Understanding FATA | Past, Present and Future

Understanding FATA

A region of unique strategic importance in terms of its impact on the security and stability of the region, Pakistan’s Federally Administered Tribal Areas (FATA) serves as a bridge between Pakistan and Afghanistan. This mountainous region has been considered the epicentre of international terrorism and the international community seems extremely concerned about how to deal with the situation here. Although FATA is an integral part of Pakistan, yet its political and administrative mechanism is quite different from rest of the country.

Situated along the Durand Line, the FATA region, a wedge of rugged terrain, dotted with sparsely populated valleys, home to a dozen Pakhtun tribes and hundreds of clans and sub-tribes, has gone through many wars waged by the foreign invaders for more than two millennia, at least from the times of Alexander the Great who merged it into his Macedonian Empire. The last non-Muslim ruler of this tribal belt was Raja Jaypal who was defeated by Mehmud Ghaznavi and this was the time when the region came under Muslim rule. The Mughals, Durranis and Sikhs also held military sway over this region but they hardly introduced any reforms.

Enter the British

The British merged the Sikh dominions into their Indian Empire completely by 1849. In the wake of the Great Game between Britain and Russia, the former saw control over FATA and Afghanistan as essential to contain the southward spread of the Russian Empire. But due to repeated failures, the British settled for Afghanistan and North West Frontier Province (Now Khyber Pakhtunkhwa) as a buffer zone between their Indian dominion and Russia. The colonial masters oversaw but never controlled the region and if one is to truly understand why it was so, one must be familiar with the tribal structure and complementing traditions of FATA.

Administrative System under the British

1. Early Measures

The British had authority only over matters related to security of British India while the tribes were free to settle their internal matters on their own. Some tribes cooperated in return of financial incentives but such arrangements couldn’t achieve anything substantial. Some measures such as the laying down of railway lines to deploy troops, when needed, failed as they faced fierce resistance.

Frustrated in their efforts to subdue the region, the British, in 1901, introduced a series of laws, called the Frontier Crimes Regulations, during the 1870s. These regulations endorsed tribal customs and empowered tribal leaders to keep the border passes open for strategic and economic purposes. The arrangement proved inadequate as is evident in the 1897-98 tribal wars.

2. The 1901 FCR

In 1901, a new FCR was issued which expanded the powers of administrative officials and cut off the region from legal and criminal procedure developments elsewhere in British India. In order to better govern the region, two new systems — Political agents and Maliks — were introduced but they allowed the British only a weak control over the area.

Why FCR is a Black Law?

FCR is called a black law mainly due to the provisions that violate the human rights. Some clauses repugnant to the standards of humanity and contradictory to the constitution of Pakistan are as follows:

1. Collective Responsibility: Whole family or tribe was punished for wrongful acts of an individual.
2. Limitation of Freedom of Movement: People arrested or detained could not cross the borders of FATA to enter settled districts.
3. Seizure of Property: Private Property of the locals could be seized by the government.
4. Arrest and Detention: Residents could be arrested without specifying the crime. Moreover, they could be detained for an indefinite period.
5. No Right to Appeal: Decisions of the Jirga were final, and could not be appealed against before any higher authority.

Constitutional Status

FATA is divided into 7 agencies and 6 frontier regions named after the settled districts adjacent to which they lie:

Tribal Agencies        Frontier Regions
1. Bajaur Agency    1. FR Peshawar
2. Mohmand Agency    2. FR Kohat
3. Khyber Agency    3. FR Bannu
4. Orakzai Agency    4. FR Lakki Marwat
5. Kurram Agency    5. FR Tank
6. North Waziristan Agency    6. FR Dera Ismail Khan
7. South Waziristan Agency

The executive authority of the federal government extends to FATA. Specifically, the following measures are in place:

1. Governor Khyber Pakhtunkhwa exercises federal authority on behalf of the President of Pakistan.
2. No representation of FATA in KP’s Provincial Assembly.
3. 12 members in the National Assembly and 8 members in the Senate.
4. Laws passed by the NA do not apply to FATA unless ordered by the President.
5. President has the authority to issue regulations for peace in, and good governance of, the tribal areas.

