Problems in Fata’s merger with Khyber Pakhtunkhwa

Aman Ali and Sajjad were in their teens when they died earlier this year.

They were hired by one Haji Speen Khan to have his sister’s son, Sher Rahman, murdered. The uncle and the nephew had a dispute over some agricultural land in Sagi Bala village in what until recently was the Mohmand tribal agency.

On the morning of October 4, the two teenagers shot firearms at Rahman in Sagi Bala, killing him on the spot. His cousin, Abdur Rasheed, who was with him at the time, returned the fire which hit Aman, leaving him wounded and bleeding. Sajjad still managed to drive him away from the site of the murder on a motorcycle.

After travelling about a kilometre, they left the motorcycle and got into a taxi to reach a nearby private healthcare facility. Sajjad left Aman there so that he could get some treatment. He himself went to a checkpoint of the Frontier Corps (FC), a paramilitary force deployed in Mohmand to ward off terrorism. There, he confessed to his crime.

Aman and Sajjad both belonged to Ghazi Beg village, which is also in Mohmand, but the latter’s family had moved to nearby Charsadda district in Khyber Pakhtunkhwa some years ago.

Back in Sagi Bala, local men came out of their houses as soon as they heard about the murder and started looking en masse for the murderers. When they came to know that Aman was at the healthcare facility, they rushed there, forced him out of his sick bed, took him to an open space and stoned him to death.

Then they moved to the checkpoint to get Sajjad. Sensing the hostile mood of the crowd, the FC men told Sajjad to leave. He was shot dead by a villager as soon as he left the checkpoint.

The next day, the villagers raised a lashkar, a tribal militia, to punish Haji Speen Khan. They accused him of breaching a local agreement reached in 2003 against the use of hired assassins.

That year, someone from the village hired an assassin to have his rival killed but the villagers apprehended the assassin, killed him and set his body on fire. They then resolved that any resident of Sagi Bala who hired an assassin would have to face a fine, the burning down of his house and a permanent exile from the village.

The lashkar wanted to impose all these penalties against Haji Speen Khan but government officials posted in the area became involved before that could happen. The officials, instead, convened a jirga, a council of local tribal elders, to resolve the conflict. The jirga decided not to impose any fine on Haji Speen Khan and also to let him stay in the village, but his house was still to be burnt down. The jirga also handed over to the government 36 people who were among the crowd that had chased and killed the assassins.

The outcome of the jirga could have been more drastic if Mohmand was still a tribal agency, with its own system of retribution and collective punishment endorsed by the government under the Frontier Crimes Regulation (FCR). Imposed by the British in 1901, the regulation gave the residents of tribal agencies a high level of autonomy in organising their personal, religious, social and economic lives in exchange for accepting collective responsibility for the maintenance of public order.

Now, under the 25th Constitutional Amendment passed by the Parliament in May this year, the agency is in the process of being merged politically, administratively and judicially with Khyber Pakhtunkhwa. As are six other agencies and their adjacent Frontier Regions, all part of the defunct Federally Administered Tribal Areas (Fata) located in north and northwest Pakistan. The old customary system of justice is now under pressure to follow provincial and federal laws.

On May 25, 2018, the president of Pakistan issued an interim order, the Fata Interim Governance Regulation (FIGR) to replace the FCR. Six months later, a new administrative and judicial setup is yet to emerge in the tribal regions. It was this vacuum that showed itself glaringly in the jirga’s proceedings at Sagi Bala.

Since there is no police in the tribal regions to arrest those involved in a crime, a jirga representing all the tribes in a particular area is perhaps the only means available to the administration to ensure that crimes do not go unnoticed and unpunished. Also, while the government is yet to appoint judges in the former tribal agencies, their old judicial system presided over by officials of the civilian administration has all but become dysfunctional.

Under the FCR, trials were conducted by an assistant political agent who also headed the administration in a tribal sub-division. Challenges to his decisions were heard by the commissioner of the division closest to a tribal agency. A final appeal could be lodged before a three-member tribunal appointed by the government and comprising two senior bureaucrats and a lawyer eligible to be a high court judge and conversant in tribal traditions and customs collectively called rivaj.

The transitional system now in place initially kept the first two judicial forums intact: an assistant commissioner would hear cases and a commissioner was authorised to take up appeals against his verdicts. The appellate tribunal, however, was replaced by the Peshawar High Court.

On November 12, the Peshawar High Court upended this arrangement. A two-judge bench of the court ruled that the judicial authority being exercised by executive officers in tribal regions was unconstitutional and against the principle of separation of powers. Executive officials posted in the former Fata are no longer authorised to conduct a trial and punish the perpetrators of a crime.

Dispute resolution is now entirely dependent upon jirgas — and will remain so until a new system of justice is set up in the tribal lands.

