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IN November 2015, the prime minister constituted the Fata Reforms Committee. In August, the committee submitted its report to him (rather than the president as constitutionally mandated).
It recommended the prime minister convene a meeting of all political parties to secure a grand consensus. The president and prime minister may then jointly convene a combined jirga in Peshawar to announce the reforms.
The committee could not have been unaware of the president’s powers with respect to the tribal areas under Article 247(6) of the Constitution.
For changing the status of any tribal area, the president has to ascertain the people’s views through a representative jirga. The report, however, appears to favour political interests over the area’s people — in part due to its political composition. Issues with the report may have resulted from a lack of expertise and knowledge of Fata.
Meaningful reforms will not be that easy to achieve.
In outlining Fata’s history, the report borrows heavily from earlier reports. The closed-door and open-door policies receive mention, but not the aggressive ‘forward policy’ preceding them, which carried British influence far into Afghanistan and led to Kabul’s occupation in 1839. Not long after, suggestions were made that Kabul become the summer capital of British India — but a violent uprising erupted in 1841. With Elphinstone’s army decimated, the British suffered one of their worst military defeats. Lessons learnt from the First Anglo-Afghan War led to the closed-door policy.
The report unjustly criticises the British for not developing the areas. Give the devil its due; it was British blood and genius that brought the previously ungoverned area of Yaghistan under its yoke. That yoke served Pakistan well for about five decades. Ask any political agent alive and he will tell you that the people themselves resisted every effort of the government to open up. Roads, hospitals, schools, etc were considered inroads into their autonomy.
The report avoids the question of the Taliban’s rise in Fata. The 267 drone attacks that occurred there since 2004 have gone unnoticed.
Recent upheavals in the region overshadow its history — a report that does not account for this lacks authority.
The committee’s most-touted recommendation is repeal of the FCR, replacing it with the proposed ‘Tribal Areas Riwaj Act’. This retains the jirga system to decide on all criminal and civil cases according to riwaj. The only difference is that the jirga will be appointed by a judge and not the political agent, which is not likely to make any difference. The old is simply being repackaged.
The report recommends the abolition of collective responsibility. This is not a foreign concept; it is what has remained in practice among these tribes for generations. It is an integral part of riwaj.
How can the report validate riwaj but outlaw collective responsibility? Was the committee assured by jirgas they would no longer practise collective responsibility? It appears the committee succumbed to a popular slogan in the media.
The report vaguely recommends that riwaj be purged of all human rights violations. With the exception of the Turis in Kurram Agency, riwaj is not codified but exists in the minds of elders; it is the sum total of their years of experience. To reject a jirga decision on the basis of human rights as understood by others will be considered intrusive.
Another proposal is extending the Supreme Court and high courts’ jurisdiction to Fata. Jirga proceedings are not conducted according to the Code of Criminal Procedure, and parties must represent themselves. In the Dosso case verdict, Justice Cornelius wrote, “But for a jirga acting honestly, there is no duty except that ascertaining the truth by whatever means that may be available to them, and there can be no doubt that in the Frontier Areas, those means can hardly be confined with any hope of success within the rigid requirements of law of evidence and the Criminal Procedure Act.” If that be the case, how do federal courts expect to look into jirgas’ decisions?
Despite its flaws, a positive recommendation is for IDPs’ rehabilitation for which the report recommends funding with three per cent of resources of the divisible pool of Rs90 billion on an annual basis, in addition to existing resources, for the 10-year plan.
Finally, it recommends that Fata should merge with Khyber Pakhtunkhwa in five years’ time without detailing the specifics on how to prepare for or conduct this merger. In his enthusiasm for receiving Fata, the KP chief minister fails to realise that a complex burden is being removed from the president’s shoulders and being placed on his. If he chooses to accept the burden, then so be it.
The writer is a former federal secretary and minister.
Published in Dawn October 3rd, 2016
