Why the most ambitious initiative to change Fata’s status is put on hold

Afridi tribesmen gather on a May morning at a hujra in Khyber Agency’s Bara town. The mood of the gathering is celebratory as the participants pat each other’s back on successfully resisting an attempt by the Peshawar Development Authority (PDA) to acquire a chunk of local land just south of Peshawar’s Hayatabad area.

Sitting at the centre of the assembly is 48-year-old former federal minister Hameed Ullah Jan Afridi. As he lights a slim cigarette, one of his fellow tribesmen explains: an investor from Swabi approached the locals to buy about 1,200 acres of land to develop it into a university and a housing scheme; although it was a private initiative, the tribesmen were certain that the PDA was behind the offer since it had been planning to extend Hayatabad into the tribal lands for quite some time.

Spurred on by Hameed Ullah, who has been a member of the Senate and National Assembly in the recent past, the locals refused to sell the land even when Khyber Agency’s political agent (PA), the highest civilian officer in the agency, pressured them to agree to it. When their heated exchanges with the investor threatened to escalate into violence, the authorities stepped back.

“It was as if they were trying to absorb us,” comes a booming voice from one side. It belongs to Sabir Alam, a middle-aged man of huge build, with a walking stick in one hand and prayer beads in the other. “They wanted to buy us off with plots in this residential scheme of theirs,” he says. “But when all this land is ours, why would we give it away to settle for a plot?”

For the last 20 years, Alam has been running a small shop on the Peshawar side of the boundary that separates Khyber Pakhtunkhwa province from Khyber Agency. He claims that officials in the settled areas – a term that distinguishes the province from the Federally Administered Tribal Areas (Fata) – discriminate against him. “Just because I am from the tribal areas, I have been picked up on several occasions over false charges,” he says, turning his prayer beads faster. “The people of Khyber Agency are not even allowed to enter Peshawar during Muharram,” adds another tribesman at the gathering.

The complaints being made echo a bigger question: does Fata have a future as an autonomous region?

In November 2015, the federal government set up a six-member committee to find an answer to the question. Headed by then adviser to the prime minister on foreign affairs Sartaj Aziz and consisting of the Khyber Pakhtunkhwa governor, federal minister for law, federal minister for states and frontier regions (Safron), federal secretary for Safron and the national security adviser, the committee held meetings with a large number of people across Fata and submitted its findings in August 2016. It recommended without any ambiguity that the tribal areas be merged with Khyber Pakhtunkhwa.

Alam strongly disapproves the idea of a merger and sees it as a threat to tribal culture. “Discarding a way of life we have maintained for centuries is the same as burning the blanket to kill the louse.”

The semi-autonomous Fata was created as a buffer zone between Afghanistan and British India in the 1890s. Today, the areas consist of seven agencies – Bajaur, Mohmand, Khyber, Kurram, Orakzai, North Waziristan and South Waziristan – and six frontier regions that separate the agencies from the settled districts of Khyber Pakhtunkhwa. The tribal areas are home to more than five million residents, as per the latest census data, and, growing at an annual rate of 2.41 per cent, this population remains overwhelmingly rural at 97.17 per cent. According to the 1998 census, more than 55 per cent of it consisted of people under the age of 19.

Only 675 doctors (one for every 7,409 people), 1,605 hospital beds (one for every 3,116 people) and 32 healthcare facilities (one for every 156,302 people) existed in Fata in 2013. There were about 3,700 schools and 33 colleges in Fata till 2013 and the literacy rate, according to a 2007 report, hovered around 21.4 per cent. It was dismally low for women — at 7.5 per cent. In some areas, such as Frontier Region Tank, only 0.5 per cent of women could read and write. The dropout rate at primary schools, which have fewer than 3,000 teachers, was recorded to be as high as 62 per cent.

This is in spite of the fact that Fata receives billions of rupees every year from the federal government. In the 2017-18 budget alone, 26.9 billion rupees were allocated for the region.

