Some more real change in Fata

Rahimullah Yusufzai

The last time any meaningful reforms were undertaken in the Federally Administered Tribal Areas was in 1997 when people inhabiting this tribal borderland of over 27,220 square kilometres were granted universal adult franchise. Until then only hereditary and appointed maliks, or tribal elders, could vote and contest election for parliament. There was opposition even then to this move by sections of the bureaucracy and the security establishment, but President Farooq Leghari went ahead and gave the right of vote to every tribesman and tribeswoman.

Now, 14 years later more piecemeal reforms have been announced by extending the Political Parties Order, 2002, to Fata to allow formation, organisation and functioning of political parties in the seven tribal agencies and six Frontier Regions and amending the Frontier Crimes Regulation (FCR) 1901 to try and bring this law in conformity with basic human rights. The fact that the Political Parties Order in its present shape dates back to 2002 and has been extended to Fata after nine years shows the slow and cautious pace of introduction of change in the tribal areas. More importantly, FCR 1901 has been amended for the first time in 110 years and this alone explains the significance of the occasion and the importance of the amendments made in this old British-era regulation. In fact, the FCR dates back to 1848 and was promulgated in 1901 by adding new acts and offences to it to extend its scope for serving the interests of the British colonial rulers and enabling them to control the fierce freedom-loving Pakhtun tribes.

The Fata reforms were signed into law by President Asif Ali Zardari in the presence of representatives of the stakeholders including tribal parliamentarians and elders on Independence Day in Islamabad and were meant as a gift to the tribespeople on an auspicious occasion. Independence Days in present-day Pakistan don’t bring any real happiness due to the sorry state of affairs in our lawless, insecure, politically unstable and economically depressed homeland. The fact that the tribal people, whose population according to the imperfect 1998 census was 3.1 million but should be more than six million now, were considered worthy of enjoying some of the fruits of freedom for the first time since 1947 is a sad commentary on the uncaring and visionless governments that have selfishly ruled Pakistan to-date.

Besides, announcing reforms and taking credit for heralding a change is one thing and ensuring implementation of the amended laws is another. Didn’t President Zardari and Prime Minister Yusuf Raza Gilani announce a decision to do away with the FCR and initiate other reforms in Fata two years ago without doing their homework, and then backed away after realising the enormity of the task they had undertaken? They demanded and received accolades for the announcement, as all politicians do, and then tried to wriggle out of the embarrassing situation by forming committees to suggest recommendations on Fata reforms. In fact, setting up committees and commissions to propose Fata and FCR Reforms has been an endless exercise all these years, but there has been no implementation.

The verdict on the crucial issue of implementing the reforms in Fata will have to wait because the tribal people need to feel the change before deciding whether the amendments were good or bad. Indeed, the biggest challenge now and in future would be realising the potential of the reforms in view of the uncertain and dangerous security situation in Fata. No real reforms and development could take place in the seven tribal agencies, all of which border Afghanistan except for Orakzai Agency, unless the security situation sufficiently improves to allow the military to end its operations and curtail its presence in Fata and enable the political administration to once again administer the land and its people in a normal way. Only then will the political parties be able to operate freely and the benefits of the amended FCR pass to the tribal people. There is, however, no real hope that the security situation will improve to the desirable extent in Fata unless the Afghan conflict comes to an end. And that isn’t going to happen any time soon due to the still ambiguous US agenda in the “Af-Pak” region and the determination of the Taliban to fight as long as it takes in a bid to return to power.

Every political party and all civil society groups have welcomed the reforms, though some have commented that these are still inadequate. The government did well to consult the stakeholders and take into consideration the recommendations of the newest Fata Reforms Committee in which all political parties were represented and the previous FCR Reforms Committee that was non-political and headed by former Supreme Court judge Justice Mohammad Ajmal Mian. The members of the FCR Reforms Committee had visited almost all the tribal agencies to hold town hall-style meeting with tribal elders and commoners. They came to the conclusion that the majority of tribesmen wanted amendments to the FCR to make it a humane law, while a minority, who were mostly political activists, wished to scrap it altogether or in case of the privileged tribal elders sought to maintain the status quo. The trick was to find a balance to curtail the arbitrary powers vested with the political agent and give the right of bail and appeal to every accused. Though a Fata Tribunal was already working to hear appeals against sentences awarded by the political agents and their deputies, the tribunal has now been formally invested with powers similar to the high court. The concept of collective responsibility in the FCR has also been amended and now women and children below 16 and elders above 65 years will be exempt from this clause and the whole tribe won’t be punished when punitive action is taken against an accused. Collective punishments and arrests of any accused on the orders of the political agents without assigning reason and denial of bail or appeal had prompted jurists, lawyers and political and civil society activists to describe the FCR as a black law. It remains to be seen how the administration of tribal areas would be able to operate effectively in these insecure times without such arbitrary powers.

More importantly, the FCR amendments have come soon after the federal government issued two identical regulations, Action (in Aid of Civil Power) Regulation 2011 for Fata and Pata, to give unprecedented powers to the armed forces operating against the militants in the conflict areas. The regulations provide legal cover to the “unlawful acts of armed forces” during military operations with retrospective effect-i.e., Feb 1, 2008—and empower the security forces operating in both federally and provincial administered tribal areas to keep terror suspects in custody at undisclosed location for 120 days. Despite government claims that the regulations will specifically target militants, lawyers and human rights activists have been critical of the move due to fears of misuse of power. If these fears turn out to be real, the FCR amendments will be like giving rights with one hand and taking them away with the other.

As for the political parties now legally empowered to function in Fata, it will require courage and effort on the part of their leadership to organise and win the support of the tribal people. Most parties were already operating in Fata and even fielding candidates in past elections, but now this will no longer be illegal. They will now have a level playing field as earlier secular and nationalist political parties complained that the religious parties were able to use the mosques and the madrassas for influence and votes.

The real test of the reforms would be creating conditions through development inputs for mainstreaming Fata to bring this under-developed part of Pakistan at par with the rest of the country. That should be a long-term project as most tribal people not only want the special status of Fata to stay as they don’t want to give up some of their privileges but also favour a separate province instead of merger with Khyber-Pakhtunkhwa.

Email: rahimyusufzai@yahoo.com
-The News