR Dera IsmailKhan. According to census data of 1998, FATA is home to a population of roughly 3.18 million. Thepopulation density stands at 117 persons per square kilometer. The average annual populationgrowth is slightly lower than the KP average of 2.8 per cent and the national average of 2.7 per cent.The average household consists of 9.3 persons, compared to 8 persons in KP and 6.8 personsnationally.Since 1849 FATA has had a unique administrative and political status. To ensure its control over thearea, the colonial rulers imposed a series of laws during 1871 and 1876. These are known as theFrontier Crimes Regulations, or FCR. The FCR prescribing special procedures for the tribal areas isdistinct from the criminal and civil laws that were in force elsewhere in British India. In 1893, theBritish government raised a demarcation with Afghanistan called Durand Line. In 1901, the Britishrule issued a new FCR that expanded the scope of earlier regulations and awarded wide powers,including judicial authority, to administrative officials.Pakistan inherited this system and more or less continues with it even today. In fact, the accession didnot subsume the political autonomy of the tribes. The instruments of accession, signed in 1948,granted the tribal areas a special administrative status. Except where strategic considerationsdictated, the tribal areas were allowed to retain their semi-autonomous status, exercisingadministrative authority based on tribal codes and traditional institutions. This unique system, givenvarying degrees of legal cover in each of the country’s earlier constitutions, was crystallized inPakistan’s Constitution of 1973.iUnder the Constitution, the President of Pakistan is the authority to enact laws for FATA. In mid-2011President Asif Zardari signed two orders regarding Amendments in the FCR (2011) and Extension ofthe Political Parties Order 2002 to FATA, aiming to enact deep administrative, judicial and politicalreforms on the ground in the tribal areas. Through the reforms, amendments have been made in theFCR to this effect.Article 01 of the Constitution of Pakistan, 1973, defines the territories of the republic. The Articleprovides that the territories of Pakistan shall comprise:(a) The Province of Balochistan, North West Frontier Province (now Khyber Pakhtunkhwa), the Punjab, and Sindh;(b) The Islamabad Capital Territory, hereinafter referred to as the Federal Capital;(c) Federally Administered Tribal Areas.Though the bicameral national parliament has representatives from FATA in both of its houses, thePresident of Pakistan holds direct executive authority on the area. Laws framed by the NationalAssembly do not apply here unless so ordered first by the President. The FATA has a special status inthe Constitution. The area is governed under Article 247 (3) of the Constitution under which thePresident has the authority to legislate for the area. Moreover, the President has the authority toextend the operation of any law of the land to these areas. Till the latest legal reforms for the areaintroduced through a presidential order in August 2011, FATA continued to be governed primarily 3
  • 5. through the FCR 1901. The Governor of KP, as an agent to the President of Pakistan, under the overall supervision of the Ministry of States and Frontier Regions in Islamabad, supervises the functions of the administrative authorities in FATA. Unlike the rest of Pakistan where growth of media in recent years has changed the dynamics of how media accesses, processes, generates and distributes information, absence of an electronic media licensing or regulatory authority for FATA has resulted in the region missing out on the media reforms enacted through the PEMRA Ordinance 2002 in mainstream Pakistan, and keeping it relatively ‘information dark’. The existing indigenous and legal media in FATA is only state-owned, which does not have the mandate, capacity or resources to act as a professional watchdog of public interest focused on local news, information, education and entertainment. There are no newspapers or any other current affairs journals published in FATA or any local TV channels. The sole 3 legal radio stations – a mix of FM and AM broadcasts operated by FATA Secretariat – do not carry news or much information about terrorism, militancy and the state’s own efforts to combat them, thereby missing out even on the small window of opportunity of a dialogue between the citizen and the state. There being no independent, legal radio stations or TV channels in FATA is a consequence of the jurisdiction of the national broadcast law, Pakistan Electronic Media Regulatory Authority (PEMRA) Ordinance, 2002, not being extended to FATA. This lacuna allows militants to run hate-spewing pirate stations and hijack both the political and development narrative in the region. The only legal Pakistani media available in the region is owned by the FATA Secretariat and the bureaucracies running the radio stations are neither trained to treat information as a fundamental right nor have the capacity to offer and package information even about the government’s development efforts in a way relevant to the citizens needs and to generate ownership and support of government policies in the region. Since 2001, a discernible but slow political reforms process has been underway for FATA. The FATA Secretariat was set up, headed by the Secretary FATA, in 2002. The Civil Secretariat FATA was established in 2006 to take over decision-making functions, with an Additional Chief Secretary, four Secretaries and a number of Directors.ii In 2011, President Asif Zardari signed two orders regarding Amendments in the FCR (2011) and Extension of the Political Parties Order 2002 to FATA, which many agree could be a prelude to far-reaching administrative, judicial and political reforms on the ground in the tribal areas. Through the reforms, amendments have been made in Frontier Crimes Regulations (FCRs) and repressive laws of the colonial era are abolished and the normal laws of the land are will be applicable to FATA as well.iii In view of