Fata’s economy is mostly limited to agriculture, drugs, weaponry, and legal and illegal trade with Afghanistan — especially through Khyber Agency. Marble, limestone, soapstone and copper are known to be abundantly available in different tribal agencies, but their mining remains way below the potential. Communications and transport infrastructure is as good as non-existent; Fata has no railways, no airports and the roads are insufficient and dilapidated. Many areas have limited access to natural gas and grid electricity so a large number of people have installed solar panels. Since 2016, internet services have also been suspended in Fata due to security reasons.

Hameed Ullah claims that all this will change for the worse if Fata is to merge with Khyber Pakhtunkhwa. The tribespeople will have even less national standing than they do now if they become part of the province, he says.

Habib Gul, a grey-eyed, middle-aged Afridi present at the gathering with Hameed Ullah, carries his argument forward, saying Khyber Pakhtunkhwa is a poor province that looks to international donors and the federal government to meet its own needs. “If it cannot manage itself, how will it manage us?” he asks. “There are districts in Khyber Pakhtunkhwa that are worse off than some tribal agencies.”

Others at the hujra have similar concerns. Revenue, police and judiciary in Khyber Pakhtunkhwa “are outdated and obviously not working”, says Haji Bazar Gul Afridi, president of a local political organisation called Khyber Union. “Why would we want to switch from a flawed system to a worse one? Why should a patwari (revenue clerk) demarcate our lands when we already know who they belong to?”

The tribesmen are not deterred from their opposition to the merger even by the fact that law and order is far worse in most of the tribal areas than in the rest of the country. Since 2001, when an American attack in Afghanistan targeted al-Qaeda bases and uprooted the Taliban administration from Kabul, many parts of Fata have seen nothing but violence.

Most of the Taliban and al-Qaeda leaders and fighters displaced from Afghanistan found shelter in various parts of Fata — in time spawning local militant outfits that divided different areas within the tribal lands between them to carry out terrorist attacks inside Pakistan. By 2007, these groups had coalesced together as the Tehreek-e-Taliban Pakistan (TTP), running their own administration in almost the whole of South Waziristan and North Waziristan agencies and in many parts of Orakzai, Kurram, Bajaur, Khyber and Mohmand.

Many military operations have been carried out in Fata since the early 2000s against these militants, the largest being operation Zarb-e-Azb launched in 2014 in North Waziristan. By now, security forces have evicted the Pakistani Taliban and their allies from most parts of Fata, except for a few holdouts.

Militant activity and military expeditions to counter it have resulted in large-scale displacement of tribesmen. Since 2008, when the army launched its first operation in Bara tehsil against banned militant outfits such as the TTP, Lashkar-e-Islam and Ansar-ul-Islam, over 91,000 people have been displaced from the area. This is the second highest number of internally displaced persons in Fata after North Waziristan’s 106,000 families who were forced to leave their houses and shift to nearby Bannu district at the launch of Zarb-e-Azb.

Those displaced from Orakzai have also taken up residence in adjoining Khyber Pakhtunkhwa districts, mainly Hangu, since 2010. For more than a decade, the agency’s administration, too, has been operating from Hangu city rather than from its original headquarters in Kalaya in Tirah Valley.

Persisting violence and militancy in Fata is one major reason why many politicians, academics and human rights activists have been arguing for putting an end to the region’s social, political and economic isolation. This isolation, they say, has allowed militants and extremist elements to take root and flourish in Fata.

But there is a murmur of agreement from the crowd in Bara as Habib Gul contends that violence is not a sufficient reason to proceed with the merger. Fata is not the only area suffering from violence, he argues. “Swat is a settled area. So are Peshawar, Quetta and Karachi. Haven’t there been full-scale militancy problems there as well?”

Liaquat Alikhel is a young malik, or a government-designated tribal elder, in Orakzai Agency. He and six other maliks – one of them as old as 105 – have waited for hours before they are allowed into the political agent’s intimidating boardroom in Hangu on a hot day in May this year. A map of Orakzai Agency covers an entire wall in the room. “Why not hold a referendum to see what people want?” suggests Liaquat Alikhel, as he starts discussing Fata’s possible merger with Khyber Pakhtunkhwa.