Structure of Political Administration

A system is in place for the President and Governor Khyber Pakhtunkhwa to be linked to the tribal areas which are divided into two regions: protected and non-protected. The former are governed by the federal government via its appointees (PA or DC) while the latter are administered indirectly by the local tribes:

1. Political Agents: Each of the seven agencies is administered by a Political Agent who exercises a blend of executive, judicial and revenue powers. He maintains law and order and suppresses crimes and criminal activities in the agency. He also regulates trade, heads the Agency Council and oversees development projects. He is assisted by Assistant Political Agents, Tehsildars, Levies, Frontier Corps, etc.

2. Deputy Commissioners (DC): In any FR, the DC of the adjoining district after which that FR is named has the same authority and responsibilities as the PA has in an agency.

3. Maliks and Lungi-holders: Representatives of tribes and clans are influential members and intermediaries between their tribes/clans and the PA.

Judicial System

High courts have no jurisdiction in FATA and justice is dispensed according to tribal customs:

1. Sarkari Jirga: It is a modified Jirga, implemented in the protected areas. The official political administration plays a vital role in it. Once a grievance has been brought to the PA, initial investigations are conducted and a Jirga is formed by the PA with the consent of the parties involved. The PA examines the Jirga’s decision and may declare it to be final or refer the matter to another Jirga.
2. Qaumi Jirga: This the traditional Jirga implemented in the non-protected areas, is called at the agency level and in this case the state’s role is minimal. Local mediators first try to achieve one of the two things:

a. Tiga: Truce between the conflicting parties.
b. Muchalga: Obtain security in cash or kind for civil disputes.
The parties involved then decide upon the mode of arbitration:
a. Riwaj: traditional law.
b. Shariat: religious law.
The mediators then select a Jirga with the consent of both parties and the Jirga’s decision is final.
3. Large Jirga: Most disputes are managed internally but, at times, a larger Jirga is called which includes Maliks, elders, PA/DC, MNAs, senators and representatives of the neighbouring agency/FR.

Amendments to the FCR

Since colonial times, only the Maliks had the right to vote in elections and the tribal candidates were allowed to contest elections only as independent candidates — no party affiliations. In the 1997 elections, tribesmen were for the first time given the right to vote despite the absence of Political Parties Act.

Frontier Crime (Amendment) Regulations 2011 reduced the severity of “collective responsibility” as women, children and the elderly were exempted from it, granted property rights to the people and forbade detention for an indefinite period of time. The Political Parties Order allowed tribesmen to participate in elections with party affiliations. This was a step in the right direction because integration of FATA into the socioeconomic and political mainstream of the country is essential to curb extremist influence.

Furthermore, a 3-member tribunal appointed by the Governor now acts as the highest appellate body with the authority to review verdicts and set free those found to be detained or arrested illegally.

Major Military Operations in FATA

1. Bajaur Agency: it was a stronghold and recruiting ground of TNSM since the 1980s.
i. US air strikes (2006): several madaris were razed to the ground.
ii. Battle of Bajaur (2008): terrorists took control of key towns after which tribal leaders formed lahskars and fought against the terrorists.
iii. Operation Sher Dil (2009): Pakistani forces were successful and Bajaur was de-notified as a conflict zone in 2012.

2. Mohmand Agency: Targeted after success in Bajaur, to eliminate pockets of militancy, the operation deterred Mullah Fazlullah’s return to Swat after 2010 as a full-scale operation was launched in 2010-2011 and by 2012 the area was declared to be completely under the control of Pakistani military forces.
3. South Waziristan Agency: A theatre of war since 2001, when the US launched Operation Enduring Freedom against the Taliban in Afghanistan forcing the militants to flee from there to SWA.

i. Operation Al-Mizan (2002-2006): Option was successful in the sense that many of Taliban and Al-Qaeda leaders were killed
ii. Operation Zalzala (2008): It was launched after the breakdown of peace accords between TTP and Pakistani forces. Despite having a toll on terrorists operating in SWA, it still left them capable enough to retaliate by increasing their terrorist activities throughout the country in 2008 and 2009.
iii. Operation Rah-e-Nijat (2009): Conducted in collaboration with the US and CIA, this operation disrupted terrorists’ command and control structure and lines of communications. Despite declaration of victory by country’s armed forces, drone strikes in the region continued well into 2012-2013.

