Saiyed Mohib Asad: Reform in FATA

Reform in FATA
By Saiyed Mohib Asad, The News, October 15, 2008
Source

Whereas the government seems to be doing all within its resources to keep a lid on the very disturbed security situation in the country, it is imperative to think of ways and means to change the basic structures of areas and communities which generate these criminal activities. What is going on is basically patchwork. We need to refurbish the fabric.

The Adviser on interior gave a public statement the other day that heavy armament was being infused into the FATA area from across the border, and that there are at least three thousand foreigners present there who indulge in all kinds of terrorist activity. Combine this with home-grown criminals and the figure would be frighteningly higher. How this has come about needs to be analyzed dispassionately.

Firstly, the administration of NWFP is an amalgam which defies commonsense. There are four different systems in effect. There are the settled districts governed by the common law of Pakistan. There are FATA regions. There are PATA regions, and then there are Frontier Regions attached to settled districts. If you cannot make any sense of it, you are not alone. FATA, PATA, and the FRs have the Frontier Crimes Regulations as their criminal law, while the settled districts have the PPC and the Cr PC, with police , magistracy, and a High Court.

Israr Muhammad Khan, an officer of the Police Service of Pakistan, was a tribal Shinwari. He rose to command the Frontier Constabulary, and is since, lamentably deceased. He read a paper at the Administrative Staff College, where he was doing a command course in 1993, in which he thoroughly castigated the FCR as bad law and a denial of "due process." He said that it was an unjust system promulgated by a colonial power, to strengthen a cruel social system. He was especially critical of FCR 40, which gives the powers of summary arrest and detention to the political agent.

Secondly, the border with Afghanistan is not defined. There is a line of control called the Durand Line, which is presently the working border. This is as untidy as it can get. The Afghans claim some areas, and we claim some of theirs. The matter has not been resolved, as it suits both the countries. The Afghans want full and free access to a more prosperous Pakistan, and we are sold on the 'strategic depth 'theory. Pre-9/11 it was okay, but the ball game has changed drastically since then.

Thirdly, whereas FATA has representation in both the National Assembly and the Senate of Pakistan, there are no corresponding democratic institutions like the local bodies system in FATA/PATA areas. Democracy should be a package, not based on ad hoc political expediency.

Fourthly, FATA/PATA is administered through an archaic 'jirga system" where disputes are settled through consultations between tribal elders of the plaintiff and the defendant. There is no forum of appeal and the decision is enforced by collective force. It is well-known that the more powerful tribe gets the decision in its favour. It is said that this is based on ancient tribal 'riwaaj.' The funny part is that many of these tribal elders use mobile telephones to consult each other! What ancient practices are we talking about?

The Jirga system is nothing more than a ploy to continue with the status quo.

Fifthly, the FATA/PATA power structure of the 1950s and 1960s was thrown out when the Malik was replaced by the Mullah in the Afghan war days. This was done by the Pakistan-USA nexus of that time. In the recent past, the Tehreek-e-Taliban Pakistan has either killed or sidelined the remaining pro-Pakistan Maliks. So now we have a serious leadership vacuum.

The charter of democracy signed by Mohtarma Benazir Bhutto and Mian Nawaz Sharif in London in May 2006 states in article 8 that FATA will be included in the NWFP province. The PPP manifesto issued before the February 2008 elections has a long list of steps to be taken with regard to FATA, keeping in view the problems that have arisen there. It says that all laws in effect in Pakistan shall be extended to FATA, along with the Political Parties Act. All elections would be on the basis of adult franchise. Also, regular courts would be established under the overall jurisdiction of the Supreme Court of Pakistan and that there would be a general uplift of health, education and welfare facilities. The PPP had moved the Supreme Court in this regard.

The PML-N manifesto is silent about the issue. But two coalition parties, the MQM, and the ANP, are agreed on the inclusion of FATA/PATA into the mainstream of national life. It is often said that the tribal areas joined Pakistan in1947 on condition that their special status would remain unchanged, and therefore it would be illegal for the government of Pakistan to change their status now, that we are bound by treaty obligations to stay with the present dispensation. But much water has flown down the Kabul River since 1947, and treaties can always be abrogated and renegotiated. FATA has lawmakers in parliament who represent the will of the people. So we should put the political process in gear and move on.

The people of Pakistan are feeling vandalized and betrayed. The daily incidents of bombings, kidnapping for ransom, gun-running, and narcotics smuggling are rightly or wrongly being seen as emanating from the FATA region. Basic structural changes need to be effected. In a democracy the ruling party has both the power and the mandate to initiate far-reaching reforms. It is therefore incumbent on the PPP to initiate action to operationalize its election promise regarding FATA.

The writer is a former director-general of the FIA. Email: mohibs143@yahoo.com