He says there are vast differences between the tribal areas and the settled districts. “Life in a district is an individual life, but our community living ensures more peace and a lower crime rate,” he says. “A man could die in the middle of Hangu bazaar and nobody will care but one man is the same as the whole tribe in Fata.” The system in the settled areas, he says, is not “for poor people like us who do not have the means, experience or education to compete in your games.”

Bacha Alikhel, an older malik, wipes sweat from his forehead with the tip of his turban before he starts to speak. “Don’t listen to those people who live in cities and reap benefits using a Fata domicile,” he says, wagging a finger. “Go into the heart of our land, away from the cities and into the mountains and ask people if they want to merge with Khyber Pakhtunkhwa.” Other maliks bang on the table to show their agreement.

A study conducted earlier this year by the Fata Research Centre, a think tank based in Islamabad, contradicts his views. It shows that 74 per cent of Fata’s residents favour the merger and only 23 per cent do not. There are, however, some nuances hidden behind these statistics: the number of those who oppose the merger is highest in Mohmand, at 39 per cent; 26 per cent are against the merger in South Waziristan; in Orakzai, the figure is as low as 19 per cent.

Bacha Alikhel’s biggest argument against the merger is that it will take away Fata’s autonomy. “I am self-reliant, and this is my own land. Why should I merge with anyone?” If there has to be any change at all, he says, “then give us our own province”. And if not, “leave us be the way we are”.

The quasi-self-rule that he so cherishes comes at a huge cost — the Frontier Crimes Regulation (FCR), a set of laws that the British first enforced in Fata in 1901 and that provides for detentions without charge, collective tribal responsibility for maintaining law and order and consequently collective punishment, and most importantly, a traditional jirga-based justice system that does not allow appeals against its decisions.

Although there is frequent hue and cry about this “black law”, there is little understanding outside Fata about what it entails. An FCR clause, for instance, provides that the administration can detain any number of a tribe’s members if it is deemed “unfriendly”. The officials can confiscate their property and bar their entry into the settled areas. An entire community can be made to pay a fine for a crime committed by a single individual. If someone is found wounded or killed near a village, “the members of the village community ... shall be deemed to have committed an offence”. The only way they can avoid punishment is to either prove that they did not get an opportunity to prevent the attack on the victim or by bringing the offender to justice.

The administration has the authority to “remove” houses, as well as entire villages and excommunicate individuals and communities. The biggest problem with the FCR is that it gives one government official – the political agent – the combined powers of an investigator, judge, jury, lawyer, mediator, administrator and legislator.

Pakistan inherited this ‘special’ law in 1947 and has continued to govern Fata the same way the British colonial administration did. Constitutional guarantees for human rights do not apply and the remit of many civilian institutions – such as courts, taxation authorities or police – does not extend to Fata.

The federal government’s committee on Fata’s future did not recommend an immediate end to the FCR. It called for a five-year transition period in which an interim set of laws – called the Rewaj Act and devised from a combination of customary practices, Pakistani laws and the FCR – would prevail.

The proposal has been criticised strongly. Alhaj Shah Jee Gul Afridi, a member of the National Assembly from Khyber Agency, deems the government proposal extremely flawed. “There are articles in the proposed law which include references to the FCR. How is that possible when the last article of the bill states that the FCR stands repealed?”

Latif Afridi, a senior lawyer working in Peshawar who is also a leader of the Awami National Party (ANP), believes it will be next to impossible to codify rewaj – or customary practices – because it varies from agency to agency.

Farhatullah Babar, a Pakistan Peoples Party (PPP) senator, similarly calls the proposed law a “reincarnation” of the FCR. The Rewaj Act, he says, is not consistent with Pakistani laws. “How can I pass a law that allows the selling of a woman for 800 Afghanis?” he says.