the new push for active reforms, it is imperative to introduce similar steps to help enlarge the media space and independent media in FATA for promoting greater openness to allow for an informed local citizenry. Only by promoting a regime of media independence, pluralisms and cultural expressions can inclusivity, support and ownership of policies be facilitated. If FATA is part of Pakistan then its residents have the same rights to access information guaranteed under Article 19A of the constitution and to stay informed. Capacities should be created and consolidated on a priority basis to improve the quantity and quality of a community information environment that will discourage rumor and hate speech and crowd out the radical soundbites otherwise propagated by non-representative groups, which distort the political and religious narrative in FATA. For too long FATA residents have lived in relative information darkness and deserve to join the information age that mainstream Pakistan is reaping dividends from. In this backdrop, it is important to understand the existing state of media in FATA before identification of the key problems and exploration of the options to resolve them.4
  • 6. PART 2: The State of Media in FATAW ith the growth of media in Pakistan in recent years and the increase in numbers of journalists, the dynamics of how media accesses, processes, generates and distributes information and how people consume it have changed. Much information is beingconsumed in real time and as conflict and militancy has grown in FATA and KP the mainstream mediais almost completely dominated by conflict soundbites. This has drowned out news and informationabout development and public works in FATA in particular and the government’s attention toresolving people’s problems both with local and international resources.There are currently only three legal radio stations in FATA which function as AM and FM operations.One is in Khyber Agency, which is ahead of the pack by dint of its recent willingness to focus on somecommunity information. It has an operational newsroom and a group of reporters trained toproduce daily bulletins and other information-based programming. Khyber Agency is strategicallyimportant as it is adjacent to Peshawar and, for administrative purposes, the gateway to FATA. Theother two stations are both in North Waziristan Agency in the towns of Razmak and Miranshah. Thisagency has been in the thick of militancy for several years now. The two stations here are behindKhyber Radio for reason of remoteness and active conflict in the region. They are, however,encouraged by the big success of Khyber Radio and seek to develop similar capacities and re-brandthe stations from virtual government-propaganda broadcasters to local community stations. Undertechnical assistance of the project of which this Briefing Paper is a part, the last few months haveseen the three stations for the last few months broadcast daily community information programmesthat promote local voices focused on development activities. The feedback to these programmes istremendous and demonstrates a distinct need to establish more radio stations and generate moresuch interactive community dialogue and voices.According to the FATA Communications Strategy report of 2009, over 80% adult men and over 70%adult women in FATA regularly listen to radio. No local print publication is produced in FATA due to avirtual ban. Literacy rates are extremely low so not even KP-produced print media is consumed inany significant quantity. Watching TV is an expensive proposition – both in terms of affordability andbecause militant groups discourage it, although a FATA-focused TV channel can be its ownadvertisement for progress and openness. Severe power shortages also make this difficult. Thisleaves radio as the primary medium for information in FATA. There is a need, among other things, tobuild on the limited media space and radio-based information for local communities to help themjoin the mainstream Pakistani media space and benefit from it.ivThe following is an outline SWOT analysis for media in FATA produced by Intermedia: 5
  • 7. 6
  • 8. PART 3: A Roadmap for Mainstreamingof FATA MediaPROBLEMS: Gaps between constitutional guarantees/rights and existingstateA s discussed earlier, the FATA has a special status in the Constitution of the Pakistan. The area is governed under the Article 247 (3) of the Constitution of Pakistan. Though the Parliament has representative from the FATA in both of its houses, the President holds direct executiveauthority on the area. Laws framed by the National Assembly do not apply here unless so ordered bythe President. Moreover, the President has the authority to extend the operation of any law of theland to these areas. The most recent example of such exercise of the power is the FATA Reforms,which is promulgated in August 2011.vNevertheless, like rest of the country, the FATA does not have a regulatory framework, which canissue licenses for private – legal – cable TV operations and private FM radios in the area. In fact, theexisting media regulator PEMRA is not authorized to grant licenses for private broadcast media inFATA. This legal situation has created a vacuum in tribal areas as legally-owned non-governmentmedia including TV channels or FM radio stations are not allowed or available. Filling the vacuuminstead is a considerable presence of illegal cable operators and pirate FM stations and transmittersin the area. Most of the existing private [illegal] media outlets are being run by the banned outfitsand militants.viAccording to Article 1 of the Constitution, FATA is part of Pakistan; therefore, the people of the FATAmust have all the same rights enshrined in the Constitution. For the purpose of this paper –envisaging freedom of expression and access to information in FATA – the most important rights aregiven in Article 19 and 19A of the Constitution dealing with these two themes. In addition to theseconstitutional provisions, there are mainstream Pakistani laws that are necessary to implement inFATA to exercise