Future indefinite: The debate over change in Fata's status

Hameedullah Jan Afridi was an independent candidate in the 2013 general election for NA-46, a National Assembly seat from the tribal area of Bara. He secured 3,342 votes, coming third to Nasir Khan, who secured 4,135 votes.

Afridi moved an election tribunal against the result, alleging the ballot in his constituency was rigged. The tribunal took “a year and a half” to reverse the election result in his favour.

His celebration was short-lived. His opponent moved the Peshawar High Court, which initially suspended the tribunal’s order and later set it aside in October this year.

Afridi intends to challenge the high court’s verdict in the Supreme Court. “Courts in the settled areas have taken more than three years to decide the case,” he complains. Even if the apex court takes half as much time to decide his planned appeal, his opponent will have completed his five-year term in the National Assembly by then.

Compared to such drawn-out legal processes, the traditional jirga system in place in the Federally Administered Tribal Areas (Fata) seems to be delivering a speedier justice. Even complex murder cases are resolved in just a few weeks.

Even though all major political parties – except JamiatUlema-e-Isam-Fazl – favour the merger option, many tribesmen likeAfridi remain unconvinced.

That, says Afridi, a native of Bara tehsil of Khyber Agency, is the strongest reason why Fata should stay a separate and special constitutional entity – as it always has been – with its separate and special legal and administrative system. Extending the jurisdiction of the courts, police and land revenue department (of the settled areas) into Fata will push the tribal areas into the hands of the same corrupt administrative and judicial system that has failed in the rest of Pakistan, he argues.

Afridi was a senator between 2003 and 2007. He was elected as a member of the National Assembly in 2008 for a five-year term; he also served as a federal minister between 2008 and 2011. By virtue of these credentials, he seems to have an insider’s knowledge of the system.

Afridi also cites a telling example to back his argument. The princely state of Swat had its own prompt system of justice and mediation. This was replaced with a mainstream policing and court system after the state’s merger with Pakistan. The replacement eventually became a major reason why people in Swat initially supported the Taliban between 2007 and 2009, he says.

Afridi is heading the Fata Grand Alliance, an informal association of prominent people from the tribal areas. And he is a staunch opponent of the recommendations made by the five-member Fata Reforms Committee, formed by Prime Minister Nawaz Sharif, in November 2015. The committee is headed by Sartaj Aziz, Sharif’s Advisor on Foreign Affairs. Its other members are: Khyber Pakhtunkhwa governor Iqbal Zafar Jhagra, federal ministers Abdul Qadir Baloch and Zahid Hamid, and National Security Advisor Lieutenant General (retired) Nasser Khan Janjua.

The committee had many proposals on its agenda: merge Fata with Khyber Pakhtunkhwa; make Fata a separate province; create a Fata council similar to the one in Gilgit-Baltistan; change Fata’s existing administrative and judicial system, without changing its administrative status.

The committee visited each of the seven tribal agencies for consultations and came out with an 80-page report on August 8 this year. Its conclusion: most people the committee consulted wanted Fata’s merger with Khyber Pakhtunkhwa. This way, the committee noted, “Fata will cease to be a semi-governed ‘no man’s land’ between Afghanistan and Pakistan.”

Even though all major political parties – except Jamiat Ulema-e-Isam-Fazl – favour the merger option, many tribesmen like Afridi remain unconvinced.

He says the committee has no legal standing to begin with. Only the president of Pakistan, under Article 247 of the Constitution, is empowered to institute an official entity concerning Fata. The federal government does not have that authority. Secondly, not a single member of the committee is a native of the tribal areas, Afridi adds.

The traditional jirga system in place in the Federally AdministeredTribal Areas (Fata) seems to be delivering a speedier justice.

Also, since the political administration of each agency arranged meetings between tribesmen and the committee members, these consultations – many in Fata argue – cannot be representative of the people’s wishes.

Abdullah Malik, a 25-year-old resident of Gandhab area in Mohmand Agency, remains sceptical about the consultation process. He joined a youth delegation to meet the committee in Ghalanai, the headquarters of Mohmand Agency, on January 1 this year. However, he claims, he was not allowed to get into the meeting room. “I was forcibly stopped at the entrance and told that only those with an invitation from the political agent’s office could go in.”

Raham Sher Rehan, a resident of Ghalanai, did make it inside the hall. He says the youth delegation was small, consisting only about 20 people. This bothers Malik: how can 20 people, that too chosen by the political agent’s office, speak for all the youth of a tribal agency?

Maaz Khan, 24, is a television channel’s correspondent in Bajaur Agency. While covering the earthquake of October 26, 2015, he met some victims of the disaster in his native area who, contrary to the official claims, said they had received no relief goods. His subsequent news package did not paint a particularly flattering image of the political administration.

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A day after the package was broadcast, Khan was covering a visit by Jamaat-e-Islami chief, Sirajul Haq, to Bajaur Agency. As he stood listening to Haq’s speech, he felt a firm hand on his shoulder. An official of the political administration wanted to speak to him. “I told him that I would see him at his office once my work was finished, but he forced me out of the gathering.”

Khan was not taken to the political agent’s office. Instead, he spent the next three days in a lock-up without any judicial hearing. His crime: twisting facts in his news reports.

A couple of weeks later, the authorities arrested his father under the Frontier Crimes Regulation (FCR), a set of laws chalked out by the British colonisers at the start of the 20th century. The laws, that continue to govern Fata to this day, provide for ‘collective’ responsibility – and ‘collective’ punishment – for the acts of individuals.

