25.08.2013

The status of Fata
Despite promises that the process of reforms in Fata would continue to integrate tribal people into the mainstream of national life, the reality is so far removed
By Ashrafuddin Pirzada

Amendments in the Frontier Crimes Regulation (FCR) on August 12, 2011 were no small event in the history of the Federally Administered Tribal Areas (Fata) of Pakistan.

The reforms package came after years of deliberations by legal experts and political workers from Fata to improve the FCR, which would eventually bring the people of Fata into the national mainstream — by securing their legal, constitutional and basic human rights.

The 2011 FCR reforms, promulgated by the PPP-led government, included the extension of Political Parties Order (2002) which was not only warmly received by much of the Fata people but was accompanied by the demand for speedier changes to the century-old set of British-era legal regulations.

While the overarching structure of the FCR and its legal concepts remain intact, some of the changes introduced in the 2011 reform package were: protection of women and children under the age of 16 and tribesmen above the age of 65 from arrest and detention under the FCR act of “collective responsibility” clause; prohibition against arresting an entire tribe under the “collective responsibility” clause; appellate authority power to review and revise decisions and orders; provision for an independent appeals process; strengthening of the newly-established Fata Tribunal; reference to “Qaumi Jirga” (council of elders); fixed time limits for the disposal of cases; power to transfer cases to the assistant political agent; introduction of the concept of bail; introduction of jail inspections; fines on communities in the case of murder; acceptance of local customs and traditions; checks on arbitrary powers to arrest by the political administration; compensation for false persecutions; audit of political agent funds by the Auditor General of Pakistan.

Although the FCR amendments were viewed by many as insufficient and additional reforms continue to be demanded, it was hoped that if the 2011 reforms were implemented in their true spirit, the reforms package would bring about a positive change to the existing governance system in Fata.

But, these aspirations of the people of Fata are far from being fulfilled.

More than two years since the enactment of 2011 reforms, political agents across Fata continue to wield unbridled powers and tribal people are still waiting for justice. Thousands of diverse cases await disposal at the offices of the political administration while the concerned officials fail to show any interest in addressing them on a speedy basis, as is advised in the 2011 reforms package.

Hundreds of tribesmen are waiting to get their civil documents like domicile, Nikahnama, birth and death certificate etc. issued but the political muharrers in Fata and FRs (Frontier Regions) either do not know how to prepare these documents or are not willing to serve dozens of applicants.

Zahir Shah Afridi, senior journalist based in Khyber Agency, says none of the reforms brought in 2011 were implemented in Fata, except the Political Parties Act, in the 2013 elections.

“Hundreds of appeals against false judgments issued by the political administration are filed with the newly-established Fata Tribunal on weekly basis, yet the locals have seen not a single case whereby an aggrieved party has been compensated,” Afridi tells TNS.

Wali Muhammad Shinwari, chief executive of Rural Community Development Organisation( RCDO) says lack of awareness about reforms in FCR is the main hurdle in its implementation. “Tribal people have no clear idea about the reforms,” he further adds that the political administration has not formally implemented reforms because “a few days ago the Khyber Agency administration arrested a child of 9th grade during search operation in Jamrud subdivision.”

Shinwari says awareness sessions and seminars across Fata are being held to build consensus to pressurise the concerned authorities to implement reforms in full spirit.

According to the political party leaders and some of the local elders, despite recommendations in the 2011 reforms package, political agents are either not ready or not willing to surrender the powers.

A hand-picked pro-government tribal Maliks continue to enjoy political privileges. In fact, they consider the 2011 reforms as infringement on the privileges they receive from the political administration. As a result, many Maliks oppose changes to the FCRs and the extension of the Political Parties Order. They supported independent candidates in the May 2013 general elections.

Malik Darya Khan, who belongs to Zakhakhel Afridi tribe and is a Awami National Party (ANP) leader, says the Fata people are still victims of the draconian British-era regulations.

On the other hand, some pro-administration tribal elders are awarded a majority of the development funds allocated to the region via the Fata Secretariat and elected Fata members of the National Assembly. The political agents in Fata rely solely on this closed group of local allies to resolve all major tribal issues.

