The Army has effectively played its role in the Tribal areas and now it is the civilian government’s responsibility to introduce new laws for residents of FATA and facilitate the handover of the area to the locals. As the Taliban came to these tribal areas after 9/11, they killed almost 400 Maliks and the rest were forced to flee. The present operation Zarb-e-Azb has been quiet successful in reversing the Taliban anarchy, but the need of the time is to fill the leadership vacuum and replace the Black law of FCR with an enabling legal framework for credible governance in FATA. In his press conference on October, 29th, DG ISPR Asim Bajawa said “The local tribe people are also sick and tired of the militants.”
The Federally Administered Tribal Areas of Pakistan (FATA), having a checkered history enjoys a strategically distinct position. Though extremely poor and backward, these areas have always played an important role in the history of the region, presenting a wide, valid and valuable treasure of landscape, archeology and cultural legacy. The people are distinguished for their hospitality, bravery, culture and traditions. Apart from the significance due to the ongoing war on terror, presently the area has its importance in the overall national and regional scenario in providing access to the emerging markets of the Central Asian states and in exploitation of natural resources.
These areas (comprising of seven independent tribal agencies and six smaller frontier regions) had a special status even before the partition and establishment of Pakistan, under which, the area is governed through the only legal code of FATA: the Frontier Crimes Regulation (FCR) of 1901. The present political administrative structure of FATA is a legacy of the system established by pre-partition British India. The FCR which is stated as the “Black law” by the people of FATA was presented by the British after the second Anglo-Sikh war and was forced on the people of Fata to “curb” the forceful Pukhtun and Baloch who were battling against British colonialists.
The people of FATA do not just want amendments in FCR today, but its complete abolition with all of its instruments of oppressions like the arbitrary arrest procedure i.e. ‘Collective Responsibility’ drafted by British colonialists to further their interests in the borderland of Afghanistan and British India. Under this principle, the crime of a single person from the tribe can cost the entire tribes of their nationality rights (CNIC, Domicile, Passport etc); salaries of government servants from a particular tribe are stopped; properties of whole tribes are usurped or bulldozed. Also, under FCR, the same administration plays the multiple roles of ‘Cop Judge Jury Executioner’.Since the Political Agent heads the organization wing (role of DC/DCO); additionally heads the Tribal Police called ‘Levies Force’ (role of DPO/SSP); and in the meantime heads the Judiciary (part of District Magistrate). Apart from that, the political agents’ verdicts/choices can only be challenged in the FCR tribunal, as no High Court or Supreme Court have jurisdiction is FATA, as per the constitution on 1973. Even a cursory look at the FCR shows that it is squarely in violation of the United Nation’s ‘Universal Declaration of Human Rights’.
But then why on Earth is this illogical, insane and inhumane law still implemented in FATA today? This is a question which is raised in every sane mind. Are the people of FATA happy with it? Hell No. Today a tribesman asks the government of Pakistan why are they ignored. Who will come to FATA’s aid? Who will come for the rescue of those innocent tribal’s who are in prison due to no crime of their own? He asks the researchers, the journalists, the academicians, why they didn’t fulfill the responsibility of their pen. The people of FATA are mourning the criminal silence of the government and other segments of Pakistani society. While the other parts of the country enjoy their share, the approximately 10 million people of FATA, despite being a strategic part of Pakistan. Do not even come under the constitution of Pakistan even after 67 years of independence. In Article 1 of the Constitution, FATA is named as part of Pakistan. Under Article 247 (3) of the Constitution of 1973, “no act of Parliament is applicable to FATA or any part unless the President of Pakistan so directs.” Acts of the National and Provincial assemblies and judicial powers of the state are not automatically applicable to these areas. Thus the constitution provides space for the FCR to violate the fundamental Rights of people living in the tribal areas.
The FCR is not the only problem faced by the people of FATA. The ongoing war on terror severely affected the business in FATA and KP in particular and the country in general. The tribal people have been forced to leave their land barren and migrate to relatively secure areas. The migration is considered to be one of the biggest In the history of Pakistan. According to a UN report, from 2008-11 “There have been more than five million IDP’s in Pakistan due to terrorism.” These IDP’s do not find jobs in the urban areas, and this is not just increasing the crime rate but also the unemployment rate is getting higher. Many of the tribal elders believe that the drone attacks just added fuel to the fire. “One drone strike kills five or ten militants but produces dozens of new ones.” said a re-known Malik Khan Marjan from North Waziristan. Apart from the consequences of the war on terror The FATA people also need to get rid of this colonial legacy of the institution of ‘Maliks’ and introduce Elected local bodies. However some would say that this is what suits the socio-cultural norms of the region but we need to gradually move on towards more participatory form of government. The Jirga system needs to be made more democratic and transparent while trying to extend the constitutional and legal structures of the state to the tribal areas. The media is also playing a negative role in representing FATA and its people while exaggerating the weaker side and sensationalizing the news to get cheap popularity.
Today, there is a consensus among all the political heads that the existing constitutional status of FATA is a colonial legacy, which can no longer continue. The tribal areas need major governmental attention through revolutionary reforms in education, judiciary, health and community facilities. The population of tribal areas also needs to enjoy the fruits of modern and representative administration.
However, there is a marked difference of opinion about the future status of FATA. Some of the options in front of us include: Making FATA a separate province with modifications in FCR and administrative system but this is a short term solution only and it lacks majority support due to peculiar characteristics of FATA, where most of the agencies lack geographical connectivity and are more dependent on KPK than on each other. The second option we have is to merge FATA with KPK. For this, a phased approach needs to be adopted by first merging PATA followed by FRs and finally FATA with the provincial government of KPK. This option is likely to have support of a large portion of population of FATA and KPK due to social and cultural homogeneity. A third option, which is Interim constitutional arrangement suggests that either an Interim FATA council should be constituted under Governor KPK and all power should be transferred to this council or the power be transferred to Parliament, where senators and MNA’a from FATA should have a major role in policy-making and decision making processes. If none of these options work we also have the fourth option i.e. Agency-wise integration strategy. This option suggests to immediately merge PATA and FRs with KPK followed by FATA in three phases i.e. Bajour and Mohamand agencies in Phase 1 followed by Khyber, Khurram and Orakzai agencies and finally North and South Waziristan agencies. This is rather a phased and manageable approach but a little risky as any failure in the first phase will jeopardize the entire process. The above mentioned options are just suggestions and the government needs to ensure that the final decision of the fate of people of FATA is made by themselves. The philosophy of administration of these areas should be to convince the Tribal people that they are as much Pakistani as a Punjabi or a Sindhi. They need to be integrated into the national mainstream.
The destruction caused by the operation should be taken as an opportunity to reform. The need to construct the state-structure should be taken seriously and we need to provide the Tribal people with all the basic rights which any other Pakistani enjoys. As I am speaking for their right of education, for their right of healthcare, food and shelter, a huge majority of the tribal people don’t even know they have these rights. And that the government of Pakistan owns them more than just an I.D. card. The government needs to play its part to facilitate the transfer of power to civilian rule and integrate FATA into mainstream Pakistan. Recently, in September, a national level seminar was held in National Defense University, Pakistan. Where both civil and military representatives as well as members from the FATA committee presented their recommendations which can grouped in political and constitutional, administrative structure and system, laws and regulations, security status and few desirables to be attained and maintained. The primary focus was related the constitutional status and desirable changes to the mainstream FATA. We hope to see joint efforts by civil and military institutions for the rehabilitation and resettlement of the IDP’s after the completion of a successful operation Zarb-e-azab.