THIS may come as a shock to many, but Pakistan’s erstwhile tribal region — the now settled tribal districts of Khyber Pakhtunkhwa — has been operating in a legal and constitutional void and administrative vacuum for the past 10 days, officials Dawn spoke to and documents filed in the apex court revealed.

The blitzkrieg speed with which the 25th Amendment was pushed through the parliament on May 24 just over a week before the caretaker government was sworn in and the hurriedly drafted and promulgated Fata Interim Governance Regulation on May 29 spawned a complex set of problems that no one seems to have a ready and quick answer to.

Also read: The economics of mainstreaming Fata

The scrapping of Article 247, which could have provided constitutional cover to an interim arrangement in the erstwhile Fata for five years as originally recommended by the Sartaj Aziz committee till arrangements were made to establish courts and extend criminal and judicial system to the tribal districts, led to the ultimate unravelling of Fata Interim Governance Regulation (FIGR), according to the documents and officials. The FIGR replaced 1901 Frontier Crimes Regulation for the dispensation of justice.

The Fata merger: Towards a brave new world

The Peshawar High Court in its judgement on October 30, 2018 declared the FIGR as ultra vires of the Constitution, saying it violated the constitutionally binding principles of separation of the judiciary from the executive by allowing commissioners and deputy commissioners to act as judges and council of elders to decide civil and criminal cases.

Declaring Fata Interim Governance Regulation illegal, PHC had asked KP govt to separate executive from judiciary in tribal districts by Nov 30

Significantly, the PHC gave one month to the Khyber Pakhtunkhwa government to establish a system for the administration of justice ensuring the separation of the executive from the judiciary for the erstwhile Fata. The one-month period given in the PHC judgement expired on November 30 resulting in an administrative, legal and constitutional vacuum.

The erstwhile political agents and assistant political agents in Fata renamed as deputy commissioners and assistant commissioners with judicial powers to adjudicate cases under the FIGR now stand stripped of any legal or administrative authority.

In the words of a senior administration official, “We are now operating largely on bluffs.

“We have no legal authority to entertain any criminal or civil complaint, make arrests, impose penalty or enforce law and order. It is squarely the goodwill of the nearly five million people in roughly 27, 000 square-kilometre area that the state authority is respected and upheld.”

“Legal uncertainty, administrative vacuum and institutional incapacity”, a review petition filed by the KP government in the apex court warns, “could generate “public unrest” as had been seen in the recent history which “ultimately snowballed into uprising and militancy”.

Citing lack of huge funds and resources to establish institutions such as police, prosecution, judiciary and prison in the erstwhile Fata, the KP government is now seeking reprieve from the apex court for the continuation of FIGR for at least five years to remain in force in the area. Officials said the apex court accepted its plea for an early hearing of the appeal in view of the dire situation in the tribal districts and is likely to take up the case later this week.

At the root is not just lack of legal foresight to see through the issue while pushing the amendment through the parliament to do away with the previous status of Fata, resulting in a legal and administrative vacuum, but also the lack of leadership, vision and focus required to resolve some of the most complex issues facing the people in the region.

Who will bell the cat?

Resultantly, confusion abounds. Prime Minister Imran Khan constituted an 11-member task force on September 6 to identify impediments and facilitate the merger process. Adviser to the Prime Minister on Establishment Arbab Mohammad Shehzad, who was made convener of the task force, was replaced the very next day by KP Governor Shah Farman. The task force has had two meetings since then and has made little progress.

Adding to the confusion, the KP government came up with its own inter-ministerial committee on November 27. Mandated to “set strategic and policy level directions, reviewing PSDP and ADP projects, propose reform initiatives, liaise with the police and other law enforcement agencies and review local government initiatives, amongst others, the committee is now being dispensed with two weeks after its creation, according to KP Information Minister Shaukat Yousafzai. Led by senior minister Atif Khan, the committee has yet to meet.

And then there is the apex committee comprising senior political and military leadership at the KP level. There has been back and forth on suggestions and recommendation between the apex committee and the provincial government but nothing so far seems to have materialised, according to officials familiar with the exchanges.

Take the issue of Fata secretariat as an example. Prime Minister Khan directed its abolition and merger with KP civil secretariat for smooth administrative transition, overruling the concept of a truncated secretariat. After a lot of debate and exhortation by KP’s legal advisers the federal cabinet agreed that the decision to merge rested with the KP cabinet. But the cabinet decision, too, it later transpired, was not final and that it was to be decided by the inter-ministerial committee to discuss its pros and cons.

Mr Yousafzai, however, told Dawn on Monday that since PM Khan had already directed the secretariat merger with KP, there was no need for the inter-ministerial committee to do any further deliberations on the matter and was hence being dispensed with.

The power struggle

Those who are familiar with the situation say this could be the result of a tug of war between KP Chief Minister Mahmood Khan and two of his cabinet colleagues. Both sides are jostling for space and power. To add to the CM’s woes is Governor Shah Farman, who is stripped of his constitutional powers to oversee the affairs in the erstwhile Fata, but is still trying to retain some sort of control.

“There is free rolling and no discipline,” commented one such source. “Police are out on a solo flight in the tribal district, suspecting the bureaucracy is out to undermine them, while the bureaucracy is miffed that the civil armed force unilateral ambitious plans could lead to more potential problems vis-à-vis the resistance from the tribal people.”

“This [current situation] is because you have a weak leadership,” said sources aware of the development. “CM Mahmood is either unable to or is incapable to assert himself. It is not very different from what is being seen in the Punjab. The CM’s main area of interest is transfer and postings. Some of the good initiatives undertaken in the last PTI government now seem to be going down the drain,” commented one such source. “There is no sense of urgency when it comes to the tribal districts.”

Meanwhile, the promised Rs100 billion annual development fund for the tribal districts for the next 10 years is nowhere in sight, pending a meeting and approval of the National Finance Commission. It was only last week the federal government informed KP government that it could prepare an ADP. Also, it was indicated that the federal government would continue to pick up the tab for the salaries of its employees in the erstwhile Fata till the NFC made its decision on the matter.

This means that not only the tribal districts would have to wait for the promised fund to better the lives of the people, the local government system and anything related to the extension of civil and criminal justice system, police and other institutions would also have to wait until then. With the fate of khasadars and levies hanging in the balance, no one knows what happens next.

Published in Dawn, December 11th, 2018