Reforms in FATA: A Pragmatic Proposition or a Slippery Slope?

Posted on 01/24/16
By Imtiaz Gul | Via CRSS/UNDP
An elder from Pakistan's Federally Administered Tribal Areas in the tribal heartland.
An elder from Pakistan’s Federally Administered Tribal Areas in the tribal heartland.

Down the Rabbit Hole

In December 2006, the then military dictator General Pervez Musharraf convened a major gathering to discuss Pakistan’s Federally Administered Tribal Areas (FATA). The attendees included officials from the FATA Secretariat, Political Agents (PAs), representatives of the Ministry of States and Frontier Regions (SAFRON) , the Governor of Khyber  Pukhtunkhwa, notable elders and politicians from the region, along with representatives of the military establishment. The President’s intent was to put all FATA stakeholders in one room, and determine the future of FATA.

 

For nearly three days, fiery speeches, ambitious plans and reform proposals bounced back and forth between the political and military elite, whereas the only common thread by sycophantic bureaucrats and Maliks was unanimous and unconditional praise for General Musharraf for taking the initiative. However, the enthusiasm gave way to caution on the third day, when participants warned against tinkering with the system currently governing FATA. Despite days of deliberation, the gathering failed to agree upon possible reforms for FATA. One of the conference attendees, a PA, while recalling his experience, did not express even a shred of optimism regarding reforms in FATA, citing the military’s hesitation for change in wake of the ongoing insurgency in the region.

 

The military’s “interest” in FATA was also evident when a 27-member Committee on Constitutional Reforms, in 2009, deliberated extensively and climaxed with amendments to 101 articles of the federal constitution. However, none of these applied to Part XII: Miscellaneous – Chapter III: Tribal Areas, especially Article 246 – which geographically defines “Tribal Areas”, “Provincially Administered Tribal Areas” and “Federally Administered Tribal Areas” – and article 247 – which gives the President sweeping powers, and excludes these areas from any parliamentary legislation, or legal jurisdiction from the Supreme Court or any High Court – were simply missing from the suggested list. Representatives from the Awami National Party (ANP) and Pakistan People’s Party (PPP) were of the view that the military opposed any discussion on FATA. Jamiat Ulema-e-Islam (JUI-F) members remained vague when asked about the future shape of FATA. Even though nearly all notables ⁴ agreed on the need for reforms in FATA, no one has come up with a substantial solution and thus laid the entire blame for inaction on FATA’s fate at the military’s doorstep. Military officials divulged that the parliamentarians “asked us for our opinion and we told them that the timing was not right”-the military left it to the will of the parliamentarians to do whatever they pleased with FATA. This attitude from both sides resulted in the literal exclusion of FATA from the deliberations for the 18th constitutional amendment. This, again, highlighted the ⁵ fact that the military alone could not have been blamed for FATA’s deprivation.

 

A Matter of Regulations

In order to understand the political economy of the region, it is important to first take a look at the history and nature of FATA’s current status as well as the Frontier Crimes Regulation (FCR) – a British Regulation introduced more than a hundred years ago to tame the then lawless Pashtun tribes and was persisted with by the Pakistani ruling elite. The FCR, formed in 1901, was an evolution of the Murderous Outrages Regulation of 1867, which gave British rulers, historically unable to establish their writ in the tribal region, powers to prosecute individuals for heinous crimes such as murder.

 

In 1947, Pakistan not only adopted the FCR but added the clause that would allow for an individual’s arrest without even specifying the crime. Since then, the FCR is almost universally seen as a system of oppression, outdated, ill-advised, and draconic. Over time, the regulation has been amended several times, but almost never to the benefit of the people of FATA. The FCR originally contained 64 sections, most of them ill-intended. Although revised in 2011 down to 52 sections, they still contain draconian sections such as 21- 30, 32, 34 and 40. Sections 21-30 also , known as the Collective Responsibility clause allows a tribe to be punished for the actions of one of their members. Section 34 allows for homes and property of the tribesmen to be demolished, if, for instance, the state wishes to acquire that land. Section 32 allows for entire settlements to be razed to ground. Section 40, perhaps the most abused of all, allows the administration to detain a person, potentially for years, on mere suspicion without any substantial evidence. This also implies that there is no provision for the accused to appeal and prove his innocence under the FCR.

