THERE is a dire need for changes in the system of governance in the Federally Administered Tribal Areas (Fata) but given a highly conservative society, they cannot be achieved in any radical manner.

The British and earlier rulers were interested in the control of the routes passing through the tribal areas. The Frontier Crimes Regulation (FCR) of 1901, which remains in force, was not invented by the British but in fact codified the existing practices in the area.

These arrangements were acceptable to both the British and the tribes. The former had control over the routes and the latter retained the independence to administer the interior according to their traditions. If the tribes misbehaved, the British sent punitive expeditions against them while the government used to pay maliki, lunge, muajib and khasadari allowances to the tribes as remuneration.

Wings of the Frontier Corps manned the garrisons and escorted convoys while the Frontier Constabulary manned the borders between the settled and tribal areas in addition to conducting trivial punitive raids after petty criminals. Political agents and other staff had huge power and were the administrators of this system. Since these officers were selected for their boldness and personal integrity, the system worked well.

In 1948, through a jirga decision the tribal areas acceded to the state of Pakistan on the basis of a promise made by Jinnah that all agreements between the tribes and the former British government would be respected. Resultantly, we now have the same governance system in place even though the objective situation on the ground has changed totally. The system has no relevance to the current environment and is not only against the interests of the ordinary tribesmen it has also kept the area underdeveloped.

While there is consensus on the need for a change in the system, we lack the ingenuity and determination for it. Additionally, there is strong opposition by vested-interest mafias. Law and order cannot be separated from a comprehensive reform agenda that must be implemented gradually, say over five years or so.

Given the current situation, when security forces are reclaiming control of some of the area, it is not possible to suddenly alter Fata's governance system in attempting this we may lose control over the area completely. As the security apparatus degrades the forces that have taken the tribes hostage, the political administration must call upon traditional forums to retake control as per tradition. At this critical juncture it is not advisable to tinker with the system.

Those who talk of doing away with or amending the FCR overlook the fact that the FCR is not just a document tabulating crime and punishment but pertains to the entire system of governance in Fata. The legal instruments connecting Fata to the federation of Pakistan are Articles 246 and 247 of the 1973 constitution as well as Clause 1 that lists Fata as a separate federating unit of the country in addition to the four provinces. Those who make too much of the adult franchise in Fata forget that it enables Fata MPs to sit in the federal cabinet but does not allow the extension of this system of governance to these ministers' constituencies. This is because Fata acceded to the state — not the government — of Pakistan. In other words Pakistan's systems of governance including policing, revenue collection, the judiciary and parliament are not acceptable to the tribes.

The responsibility for maintaining law and order has been assigned to the tribes which are paid through khasadari allowances. If they fail in this task the only instrument available to the state is collective and territorial responsibility. The dark side of the FCR and human rights notwithstanding, the people here actually have more rights than other citizens.

Consider that a tribesman can buy land or conduct business anywhere in Pakistan but no non-local citizen can own land or conduct business in the tribal areas without the express permission of the tribe concerned, upon which he is totally dependent the government has no legal power to protect the citizen or his business.

The tribesmen demand development funds but are not prepared to pay taxes. I am not mentioning money collected by the political agents or the FC because that is not deposited in the government treasury — and hence the corruption.

The control of routes through the tribal area is no longer a governmental priority except for trade with Afghanistan and the Central Asian republics. The Pakistan government's aim should be to develop Fata and bring it into the mainstream.

The four basic functions of the state are the ability to levy and collect taxes in a transparent manner, their judicious spending on development and welfare, the ability to take cognisance of crimes to protect citizens' lives and property and to provide justice.

To achieve this in the tribal areas the government needs to work out the modalities before considering the withdrawal of the FCR. If the word 'police' is offensive to the tribes they may find Amniat Force or Amniat Chowki acceptable.

Similarly, integrating the jirgas with the courts could produce a hybrid system that may be worth emulating elsewhere. The aim must be to dovetail government control into the area's traditional systems and makes the ordinary tribesman a stakeholder. Only then can results be produced.

Such reforms have already been worked out in minute detail and are available to the government — each new administration need not start all over again. These include the reorganisation of the law-enforcement systems and financial, judicial, structural and administrative reforms. What is needed is the will and determination to implement them.

Reforms in Fata are long overdue but they cannot be brought about in a radical manner. A dedicated team with adequate knowledge and motivation must implement a carefully worked-out agenda over time.

The writer is a retired brigadier and former secretary Fata and home-secretary Khyber Pakhtunkhwa.

mahmoodshah@mahmoodshah.com