A case in Tirah valley, a remote mountainous region in Khyber tribal district, highlights how this is bad news for those falling on the wrong side of jirga justice.

A local girl and boy eloped from the valley in August. They travelled to Sadda, a town in the nearby Kurram tribal region and found refuge there in a hotel. The girl’s relatives traced them there and tried to take them back to Tirah by force. The resulting skirmish attracted the attention of the district administration in Kurram which briefly detained the men harassing the girl and the boy.

A month later, an eight-member jirga got together in Tirah valley. It had equal representation from the Bar Qambar Khel and Malik Din Khel tribes, respectively representing the girl and the boy. The jirga unanimously decided that the girl’s tribe had the right to kill both of them wherever and whenever they were found.

Even when the decision violates the law of the land, local authorities have no administrative and judicial tools to stop the tribespeople from implementing it. The tribespeople, on the other hand, consider it their right to do so under their traditional code of honour.

As a tribal elder, a malak, in Mohmand puts it: “We cannot spare a girl who brings a bad name to her family and tribe by eloping with somebody.”

The FCR is universally known as a draconian law meant to keep an entire people subjugated. The demand for its replacement with Pakistani laws and constitutional guarantees has been one of the major reasons why Fata is being merged finally with Khyber Pakhtunkhwa.

For many observers and analysts, therefore, it may come as a shock that some people in the fast fading Fata are looking back at some parts of the FCR favourably now that it has been abolished. Shah Wali Khan Mamond, a malak in Ber Khalozo village in Mamond sub-division of the Bajaur tribal region, is one such person. According to him, people were taken into official detention under the FCR only from public places and also just to ensure that they handed over to the authorities those individuals who were wanted for a crime.

Now people are being arrested from within their homes and being personally targeted, he alleges.

And some of the blackest provisions of the FCR still seem to exist in practice even after they have been abolished on paper. If, for instance, there is a bomb blast in any part of a tribal area, security forces take people into custody as a group just as they did under the FCR’s collective and territorial responsibility clauses, Mamond says.

Saeedur Rahman, who belongs to the same area in Bajaur, describes how the administration arrested nine people from his village while they were praying in a mosque. They were detained and interrogated in connection with the murder of a government security official but were all released later.

Government officials argue that, even with the FCR gone, they still have powers to make collective arrests. Anwarul Haq, assistant political agent of Nawagai sub-division in Bajaur, says he has the authority to make such arrests under Section 107 of the Criminal Procedure Code. The law allows him to detain people if they are deemed as threats to the maintenance of public peace, he says.

The heady aroma of the cannabis plant, locally called bhang, greets visitors as they enter Mastak village in Tirah valley. Almost all local farmers cultivate it as their main cash crop — just as their fathers and forefathers did before them.

The crop is almost ready for harvesting in early November. Soon, it will be reaped, tied in small sheaves and placed vertically in the open. When it snows in the coming weeks, dampness will seep through the harvested plants and increase their potency. Some rudimentary processing afterwards will turn them into high quality hashish — or charas, as everyone in Pakistan calls it.

The entire local economy works around hashish. “We have no alternative source of income here,” says Hajat Khan, who comes from the Ber Kambarkhel clan of the Afridi tribe in Maidan area of Tirah valley.

A tall, barrel-chested old man with a long beard that he has dyed jet black, he says most people in Tirah never have enough cash to meet their needs. “So they have to get loans for everything.”

Villagers buy groceries, clothes, shoes, etc, on credit and borrow money to pay their medical bills and marry off their children. These loans are paid back after the annual hashish proceeds materialise.

Hajat Khan has cultivated bhang on a two-acre plot of land and expects to earn around one million rupees from it. Almost everyone in Maidan has similar expectations from their bhang crop.

The only other crop that the harsh weather in Tirah valley allows is maize but an acre of maize yields only 50,000 rupees — 10 times less than what an acre of bhang does. This is too meagre to make ends meet, says Hajat Khan.

Now that the valley is being merged with Khyber Pakhtunkhwa, local farmers are not sure if they could still be growing bhang in the coming crop cycle. Under various Pakistani laws, growing bhang and processing and selling it as hashish are punishable offences.

A ban on the cultivation of bhang will leave the economy in Tirah crippled unless the government takes some urgent remedial measures. Local residents demand the authorities set up some large-scale industrial units there. That may not be feasible — not, at least, in the short term. The area’s remoteness, its total lack of communication infrastructure – such as roads, phones and electricity – and its inclement weather and rugged terrain make it one of the least suitable parts of the country for industrialisation.