Further, the political agents rely on the much-abused system of “nomination” (selecting preferred contractors) and ignore prescribed rules for inviting open tenders for all development projects. Many of these contractors are the same pro-administration elders mentioned above and are more than happy to engage in quid pro quo to secure their share of development projects. As a result, the quality of construction for most development projects is poor. In some cases, projects only exist on papers while no work is actually done on ground.

Tribesmen welcomed the exemption of elders from arrest under the FCR “collective responsibility” clause. They were equally pleased with the new prohibition on sealing or confiscating residential and commercial property under the same clause. Unfortunately, however, tribesmen are still intimidated and penalised under this notorious and abused clause.

Prior to the announcement of the 2011 reforms package, the President of Pakistan, Asif Ali Zardari enacted another regulation on Fata governance. In June 2011, the Actions in Aid of Civil Power Regulation was decreed, thereby empowering security forces to arrest any tribesmen on suspicion of his or her association with an outlawed militant group or suspicion of involvement in any terrorist-related act.

The promulgation of this Civil Power Regulation cancelled the prohibition against arresting elders as was enacted in the amended FCR “collective responsibility” clause. In the intervening years, a number of Fata people have disappeared, whose relatives are still searching in vein for clues as to their loved one’s whereabouts.

Local political party leadership has also been unable to see the benefits of 2011 reforms, perhaps due to the strong opposition from the Fata status quo supporters.

Besides, the political leadership feels insecure in the current law and order situation and therefore rarely organises meetings or assemblies.

Akhunzada Chattan, former MNA from Bajaur Agency, says low levels of literacy and political awareness have also meant that most of the Fata residents are not aware of the 2011 reforms package or its detailed contents.

He says this political ignorance can be gauged from the fact that six out of the ten MNAs elected from Fata in 2013 were independent, not belonging to any political party. After the elections, he says, one independent MNA from North Waziristan joined PML-N while the remaining five chose to remain independent, pledging to work for strengthening the existing “tribal system”.

Despite assurances in the 2011 reforms package, the government has thus far failed to conduct an impartial audit of the funds accumulated and utilised by political agents in Fata. Neither do tribesmen in the area have access to administrative records nor are they permitted to challenge powers of political agents regarding the utilisation of funds.

Tribal elder Malik Ikramullah Jan alleges that corruption at all levels of the political administration is rampant. “The Khasadar and levies forces are not concerned. They fleece local residents at security checkpoints rather than provide security to the local people,” he says.

Jan says it is no secret that the money collected by Khasadar forces at the security checkpoints is distributed among political administration officials, while this collection is supposedly for the Agency Development Fund. “No receipts are issued for money collected,” he adds.

It is also no secret, Ikramullah Jan says, the post of political agent is auctioned and rewarded to the highest bidder.

Mosam Khan, PML-N central council member, says the condition of lock-ups and prisons in several agencies is pathetic — as prisoners are often kept in inhuman conditions, provided sub-standard food and provided limited access to medical facilities. “There is no centralised jail facility in any part of Fata and all prisoners are sent to Peshawar, Haripur, D.I. Khan or other central prisons in settled districts,” he says.

He adds an independent committee of local elders, media persons and political leaders should be constituted to regularly report on the reforms being implemented.

The PML-N leader says Pakistan Electronic Media Regularity Authority (PEMRA) laws have not been extended to Fata and thus it is not permissible to publish any newspaper or journal in the tribal areas. “This is an obvious affront to the democratic principles of access to information and freedom of speech,” the PML-N leader adds.

To guarantee basic human rights and fundamental constitutional rights in Fata, urgent action must be taken to ensure the true implementation of the 2011 Fata reforms package and the enactment of substantial additional reforms for the tribal areas.

Contrary to the views of the political leaders, tribal elders and civil society members, assistant political agent in Khyber Agency, Jahangir Azam Wazir, tells TNS they have directed the administration staff to follow the reform package. “We are producing arrested persons in court within 24 hours. We are avoiding arrest of elderly persons and children less than 16 years of age.”