 

The FCR is also credited with the rise of militancy in FATA which many naively believe infected the rest of the country. Professor Ijaz Khan of Peshawar University believes that as a tool to impose rule of law and improve service delivery in the justice sector, the FCR only became weaker than it already was after 9/11. When the Taliban fled Afghanistan, many of them settled down in FATA along with Al-Qaeda and IMU (Islamic Movement of Uzbekistan) fighters owing to a pre-existing security vacuum due to poor governance, lack of development, with no judicial or administrative system working for the welfare of the people, illiteracy, and anti-state angst, all of which helped the militants make this region their safe haven.

 

The FCR is also completely silent on women, and affords them no rights. Understandably, the continuation of the FCR and the lack of progress on the status of FATA only widened the gulf between the residents of FATA and the federation. FATA is the only region in Pakistan where the parliament cannot legislate, and the apex courts cannot adjudicate. Article 1(c) of the federal constitution, for instance, would also have to be amended as it denies the Federally Administered Tribal Areas (FATA) as part of the Republic’s territories in addition to the four provinces of Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh and the Islamabad Capital Territory. Interestingly, a five-member bench headed by a former chief justice of the Peshawar High Court (PHC) in a judgment on April 7, 2014, advised the federal Parliament to make amendments to Article 247 (7) of the constitution. The Article reads that, “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.” In its judgment, the Court observed that denial of fundamental rights to the people of FATA has pushed tribal areas to become “the most dangerous spot”. The Court stressed that the constitution has guaranteed fundamental rights to the people of FATA, yet they “are at the mercy of one person, the Political Agent.” The Court also observed that under the FCR, citizens have no right to legal representation, to present reasoned evidence or exercise the right of appeal. The area is administered by the Governor (as a representative of the president) of Khyber Pakhtunkhwa, under the supervision of SAFRON in Islamabad. Oddly, the 12 members in the National Assembly and eight in the Senate from FATA can vote and legislate on bills in any part of the country, but the constituents they represent. They have no technical or political power under article 247 of the constitution. The real power rests with the PA.

 

Politically Economical

John Dalberg-Acton, the English Catholic historian, writer and politician once said, “Power tends to corrupt, and absolute power corrupts absolutely.” In Pakistan, nowhere is this more evident than in the case of PAs governing the tribal areas. PAs are a) the symbol of the state’s authority, b) the tribal people’s advocate, and c) the liaison between the people and the government. The PA serves in three official capacities, a) the titular office, b) district magistrate, and c) sessions judge. He can even impose curfew, reject bail, and hold someone in confinement indefinitely. Near universally, the PA’s role is viewed as corrupt officials armed with boundless power. Facilitated and powered by the roughly 35,000 or so Maliks (titleholders/representatives of tribes), the FCR is often used as a fulcrum to exact political vengeance.The elite and the rich can easily leverage the FCR as a mechanism to escape punishment (a vote of confidence from four Maliks can prevent detention), and as a tool to eliminate competition, punish enemies, or clear the playing field. It is easy to see how this oppressive and unjust system can be exploited by those with resources and power, and abhorred by youth and the lowest rungs of the socioeconomic strata.

 

The anecdote at the top suggests that the military establishment is adamantly and historically opposed to changes in the status of FATA. They present a formidable blockade against progress on FCR reforms. The Maliks (who could potentially play a crucial role in improving conditions) in FATA, and the elite, including the ministers, the businessmen and other affluent individuals and entities that enjoy a life of luxury and privilege without consequence, also oppose reforms in the region. Finally, the FATA Secretariat is a key stakeholder. The Secretariat under the governor, including the seven PA’s, and their respective staffs (essentially a smattering of super-empowered bureaucrats in Islamabad and Peshawar), have a huge monetary stake in the status quo. The most powerful and vocal of these hail from Khyber and Bajaur Agencies, Bannu (North Waziristan) and D. I. Khan (South Waziristan).

 

Current Progress
The push for reforms in FATA is not something new. The meeting in 2006 and the constitutional reforms in 2009, are just two examples. In 2010, the Political Parties Joint Committee on FATA Reforms proposed 11 reforms for FATA. These were chided for being invariably chained to government interests. In August 2011, then President Asif Ali Zardari passed a Presidential Order to amend the FCR. Although minimal in its scope, it is still recognized as the most practical and significant change in the regulation since its inception.