Parachinar, the headquarters of Kurram Agency, is bound by the perpetually snow-capped Koh-e-Sufaid mountain range to its north. It is surrounded on three sides by Nangarhar, Paktia and Khost provinces of Afghanistan and is geographically closer to Kabul than it is to Peshawar. It has only one road linking it to the rest of Pakistan through Hangu district.

Kurram is home to a sizeable Shia population. Consisting of Syed settlers, almost the whole of the Turi tribe and a major portion of the Bangash tribe, Shias live in the upper reaches of the agency. The unofficial line that divides them from Sunnis living in central and lower Kurram passes through Balish Khel area.

This sectarian divide has resulted in massive violence in Kurram, particularly in Parachinar. Most recently, on June 23 of this year, multiple blasts in a Parachinar bazaar left at least 67 people dead and 200 injured, prompting an eight-day sit-in which was called off only after Chief of Army Staff Qamar Javed Bajwa met the protesters and ensured them that their grievances would be addressed.

About a month before the blasts, Parachinar Press Club is hosting a small assembly of journalists, social workers and political leaders to discuss Fata’s proposed merger with Khyber Pakhtunkhwa. Bearded and bespectacled, Shabbir Hussain Sajidi, nearing 45, is general secretary of Muttahida Wahdatul Muslimeen in Kurram and he favours the proposal. He criticises the existing system of administration in the tribal areas which has virtually turned the political agent into a king. “What do you expect when you hand one person all three pillars of the state: legislature, judiciary and executive?” he says.

The concentration of power has made corruption rampant in Fata, Sajidi points out. “So much so that every post in every department is sold.” He also alleges that only informers of the administration are put on an official list from which jirga members are chosen. “Ever since our jirgas have become government-sanctioned, the going rate for each malik is known to everyone,” he says. This, he believes, will only end if the FCR-based judicial and administrative system – that gives maliks and political agents unrestricted authority – is wrapped up.

Dildar Hussain Turi, a malik and a participant at the event, offers anecdotal evidence to back up what Sajidi has said.

He has been involved in jirgas for seven years, he says, and claims that no jirga he knows of has reached a decision within six months. “It takes that long just to get together the people involved in a case,” he says. The parties to a dispute spend months lobbying maliks to get a verdict in their favour, he says. “I have seen them standing outside maliks’ houses, taking food for them, pleading to them, doing them favours. The entire exercise ends up costing millions of rupees and a lot of your time and peace of mind,” he adds, negating the notion that jirga justice is both speedy and inexpensive.

Turi – who claims to have been offered 200,000 rupees that very morning as a bribe – says being a jirga member provides great business opportunities to maliks who usually have no other source of income. Who would want to be a malik, he asks, considering that each of them gets an official stipend of no more than 4,000 rupees per month and they have to work entirely at the pleasure of a political agent — unless there is some additional incentive involved.

Turi knows 60 to 70 people from Kurram who, he claims, are in jail for no reason, a statement that elicits ready agreement from everyone in the room. He himself has been to jail twice this year. “[The political agent] had accused me of stealing a file from his office, but I was helped out by a local member of the National Assembly. Most others in the area do not have access to such support.”

Azmat Ali Alizai, a local news correspondent and a Human Rights Commission of Pakistan coordinator in Parachinar, cites the example of a man whose father and aunt were killed two years ago but who has received no justice so far. “The killers are roaming scot-free while a member of the victims’ family has been in jail for two years,” he says.

Alizai says he is no fan of the court system in the rest of Pakistan but argues, “It is unfair to let us continue under a flawed system just because the other one is not perfect.”

There is still a crucial difference between the two systems, says Sajidi. No authorities can drag a person to a jail from their house at 2 am in the settled areas, he says. At least, he adds, they will need an arrest warrant first. People in the settled areas also do not have to fear any consequences if they criticise their local administration, he says. “Go out on the street and ask anyone to say two things about the political agent,” he throws a challenge. “Everyone here voluntarily holds their tongues because they know what can happen to them. It is worse than the worst of tyrannies.”