these fundamental rights by the citizens of the tribal areas. These laws include, butare not limited to: the Pakistan Electronic Media Regulatory Authority (PEMRA) Law, Freedom ofInformation Law, and Press Registration Law.Though these laws cannot be termed as ideal legislation – indeed various stakeholders inmainstream Pakistan have problems with them – they at least serve as tools to exercise fundamentalrights. The August 2011 law reforms in FATA instituted by the President fall short at least in terms ofgranting equal rights to residents in tribal areas on the issues of freedom of expression and access toinformation. Without these laws, the principal objective of the recent reforms to bring the FATAresidents on a par with the citizens of the settled areas will not be possible. The absence of such lawsis equivalent to negation of the fundamental rights of the people of FATA.Moreover, the absence of such legal and regulatory frameworks for FATA has created a vacuum thatdoesn’t allow legally licensed independent media in the region – a vacuum that is happily filled byextremist and radical groups. The situation necessitates initiating a holistic debate on extension ofthese mainstream Pakistani laws to the FATA territories and exploring additional ways to guaranteeand ensure the fundamental rights of freedom of expression and access to information for thepeople of FATA.viiSOLUTIONS: Possible options to address the problemsIn the wake of the above discussion, there is a clear need to explore options to come up with 7
  • 9. mechanisms to bridge the gap between fundamental rights and constitutional guarantees and the situation of denial of these on the ground. As a first step, to get conversant with the real issues and forge an informed understanding and consensus on solutions thereof, there is a need to engage all the key stakeholders and seek their views and opinions on them in a series of focused group roundtables. In the light of the findings and recommendations from the roundtable discussions, practical actionable options may be identified. These options may include, but not limited to: • Introducing an independent regulatory framework for independent media in FATA (highly desirable) • Extending the operation of existing mainstream Pakistani legislation to the area (desirable) • Empowering FATA Secretariat or provincial information department to grant licenses for private media (least desirable) Roundtable Consultations with FATA Stakeholders This Briefing Paper is an attempt to articulate the state of media in FATA, the key themes of the problems related to it and their attendant impact on the region. Intermedia will be conducting a series of focused group roundtables with key stakeholders related to FATA, including authorities from FATA, KP and federal government, media, civil society, parliamentarians and media and legal experts to discuss how the constitutional guarantees of freedom of expression and access to information can be ensured for FATA and chart an action plan that can help in mainstreaming of FATA into Pakistani media legal framework. A total of four advocacy roundtables will be held to lobby for extending the same legal, jurisdictional and regulatory rights for independent media in FATA as in the rest of Pakistan to empower local communities in the region through expanding media space and sources of information in the tribal areas. Roundtable 1: Meeting of FATA stakeholders and experts in Peshawar to forge consensus on mainstreaming FATA into national media landscape. Roundtable 2: Meeting of media sector stakeholders to review and endorse outcomes of Roundtable 1 and present to policymakers in Islamabad. Roundtable 3: Meeting of media and legal experts in Islamabad to draft text on bringing FATA media rights and freedoms in mainstream Pakistan for presentation to federal parliamentarians. Roundtable 4: Advocacy meeting with federal parliamentarians to use outcomes of Roundtables 1, 2 & 3 to push for media legal reforms for FATA. i The information in this part of the paper is taken from the http://fata.gov.pk/ without any major change. ii http://fata.gov.pk/index.php?option=com_content&view=article&id=50&Itemid=84 iii http://pakobserver.net/detailnews.asp?id=109149 iv Information darkness in FATA, MEDIA MATTERS-4, Adnan Rehmat, Islamabad Dateline – for Jun 3, 2011 v http://www.dailytimes.com.pk/default.asp?page=2011%5C08%5C20%5Cstory_20-8-2011_pg3_5 vi http://www.globalmedialaw.com/blog/?p=329 vii http://www.dailytimes.com.pk/default.asp?page=2011%5C08%5C20%5Cstory_20-8-2011_pg3_58
  • 10. About INTERMEDIA PAKISTAN –www.intermedia.org.pkI ntermedia Pakistan is a Pakistani independent media development and development communications organization. Intermedias vision statement aims at “supporting freedom of expression, access to information and citizens making informed opinions and decisions asa means of promoting an informed, democratic and tolerant society.” Intermedias principalactivities are centered on building technical and professional capacities and competencies ofmedia organizations, including TV channels, radio stations and newspapers, and media rightsbodies through trainings; promoting free media in Pakistan through fair media laws andreforms; and carrying out research, advocacy and analysis on democracy and media-relatedissues. Intermedia also focuses on building communications capacities of developmentorganizations to help them improve their outreach. Intermedia focuses on improving thequality of civic and thematic dialogue and development communications critical to an open,pluralistic and democratic society by working with civil society groups and development sectororganizations in improving their communications capacities in a dynamically evolving mediasector. DISCLAIMER: The views, opinions and analysis presented in this document are those of the authors and may not necessarily reflect the opinion and position of Intermedia or its supporters. The briefing Paper is aimed at educating stakeholders on the subject theme only. Designed & Produced by DZINE ARTISAN 0333 5162008