 

Years later, in May 2014, the Center for Research and Security Studies (CRSS) took an initiative to publicly campaign for FATA, this time through a 20-episode series of TV shows and 60 radio shows involving about 150 notables such as FATA MPs, businessmen, civil society members and representatives from mainstream political parties. Ironically, all these discussions yielded a fragmented picture; most of the youth – students, civil society, and younger parliamentarians vociferously advocated for the abolition of FATA’s current status. Most of the parliamentarians and businessmen, however, pleaded for a phased, incremental change to the status of FATA through an extension of the writ of the Peshawar High Court and the local government elections. Even some of the officials argued that touching FATA in existing circumstances was a dangerous proposition. This mirrors the political economy dichotomy in the previous sections.

 

More recently, in September 2015, nearly three months after the FATA Reforms Commission’s report, sources indicate that a “step-by-step procedure for merging tribal areas into settled districts” is underway. To precipitate this, Bajaur and Mohmand Agencies from FATA will be merged into Provincially Administered Tribal Areas ( ) PATA . The estimated time for this transition is 8-10 months, and it will serve as a stepping stone for other areas to be brought into Pakistan-common. On September 9th, the 22nd Constitutional Amendment Bill was presented in the National Assembly by FATA lawmakers, proposing amendments to Articles 246/247 to grant full citizenship rights to the tribesmen, extend the reach of apex courts to the region, and the merger of FATA into KP.

 

The Way Forward

Moong Qabail, a series of media programs conducted by CRSS on FATA reforms, brought forth a range of suggested solutions and ideas on how to manage this century-old problem in the tribal areas. The series publically and empirically confirmed the sentiment that the people of FATA hold FCR responsible for the ills being suffered, and that it was time it was repealed, reformed, or abolished altogether. The status quo simply cannot continue. The people in FATA may hold the green passport, but the constitution’s Article 247 and the FCR deprives them of fundamental human rights and civil liberties, even though they are afforded to citizens in all other parts of the country. These Federally“Alienated”Tribal Areas are denied their right to life, security, justice and expression.

 

The proposed abolition of the FCR or comprehensive changes to it in line with the fundamental rights presents three options for the status of FATA. FATA could be merged into KP, become its own province, or FATA could run with its own Governor with a Central Council, as well as agency and tehsil councils. The 22nd Constitutional Amendment proposes the first of these . Failing this, a plethora of issues need to be managed. These include the influence of the PA’s, the separation of administration and judiciary, the FATA council, holding local body elections, representation of women, development, education and health facilities and the influence of the government within the ambit of the judiciary.

 

As it stands, two things seem to be happening simultaneously: the ginger first step of merging two agencies into PATA, and doing away with FCR altogether, and merging FATA into the KP province. Both these developments present a glimmer of hope for the people, who, according to a former governor General (retd) Ali Mohammad Jan Orakzai, “have been treated as caged monkeys” and have remained subjugated by over a century of bad governance, archaic policies, and dated regulations. But it must be said that neither recent development is official, nor expected soon. Most of the older FATA MPs believe in a gradual shift from the current status to a macro mainstreaming of FATA.

 

However, the pull of the forces of status quo is simply stronger than those who favor comprehensive reform, whereby the law of the land could be extended to FATA and could be thus mainstreamed. Merging Orakzai, Khyber and Bajaur into districts Peshawar and Swat respectively could probably be the rst steps to mainstreaming these FATA agencies. To turn the tide, a series of mechanisms will need to be deployed to help mitigate the powerful political economy that so vehemently resists any attempt at change. Given political will at the highest level, the deeply entrenched vested interests mentioned above can be displaced. That can happen only when the President surrenders his powers under Article 247 to the parliament, followed by the ruling party actively pursuing change of status of FATA. For this, mainstream political parties shall have to blunt the arguments often peddled by the mighty forces of status quo i.e. bureaucrats, Maliks, the security establishment and those who play second fiddle to these forces.

 

The writer is the Executive Director of Center for Research and Security Studies (CRSS). This article first appeared on http://www.pk.undp.org/ 

 

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