Sajidi is also critical of the argument advanced by the opponents of the merger that joining Khyber Pakhtunkhwa will force them to forgo their centuries-old traditions. How is living under the FCR the same as living under our traditions, he asks.

“Regressive traditions should be done away with in any case,” he argues. “There needs to be some difference between 1901 and 2017.”

Nizamuddin Khan Salarzai, in his early thirties, heads the youth wing of the Pakistan Muslim League-Nawaz (PMLN) in Fata. His father, Shahabuddin Khan Salarzai, is a member of the National Assembly from the most populated tribal agency, Bajaur.

Sitting on the balcony of his hujra in his hometown of Pashat, with towering peaks on the Afghan border as the backdrop, the junior Salarzai rejects the possibility that the status quo in Fata can be maintained. The spirit of the traditional tribal system that once worked is long gone, he says. “Khans and maliks who commanded unconditional respect and were unblemished sources of justice have long been replaced by businessmen.” There is only nostalgia regarding the tribal system, he adds, which is used as an excuse by those who derive benefits from the FCR.

He says many things that are legal in Fata will become illegal after its merger with Khyber Pakhtunkhwa and that troubles people. “I have an anti-aircraft gun mounted on my rooftop here, but it is not a crime. If I kidnap someone to recover the money they owe me, it is not a crime. If I kill a woman and the man she is running away with, it is not a crime.” In Khyber Pakhtunkhwa, he says, all these are major crimes.

A graduate in public policy, he advocates a system with greater accountability where individuals can approach their representatives. “I can hold a sit-in outside Khyber Pakhtunkhwa Assembly and at least ask why I am being deprived of my rights,” he says. “Try starting a protest of 10 people on a street in Fata and see what happens.”

Salarzai believes that calls for a referendum on the merger are only a delaying tactic. “What do we possibly have to lose [from the merger]? We are already at rock bottom.”

He also does not see Fata as a viable separate province.

There is no connectivity among the agencies, not even geographic contiguity, he says. “If I want to travel to Waziristan from here, I will have to drive through [Khyber Pakhtunkhwa] 90 per cent of the way and when I get there I may not even understand the local dialect,” he says. “There are vast sociocultural differences between the tribes.”

He sees numerous other hurdles in the way of a separate province. “Where is its capital going to be? Will the capital be acceptable to everyone? How will we generate our revenue? Will seven agencies have the same number of senators as Punjab? Do we have an administrative cadre to run our own provincial affairs?”

He says tribal agencies have far more in common with the settled districts adjoining them than they do with each other. Bajaur has a shared history with Dir, Mohmand with Charsadda, Khyber with Peshawar, and so on, he says. Why not integrate them with those districts instead of integrating them with each other?

Fata’s residents first heard of changes in the status of their lands during then prime minister Zulfikar Ali Bhutto’s government. Bhutto had set up a committee under Major General (retd) Naseerullah Khan Babar in 1976 to recommend reforms in Fata’s administrative, judicial and political systems. One of the most important recommendations that the committee came up with was that Fata be merged with its adjacent settled districts. It could not be implemented as Bhutto’s government was toppled in a military coup the next year.

It was General Ziaul Haq who allocated Senate seats for Fata and adult franchise was first extended in 1996. Before that, only maliks voted to choose members of the National Assembly to represent the tribal areas. Fata parliamentarians, however, cannot legislate for their own areas since they are ruled directly by the president of Pakistan, without parliamentary oversight, through civil and military bureaucracies.

The next decade saw many important, but as yet unimplemented, suggestions. These include recommendations in 2006 by a former senior bureaucrat, Sahibzada Imtiaz Ahmad, who wanted the federal government to increase funds and administrative autonomy for the Fata Secretariat, the Peshawar-based administrative centre for the tribal areas.

