Recent amendments to the Frontier Crimes Regulations are being billed as a ‘new deal' for the Federally Administered Tribal Agencies, seen as the epicentre of terrorism.
At best they are baby steps towards changing a colonial hand-me-down, but by virtue of being the first change ever to be made in the 1901 vintage Frontier Crimes Regulations (FCR), the recent amendments are being billed as a “New Deal” for the Federally Administered Tribal Agencies (FATA) which, as a collective, are seen as the epicentre of global terrorism.
Even these tentative steps towards mainstreaming FATA — where most of the laws of the land do not apply — took a while after the Pakistan People's Party-led dispensation at the federal level announced them on the eve of the 2009 Independence Day. They were finally signed into effect by President Asif Ali Zardari on August 12 this year; signalling a softening in the military's opposition to these reforms.
But this shift in the military's position came only after the federal government issued two identical notifications — Action (in Aid of Civil Power) Regulation 2011 — for FATA and the Provincially Administered Tribal Areas (PATA) that give unprecedented powers to the armed forces combating terrorism in these areas with retrospective effect from February 1, 2008, and also allowing them to detain terror suspects for 120 days.
Human rights activists and aid agencies working in the area fear this would again lead to misuse of power and nullify the dilution of some of the draconian provisions in the FCR. “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,” wrote veteran journalist Rahimullah Yusufzai in The News.
Given that FATA is a much-talked about but little known area, first a bit on the FCR. When the British annexed these areas in 1848, they sought to use the fiercely independent tribes to act as a bulwark against “Russian expansionism in Central Asia” by allowing them their writ over internal affairs, according to tribal codes, while retaining control on matters of security of British India.
With this quid pro quo arrangement under constant challenge — as per one account there were 62 military expeditions in the area between 1849 and 1889 — the British imposed the first incarnate of the FCR prescribing special procedures for the tribal areas distinct from the criminal and civil laws in force elsewhere in the subcontinent.
When these regulations — based on the idea of collective territorial responsibility and dispute resolution through a jirga (council of elders) — failed to subdue the region, the British expanded the scope of the FCR in 1901 to give powers, including judicial authority, to administrative officials.
The institution of the “political agent” was created and each of the four agencies — Mohmand, Bajaur and Orakzai were added to FATA after 1947 — was administered by such a government appointee with wide powers and funds to secure the loyalty of influential elements in the area. The “maliki” system was developed to allow the colonial administration exercise control over the tribes, with “maliks” acting as intermediaries between members of individual tribes and the British authorities.
Still, the British control over the area remained tenuous and the regime persisted after the various tribes in the region entered into an agreement with the Government of Pakistan following Independence through as many as 30 instruments of accession. And, this troika of political agent, malik and FCR — which arguably is based on the Pathan tribal code “Pakhtunwali” — had no room for “appeal, wakeel or daleel” (engaging a lawyer or reliance on reasoning).
The penal provisions were harsh and included rounding up an entire tribe for a crime committed by one member, demolition of hamlets, villages or towns on the frontier, removal of persons from their places of residence and confiscation of property without compensation. Though these provisions violate basic human rights and the Constitution, that very corpus of law mandates in Article 247 (3) that no Act of the Majlis-e-Shoora (Parliament) will apply to FATA and PATA without a special directive from the President.
Ironically enough, the FCR regime — recognised and denounced as a bad law from the early days of Pakistan but retained for political/strategic expediencies — survived the various political upheavals the country faced through its 64 years. Out of sight, out of mind, the ban on political activity kept the tribal areas cut off from national discourse, though FATA served as the backyard of the security establishment's policy of attaining strategic depth. Together with red tape endemic to the bureaucracy, the delays in justice delivery and the ban on political activity created a vacuum that the Taliban found easy to fill with speedy and cheap delivery of justice through shariah courts when they took refuge in these parts following the U.S.-led international onslaught on Afghanistan, post-9/11.
The Global War on Terror brought the spotlight on an area that was used by the British in the first Great Game against Russia, and the U.S.-Pakistan nexus during the Soviet Occupation of Afghanistan as a staging post for the mujahideen. According to Khalid Aziz, chairman of the Regional Institute of Policy Research in Peshawar and someone who was involved in the policy formulation that introduced adult franchise in FATA in 1996, the Americans, British, Germans, Norwegians and Dutch spent considerable time and resources in researching the area and acting as a catalyst for these reforms.
What has been introduced is generally described as “good but insufficient,” “too little too late,” “the minimum that could be done,” and “better late than never.” Cynicism apart, just the fact that even the bare minimum took so long makes this “no mean achievement.” Though limited in scope, the reforms in FCR seek to grant some basic rights to the tribal people who, according to various analyses, want a repeal of FCR or a comprehensive overhaul while factoring in some traditions.
Indefinite detention will no longer be possible and people can now appeal before the FCR tribunal. Cases have to be decided within a time frame and arrested persons can be released on bail. The collective punishment provision cannot be applied to women, children below 16 and men above 65, and property cannot be confiscated without compensation. Also, a degree of fiscal accountability has been introduced as the use of government funds by the political agent will now be scrutinised by the Auditor-General of Pakistan.
With the extension of the Political Parties Order (PPO) 2002 to FATA, people can participate in political activity, and political parties can function in the region without being penalised. Though FATA has a dozen members in the National Assembly and eight in the Senate, laws they make are not applicable to the area they represent as the writ of Parliament does not extend there. Neither does the writ of the Supreme Court or the High Court in Peshawar.
The extension of PPO to FATA has been hailed as a measure that would introduce bona fide political activity in the area and provide a counter-narrative to the one established by the Taliban but the Oslo-based academic from the area, Farhat Taj, argues otherwise in an article in Daily Times.
“Anti-terror political parties, like the Awami National Party (ANP), the Pakhtunkhwa Milli Awami Party and PPP, will not be able to freely operate in the area. The political will of the tribal people will remain under siege of terror and the people may have to withdraw from the political process or align themselves with the religious parties as a means to escape the deadly anger of the Taliban and the state security apparatus behind them.
Thus, while theoretically the extension of the PPO is a giant step forward, practically it would take no less than the total shift in the military-controlled security policy regarding Afghanistan to make terror-free political participation for the tribal people an attainable civil rights entitlement,” is her contention.
While these reforms have across-the-board political support, the ANP hopes that it will pave the way for wiping away at least one artificial division created by the British among the Pukhtoons; the Durand Line being the other major fault line. Though it remains a contentious issue — with some leading lights from the tribal areas like the former Ambassador, Ayaz Wazir — advocating provincial status to FATA on the lines of Gilgit-Baltistan, the ANP's ultimate aim is to merge it with Khyber-Pukhtoonkhwa (formerly the North West Frontier Province).
As a first step, the party has proposed representation for FATA in the provincial assembly so that the tribal people can have a say in decision-making on infrastructural development in their area as the Khyber-Pukhtoonkhwa government is responsible for some of the developmental work in these agencies.
But, like Mr. Zardari said, after signing the reforms package, the ANP is also treading carefully, maintaining that the door has been unlocked and it is for the people of the region to decide their future course. How that will be possible without weeding out terrorists and fanatic elements from the area is a question that begs an answer and beyond the realm of the political class.