Providing government jobs to local youth could be another option but there are few people around who fulfil the criterion even for the lowest government jobs. Literacy rate in Tirah is among the lowest in the whole of Pakistan, mainly because two decades of religious militancy has destroyed the local educational network. Not a single state-run primary school in the whole valley, according to local residents, is functional. The ones that are being built anew – 28 of them – will take quite some time before their students enter the job market.

Under these circumstances, making bhang a contraband, as it is in the rest of Pakistan, may leave the people of the area with only one option: to migrate to other parts of the country.

Hundreds of makers and sellers of arms and armament in Darra Adamkhel, a former Frontier Region now being merged into Kohat district, are similarly unsure about the future of their trade. In order to allow them to continue making and marketing weapons, the provincial government will have to amend a number of laws, including those concerning crime and punishment. That process will not only need a lot of cajoling and convincing of the provincial administration but also approval by a majority of provincial legislators — challenges that arms manufacturers and dealers will find hard to tackle.

Ajmal Khan Wazir, a spokesman of the Khyber Pakhtunkhwa government, says provincial authorities are mindful of the business and financial potentials of various resources and skills found in the tribal regions. He, however, does not divulge any concrete plans to put these resources and skills to a productive, and also legal, use.

On a partially cloudy day on October 25 this year, scores of malaks gathered at an open space in Ghazi Beg village in Mohmand. The gathering was convened to discuss the problems emerging from Fata’s merger with Khyber Pakhtunkhwa.

After the consultation ended, its participants learnt that a senior police officer from the nearby district of Mardan, a deputy inspector general, was visiting some parts of Mohmand to scout for sites where police stations could be set up. The information infuriated them. They hurried in their vehicles towards Ghalanai, the headquarters of Mohmand, to have a meeting with the local administration. They used a loudspeaker in a mosque along the way to mobilise local residents to join them. When a sizeable crowd gathered, they decided not to meet the officials and, instead, blocked a road that joins different parts of Mohmand.

The protest left the police officer on a scouting mission stranded. An assistant commissioner and an FC officer rushed to the spot of the blockade to get the road opened for him. The two talked to the tribespeople who insisted that they would end their protest only if the police officer immediately went back — also through some other route. Traffic resumed after three hours but not before the protesters got what they were asking for.

Haji Malik Sultan, a stout middle-aged man sporting a long greying beard and wearing a woolen cap, was a leader of the protesters. He once raised a tribal militia in his hometown of Baizai next to the Pak-Afghan border to fight against the Taliban — and suffered a great deal as a consequence. As many as 35 of his tribesmen lost their lives at the hands of the terrorists. Some of them were members of his own family.

Sultan says people from all the tribal regions met with the governor of Khyber Pakhtunkhwa a few weeks before the blockade and he assured them that they would be taken into confidence about any changes in the administrative system in the tribal regions. “The government betrayed us by sending the officer without taking us into confidence,” he says.

The tribes people were also upset at the government’s priorities. “We want education and healthcare before anything else but the government wants to give us police and prisons first,” says Sultan.

There are reasons why they want what they want. In Bajaur alone, according to an education department official, 200 villages do not have a single government-run school.

Shahabuddin Khan was 23 when in 1993 he first visited the office of a political agent, the highest government official in his native Bajaur. A recent law graduate at the time, he needed a hunting permit. The official gave him the permit immediately.

As Shahabuddin Khan was leaving the office, the political agent also handed him an envelope. When he opened the envelope, he found 13,000 rupees in it. He did not know what they were for. His father, a local malak, later explained to him that the administration gave such gifts routinely to malaks. The practice of keeping them happy at the cost of collective development in Fata has gone on for generations — and seems to be continuing even now. 

Shahabuddin Khan cites the example of two degree colleges to prove his point. He had the colleges approved for Bajaur when he was representing the area as a member of the National Assembly in 2013-18. Their construction was to be completed in 2016 and classes were to start in 2017.

But construction has not even started yet, he says. “The administration kept on delaying the project under one pretext or the other.”

Ajmal Khan Wazir denies that the provincial government is not serious about the social and economic development of the erstwhile Fata. He also says it is not true that police stations are being set up before schools and hospitals. “Work on health and education infrastructure and police stations will proceed simultaneously,” he says.

The government of Khyber Pakhtunkhwa, he claims, has completed 99 per cent of its paper work to extend all its line departments to Fata but these departments will become functional only after the federal government provides money for the construction of offices and recruitment of staff. This money, according to him, will arrive once Fata gets its three per cent share from the National Finance Commission Award (that distributes federal financial resources among all the regions in the country).

According to Wazir, the federal government will not take long to ensure the release of money. Prime Minister Imran Khan recently announced that the financial resources needed for Fata will be made available soon, he says.

The writer is a staffer at the Herald.

This article was published in the Herald's December 2018 issue. To read more subscribe to the Herald in print.