The prime minister has formed a five-member committee for finalising reforms in Fata. Fata parliamentarians have submitted a draft bill for amendment of articles 246 and 247 of the constitution to change the status of Fata, seeking its merger with the tribal areas of Khyber Pakhtunkhwa.
As per the constitution, the president is empowered to change the status of any area of Fata and “shall ascertain, in such manner as he considers appropriate, the views of the people of the tribal area concerned, as represented in tribal jirga”. This raises three key questions. Why have the tribal areas maintained their status to date? Why should this change now? And how can this change be brought about?
The tribal areas have been under self-rule for centuries. Under the rule of the Mughals and the Sikhs most of the area remained independent, as also during the British rule. The latter kept it as the second buffer in addition to Afghanistan to separate Russia from British India. Except for some areas, they never made an effort to administer it.
When Pakistan was created, Quaid-e-Azam gave reassurances to a tribal jirga, saying that “Pakistan has no desire to interfere unduly with your internal freedom”. This enabled Pakistan to enter into new agreements, replacing those signed between the tribes and the crown, wherein the tribes reiterated their allegiance to Pakistan. A ‘special status’ was granted to the tribal areas in the 1956 constitution as Centrally Administered Tribal Area (Cata), renamed as Fata in the 1973 constitution. Pakistan inherited four tribal agencies – South Waziristan, North Waziristan, Khyber and Kurram – and three more were added: Mohmand in 1951, and Bajaur and Orakzai in 1973. Today, Fata has 13 administrative units, seven agencies and six Frontier Regions (FRs).
After creation of Pakistan, most of Fata remained under self-rule and the tribes resisted any official move aimed at penetrating their area. The question of mainstreaming Fata was not raised seriously by the government during the first two decades. In the context of an uncertain internal security environment and relations with Afghanistan, it did not want to provoke resistance from the tribes or enflame relations with Afghanistan or fuel discussions about the Durand Line and the idea of Pakhtunistan. Therefore, the border with Afghanistan mostly remained administratively inaccessible.
In 1973, a strategy ‘Opening through Development’ was launched, industrial units established in some agencies, infrastructure developed and a large part of the tribal areas brought under the writ of the political administration. However, more than 30 percent of the area still remained inaccessible. In the succeeding decades Pakistan remained involved in the Afghan jihad and post-jihad activities inside Afghanistan; no effort was made to mainstream Fata. These areas were subsequently opened by the army with the support of the political administration after the US invasion of Afghanistan in 2001.
The repeal of the Frontier Crimes Regulations (FCR) has been raised at different forums over the past many years. The British formulated the FCR nearly 150 years ago in light of the local traditions, socioeconomic conditions and conflict resolution mechanism that prevailed in the Pakhtun and Baloch societies at the time. It was enforced in KP in 1871. But since the British did not administer Fata, it was imposed there only in selected protected areas at a later stage to deal with the tribal uprising.
The FCR is a composite law providing legal, administrative and procedural provisions for governance and civil and criminal matters. Most of its articles deal with administration, governance and procedures. However, the clauses covering penalties violate basic human rights and the provisions of the constitution. Some of these clauses have been removed in the amended FCR-2011. The FCR is linked with the status of Fata, and will be annulled altogether the day the status of Fata is changed.
Changing the status of Fata might not be all smooth sailing. Any form of seeking tribal views preferred by the president is likely to result in a divided opinion. Some would be in favour of maintaining the status quo, some would like further amendments in the FCR, with no change in the status; and the youth, lawyers, professionals and some of those residing in the settled areas are likely to opt for a change in the status.
Seeking the views of the tribal through a grand jirga is the most preferred and traditional option. Prior to convening the jirga the president may be apprised of the opinion of various segments on mainstreaming by the Fata Secretariat.
One option is to bring about change in line with the proposed twenty-second amendment bill, by amending the Constitution, FATA is merged into PATA, by the President with the consent of a Tribal Jirga. To avoid instability and creation of a law and order situation this merger may have to be phased, starting from Bajaur, Kurram, and some FRs in the first phase other agencies in the second phase with Waziristan mainstreamed last.
A better option is to hold local bodies’ elections and transfer powers from the political administration to the elected tribal representatives at the village, tehsil, and agency level. These representatives should be empowered to identify, plan and monitor development schemes in their areas. Transfer of power to the grassroots level is likely to bring a positive change in the thinking of the tribal population, and mainstreaming would probably face the least resistance. These elections can be held in phases, agency wise, so as to maintain the overall law and order situation. Changing the status in this way will take time, but since there is now a much softer version of the FCR, the completion of mainstreaming can wait.
The return of the IDPs should be made a priority, and should precede changes to the status of Fata. Sufficient funds should be placed at the disposal of the execution agency for the rebuilding of destroyed homes, businesses and other infrastructure.
Fata has been cleansed of terrorists. However, some elements of the TTP are still present and operating from across the border. The change in the status has to be planned and executed in a manner that does not lead to instability, and does not offer miscreants an opportunity to exploit the situation to their advantage.
The writer is a retired brigadier.
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