Consensus on Pata

The proposed bill to convert the Bajaur and Momand agencies from Federally Administered Tribal Areas (Fata) to Provincially Administered Tribal Areas (Pata) is significant in many ways.
First, the bill is proposed by none other than the Fata parliamentarians – a voice of change from within as compared to previous voices from the rest of Pakistan. The Fata parliamentarians’ initiative is backed by a public mandate of the tribes. It cannot be overlooked by the federal authorities or those who chalk out a different course of action to resolve the Fata conundrum.
Second, the selection of Bajaur and Momand agencies from the north – comparatively peaceful than the central or southern region of Fata – reflects a genuine, methodical and graduated approach towards mainstreaming Fata. Radical approaches to undo the status quo have proved to be counter-productive in the past.
In 1994, the Supreme Court of Pakistan declared the PATA Regulation null and void, which resulted in creating a judicial vacuum in the Malakand Division and gave rise to the Sufi Muhammad led ‘Enforcement of Shariah Movement’, and the subsequent rise of the Swat Taliban in 2007-2008. Third, it breaks the shackles of the notorious Frontier Crimes Regulation, 1901 (FCR) and paves the way for a peaceful and smooth transition to the mainland Pakistani legal system.
The strategy of the current move is a page taken from the past. Till 1974, the Malakand Agency was administered under the FCR. The overwhelming support for the PPP in the Malakand Agency undermined the influence of the local tribal elders (Maliks) who derived their strength from the FCR; hence Z A Bhutto replaced the FCR with the PATA Regulation, 1975 – a legal regime that still retained some of the powers of the local elders yet brought the Malakand Agency under the judicial purview of Pakistan.
The PATA Regulation has been replaced by the Shariah Nizam-e-Adl Regulation but as said earlier, the transition from Pata to a mainstream legal system was not graduated and methodical, which is why it provoked a response from the vested interests – resulting in bloodshed.
The idea of a separate province for Fata is quashed by geographical constraints and administrative costs. The lack of infrastructure – for example a road that links all ‘agencies’ to a central place as a provincial capital – is non-existent. Even if the Khyber Agency, centrally located, is supposed to be the provincial capital of a separate Fata province, the people of all ‘agencies’ from Bajaur in the north to Waziristan in the south will have to travel through Peshawar to reach the Khyber Agency.
Ironically, whereas the other ‘agencies’ have their head-offices located inside the agencies, the office of the political agent of the Khyber Agency is located at Peshawar cantonment. Additionally, it will be difficult to evolve a consensus on the provincial capital for Fata as a separate province.
The proposed bill to transform Fata to Pata is workable since, for all practical purposes, Fata is governed by the provincial government. The majority of the civil servants working in Fata are employees of the provincial government, including employees of the education, health, works, and agricultural departments etc.
Development funds are spent through the provincial departments without any oversight by the public representatives as Fata doesn’t have any representation in the provincial assembly of Khyber Pakhtunkhwa; it was an administrative anomaly already, which will be duly corrected if the Pata bill is passed by the federal legislature. The proposed bill by the Fata parliamentarians must be supported by all political parties as the Political Parties Joint Committee on Fata Reforms has already demanded an 11-point reform package that aims at mainstreaming Fata.
The biggest challenge in converting Fata to Pata will be the consensus on extension of the laws and acts of parliament to the Bajaur and Momand agencies as Pata. While it might take quite some time to establish civil courts in the Bajaur and Momand agencies, the extension of the Peshawar High Court’s jurisdiction to these two agencies will go a long way to separate judicial and executive functions; and ensure the enforcement of the fundamental rights of the people there.
Currently, Fata is part of Pakistan under Article 1 of the constitution, yet the superior judiciary is barred by Article 247 to have any jurisdiction in matters relating to Fata.
The writer is a Fulbright scholar with a background in law, politics and human rights.
He is based in Islamabad.
Email: mr352@georgetown.edu
Twitter: @mr3521