The reason for his father’s arrest was something Khan was responsible for: objectionable posts on his Facebook page, which he often used to highlight Bajaur’s problems.

Khan was in Islamabad at the time. He rushed back to Khar, Bajaur Agency’s headquarters, to secure his father’s release. “I presented myself before the political administration, so that my father could go home.” The authorities refused to oblige. “They wanted to torture me mentally,” says Khan.

Tribesmen interviewed in Mohmand and Bajaur agencies also complainabout having to pay taxes that they believe are illegal.

His father was released five days later, but only after Khan’s brother replaced him in the lock-up. Khan has deactivated his Facebook page since then.

His story highlights what many commentators on Fata have pointed out for decades: the justice system in the tribal areas may be swift but how fair can it be with its provisions for collective responsibility or punishment?

Sipah is a subtribe of Afridis. Its members are natives of Bara tehsil. When, in the late 2000s, a Sipah member, Mangal Bagh, launched his terrorist activities under the banner of Lashkar-i-Islam, the military authorities carried out a series of operations in Bara to flush him out.

Sipah tribesmen had to leave Bara in September 2009 to live as internally displaced persons in Peshawar and in Jallozai camp in Nowshera district. They were set to go back home in October this year but were told by the authorities that they could not until they paid 12 million rupees – a collective fine – for an attack on a military convoy in the Spin Qabar area in October 2014.

They protested the fine – imposed under the FCR’s collective territorial responsibility clause – saying it was illegal because they were living in camps when the attack took place. The authorities rejected their point of view. They went back home only after they had paid the fine, says Afridi.

Tribesmen interviewed in Mohmand and Bajaur agencies also complain about having to pay taxes that they believe are illegal. Often, if not always, the money collected through taxes goes into the personal pockets of the tribal administration officials rather than to the national exchequer, they allege.

A tribesman in Khar says the political administration charges 7,200 rupees from each truck carrying 720 sacks of sugar before allowing it to enter Bajaur. He wants to be identified by a pseudonym, Gul, to avoid getting into trouble with the administration. Every minitruck transporting chickens into the agency also pays 2,500 rupees to the officials, some other residents allege.

The strangest of the levies is the one imposed on a bridegroom who weds outside Bajaur Agency. He has to pay 1,000 rupees to bring his wife home, claim tribesmen.

There are multiple administrative and legal problems in how Fata is run under the FCR, including undue fines, taxes and corruption among officials, Afridi acknowledges. But this does not convince him to support something entirely new.

The tribesmen have been living under the FCR for the last 115 years but they have been living under an unwritten tribal code – rivaj – for over 3,500 years, he says. This tribal code should not be compromised in order to repeal the FCR, he adds.

Critics fear that a merger will deprive Fata of 18 billion rupees thatthe federal government provides for development every year.

Afridi believes rivaj can be used as the new law in Fata after the FCR is revoked. “It is not an uphill task to convert rivaj of every tribal agency into a written document,” he says. “The tribesmen of Kurram Agency have [already] written down their rivaj.”

Fata is a combination of seven agencies and six frontier regions and each of them may have its own rivaj; frontier regions are already partially under the administration of their adjacent Khyber Pakhtunkhwa districts. But Afridi is dismissive of the differences. “Rivaj is nearly the same in all agencies,” he states. It is mainly due to his support for rivaj that he advocates making Fata a new province. He also proposes a referendum to let the people of Fata decide if they want the merger with Khyber Pakhtunkhwa or a province of their own.

Geography may be a hindrance to Fata becoming a province, points out Muhammad Ijaz Mohmand, a Peshawar-based tribal lawyer. The tribal agencies are not contiguous, he says. “For example, if the provincial capital of Fata is located in Mohmand Agency, it will be difficult for the people of Wana [in South Waziristan] to get there without passing through the settled areas of Khyber Pakhtunkhwa.”

Mohmand says the reason why the Fata Secretariat – the department overseeing the administration of the tribal areas – is based in Peshawar is that it cannot be based in any of the seven agencies. Base it in one agency and each of the other six will be unhappy, he says.

Fata has an oversized representation in federal legislature: eight senators (out of 104) and 11 members of the National Assembly (out of 342). That maybe lost with the merger. All the senate seats will disappear and the number of National Assembly seats will come down, in order to bring their population and number of voters on par with other constituencies in Khyber Pakhtunkhwa.

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Proponents of the merger say Fata senators only have a symbolic presence, in any case, because the Senate does not make laws for Fata. And what the areas will lose in decreased representation in the National Assembly, they will gain by having their representation in the provincial assembly. “The people of Fata will be able to elect their representatives for the Provincial Assembly of Khyber Pakhtunkhwa,” observed the Aziz-led committee.

Critics fear that a merger will deprive Fata of 18 billion rupees that the federal government provides for development every year. Afridi says the merger will, therefore, leave Fata worse off than even the neglected southern districts of Khyber Pakhtunkhwa.

The other side turns the objection on its head. Fata’s merger with Khyber Pakhtunkhwa will make the combined new territory the second largest province in the country, they claim, allowing it to have a big share in the National Finance Commission Award. There will be more money for everyone in the province, they argue.

With such arguments and counterarguments, the debate about Fata’s future remains inconclusive — notwithstanding the official committee’s recommendation.

An earlier version of this article was published in the Herald's December 2016 issue. To read more subscribe to the Herald in print.