Reforms for Countering Militancy in FATA

There is a growing realization that apart from our decades of abuse of religion for politics that resulted in the rise of militant religious and linguistic groups in the country at the cost of real political parties, systematic denial of fundamental rights and legalization of criminal activity through laws such as the Frontier Crimes Regulation (FCR) has also led to FATA becoming a safe haven for the mercenaries of all descriptions and hues. The FCR dates back to the times of the British Empire and was promulgated in its present shape in 1901.  The said regulation advocates collective punishment and children as little as two years have been convicted under the draconian FCR that contravenes all principles of human rights[i].

The act has been condemned by senior judges including noted Pakistani Supreme court judge Justice A.R Cornelius as “obnoxious to all recognized modern principles governing the dispensation of justice” in the case of Sumunder vs State (PLD 1954 FC 228). The British devised the FCR as an instrument of subjugation. It was meant to discipline the Pakhtoon population and to establish the writ of the colonial authority. In drafting the regulation, the British relied upon some customs and traditions prevailing in the tribal belt, but these traditions were distorted to suit the government’s plan of securing convictions at will.[ii]

Article 247 of the Pakistani Constitution denies all fundamental rights to the residents of these areas by providing that no Act of Parliament applies to FATA, unless the president so desires.

It is in this context that the International Crisis Group’s latest report entitled, “Pakistan: Countering Militancy in FATA” that came out on 21^st of October 2009 advocates comprehensive economic and political reforms for FATA to rehabilitate the life of its people and to eradicate militancy.

“The military operation in South Waziristan is unlikely to succeed in curbing the spread of religious militancy in the Federally Administered Tribal Areas (FATA), unless the Pakistan government implements political reforms in that part of the country.” says the ICG media release.

The report examines the Talibanisation in FATA, and argues that only reforms that encourage political diversity, enhance economic opportunity, and guarantee civil and political rights will address the problem. Pakistani Taliban groups have gained significant power in the tribal agencies, seven administrative districts bordering on Afghanistan. While state institutions in FATA are increasingly dysfunctional, the militants have dismantled or assumed control of an already fragile tribal structure. This encroaching Talibanisation is not the product of tribal traditions or resistance. It is the result of short-sighted military policies and a colonial-era body of law that isolates the region from the rest of the country, giving it an ambiguous constitutional status and denying political freedoms and economic opportunity to the population. While the militants’ hold over FATA can be broken, the longer the state delays implementing political, administrative, judicial and economic reforms, the more difficult it will be to stabilise the region.

The fundamental thesis of the report is that military action alone cannot ensure a long-term change and eradication of militancy and terrorism that is sending shock-waves throughout the country.

The report makes the following important recommendations to the Government of Pakistan for a long term strategy to stem the rising tide of militancy.

1. Repealing the 1901 (FCR) Frontier Crimes Regulation and entirely replacing it with Pakistan’s  Criminal Procedure Code, in accordance with Article 8 of the constitution and internationally accepted human rights standards, including prohibition of collective punishment.

2.  Extend full provincial rights to FATA by merging it with NWFP, in turn:

a) merging the Frontier Regions adjoining Bannu, Dera Ismail Khan, Kohat and Peshawar districts with their connected districts;

b) allocating seats for FATA’s seven tribal agencies in NWFP’s provincial assembly, with constituencies delimited by population, and devised after extensive consultations with stakeholders;

c) allowing the NWFP provincial assembly and the National Assembly (lower house of the national parliament) to legislate FATA policy;

d) eliminating the role of tribal jirgas (councils of elders) to hear civil and criminal cases, and establishing civil and criminal courts at the subdistrict and district levels, presided over by civil and criminal judges;

e) allowing defendants the right to legal representation and appeal to higher courts, and extending the jurisdiction of the Peshawar High Court and the Supreme Court to FATA; and

f) abolishing the FATA secretariat, the FATA Development Authority, and the office of the political agent, and transferring their authority to the NWFP secretariat, relevant provincial line ministries and district departments.

3.  Establish a uniform judicial system across NWFP by repealing the Nizam-e-Adl 2009 that imposes Sharia (Islamic law) on NWFP’s Provincially Administered Tribal Areas (PATA), and fully incorporating those districts into the provincial and national justice system.

4.  Prioritise relief and rehabilitation to FATA’s internally displaced persons and engage in broad consultation with local and provincial leaders on a plan for relief, future reconstruction and resettlement with the goal of sustainable provision of public services, economic infrastructure and citizen protection through civilian led law enforcement and judiciary.

5.  Disband khassadars (tribal police) and levies (official tribal militias) and absorb their members, after requisite training, into the NWFP police force, while strengthening the capacity of civilian law enforcement agencies to maintain law and order in the tribal agencies and the bordering Frontier Regions as well as NWFP’s settled districts.

6.  Disband all lashkars (private militias) immediately and take action against any member guilty of abusing civilians’ rights.

7.  Encourage private investment and economic growth by:

a) developing the physical structure of the tribal agencies, including viable road networks, farm-to-market roads as well as energy and irrigation projects;

b) facilitating interest-free loans and removing restrictions on lending to FATA residents;

c) while the FCR remains in force, preventing any legal action against small and large businesses under the collective responsibility clause in FATA and NWFP, including forced closures, seizure of property and economic blockades against tribes;

d) enabling private asset formation by implementing land reforms to partition collectively owned property and establish legal individual ownership through a transparent process, enforceable by regular courts; and

e) strengthening FATA’s public education system to make FATA’s students nationally competitive by raising teacher salaries in tribal agencies to higher levels than elsewhere in the country, improving school facilities, and inculcating strong written and verbal English-language skills.

f) Prioritize relief and rehabilitation of FATA’s IDPs.

We know that the present government already in 2008 has expressed its intention to launch reforms in the FATA. It is about time we go ahead with a meaningful debate in the Parliament leading to a majority vote on a proposed reform package to extend economic and political rights to the brutalized and bruised population of the terror-stricken FATA.

[i] NewLine Deceber 204 Report at http://www.newsline.com.pk/NewsDec2004/newsbeat1dec.htm

[ii] As above

Written By: Shahzada Sultan. The writer is a law enforcement professional working in the field of International Law and Justice. Currently, he is working at the Office of the Prosecutor (OTP), the UN International Criminal Tribunal for Former Yugoslavia, the Hague, the Netherlands. His e-mail address is yourshahzada@gmail.com

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