4. Orrakzai, Kurram and Khyber Agencies:
i. Operation Khawakh Ba De Sham (2010): This offensive in Orakzai and Kurram agencies against the TTP and TNSM was successful though militants fled to Tirah valley of Khyber agency.
ii. Khyber Initiative (2013): TTP – Lashkar-e-Islam alliance was defeated by the Pakistani forces.

5. North Waziristan Agency: The ongoing Operation Zarb-e-Azb (2014 onwards) has been quite successful, the evidence being a decrease in terrorist incidents over the past two years but it is all going to be for naught if there is no complementary effort in the areas of human capital development and provision of economic opportunities.

Problems due to War in FATA

Several security-related and socioeconomic issues have come to the fore since the beginning of the offensive against the militants in FATA; most prominent being the issues of resettlement of the IDPs, financial compensation to militancy-and-war-hit people.

FATA Reforms

The recent formulation of a FATA Reforms Committee by the PM and the submission of a draft Bill of the 22nd amendment to the Constitution of Pakistan for the same reforms purpose is a welcome step and the reforms need to address four main areas:

1. Security Concerns: Pakistan shares a highly porous border with Afghanistan and FATA has often served as a transit point for those who cross the border illegally with or without malicious intentions towards Pakistan. A proper border security force needs to be formulated and stationed along the 350 km long international border to prevent unauthorized cross-border movement.

2. Political Reforms: The people of FATA do not have any representation at the district or the provincial levels. Their interests are guarded solely by the 12 MNAs and 8 Senators they have. A proper local government system needs to be in place so that public service delivery can be made efficient and effective. Moreover, FATA’s residents should be given representation in the KP provincial assembly and the jurisdiction of the laws passed by the Parliament should also extend to the region so that legislation can move from the hands of KP’s Governor and the President to people’s representatives.

3. Judicial Reforms: While the Jirga can be run parallel to the judicial system in the short run (like the Panchayat and Musalihat Anjumans work in other areas of Pakistan under the Local Government Ordinances), the judicial customs and system can be gradually phased out to make way for extending the authority of the Superior Courts of Pakistan to FATA.

4. FATA Merger or Independence: To bring FATA into the socioeconomic mainstream, there are 3 options and before going ahead with any of them, it is essential to conduct a referendum in FATA to take into account the will of the people.

I. Make it an Independent Province: some of the most pressing conditions that a region needs to satisfy before it is made a separate province are generating enough revenue to support its expenditure, the balance between the increase in administrative costs and greater public service delivery, etc. FATA is a region marred by terrorism and its economy is in shambles to say the least. If made a separate province, it is not unlikely that FATA shall crumble under its own economic, administrative and security burdens.

ii. Merge it with PATA: The Provincially Administered Tribal Areas (PATA) have their own set of problems due to which merging FATA with it shall be no more than a half measure. Firstly, the Parliament cannot legislate for PATA and thus the political motive of the reforms shall be defeated if this merger takes place — it is through the Governor KP that laws are extended to PATA. Secondly, some laws regarding income tax and GST do not apply to PATA and thus FATA shall again be exempted from complete taxation while it will enjoy all expenditure privileges thus becoming an additional burden on the finances of KP. Finally, the local government bodies constituted in PATA under the KP Local Government Act 2013 enjoy a share in the PFC award while the areas are exempted from certain taxes.

iii. Merge it with KP: This seems to be the safest bet since it is not a half measure. The province shall have full jurisdiction over the area being added to it, the Parliament’s legislation shall extend to the region, people shall have representation at the provincial level, the Peshawar High Court’s jurisdiction shall also extend to the area (which would be cheaper in terms of administrative and transport costs as compared to the costs incurred by people if the Islamabad High Court were to be given jurisdiction instead).

It is essential to mention at the end that the infrastructure in FATA needs to be developed along with the aforementioned socio-political and judicial reforms, and that our civil-military leadership needs to collaborate on this and ensure quick implementation of the reforms, taking advantage of and consolidating the benefits accruing from the decades – long military operations. Otherwise all the struggle and plight of the people of FATA shall amount to nothing and we shall be back to square one.

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