In 2008, a committee headed by a former Supreme Court judge, Mian Muhammad Ajmal, recommended the appointment of a high court judge to hear appeals against decisions made by jirgas and political agents. The Shaheed Bhutto Foundation, a non-governmental organisation, organised a series of conferences across Fata the same year, demanding the government extend the Political Parties Act and the jurisdiction of superior courts to the tribal areas.

Some major changes came through an ordinance issued in 2011 by then president Asif Ali Zardari. It allowed political parties to open offices and carry out their activities freely across Fata and disallowed political agents – at least in theory – from arresting women, children under 16 and the elderly aged over 65.

The ordinance also fixed a time limit for the disposal of cases, introduced the concept of bail, provided for appeals against decisions by a jirga to be heard by the commissioner of an adjacent settled division, allowed compensation for false prosecutions, brought funds at the disposal of political agents under the purview of an official audit and made biannual jail inspection mandatory.

When the federal cabinet met on March 2 of this year, many expected it to make a decision that would surpass Zardari’s ordinance in terms of its impact on Fata. Everyone thought that the end of the FCR was nigh — everyone except Maulana Fazlur Rehman, chief of Jamiat Ulema-e-Islam Fazl, and Mahmood Khan Achakzai, head of the Pakhtunkhwa Milli Awami Party. The two parties are PMLN’s partners in the ruling coalition in Islamabad, yet they are strongly opposed to the government’s proposal.

“Those speaking about Fata know nothing about the region,” Achakzai is reported as saying in the National Assembly. “Only the local people have a right to decide their fate and a merger should not be pushed without their consent,” he added.

Rehman alleged the merger to be part of a foreign agenda and claimed that 80 per cent of Fata residents were against it. His party’s spokesperson, Abdul Jalil Jan, takes a slightly different stance. If people in Fata favour the merger, he says, then JUI-F has nothing against it. “All we are saying is that a referendum should be held to determine what they want.” Otherwise, he adds, “If the government wants to impose its will undemocratically on the people of Fata like the British did, then so be it.”

Rehman, who would rather have Fata become a separate province than merge with Khyber Pakhtunkhwa, opposed the official committee’s recommendations so vehemently that the federal cabinet balked at the last moment from giving the merger a go-ahead. It decided that Fata was not to be merged with Khyber Pakhtunkhwa immediately; instead, it was to be brought “into the mainstream” first.

Fata parliamentarians subsequently organised a multi-party conference in Islamabad on May 6 to protest the cabinet decision. They threatened to hold a march if the merger was not approved by May 20. Under pressure from them, the federal government started considering the matter again but Rehman is said to have made a phone call to then prime minister Nawaz Sharif, who was on a visit to Hong Kong, to protest against the move. Sharif immediately sent instructions back home to put the plans on hold till his return to the country. Other judicial and political developments, including Sharif’s ouster from office, have since taken over the time and imagination of the media and the political class.

“We have not given up on this yet,” insists Iqbal Zafar Jhagra, a PMLN leader who heads Fata’s administration by virtue of being Khyber Pakhtunkhwa’s governor. “In fact, we have already started working on the first step, which is the repatriation of people displaced by conflict.” He concedes that Rehman’s reservations are the primary hurdle in moving ahead with the merger. “[Nawaz Sharif] wanted all parties on board before such a major step could be taken,” he says, adding that he expects some major developments to take place before the next general elections.

Jhagra, who was a member of the federal government’s committee on Fata, denies reports that the military establishment also does not favour the merger. “The military only wants that the merger is not rushed through,” he says. “That is why we have recommended the process to take place in two phases over 10 years.”

Shah Jee Gul Afridi, on the other hand, wants Fata to be back on the political agenda as early as possible. “[Earlier], we set August 14 as the deadline [for the launch of a protest movement] but it was called off given the state of political affairs after Nawaz Sharif’s disqualification,” he says.

There is clearly a lack of consensus on how best Fata should move into the future and when.

This was originally published in the Herald's September 2017 issue under the headline "From tribe to province". To read more subscribe to the Herald in print.

The writer is a staffer at the Herald.